diff options
| -rw-r--r-- | .gitattributes | 3 | ||||
| -rw-r--r-- | 78300-0.txt | 17550 | ||||
| -rw-r--r-- | 78300-h/78300-h.htm | 21269 | ||||
| -rw-r--r-- | 78300-h/images/cover.jpg | bin | 0 -> 1611188 bytes | |||
| -rw-r--r-- | LICENSE.txt | 11 | ||||
| -rw-r--r-- | README.md | 2 |
6 files changed, 38835 insertions, 0 deletions
diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/78300-0.txt b/78300-0.txt new file mode 100644 index 0000000..994915f --- /dev/null +++ b/78300-0.txt @@ -0,0 +1,17550 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 78300 *** + +------------------------------------------------------------------------ + + Transcriber’s Note: + +This version of the text cannot represent certain typographical effects. +Italics are delimited with the ‘_’ character as _italic_. + +Footnotes have been moved to follow the paragraphs in which they are +referenced. + +All Essays were subdivided into titled sections except Essay I (Roman +and British Empires) and Essay IV. (Primitive Iceland). + +The table of contents includes references to the Essays in Volume II. + +Minor errors, attributable to the printer, have been corrected. Please +see the transcriber’s note at the end of this text for details regarding +the handling of any textual issues encountered during its preparation. + + STUDIES + + IN + + HISTORY AND JURISPRUDENCE + + + + + HENRY FROWDE, M.A. + PUBLISHER TO THE UNIVERSITY OF OXFORD + LONDON, EDINBURGH + NEW YORK + + + + + STUDIES + IN HISTORY AND + JURISPRUDENCE + + BY + + JAMES BRYCE, D.C.L. + + AUTHOR OF + ‘THE HOLY ROMAN EMPIRE,’ ‘THE AMERICAN COMMONWEALTH,’ ETC. + FORMERLY REGIUS PROFESSOR OF CIVIL LAW IN THE UNIVERSITY + OF OXFORD; HONORARY FELLOW OF ORIEL AND TRINITY + COLLEGES, CORRESPONDING MEMBER OF THE + INSTITUTE OF FRANCE + + + + + IN TWO VOLUMES + + VOLUME I + + + + + + OXFORD + AT THE CLARENDON PRESS + 1901 + + OXFORD + + PRINTED AT THE CLARENDON PRESS + + BY HORACE HART, M.A. + PRINTER TO THE UNIVERSITY + +THESE VOLUMES WERE TO HAVE BEEN OFFERED TO HENRY SIDGWICK (LATE +PROFESSOR OF MORAL PHILOSOPHY IN THE UNIVERSITY OF CAMBRIDGE) WITH WHOM +I HAD OFTEN DISCUSSED THE TOPICS THEY DEAL WITH, AND IN WHOM I HAD +ADMIRED, DURING AN INTIMATE FRIENDSHIP OF NEARLY FORTY YEARS, A SUBTLE +AND FERTILE MIND, A CHARACTER OF SINGULAR PURITY AND BEAUTY, AND AN +UNFAILING LOVE OF TRUTH. + + THEY ARE NOW DEDICATED TO HIS MEMORY. + + + + + PREFACE + + +These volumes contain a collection of Studies composed at different +times over a long series of years. They treat of diverse topics: yet +through many of them there runs a common thread, that of a comparison +between the history and law of Rome and the history and law of England. +I have handled this comparison from several points of view, even at the +risk of some little repetition, applying it in one essay to the growth +of the Roman and British Empires (Essay I), in another to the extension +over the world of their respective legal systems (Essay II), in another +to their Constitutions (Essay III), in others to their legislation +(Essays XIV and XV), in another to an important branch of their private +civil law (Essay XVI). The topic is one profitable to a student of the +history of either nation; and it has not been largely treated by any +writers known to me; as indeed few of our best known historians touch +upon the legal aspects of history. + +Two Essays (III and IV) embody an effort to examine political +constitutions generally from comparatively unfamiliar points of view. +Five (IX, X, XI, XII and XIII) are devoted to the discussion, in a +non-technical way, of problems in jurisprudence which have both a +theoretical and a historical—to some extent also a practical—side. +Another sketches in outline the early history of Iceland, and the very +peculiar constitution of the primitive Icelandic Republic. Three others +relate to modern constitutions. One contains reflections on the history +of the constitution of the United States, a second describes the systems +of the two Dutch Republics in South Africa, and a third analyses and +comments on the constitution recently created for the new Commonwealth +of Australia. + +My aim throughout the book has been to bring out the importance, +sometimes overlooked, of the constitutional and legal element in +history, and to present topics which, because somewhat technical, often +repel people by their apparent dryness, in a way which shall make them +at least intelligible—since they can hardly be made seductive—to a +reader who does not add to a fair general knowledge of history any +special knowledge of law. Technicalities cannot be wholly avoided; but I +hope to have indulged in none that were not absolutely necessary. + +The longer one lives the more is one impressed by the close connexion +between the old Greco-Italian world and our own. We are still very near +the ancients; and have still much to learn from their writings and their +institutions. The current of study and education is at present setting +so strongly towards the sciences of nature that it becomes all the more +needful for those who value historical inquiry and the literature of the +past to do what they can to bring that old world into a definite and +tangible relation with the modern time, a relation which shall be not +only stimulative but also practically helpful. + +None of these Studies have previously appeared in print except two, viz. +those relating to the United States and to the two Dutch Republics; and +both of these have been enlarged and revised. My thanks are due to my +friend Professor Herbert B. Adams of Johns Hopkins University, +Baltimore, and to the proprietors of the _Forum_ magazine respectively +for permission to republish these two. + +Some Studies were (in substance) delivered as Public Lectures at Oxford, +during the years 1870-1893 (when I held the Regius Professorship of +Civil Law there), pursuant to the custom which exists in that University +for a professor to deliver from time to time discourses dealing with the +wider and less technical aspects of his subject. All these have, +however, been rewritten for publication; and whoever has had a similar +experience will know how much more time and trouble it takes to rewrite +a discourse than to compose one _de novo_. Two Lectures, delivered one +when I entered on and the other when I resigned the professorship, have +been appended, in the belief that they may have some interest for +members of the University and for those who watch with sympathy the +development of legal teaching in England. + +I have endeavoured to bring up to date all references to recent events, +so that when such events are mentioned the book may be taken to speak as +from 1900 or 1901. + +As it is now nine years since I was obliged (when I entered Mr. +Gladstone’s Ministry in 1892) to intermit any minute study either of +Roman or of English law, it is probable that the book may disclose an +imperfect knowledge of facts and views given to the world during those +nine years. Under these conditions I might have wished to keep the book +longer before publishing it. But life is short. Some of the friends to +whose comments and criticisms I had most looked forward while composing +these Studies have already passed away. So it seemed better to let what +I have written, under the constant pressure of other duties, go forth +now. + +Among the friends whom I have to thank for information or suggestions +are Professors A. V. Dicey, Sir F. Pollock, Henry Goudy, and Henry +Pelham of Oxford, Sir Courtenay Ilbert (Parliamentary Counsel to the +Treasury), Dr. C. L. Shadwell and Mr. Edward Jenks of Oxford, Dr. F. +Sigel of Warsaw, and Mr. Jón Stefánsson of Iceland. + +The Index has been prepared by Mr. J. S. Cotton, to whom I am indebted +for the care he has bestowed upon it. + +_June 27, 1901._ + + + + + CONTENTS + + _VOLUME I_ + + + ESSAY I + + + PAGE + + _THE ROMAN EMPIRE AND THE BRITISH EMPIRE IN INDIA_ 1-84 + + Conquest or Absorption by modern European nations of the less 1 + advanced races + + Creation by this process of a sort of unity of mankind 2 + + Earlier effort of Rome to unify mankind 3 + + Part borne by England in the work of ruling and civilizing new 4 + territories + + The Colonies of England: the British Empire in India 4 + + Position of Rome and England respectively in their Empires 8 + + Origin of the British Indian compared with that of the Roman 8 + Empire + + Conditions favouring Roman and British Indian conquest 10 + + Military character of Roman and British rule 13 + + What the Roman and the English conquerors have owed to natural 14 + frontiers + + Strength of the Roman and British armies 17 + + Efforts to find a scientific frontier 19 + + The Romans and English as Road and Railway Builders 21 + + Success of both in maintaining internal order and security 23 + + Character of Roman and British administration 26 + + Despotic system: measure of self-government left to the subjects 30 + + Variations in provincial administration in Roman Empire and 35 + India + + Revenue and taxation of the two Empires 37 + + Employment of native subjects in civil and military posts 42 + + Civil rights of conquerors and of subjects 46 + + Respect shown to native religions and customs: contrast of 51 + religious feeling in ancient and in modern world + + Character of the conquerors as a source of their strength 58 + + Contrasts between the two Empires: geographical position of the 61 + ruling race + + Fusion of Romans and provincials: no similar fusion of English 62 + and Indians + + Influence of Climate, of Colour, of Religion 63 + + Languages and literature in Roman Empire and in India 70 + + Influences which favoured fusion in Roman Empire absent from 74 + India + + Retroactive influences of the provinces on Rome and of India on 76 + Britain + + What the experience of the English in India has proved 79 + + Causes which overthrew the Roman Empire 80 + + Probable future of British power in India 82 + + + ESSAY II + + + THE EXTENSION OF ROMAN AND ENGLISH LAW THROUGHOUT THE WORLD 85-144 + + Geographical areas now covered by Roman and by English Law 85 + + Extension of Roman Law by conquest 88 + + Methods of Legal Administration in the provinces 91 + + Gradual assimilation of Roman and Provincial Law 97 + + Establishment of one law for the Roman Empire 99 + + How the Romans were able to create an imperial law 103 + + Spread of Roman Law after the fall of the Western Empire 105 + + Diffusion of English Law over regions settled or conquered 110 + + Legal systems which the English found in India 113 + + Policy followed by the English in dealing with Indian Law 117 + + Codification in India 121 + + Reciprocal action of English and Native Law on one another 124 + + Merits and working of the Anglo-Indian Codes 127 + + Roman Law in the Empire compared with English Law in India 133 + + Probable future of English Law in India 138 + + English and Roman Law over the world 142 + + + ESSAY III + + + FLEXIBLE AND RIGID CONSTITUTIONS 145-254 + + Observations on the Constitutions of Rome and England 145 + + Old Classification of Constitutions as Written and Unwritten 148 + + Proposed new classification 150 + + Flexible Constitutions: how far distinguishable from laws in 154 + general + + Origin of Flexible Constitutions 159 + + Strength and weakness of Flexible Constitutions 163 + + Such Constitutions are rather elastic than unstable 168 + + Illustrations from the Constitutions of Rome and England 169 + + Dangers possibly inherent in Flexible Constitutions 175 + + Flexible Constitutions suited to aristocratic governments 178 + + Checks applied in Rome and in England 181 + + Influence of Constitutions on the mind of a nation 185 + + Illustrations from Rome and England 189 + + Capacity of Constitutions for Territorial Expansion 193 + + Enumeration of existing Rigid Constitutions 196 + + Circumstances under which Rigid Constitutions arise 200 + + Enactment and amendment of Rigid Constitutions 205 + + Various modes now in use for amending them 210 + + How far can Rigid Constitutions be definite or complete? 217 + + Stability of Rigid Constitutions 221 + + The interpretation of Rigid Constitutions 228 + + Contrast of Anglo-American doctrines with those of the European 230 + Continent + + American views as to Interpretation 232 + + Suitability of Rigid Constitutions to Democracies 234 + + Recent changes of opinion in the United States and England 239 + + Probable future of the two types of Constitution 242 + + Proposals for federalizing the British Constitution 245 + + Possible creation of new States and Constitutions 249 + + + ESSAY IV + + + THE ACTION OF CENTRIPETAL AND CENTRIFUGAL FORCES ON POLITICAL 255-311 + CONSTITUTIONS + + The influence of aggregative and disjunctive forces on political 255 + societies + + Tendencies which may act either Centripetally or Centrifugally 261 + + Influences of Interest and Sympathy 263 + + Illustrations of the action of Racial and Religious sentiment 265 + + In the progress of civilization, material interest and sentiment 269 + may be opposed + + How Constitutions may use the existing Centripetal and 271 + Centrifugal forces + + Illustrations from Commerce, Law and Religion 274 + + Instances of the troubles caused by Racial or Religious 281 + sentiment + + Methods by which Constitutions may disarm or regulate the 286 + centrifugal forces: illustrations + + Difficulties due to differences of colour in races 291 + + How the Constitutions of the United States and Switzerland have 296 + acted + + The Centripetal force generally, but not always, dominant in 300 + European history + + Effects of Conquest and of Dynastic Succession 303 + + Probable future strength of the centrifugal and centripetal 307 + forces respectively + + Present tendency to the enlargement or consolidation of States 309 + is not necessarily permanent + + + ESSAY V + + + PRIMITIVE ICELAND 312-358 + + Discovery and Settlement of Iceland 312 + + Beginnings of a Polity: the Thing 316 + + Rise of the Goði or Priest-Chieftain 317 + + The first political constitution of the island 322 + + Judicial organization and powers of the Althing 325 + + The Speaker of the Law 327 + + Thingvellir and the meetings of the Althing 327 + + General character of the Icelandic Republic 333 + + Growth and character of the law of Iceland 335 + + Complexity of the constitution and the law 337 + + Sources of our knowledge of the law 341 + + Illustrations of features of the early law 343 + + An action for the ejectment of ghosts 345 + + The Judicial Duel: Story of Gunnlaug Snake’s Tongue and Helga 348 + the Fair + + The introduction of Christianity 350 + + Reflections on the early history of Iceland 353 + + Fall of the Republic: subsequent fortunes of the isle 356 + + + ESSAY VI + + + THE CONSTITUTION OF THE UNITED STATES AS SEEN IN THE PAST 359-429 + + Value of contemporary views of an institution 359 + + The _Federalist_: Alex Hamilton and James Madison 360 + + The United States in A.D. 1788 361 + + Predictions of the opponents of the New Constitution 366 + + Views of its supporters: dangers feared by them 369 + + Examination of the predictions of 1788 374 + + Characteristic merits and defects of American Democracy only 378 + slightly foreseen + + The _Democracy in America_ of Alexis de Tocqueville 381 + + Merits and flaws in Tocqueville’s study of the United States 382 + + His insufficient knowledge of England 385 + + His preoccupation with France 387 + + The deficiencies observable in his book scarcely affect its 390 + present value + + Condition of the United States in Tocqueville’s day 392 + + His description of the salient features of the nation 397 + + Advantages which he conceives Democracy to have secured 403 + + Evils he discovers in American Democracy 404 + + Causes which in his view maintain Republican government 406 + + His forecasts: the negroes: weakness of the Federal Union 408 + + Points omitted in his description 413 + + Chief events in the United States since Tocqueville’s time 415 + + Chief political changes of the last sixty-seven years 417 + + Examination of Tocqueville’s predictions 418 + + Summary of Tocqueville’s conclusions 425 + + General course of events in America since 1788 427 + + What Tocqueville would say to-day 428 + + + ESSAY VII + + + TWO SOUTH AFRICAN CONSTITUTIONS 430-467 + + Originality of the Constitutions of the two Dutch Republics 430 + + Circumstances under which they arose 432 + + Constitution of the Orange Free State 436 + + Constitution of the South African Republic (Transvaal) 441 + + Observations on the Constitution of the South African Republic 448 + + Is it a Rigid or a Flexible Constitution? 449 + + Controversy as to the so-called ‘testing power’ 452 + + The Constitution is certainly a Flexible one 453 + + Observations upon both these Constitutions 455 + + Comparison of these Constitutions with that of Britain and that 458 + of the United States + + Relations of Executive and Legislature in these Dutch Republics 460 + + Practical Working of the Constitution of the Orange Free State 463 + + Working of the Constitution of the South African Republic 464 + + Postscript 466 + + + ESSAY VIII + + + THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA 468-553 + + Interest attaching to the new Constitution of Australia 468 + + Origin and progress of the movement for federalizing Australia 471 + + Causes which induced Federation 477 + + Influence of a Pan-Australian sentiment 480 + + Physical and racial conditions favouring Federation 483 + + Comparison with the conditions of the United States and of 487 + Canada + + Two leading types of Federal Government 489 + + Distribution of powers between the Nation and the States in the 491 + Australian Constitution + + Position of the Australian States under the Constitution 494 + + Differences from the Federal systems of the United States and of 498 + Canada + + The National Government: few restrictions on its powers 501 + + The Legislature: Representation of the States in the Senate 503 + + The House of Representatives 506 + + The Executive and the Judiciary 508 + + Question as to Constitutional Appeals: the British Government 509 + yield to Australian sentiment + + Intended working of the scheme of Government: The Cabinet 513 + + Provision against legislative deadlocks 516 + + Relations of the Two Houses 518 + + Financial provisions: railways and rivers 521 + + Location of the national capital: admission of New States 522 + + Mode of amending the Constitution 523 + + Relations of the Australian Commonwealth to the British Crown 525 + + General comparison of the Australian Constitution with that of 527 + the United States + + Comparison with that of the Dominion of Canada 528 + + Further observations on the Constitution 531 + + It is less strictly Federal and more National than that of the 532 + United States + + Its highly democratic character 535 + + It contemplates a party system 539 + + Difficulties which may arise from the existence of a third party 540 + + What political issues are likely to arise in Australia? 542 + + Probable prominence of Economic questions 545 + + Possible creation and admission of New States 547 + + Will New Zealand enter the Federation? 548 + + Tendencies to consolidation maybe strengthened by disputes with 550 + foreign powers + + Future relations of Australia to Britain 551 + + + _VOLUME II_ + + + ESSAY IX + + + OBEDIENCE 1-48 + + Different Theories of the Nature of Political Obedience #1# + + The grounds of compliance in general: Indolence #6# + + Deference and Sympathy #9# + + Reason and Fear #12# + + Respective strength of these springs of Obedience #14# + + Will as a political force: Illustrations from the East #15# + + Formation of the habit of Obedience in the individual #19# + + Influences forming Obedience in early societies #21# + + Slight interest of men in liberty for its own sake #24# + + Is the tendency to obey likely to decrease? #26# + + Influences apparently making for subordination #28# + + What may be hoped for the future of democratic government #31# + + How a pessimist might view existing conditions #33# + + Conclusion: The disposition to obey will be permanent #41# + + Note on the application to the definitions of Jurisprudence of a #44# + theory of Obedience + + + ESSAY X + + + THE NATURE OF SOVEREIGNTY 49-111 + + Confusions regarding the term Sovereignty #49# + + Sovereignty _de iure_ and _de facto_ must be distinguished #51# + + Sovereignty _de iure_ exists in the sphere of law only, and is #56# + not concerned with obedience + + Sovereignty _de facto_: concrete instances #59# + + Relations of Sovereignty _de iure_ to that _de facto_ #64# + + Action and reaction of each on the other #68# + + The Roman doctrine of Sovereignty: the people are the source of #73# + political power + + Mediaeval views of Sovereignty: Emperor and Pope #79# + + New theories of the sixteenth and seventeenth centuries #82# + + Bodin, Althaus, Hobbes #84# + + Relation of Hobbes’ system to the events of his time #86# + + Bentham revives Hobbes’ doctrine #88# + + Views of John Austin: illustrations of their unsoundness #89# + + Confusion of various questions regarding Sovereignty which are #94# + really distinct + + Rights in the moral sphere of Sovereignty _de iure_ and #98# + Sovereignty _de facto_ + + Sovereignty in International Relations #101# + + Sovereignty in a Federation #104# + + Conclusion: Theoretical Controversies regarding Sovereignty have #108# + mostly had their origin in current politics + + + ESSAY XI + + + THE LAW OF NATURE 112-171 + + Origin of the notion of Nature as a ruling force #112# + + It is different from modern conception of the Laws of Nature #117# + + Nature as a force in human society #120# + + The term ‘Natural’ as applied to Customs and Laws #122# + + St. Paul and the Greek philosophers on Natural Law #124# + + The Roman Law of the Nations (_Ius Gentium_) #128# + + How the ‘common law of the nations’ was formed #131# + + Cicero on the Law of the Nations and Law of Nature #135# + + Growth of the idea of Natural Law among the jurists #138# + + Practical identification of _Ius Gentium_ and _Ius Naturae_ #142# + + Points of difference which remained: Slavery #144# + + Extension of Roman citizenship removes the need for a _Ius #147# + Gentium_ + + Senses in which the jurists use the term ‘Nature’ #148# + + Value and practical influence of the notion of Natural Law #151# + + The Law of Nature and Law of God in the Middle Ages #157# + + The Law of Nature in Modern Times #161# + + Its relation to the Law of England #164# + + Its influence on the rise of International Law #167# + + ‘Natural Law’ as meaning a Philosophy of Law #169# + + Conclusion: Comparative quiescence of the idea in recent times #170# + + + ESSAY XII + + + THE METHODS OF LEGAL SCIENCE 172-208 + + No Philosophy of Law among the Roman Jurists; is such a #172# + Philosophy necessary or serviceable? + + Four Methods employed in Legal Science #174# + + The Metaphysical Method: German _Naturrecht_ #174# + + The Analytic Method: the Benthamites #178# + + Errors in John Austin’s use of it #180# + + The Historical Method #184# + + The Comparative Method #186# + + Value of these four Methods respectively #190# + + How they may best be applied to Legal Study #193# + + Did the Romans suffer from having no general Philosophy of Law? #197# + + Merits observable in the Roman Jurists: comparison of their #199# + treatises with those of English lawyers + + Summary: The Roman Jurists are philosophical in spirit and in #207# + their practical handling of law + + + ESSAY XIII + + + THE RELATIONS OF LAW AND RELIGION 209-246 + + Apparent Antagonism of Law and Religion #209# + + Close connexion of Law and Religion in early states of Society #211# + + Differences in this respect between different peoples #215# + + The Jews in Roman times: primitive Christianity #216# + + Islam; identification of Law with Religion #218# + + Illustrations from a Musulman University: the Mosque El Azhar at #219# + Cairo + + Description of El Azhar and its Teaching #220# + + Course of Instruction: Graduation: Endowments #225# + + Resemblances of El Azhar to the European Universities of the #229# + Middle Ages + + Causes of the arrested development of Musulman Universities #233# + + Nature and consequences of the Musulman identification of Law #234# + and Religion + + Identity of State and Church under Islam #240# + + How Christianity avoided a similar identification #242# + + + ESSAY XIV + + + METHODS OF LAW-MAKING IN ROME AND IN ENGLAND 247-338 + + Relations of the History of Law to the Constitutional or #247# + Political History of a Country + + Law-making Authorities in general #249# + + Three main sources of Law: the Ruling Authority, the Magistrate, #253# + and the Legal Profession + + The Jurists as makers of Law in earlier times #255# + + Changed position of the Jurists under the Empire #257# + + Differences between the action of Roman and English Jurists #261# + + Roman Treatises compared with English Reports #266# + + Magistrates and Judges: in what sense Law-makers #269# + + The Praetor at Rome #273# + + Nature and Working of the Praetor’s Edict #275# + + The English Chancellor #278# + + Praetorian Edicts compared with English Case-Law #281# + + Further observations on Praetorian methods #287# + + Strong and weak points in the English Case-System #289# + + Direct Legislation at Rome: its Organs #293# + + The Popular Assembly: its method of legislating #297# + + Merits of the Roman Statutes #300# + + Legislation by the Senate: its characteristics #303# + + Direct legislation by the Emperor #308# + + Vast powers of the Emperor: his Privy Council #313# + + Defects in Imperial legislation #315# + + Profusion and inferiority of legislation under the later #318# + Emperors + + Direct legislation in England: its history #321# + + Advantages of Parliament and Congress for legislation #323# + + Strictures commonly passed on English and American Statutes #325# + + Difficulties incident to Parliamentary legislation #327# + + Reflections suggested by the history of English compared with #332# + that of Roman legislation + + Some branches of law better fitted than others to be handled by #333# + direct legislation + + + ESSAY XV + + + THE HISTORY OF LEGAL DEVELOPMENT AT ROME AND IN ENGLAND 339-380 + + Roman and English Law have both been developed in a #339# + comparatively independent way + + Conspicuous epochs of legal change at Rome and in England #341# + + Forces and influences chiefly active in determining legal #344# + changes + + Roman Legal History during the republican period #345# + + Effect on the law of the establishment of the imperial autocracy #350# + + Rise of Christianity: dissolution of the Empire in the West #352# + + The decline in legal learning induced Codification #354# + + Political events and External Influences are the chief sources #357# + of changes in Roman Law + + Causes of legal change operative in England: the periods of #358# + Henry II and Edward I + + The Reformation and the Civil War #361# + + The Reform Act of 1832 and the Victorian Epoch #364# + + The Law of Family and Inheritance at Rome and the Law of Land in #367# + England + + Effects of Territorial Expansion on Roman and on English Law #369# + + Economic influences more generally potent in England: political #371# + in Rome + + Observations on France and Germany #375# + + Private law is the branch least affected by political changes #377# + + Legal topics in which further advances may be looked for #379# + + + ESSAY XVI + + + MARRIAGE AND DIVORCE IN ROMAN AND IN ENGLISH LAW 381-474 + + Diversity of the Law of Marriage in different countries #381# + + Features generally characteristic of the institution in the #383# + ancient Mediterranean World + + Early Marriage law of the Romans #386# + + Subordination of the Wife: the ‘Hand Power’ (_Manus_) #387# + + Transition to a freer system #389# + + Later Marriage Law: nature of the personal relation it creates #392# + + Relation of the Consorts as respects Property #395# + + General character of the Roman Conception of Marriage: its #400# + freedom + + Roman doctrine and practice regarding Divorce #402# + + Influence of Christianity on Imperial Legislation #406# + + Other Roman rules: prohibited degrees: _Concubinatus_ #409# + + Marriage under the Canon Law #416# + + The English Law: jurisdiction of the Spiritual Courts #420# + + Relations of the Consorts as respects Property under English Law #424# + + Amendment of English Matrimonial Law by courts of Equity and by #427# + Legislation + + Personal Liberty of the Wife now well established #430# + + English law has wavered between different theories of the #431# + relation + + Divorce under the Canon Law #433# + + History of Divorce in England #436# + + Divorce Laws in the United States #439# + + Laxity of Procedure in Divorce Cases #441# + + Statistics of Divorce in the United States: causes for which it #443# + is granted + + Illustrations from the ‘Western Reserve’ counties of Ohio #446# + + Divorce in modern European countries #450# + + Comparison of the phenomena of Divorce in the Roman and in the #453# + Modern World + + Causes now tending to weaken the permanence of the Marriage Tie #457# + + Does the growth of Divorce betoken a moral decline? #461# + + Influence of the Church and of the Law #464# + + Does the English Divorce Law need amendment? #465# + + Changes in Theory and in Sentiment regarding Marriage #469# + + INAUGURAL LECTURE #475# + + VALEDICTORY LECTURE #504# + + INDEX #527# + + + + + I + + THE ROMAN EMPIRE AND THE + BRITISH EMPIRE IN INDIA + + +In several of the Essays contained in these volumes comparisons are +instituted between Rome and England in points that touch the +constitutions and the laws of these two great imperial States. This +Essay is intended to compare them as conquering and ruling powers, +acquiring and administering dominions outside the original +dwelling-place of their peoples, and impressing upon these dominions +their own type of civilization. + +This comparison derives a special interest from a consideration of the +position in which the world finds itself at the beginning of the +twentieth century. The great civilized nations have spread themselves +out so widely, and that with increasing rapidity during the last fifty +years, as to have brought under their dominion or control nearly all the +barbarous or semi-civilized races. Europe—that is to say the five or six +races which we call the European branch of mankind—has annexed the rest +of the earth, extinguishing some races, absorbing others, ruling others +as subjects, and spreading over their native customs and beliefs a layer +of European ideas which will sink deeper and deeper till the old native +life dies out. Thus, while the face of the earth is being changed by the +application of European science, so it seems likely that within a +measurable time European forms of thought and ways of life will come to +prevail everywhere, except possibly in China, whose vast population may +enable her to resist these solvent influences for several generations, +perhaps for several centuries. In this process whose agencies are +migration, conquest, and commerce, England has led the way and has +achieved the most. Russia however, as well as France and Germany, have +annexed vast areas inhabited by backward races. Even the United States +has, by occupying the Hawaiian and the Philippine Islands, entered, +somewhat to her own surprise, on the same path. Thus a new sort of unity +is being created among mankind. This unity is seen in the bringing of +every part of the globe into close relations, both commercial and +political, with every other part. It is seen in the establishment of a +few ‘world languages’ as vehicles of communication between many peoples, +vehicles which carry to them the treasures of literature and science +which the four or five leading nations have gathered. It is seen in the +diffusion of a civilization which is everywhere the same in its material +aspects, and is tolerably uniform even on its intellectual side, since +it teaches men to think on similar lines and to apply similar methods of +scientific inquiry. The process has been going on for some centuries. In +our own day it advances so swiftly that we can almost foresee the time +when it will be complete. It is one of the great events in the history +of the world. + +Yet it is not altogether a new thing. A similar process went on in the +ancient world from the time of Alexander the Macedonian to that of +Alaric the Visigoth. The Greek type of civilization, and to some extent +the Greek population also, spread out over the regions around the +eastern Mediterranean and the Euxine. Presently the conquests of Rome +brought all these regions, as well as the western countries as far as +Caledonia, under one government. This produced a uniform type of +civilization which was Greek on the side of thought, of literature, and +of art, Roman on the side of law and institutions. Then came +Christianity which, in giving to all these countries one religion and +one standard of morality, created a still deeper sense of unity among +them. Thus the ancient world, omitting the barbarous North and the +semi-civilized heathen who dwelt beyond the Euphrates, became unified, +the backward races having been raised, at least in the upper strata of +their population, to the level of the more advanced. One government, one +faith, and two languages, were making out of the mass of races and +kingdoms that had existed before the Macedonian conquest, a single +people who were at once a Nation and a World Nation. + +The process was not quite complete when it was interrupted by the +political dissolution of the Roman dominion, first through the +immigrations of the Teutonic peoples from the north, then by the +terrible strokes dealt at the already weakened empire by the Arab +conquerors from the south-east. The results that had been attained were +not wholly lost, for Europe clung to the Greco-Romano-Christian +civilization, though in a lowered form and with a diminished sense of +intellectual as well as of political unity. But that civilization was +not able to extend itself further, save by slow degrees over the north +and towards the north-east. Several centuries passed. Then, at first +faintly from the twelfth century onwards, afterwards more swiftly from +the middle of the fifteenth century, when the intellectual impulse given +by the Renaissance began to be followed by the rapid march of +geographical discovery along the coasts of Africa, in America, and in +the further east, the process was resumed. We have watched its later +stages with our own eyes. It embraces a far vaster field than did the +earlier one, the field of the whole earth. As we watch it, we are +naturally led to ask what light the earlier effort of Nature to gather +men together under one type of civilization throws on this later one. As +Rome was the principal agent in the earlier, so has England been in the +later effort. England has sent her language, her commerce, her laws and +institutions forth from herself over an even wider and more populous +area than that whose races were moulded into new forms by the laws and +institutions of Rome. The conditions are, as we shall see, in many +respects different. Yet there is in the parallel enough to make it +instructive for the present, and possibly significant for the future. + +The dominions of England beyond the seas are, however, not merely too +locally remote from one another, but also too diverse in their character +to be compared as one whole with the dominions of Rome, which were +contiguous in space, and were all governed on the same system. The +Britannic Empire falls into three territorial groups, the self-governing +colonies, the Crown colonies, and the Indian territories ruled by or +dependent on the sovereign of Britain. Of these three groups, since they +cannot be treated together, being ruled on altogether different +principles, it is one group only that can usefully be selected for +comparison with the Roman Empire. India contains that one group. She is +fitter for our purpose than either of the other two groups, because the +self-governing colonies are not subject territories administered from +England, but new Englands planted far away beyond the oceans, +reproducing, each in its own way, the features of the constitution and +government of the old country, while the Crown colonies are so scattered +and so widely diverse in the character of their inhabitants that they +cannot profitably be dealt with as one body. Jamaica, Cyprus, +Basutoland, Singapore, and Gibraltar, have little in common except their +dependence on Downing Street. Neither set of colonies is sufficiently +like the dominion of Rome to make it possible for us to draw parallels +between them and it. India, however, is a single subject territory, and +India is compact, governed on the same principles and by the same +methods over an area not indeed as wide as that of the Roman Empire but +more populous than the Roman Empire was in its palmiest days. British +India (including Burma) covers about 965,000 square miles, and the +protected States (including Kashmir, but not Nepal and Bhotan), about +600,000 square miles, making a total of (roughly) 1,565,000 square +miles, with a population of nearly 290 millions. The area of the +territories included in the Roman Empire at its greatest extent (when +Dacia and the southern part of what is now Scotland belonged to it) may +have been nearly 2,500,000 square miles. The population of that area is +now, upon a very rough estimate, about 210 millions. What it was in +ancient times we have no data even for guessing, but it must evidently +have been much smaller, possibly not 100 millions, for although large +regions, such as parts of Asia Minor and Tunisia, now almost deserted, +were then filled by a dense industrial population, the increase in the +inhabitants of France and England, for instance, has far more than +compensated this decline. + +The Spanish Empire in America as it stood in the sixteenth and +seventeenth centuries was still vaster in area, as is the Russian Empire +in Asia to-day. But the population of Spanish America was extremely +small in comparison with that of the Roman Empire or that of India, and +its organization much looser and less elaborate[1]. Both the Spanish and +the Russian Empires, however, furnish illustrations which we shall have +occasion presently to note. + +----- + +Footnote 1: + + The total area of the Russian Empire exceeds 8,000,000 square miles, + and the population is about 130,000,000. + +----- + +Of all the dominions which the ancient world saw, it is only that of +Rome that can well be compared with any modern civilized State. The +monarchies of the Assyrian and Egyptian conquerors, like those of the +Seleucid kings and of the Sassanid dynasty in Persia, stood on a far +lower level of culture and administrative efficiency than did the Roman. +Neither was there in the Middle Ages any far stretching dominion fit to +be matched with that of Rome, for the great Ommiad Khalifate and the +Mogul monarchy in India were both of them mere aggregates of +territories, not really unified by any administrative system, while the +authority or suzerainty of the Chinese sovereigns over Turkistan, +Mongolia, and Tibet presents even fewer points of resemblance. So when +we wish to examine the methods and the results of British rule in India +by the light of any other dominion exercised under conditions even +remotely similar, it is to the Roman Empire of the centuries between +Augustus and Honorius that we must go. + +When one speaks of conditions even remotely similar one must frankly +admit the existence of an obvious and salient point of contrast. Rome +stood in the middle of her dominions, Britain stands, by the Red Sea +route, six thousand miles from the nearest part of hers. She can reach +them only by water, and she conquered them by troops which had been sent +round the Cape over some thirteen thousand miles of ocean. Here there is +indeed an unlikeness of the utmost significance. Yet, without minimizing +the importance of the contrast, we must remember that Britain can +communicate more quickly with the most distant part of her territories +than Rome could with hers. It takes only twenty-two days to reach any +part of British India (except Kashmir and Upper Assam) from London. But +it took a nimble, or as Herodotus says, a ‘well girt traveller,’ perhaps +forty days from Rome to reach Derr on the Nile, the last fortress in +Nubia where Roman masonry can be seen, or Gori, at the foot of the +Caucasus, also a Roman stronghold, or Old Kilpatrick (near Dumbarton) +where the rampart of Antoninus touches the Clyde; not to add that the +sea part of these journeys might be much longer if the winds were +adverse. News could be carried not much faster than an official could +travel, whereas Britain is, by the electric telegraph, in hourly +communication with every part of India: and the difference in speed +between the movement of an army and that of a traveller was, of course, +greater in ancient times than it is now. + +Thus, for the purposes both of war and of administration, England is +better placed than Rome was as respects those outlying parts of the +Roman empire which were most exposed to attack. Dangers are more quickly +known at head quarters; troops can reach the threatened frontier in a +shorter time; errors in policy can be more adequately corrected, because +explanations can be asked, and blundering officials can be more promptly +dismissed. Nevertheless the remoteness of India has had results of the +highest moment in making her relation to England far less close than was +that of Rome to the provinces. + +This point will be considered presently. Meantime our comparison may +begin with the points in which the two Empires resemble and illustrate +one another. The first of these turns upon the circumstances of their +respective origins. + +Empire is retained, says a famous maxim, by the same arts whereby it was +won. Some Empires have been won easily. Spain acquired hers through the +pertinacity and daring of a Genoese sailor. She had comparatively little +fighting to do, for the only opponents she encountered, who added to +valour some slight tincture of civilization, were the Mexicans. + +Russia has met with practically no resistance in occupying her vast +territories in Northern Asia; though she had some sharp tussles with the +nomad Turkmans, and tedious conflicts both with Shamyl and with the +Circassians in the Caucasus. But both Rome and England had to fight long +and fight hard for what they won. The progress of Roman and British +expansion illustrates the remark of Oliver Cromwell that no one goes so +far as he who does not know whither he is going. Neither power set out +with a purpose of conquest, such as Alexander the Great, and perhaps +Cyrus, had planned and carried out before them. Just as Polybius, +writing just after the destruction of Carthage in B.C. 146, already +perceived that Rome was, by the strength of her government and the +character of her people, destined to be the dominant power of the +civilized world, so it was prophesied immediately after the first +victories of Clive that the English would come to be the masters of all +India. Each nation was drawn on by finding that one conquest led almost +inevitably to another because restless border tribes had to be subdued, +because formidable neighbours seemed to endanger the safety of +subjugated but often discontented provinces, because allies inferior in +strength passed gradually into the position first of dependants and then +of subjects. + +The Romans however, though they did not start out with the notion of +conquering even Italy, much less the Mediterranean world, came to enjoy +fighting for its own sake, and were content with slight pretexts for it. +For several centuries they were always more or less at war somewhere. +The English went to India as traders, with no intention of fighting +anybody, and were led into the acquisition of territory partly in order +to recoup themselves for the expensive efforts they had made to support +their first allies, partly that they might get revenue for the East +India Company’s shareholders, partly in order to counterwork the schemes +of the French, who were at once their enemies in Europe and their rivals +in the East. One may find a not too fanciful analogy to the policy of +the English in the days of Clive, when they were drawn further and +further into Indian conflicts by their efforts to check the enterprises +of Dupleix and Lally, in the policy of the Romans when they entered +Sicily to prevent Carthage from establishing her control over it. In +both cases an effort which seemed self-protective led to a long series +of wars and annexations. + +Rome did not march so swiftly from conquest to conquest as did England. +Not to speak of the two centuries during which she was making herself +supreme in Italy, she began to conquer outside its limits from the +opening of the First Punic War in B.C. 264, and did not acquire Egypt +till B.C. 30, and South Britain till A.D. 43-85[2]. Her Eastern +conquests were all the easier because Alexander the Great’s victories, +and the wars waged by his successors, had broken up and denationalized +the East, much as the Mogul conquerors afterwards paved the way for the +English in India. England’s first territorial gains were won at Plassy +in A.D. 1757[3]: her latest acquisition was the occupation of Mandalay +in 1885. Her work was done in a century and a quarter, while that of +Rome took fully three centuries. But England had two great advantages. +Her antagonists were immeasurably inferior to her in arms as well as in +discipline. As early as A.D. 1672 the great Leibnitz had in a letter to +Lewis XIV pointed out the weakness of the Mogul Empire; and about the +same time Bernier, a French physician resident at the Court of +Aurungzeb, declared that 20,000 French troops under Condé or Turenne +could conquer all India[4]. A small European force, and even a small +native force drilled and led by Europeans, was as capable of routing +huge Asiatic armies as the army of Alexander had proved capable of +overthrowing the immensely more numerous hosts of Darius Codomannus. +Moreover, the moment when the English appeared on the scene was +opportune. The splendid Empire of Akbar was crumbling to pieces. The +Mahratta confederacy had attained great military power, but at the +battle of Paniput, in 1761, it received from the Afghans under Ahmed +Shah Durani a terrific blow which for the time arrested its conquests. +Furthermore, India, as a whole, was divided into numerous +principalities, the feeblest of which lay on the coasts of the Bay of +Bengal. These principalities were frequently at war with one another, +and glad to obtain European aid in their strife. And England had a third +advantage in the fact that she encountered the weakest of her +antagonists first. Had she, in those early days when her forces were +slender, been opposed by the valour of Marathas or Sikhs, instead of by +the feeble Bengalis and Madrassis, her ambitions might have been nipped +in the bud. When she found herself confronted by these formidable foes +she had already gained experience and had formed a strong native army. +But when the Romans strove against the Achaean League and Macedon they +had to fight troops all but equal to themselves. When Carthage was their +antagonist, they found in Hamilcar a commander equal, in Hannibal a +commander superior to any one they could send against him. These earlier +struggles so trained Rome to victory that her later conquests were made +more easily. The triumphs of the century before and the century after +Julius Caesar were won either over Asiatics, who had discipline but +seldom valour, or over Gauls, Iberians, Germans, and Caledonians, who +had valour but not discipline. Occasional reverses were due to the +imprudence of a general, or to an extreme disparity of forces; for, like +the English, the Romans did not hesitate to meet greatly superior +numbers. The defeat of Crassus by the Parthians and the catastrophe +which befell Varus in the forests of Paderborn find a parallel in the +disastrous retreat of the English army from Cabul in 1843. Except on +such rare occasions the supremacy of Roman arms was never seriously +challenged, nor was any great calamity suffered till the barbarian +irruption into Italy in the reign of Marcus Aurelius. A still graver +omen for the future was the overthrow of Valerian by the Persians in +A.D. 260. The Persians were inferior in the arts of civilization and +probably in discipline: but the composition of the Roman armies was no +longer what it had been three centuries earlier, for the peasantry of +Italy, which had formed the kernel of their strength, were no longer +available. As the provincial subjects became less and less warlike, men +from beyond the frontier were enrolled, latterly in bodies under their +native chiefs—Germans, or Arabs, or, in still later days, Huns—just as +the native army in British India, which has now become far more peaceful +than it was a century ago, is recruited by Pathans and Ghurkas from the +hills outside British territory as well as by the most warlike among the +Indian subjects of the Crown. The danger of the practice is obvious. +Rome was driven to it for want of Roman fighting-men[5]. England guards +against its risks by having a considerable force of British troops +alongside her native army. + +----- + +Footnote 2: + + Dacia was taken by Trajan in A.D. 107, and lost in A.D. 251. + Mesopotamia and Arabia Petraea were annexed by Trajan about the same + time, but the former was renounced so soon afterwards that its + conquest can hardly be considered a part of the regular process of + expansion. + +Footnote 3: + + Territorial authority may be said to date from the grant of the Diwani + in 1765. + +Footnote 4: + + See the admirably clear and thoughtful book of Sir A. C. Lyall, _Rise + of British Dominion in India_, pp. 52 and 126. + +Footnote 5: + + And indeed the employment of these barbarians to resist the outer + barbarians probably prolonged the life of the Empire. + +----- + +The fact that their dominions were acquired by force of arms exerted an +enduring effect upon the Roman Empire and continues to exert it upon the +British in imprinting upon their rule in India a permanently military +character. The Roman administration began with this character, and never +lost it, at least in the frontier provinces. The governors were +pro-consuls or propraetors, or other officials[5] entrusted with the +exercise of an authority in its origin military rather than civil. A +governor’s first duty was to command the troops stationed in the +province. The camps grew into towns, and that which had been a group of +_canabae_ or market stalls, a sort of bazaar for the service of the +camp, sometimes became a municipality. One of the most efficient means +of unifying the Empire was found in the bringing of soldiers born in one +part of it to be quartered for many years together in another. Military +distinction was open to every subject, and military distinction might +lead to the imperial throne. So the English in India are primarily +soldiers. True it is that they went to India three centuries ago as +traders, that it was out of a trading company that their power arose, +and that this trading company did not disappear till 1858. The +covenanted civil service, to which Clive for instance belonged, began as +a body of commercial clerks. Nothing sounds more pacific. But the men of +the sword very soon began to eclipse the men of the quill and account +book. Being in the majority, they do so still, although for forty years +there have been none but petty frontier wars. Society is not in India, +as it is in England, an ordinary civil society occupied with the works +and arts of peace, with an extremely small military element. It is +military society, military first and foremost, though with an infusion +of civilian officials, and in some towns with a small infusion of +lawyers and merchants, as well as a still smaller infusion of +missionaries. Military questions occupy every one’s thoughts and talk. A +great deal of administrative or diplomatic work is done, and often +extremely well done, by officers in civil employment. Many of the +railways are primarily strategic lines, as were the Roman roads. The +railway stations are often placed, for military reasons, at a distance +from the towns they serve: and the cantonments where the Europeans, +civilians as well as soldiers, reside, usually built some way off from +the native cities, have themselves, as happened in the Roman Empire, +grown into regular towns. The traveller from peaceful England feels +himself, except perhaps in Bombay, surrounded by an atmosphere of +gunpowder all the time he stays in India. + +Before we pass from the military aspects of the comparison let it be +noted that both Empires have been favoured in their extension and their +maintenance by the frontiers which Nature had provided. The Romans, when +once they had conquered Numidia, Spain, and Gaul, had the ocean and +nothing but the ocean (save for the insignificant exception of barbarous +Mauretania) to the west and north-west of them, an awesome and +untravelled ocean, from whose unknown further shore no enemy could +appear. To the south they were defended by the equally impassable +barrier of a torrid and waterless desert, stretching from the Nile to +the Atlantic. It was only on the north and east that there were +frontiers to be defended; and these two sides remained the quarters of +danger, because no natural barrier, arresting the progress of armies or +constituting a defensible frontier, could be found without pushing all +the way to the Baltic in one direction or to the ranges of Southern +Kurdistan, perhaps even to the deserts of Eastern Persia in the other. +The north and the east ultimately destroyed Rome. The north sent in +those Teutonic tribes which occupied the western provinces and at last +Italy herself, and those Slavonic tribes which settled between the +Danube, the Aegean, and the Adriatic, and permeated the older population +of the Hellenic lands. Perhaps the Emperors would have done better for +the Empire (whatever might have been the ultimate loss to mankind) if, +instead of allowing themselves to be disheartened by the defeat of +Varus, they had pushed their conquests all the way to the Baltic and the +Vistula, and turned the peoples of North and Middle Germany into +provincial Romans. The undertaking would not have been beyond the +resources of the Empire in its vigorous prime, and would have been +remunerative, if not in money, at any rate in the way of providing a +supply of fighting-men for the army. So too the Emperors might possibly +have saved much suffering to their Romanized subjects in South Britain +had they followed up the expedition of Agricola and subdued the peoples +of Caledonia and Ierne, who afterwards became disagreeable as Picts and +Scots. The east was the home of the Parthians, of the Persians, so +formidable to the Byzantine Emperors in the days of Kobad and Chosroes +Anushirwan, and of the tribes which in the seventh and eighth centuries, +fired by the enthusiasm of a new faith and by the prospect of booty, +overthrew the Roman armies and turned Egypt, Syria, Africa, Spain, and +ultimately the greater part of Asia Minor into Muhamadan kingdoms. Had +Rome been menaced on the south and west as she was generally menaced on +the east and sometimes on the north, her Empire could hardly have lived +so long. Had she possessed a natural barrier on the east like that which +the Sahara provided on the south she might have found it easy to resist, +and not so very hard even to subjugate, the fighting races of the north. + +Far more fortunate has been the position of the English in India. No +other of the great countries of the world is protected by such a +stupendous line of natural entrenchments as India possesses in the chain +of the Himalayas from Attock and Peshawur in the west to the point +where, in the far east, the Tsanpo emerges from Tibet to become in Upper +Assam the Brahmaputra. Not only is this mountain mass the loftiest and +most impassable to be found anywhere on our earth; it is backed by a +wide stretch of high and barren country, so thinly peopled as to be +incapable of constituting a menace to those who live in the plains south +of the Himalayas. And in point of fact the relations, commercial as well +as political, of India with Tibet, and with the Chinese who are +suzerains of Tibet, have been, at least in historical times, extremely +scanty. On the east, India is divided from the Indo-Chinese peoples, +Talains, Burmese and Shans, by a belt of almost impenetrable hill and +forest country: nor have these peoples ever been formidable neighbours. +It is only at its north-western angle, between Peshawur and Quetta (for +south of Quetta as far as the Arabian Sea there are deserts behind the +mountains and the Indus) that India is vulnerable. The rest of the +country is protected by a wide ocean. Accordingly the masters of India +have had only two sets of foes to fear; European maritime powers who may +arrive by sea after a voyage which, until our own time, was a voyage of +three or four months, and land powers who, coming from the side of +Turkistan or Persia, may find their way, as did Alexander the Great and +Nadir Shah, through difficult passes into the plains of the Punjab and +Sindh. This singular natural isolation of India, as it facilitated the +English conquest by preventing the native princes from forming alliances +with or obtaining help from powers beyond the mountains or the sea, so +has it also enabled the English to maintain their hold with an army +extraordinarily small in proportion to the population of the country. +The total strength of the Roman military establishment in the days of +Trajan, was for an area of some two and a half millions of square miles +and population of possibly one hundred millions, between 280,000 and +320,000 men. Probably four-fifths of this force was stationed on the +Rhine, the Danube, and the Euphrates. There were so few in most of the +inner provinces that, as some one said, the nations wondered where were +the troops that kept them in subjection. + +The peace or ‘established’ strength of the British army in India is +nearly 230,000 men, of whom about 156,000 are natives and 74,000 +Englishmen. To these there may be added the so-called ‘active reserve’ +of natives who have served with the colours, about 17,000 men, and about +30,000 European volunteers. Besides these there are of course the troops +of the native princes, estimated at about 350,000 men, many of them, +however, far from effective. But as these troops, though a source of +strength while their masters are loyal, might under altered +circumstances be conceivably a source of danger, they can hardly be +reckoned as part of the total force disposable by the British +Government. Recently, however, about 20,000 of them have been organized +as special contingents of the British army, inspected and advised by +British officers, and fit to take their place with regiments of the +line. + +It would obviously be impossible to defend such widely extended +dominions by a force of only 230,000 or 250,000 men, but for the +remoteness of all possibly dangerous assailants. The only formidable +land neighbour is Russia, the nearest point of whose territories in the +Pamirs is a good long way from the present British outposts, with a very +difficult country between. The next nearest is France on the Mekong +River, some 200 miles from British Burma, though a shorter distance from +Native States under British influence. As for sea powers, not only is +Europe a long way off, but the navy of Britain holds the sea. It was by +her command of the sea that Britain won India. Were she to cease to hold +it, her position there would be insecure indeed. + +In another respect also the sharp severance of India from all the +surrounding countries may be deemed to have proved a benefit to the +English. It has relieved them largely if not altogether from the +temptation to go on perpetually extending their borders by annexing +contiguous territory. When they had reached the natural boundaries of +the Himalayas and the ranges of Afghanistan, they stopped. Beyond these +lie rugged and unprofitable highlands, and still more unprofitable +wildernesses. In two regions only was an advance possible: and in those +two regions they have yielded to temptation. They have crossed the +southern part of the Soliman mountains into Baluchistan in search for a +more ‘scientific’ frontier, halting for the present on the Amram range, +north-west of Quetta, where from the Khojak heights the eye, ranging +over a dark-brown arid plain, descries seventy miles away the rocks that +hang over Kandahar. They moved on from Arakhan and Tenasserim into Lower +Burma, whence in 1885 they conquered Upper Burma and proclaimed their +suzerainty over some of the Shan principalities lying further to the +east. But for the presence of France in these regions, which makes them +desire to keep Siam in existence as a so-called ‘Buffer State,’ manifest +destiny might probably lead them ultimately eastward across the Menam +and Mekong to Annam and Cochin China. + +The Romans too sought for a scientific frontier, and hesitated often as +to the line they should select, sometimes pushing boldly eastward beyond +the Rhine and the Euphrates, sometimes receding to those rivers. Not +till the time of Hadrian did they create a regular system of frontier +defence, strengthened at many points by fortifications, among which the +forts that lie along the Roman Wall from the Tyne to the Solway are +perhaps the best preserved. So the English wavered for a time between +the line of the Indus and that of the Soliman range; so in the wild +mountain region beyond Kashmir they have, within the last few years, +alternately occupied and retired from the remote outpost of Chitral. It +has been their good fortune to have been obliged to fortify a +comparatively small number of points, and all of these are on the +north-west frontier. + +There have been those who would urge them to occupy Afghanistan and +entrench themselves therein to resist a possible Russian invasion. But +for the present wiser counsels have prevailed. Afghanistan is a more +effective barrier in the hands of its own fierce tribes than it would be +as a part of British territory. A parallel may be drawn between the part +it has played of late years and that which Armenia played in the ancient +world from the days of Augustus to those of Heraclius. Both countries +had been the seats of short-lived Empires, Armenia in the days of +Tigranes, Afghanistan in those of Ahmed Shah. Both are wild and rugged +regions, the dwelling-places of warlike races. Christian Armenia was +hostile from religious sentiment to the enemies whom Rome had to fear, +the Persian Fire-worshippers. Musulman Afghanistan dreads the power of +Christian Russia. But the loyalty or friendship of the Armenian princes +was not always proof against the threats of the formidable Sassanids, +and the action of the Afghans is an element of uncertainty and anxiety +to the British rulers of India. + +To make forces so small as those on which Rome relied and those which +now defend British India adequate for the work they have to do, good +means of communication are indispensable. It was one of the first tasks +of the Romans to establish such means. They were the great—indeed one +may say, the only—road builders of antiquity. They began this policy +before they had completed the conquest of Italy; and it was one of the +devices which assured their supremacy throughout the peninsula. They +followed it out in Gaul, Spain, Africa, Britain, and the East, doing +their work so thoroughly that in Britain some of the roads continued to +be the chief avenues of travel down till the eighteenth century. So the +English have been in India a great engineering people, constructing +lines of communication, first roads and afterwards railways, on a scale +of expenditure unknown to earlier ages. The potentates of elder days, +Hindu rajahs, and subsequently Pathans and Moguls, with other less +famous Musulman dynasties, have left their memorials in temples and +mosques, in palaces and tombs. The English are commemorating their sway +by railway works, by tunnels and cuttings, by embankments and bridges. +If India were to relapse into barbarism the bridges, being mostly of +iron, would after a while perish, and the embankments would in time be +swept away by torrential rains, but the rock-cuttings and the tunnels +would remain, as the indestructible paving-stones of the Roman roads, +and majestic bridges, like the Pont du Gard in Languedoc, remain to +witness to the skill and thoroughness with which a great race did its +work. + +The opening up of India by railroads suggests not a few interesting +questions which, however, I can do no more than indicate here. Railroad +construction has imposed upon the Indian exchequer a strain all the +heavier because some lines, especially those on the north-west frontier, +having been undertaken from strategic rather than commercial motives, +will yield no revenue at all proportionate to their cost. It has been +suggested that although railroads were meant to benefit the peasantry, +they may possibly have increased the risk of famine, since they induce +the producer to export the grain which was formerly locally stored up in +good years to meet the scarcity of bad years. The comparative quickness +with which food can be carried by rail into a famine area does not—so it +is argued—compensate for the loss of these domestic reserves. Railways, +bringing the numerous races that inhabit India into a closer touch with +one another than was possible before, are breaking down, slowly but +surely, the demarcations of caste, and are tending towards an +assimilation of the jarring elements, racial and linguistic, as well as +religious, which have divided India into a number of distinct, and in +many cases hostile, groups. Centuries may elapse before this +assimilation can become a source of political danger to the rulers of +the country: yet we discern the beginnings of the process now, +especially in the more educated class. The Roman roads, being highways +of commerce as well as of war, contributed powerfully to draw together +the peoples whom Rome ruled into one imperial nationality. But this was +a process which, as we shall presently note, was for Rome an unmixed +gain, since it strengthened the cohesion of an Empire whose inhabitants +had every motive for loyalty to the imperial Government, if not always +to the particular sovereign. The best efforts of Britain may not succeed +in obtaining a similar attachment from her Indian subjects, and their +union into a body animated by one national sentiment might become an +element of danger against which she has never yet been required to take +precautions. + +The excellence of the highways of communication provided by the wise +energy of the Romans and of the English has contributed not only to the +easier defence of the frontiers of both Empires, but also to the +maintenance of a wonderfully high standard of internal peace and order. +Let any one think of the general state of the ancient world before the +conquests of Rome, and let him then think of the condition not merely of +India after the death of the Emperor Aurungzeb, but of the chief +European countries as they stood in the seventeenth century, if he +wishes to appreciate what Rome did for her subjects, or what England has +done in India. In some parts of Europe private war still went on two +hundred and fifty years ago. Almost everywhere robber bands made +travelling dangerous and levied tribute upon the peasantry. Even in the +eighteenth century, and even within our own islands, Rob Roy raided the +farmers of Lennox, and landlords in Connaught fought pitched battles +with one another at the head of their retainers. Even a century ago the +coasts of the Mediterranean were ravaged by Barbary pirates, and +brigandage reigned unchecked through large districts of Italy. But in +the best days of the Roman Empire piracy was unknown; the peasantry were +exempt from all exactions except those of the tax-gatherer; and the +great roads were practically safe for travellers. Southern and western +Europe, taken as a whole, would seem to have enjoyed better order under +Hadrian and the Antonines than was enjoyed again until nearly our own +times. This was the more remarkable because the existence of slavery +must have let loose upon society, in the form of runaway slaves, a good +many dangerous characters. Moreover, there remained some mountainous +regions where the tribes had been left practically to themselves under +their own rude customs. These enclaves of barbarism within civilized +territory, such as was Albania, in the central mountain knot of which no +traces of Roman building have been found, and the Isaurian country in +Asia Minor, and possibly the Cantabrian land on the borders of +south-western Gaul and northern Spain, where the Basque tongue still +survives, do not appear to have seriously interfered with the peace and +well-being of the settled population which dwelt around them, probably +because the mountaineers knew that it was only by good behaviour that +they could obtain permission to enjoy the measure of independence that +had been left to them. The parts of provincial Africa which lay near the +desert were less orderly, because it was not easy to get behind the wild +tribes who had the Sahara at their back. + +The internal peace of the Roman Empire was, however, less perfect than +that which has been established within the last sixty years in India. +Nothing surprises the visitor from Europe so much as the absolute +confidence with which he finds himself travelling unprotected across +this vast country, through mountains and jungles, among half savage +tribes whose languages he does not know, and that without seeing, save +at rare intervals, any sign of European administration. Nor is this +confined to British India. It is almost the same in Native States. Even +along the lofty forest and mountain frontier that separates the native +(protected) principality of Sikkim from Nepal—the only really +independent Indian State—an Englishman may journey unarmed and alone, +except for a couple of native attendants, for a week or more. When he +asks his friends at Darjiling, before he starts, whether he ought to +take a revolver with him, they smile at the question. There is not so +complete a security for native travellers, especially in native States, +for here and there bands of brigands called Dacoits infest the tracks, +and rob, sometimes the wayfarer, sometimes the peasant, escaping into +the recesses of the jungle when the police are after them. But dacoity, +though it occasionally breaks out afresh in a few districts, has become +much less frequent than formerly. The practice of Thuggi which seventy +years ago still caused many murders, has been extirpated by the +unceasing energy of British officers. Crimes of violence show a +percentage to the population which appears small when one considers how +many wild tribes remain. The native of course suffers from violence more +frequently than does the European, whose prestige of race, backed by the +belief that punishment will surely follow on any injury done to him, +keeps him safe in the wildest districts[6]. + +----- + +Footnote 6: + + An incident like the murder in 1889 of the British Resident at + Manipur, a small Protected State in the hill country between Assam and + Burma, is so rare and excites so much surprise and horror as to be the + best proof of the general tranquillity. In that case there had been + some provocation, though not on the part of the Resident himself, an + excellent man of conciliatory temper. + +----- + +I have referred to the enclaves within the area of the Roman Empire +where rude peoples were allowed to live after their own fashion so long +as they did not disturb the peace of their more civilized neighbours. +One finds the Indian parallel to these districts, not so much in the +Native States, for these are often as advanced in the arts of life, and, +in a very few instances, almost as well administered, as British +territory, but rather in the hill tribes, which in parts of central, of +north-western, and of southern India, have retained their savage or +semi-savage customs, under their own chiefs, within the provinces +directly subject to the Crown. These tribes, as did the Albanians and +Basques, cleave to their primitive languages, and cleave also to their +primitive forms of ghost-worship or nature-worship, though Hinduism is +beginning to lay upon them its tenacious grasp. Of one another’s lives +and property they are not very careful. But they are awed by the +European and leave him unmolested. + +The success of the British, like that of the Roman administration in +securing peace and good order, has been due, not merely to a sense of +the interest which a government has in maintaining conditions which, +because favourable to industry are favourable also to revenue, but also +to the high ideal of the duties of a ruler which both nations have set +before themselves. Earlier Empires, like those of the Persian +Achaemenids or of the successors of Alexander, had been content to tax +their subjects and raise armies from them. No monarch, except perhaps +some of the Ptolemies in Egypt, seems to have set himself to establish a +system from which his subjects would benefit. Rome, with larger and +higher views, gave to those whom she conquered some compensations in +better administration for the national independence she extinguished. +Her ideals rose as she acquired experience, and as she came to feel the +magnificence of her position. Even under the Republic attempts were made +to check abuses of power on the part of provincial governors. The +proceedings against Verres, which we know so well because Cicero’s +speeches against that miscreant have been preserved, are an instance of +steps taken in the interests of a province whose discontent was so +little likely to harm Rome that no urgent political necessity prescribed +them. Those proceedings showed how defective was the machinery for +controlling or punishing a provincial governor; and it is clear enough +that a great deal of extortion and misfeasance went on under proconsuls +and propraetors in the later days of the Republic, to the enrichment, +not only of those functionaries, but of the hungry swarm who followed +them, including men who, like the poet Catullus, were made for better +things[7]. With the establishment of a monarchy administration improved. +The Emperor had a more definite responsibility for securing the welfare +and contentment of the provinces than had been felt by the Senate or the +jurors of the Republic, swayed by party interest or passion, not to +speak of more sordid motives. He was, moreover, able to give effect to +his wishes more promptly and more effectively. He could try an +incriminated official in the way he thought best, and mete out +appropriate punishment. It may indeed be said that the best proof of the +incompetence of the Republican system for the task of governing the +world, and of the need for the concentration of powers in a single hand, +is to be found in the scandals of provincial administration, scandals +which, so far as we can judge, could not have been remedied without a +complete change either in the tone and temper of the ruling class at +Rome, or in the ancient constitution itself. + +----- + +Footnote 7: + + Poems x and xxviii. It is some comfort to know that Catullus obtained + in Bithynia only themes for some of his most charming verses (see + poems iv and xlvi). Gains would probably have been ill-gotten. + +----- + +On this point the parallel with the English in India is interesting, +dissimilar as the circumstances were. The English administration began +with extortions and corruptions. Officials were often rapacious, +sometimes unjust, in their dealings with the native princes. But the +statesmen and the public opinion of England, even in the latter half of +the eighteenth century, had higher standards than those of Rome in the +days of Sulla and Cicero, while the machinery which the House of Commons +provided for dealing with powerful offenders was more effective than the +Roman method of judicial proceedings before tribunals which could be, +and frequently were, bribed. The first outbreak of greed and corruption +in Bengal was dealt with by the strong hand of Clive in 1765. It made so +great an impression at home as to give rise to a provision in a statute +of 1773, making offences against the provisions of that Act or against +the natives of India, punishable by the Court of King’s Bench in +England. By Pitt’s Act of 1784, a Special Court, consisting of three +judges, four peers, and six members of the House of Commons, was created +for the trial in England of offences committed in India. This singular +tribunal, which has been compared with the _quaestio perpetua_ (_de +pecuniis repetundis_) of Senators created by a Roman statute of B.C. 149 +to try offences committed by Roman officials against provincials, has +never acted, or even been summoned[8]. Soon after it came the famous +trial which is more familiar to Englishmen than any other event in the +earlier relations of England and India. The impeachment of Warren +Hastings has often been compared with the trial of Verres, though +Hastings was not only a far more capable, but a far less culpable man. +Hastings, like Verres, was not punished. But the proceedings against him +so fixed the attention of the nation upon the administration of India as +to secure for wholesome principles of conduct a recognition which was +never thereafter forgotten. The Act of 1784 in establishing a Board of +Control responsible to Parliament found a means both for supervising the +behaviour of officials and for taking the large political questions +which arose in India out of the hands of the East India Company. This +Board continued till India was placed under the direct sway of the +British Crown in 1858. At the same time the appointment of +Governors-General who were mostly men of wealth, and always men of rank +and position at home, provided a safeguard against such misconduct as +the proconsuls under the Roman Republic had been prone to commit. These +latter had little to fear from prosecution when their term of office was +over, and the opinion of their class was not shocked by offences which +would have fatally discredited an English nobleman. The standard by +which English public opinion judges the behaviour of Indian or Colonial +officials has, on the whole, risen during the nineteenth century; and +the idea that the government of subject-races is to be regarded as a +trust to be discharged with a sense of responsibility to God and to +humanity at large has become generally accepted. Probably the action of +the Emperors, or at least of such men as Trajan and his three +successors, raised the standard of opinion in the Roman Empire also. It +was, however, not so much to that opinion as to their sovereign master +that Roman officials were responsible. The general principles of policy +which guided the Emperors were sound, but how far they were applied to +check corruption or oppression in each particular case is a matter on +which we are imperfectly informed. Under an indolent or vicious Emperor, +a governor who had influence at Court, or who remitted the full tribute +punctually, may probably have sinned with impunity. + +----- + +Footnote 8: + + See Sir C. P. Ilbert’s _Government of India_, p. 68. The provision + creating this Court has never been repealed. + +----- + +The government of India by the English resembles that of her provinces +by Rome in being thoroughly despotic. In both cases, whatever may have +been done for the people, nothing was or is done by the people. There +was under Rome, and there is in British India, no room for popular +initiative, or for popular interference with the acts of the rulers, +from the Viceroy down to a district official. For wrongs cognizable by +the courts of law, the courts of law were and are open, doubtless more +fully open in India than they were in the Roman Empire. But for errors +in policy or for defects in the law itself, the people of a province had +no remedy available in the Roman Empire except through petition to the +sovereign. Neither is there now in India any recourse open to the +inhabitants except an appeal to the Crown or to Parliament, a Parliament +in which the Indian subjects of the Crown have not been, and cannot be, +represented. This was, and is, by the nature of the case, inevitable. + +In comparing the governmental systems of the two Empires, it is hardly +necessary to advert to such differences as the fact that India is placed +under a Viceroy to whom all the other high functionaries, Governors, +Lieutenant-Governors and Chief Commissioners, are subordinated, whereas +in the Roman world every provincial governor stood directly under the +Emperor. Neither need one dwell upon the position in the English system +of the Secretary of State for India in Council as a member of the +British Cabinet. Such details do not affect the main point to which I +now come. + +The territories conquered by the Romans were of three kinds. Some, such +as Egypt, Macedonia, and Pontus, had been, under their own princes, +monarchies practically despotic. In these, of course, there could be no +question of what we call popular government. Some had been tribal +principalities, monarchic or oligarchic, such as those among the Iceni +and Brigantes in Britain, the Arverni in Gaul, the Cantabrian +mountaineers in Spain. Here, again, free institutions had not existed +before, and could hardly have been created by the conqueror. The third +kind consisted of small commonwealths, such as the Greek cities. These +were fitted for self-government, which indeed they had enjoyed before +they were subjected by Rome. Very wisely, municipal self-government was +to a large extent left to them by the Emperors down till the time of +Justinian. It was more complete in some cities than in others; and it +was in nearly all gradually reduced by the equalizing pressure of the +central authority. But they were all placed under the governor of the +province; most of them paid taxes, and in most both the criminal and the +higher civil jurisdiction were in the hands of imperial officials. Of +the introduction of any free institutions for the empire at large, or +even for any province as a whole, there seems never to have been any +question. Among the many constitutional inventions we owe to the ancient +world representative government finds no place. A generation before the +fall of the Republic, Rome had missed her opportunity when the creation +of such a system was most needed and might have been most useful. After +her struggle against the league of her Italian allies, she consented to +admit them to vote in her own city tribes, instead of taking what seems +to us moderns the obvious expedient of allowing them to send delegates +to an assembly which should meet in Rome. So it befell that monarchy and +a city republic or confederation of such republics remained the only +political forms known to antiquity[9]. + +----- + +Footnote 9: + + The nearest approach to any kind of provincial self-government and + also the nearest approach to a representative system was made in the + Provincial Councils which seem from the time of Augustus down to the + fifth century to have existed in all or nearly all the provinces. They + consisted of delegates from the cities of each province, and met + annually in some central place, where stood the temple or altar to + Rome and Augustus. They were presided over by the priest of these + divinities, and their primary functions were to offer sacrifices, + provide for the expense of the annual games, and elect the priest for + next year. However they seem to have also passed resolutions, such as + votes of thanks to the outgoing priest or to a departing governor, and + to have transmitted requests or inquiries to the Emperor. Sometimes + they arranged for the prosecution of a governor who had misgoverned + them: but on the whole their functions were more ceremonial and + ornamental than practically important; nor would the emperors have + suffered them to exert any real power, though they were valued as + useful vehicles of provincial opinion (see Marquardt, _Römische + Staatsverwaltung_, vol. i, and an article in _Eng. Hist. Review_ for + April, 1893, by Mr. E. G. Hardy.) + +----- + +India is ruled despotically by the English, not merely because they +found her so ruled, but because they conceive that no other sort of +government would suit a vast population of different races and tongues, +divided by the religious animosities of Hindus and Musulmans, and with +no sort of experience of self-government on a scale larger than that of +the Village Council. No more in India than in the Roman Empire has there +been any question of establishing free institutions either for the +country as a whole, or for any particular province. But the English, +like the Romans, have permitted such self-government as they found to +subsist. It subsists only in the very rudimentary but very useful form +of the Village Council just referred to, called in some parts of India +the Panchayet or body of five. Of late years municipal constitutions, +resembling at a distance those of English boroughs, have been given to +some of the larger cities as a sort of experiment, for the sake of +training the people to a sense of public duty, and of relieving the +provincial government of local duties. So far the experiment has in most +cities been only a moderate success. The truth is that, though a few +intelligent men, educated in European ideas, complain of the despotic +power of the Anglo-Indian bureaucracy, the people of India generally do +not wish to govern themselves. Their traditions, their habits, their +ideas, are all the other way, and dispose them to accept submissively +any rule which is strong and which neither disturbs their religion and +customs nor lays too heavy imposts upon them. + +Here let an interesting contrast be noted. The Roman Emperors were +despots at home in Italy, almost as much, and ultimately quite as much, +as in the provinces. The English govern their own country on democratic, +India on absolutist principles. The inconsistency is patent but +inevitable. It affords an easy theme for declamation when any arbitrary +act of the Indian administration gives rise to complaints, and it may +fairly be used as the foundation for an argument that a people which +enjoys freedom at home is specially bound to deal justly and +considerately with those subjects to whom she refuses a like freedom. +But every one admits in his heart that it is impossible to ignore the +differences which make one group of races unfit for the institutions +which have given energy and contentment to another more favourably +placed. + +A similar inconsistency presses on the people of the United States in +the Philippine Isles. It is a more obtrusive inconsistency because it +has come more abruptly, because it has come, not by the operation of a +long series of historical causes, but by the sudden and little +considered action of the American Republic itself, and because the +American Republic has proclaimed, far more loudly and clearly than the +English have ever done, the principle contained in the Declaration of +Independence that the consent of the governed is the only foundation of +all just government. The Americans will doubtless in time either +reconcile themselves to their illogical position or alter it. But for +the present it gives to thoughtful men among them visions of mocking +spirits, which the clergy are summoned to exorcize by dwelling upon the +benefits which the diffusion of a pure faith and a commercial +civilization will confer upon the lazy and superstitious inhabitants of +these tropical isles. + +Subject to the general principle that the power of the Emperor was +everywhere supreme and absolute, the Romans recognized, at least in the +earlier days of the Empire, considerable differences between the methods +of administering various provinces. A distinction was drawn between the +provinces of the Roman people, to which proconsuls or propraetors were +sent, and the provinces of Caesar, placed under the more direct control +of the Emperor, and administered in his name by an official called the +_praeses_ or _legatus Caesaris_, or sometimes (as was the case in +Judaea, at the time when it was ruled by Pontius Pilate) by a +_procurator_, an officer primarily financial, but often entrusted with +the powers of a _praeses_. Egypt received special treatment because the +population was turbulent and liable to outbursts of religious passion, +and because it was important to keep a great cornfield of the Empire in +good humour. These distinctions between one province and another tended +to vanish as the administrative system of the whole Empire grew better +settled and the old republican forms were forgotten. Still there were +always marked differences between Britain, for instance, at the one end +of the realm and Syria at the other. So there were all sorts of +varieties in the treatment of cities and tribes which had never been +conquered, but passed peaceably through alliance into subjection. Some +of the Hellenic cities retained their republican institutions till far +down in imperial times. Distinctions not indeed similar, yet analogous, +have existed between the different parts of British India. There is the +old distribution of provinces into Regulation and Non-Regulation. The +name ‘Province,’ one may observe in passing, a name unknown elsewhere in +the dominions of Britain[10] (though a recent and vulgar usage sometimes +applies it to the parts of England outside London) except as a relic of +French dominion in Canada, bears witness to an authority which began, as +in Canada, through conquest. Though the names of Regulation and +Non-Regulation provinces are now no longer used, a distinction remains +between the districts to the higher posts in which none but members of +the covenanted service are appointed, and those in which the Government +have a wider range of choice, and also between those districts for which +the Governor-General can make ordinances in his executive capacity, and +those which are legislated for by him in Council in the ordinary way. +There are also many differences in the administrative systems of the +different Presidencies and other territories, besides of course all +imaginable diversities in the amount of independence left to the +different ‘Protected States,’ some of which are powerful kingdoms, like +Hyderabad, while many, as for instance in Gujarat, are petty +principalities of two or three dozen square miles. + +----- + +Footnote 10: + + The use of the word to denote the two great ecclesiastical divisions + of England (Province of Canterbury and Province of York) is a relic of + the Roman imperial system. + +----- + +The mention of these protected States suggests another point of +comparison. Rome brought many principalities or kingdoms under her +influence, especially in the eastern parts of the Empire; and dealt with +each upon the basis of the treaty by which her supremacy had been +acknowledged, allowing to some a wider, to some a narrower measure of +autonomy[11]. Ultimately, however, all these, except a few on the +frontiers, passed under her direct sway: and this frequently happened in +cases where the native dynasty had died out, so that the title lapsed to +the Emperor. The Iceni in Britain seem to have been such a protected +State, and it was the failure of male heirs that caused a lapse. So the +Indian Government was wont, when the ruling family became extinct or +hopelessly incompetent, to annex to the dominions of the British Crown +the principality it had ruled. From the days of Lord Canning, however, a +new policy has been adopted. It is now deemed better to maintain the +native dynasties whenever this can be done, so a childless prince is +suffered to adopt, or provide for the adoption of, some person approved +by the Government; and the descendants of this person are recognized as +rulers[12]. The incoming prince feels that he owes his power to the +British Government, while adoption gives him a title in the eyes of his +subjects. + +----- + +Footnote 11: + + For instance, Cappadocia, Pontus, and Commagene were left as subject + kingdoms till 17 A.D., 63 A.D., and 72 A.D. respectively. + +Footnote 12: + + ‘The extent to which confidence has been restored by Lord Canning’s + edict is shown by the curious fact that since its promulgation a + childless ruler very rarely adopts in his own lifetime. An heir + presumptive, who knows that he is to succeed and who may possibly grow + restive if his inheritance is delayed, is for various obscure reasons + not the kind of person whom an Oriental ruler cares to see idling + about his palace, so that a politic chief often prefers leaving the + duty of nominating a successor to his widows, who know his mind and + have every reason for wishing him long life.’—Sir A. C. Lyall in _Law + Quarterly Review_ for October, 1893. + +----- + +The differences I have mentioned between the British provinces are +important, not only as respects administration, but as respects the +system of landholding. All over India, as in many other Oriental +countries, it is from the land that a large part of revenue, whether one +calls it rent or land tax, is derived. In some provinces the rent is +paid direct to the Government by the cultivator, in others it goes to +intermediary landlords, who in their turn are responsible to the State. +In some provinces it has been permanently fixed, by what is called a +Land-settlement[13], and not always on the same principles. The subject +is far too large and intricate to be pursued here. I mention it because +in the Roman Empire also land revenue was the mainstay of the imperial +treasury. Where territory had been taken in war, the fact of conquest +was deemed to have made the Roman people ultimate owners of the land so +acquired, and the cultivators became liable to pay what we should call +rent for it. In some provinces this rent was farmed out to contractors +called _publicani_, who offered to the State a sum equivalent to the +rent of the area contracted for, minus the expense of collection and +their own profit on the undertaking, and kept for themselves whatever +they could extract from the peasantry. This vicious system, resembling +that of the tithe farmers in Ireland seventy years ago, was regulated by +Nero and abolished by Hadrian, who placed the imperial procurator in +charge of the land revenue except as regarded the forests and the mines. +It exists to-day in the Ottoman Empire. Convenient for the State as it +seems, it is wasteful, and naturally exposes the peasant, as is +conspicuously the case in Asiatic Turkey, to oppressions perhaps even +harder to check than are those of State officials. When the English came +to India they found it in force there; and the present landlord class in +Bengal, called Zemindars, are the representatives of the rent or land +tax-farmers under the native princes who were, perhaps unwisely, +recognized as landowners by the British a century ago. This kind of +tax-farming is, however, no longer practised in India, a merit to be +credited to the English when we are comparing them with the Romans of +the Republic and the earlier Empire. + +----- + +Footnote 13: + + One finds something similar to this Land-settlement in the Roman plan + of determining the land revenue of a province by what was called the + _lex provinciae_. + +----- + +Where the revenue of the State comes from the land, the State is obliged +to keep a watchful eye upon the condition of agriculture, since revenue +must needs decline when agriculture is depressed. There was not in the +Roman world, and there is not in India now, any question of agricultural +depression arising from foreign competition, for no grain came into the +Empire from outside, or comes now into India[14]. But a year of drought, +or, in a long course of years, the exhaustion of the soil, tells heavily +on the agriculturist, and may render him unable to pay his rent or land +tax. In bad years it was the practice of the more indulgent Emperors to +remit a part of the tax for the year: and one of the complaints most +frequently made against harsh sovereigns, or extravagant ones like +Justinian, was that they refused to concede such remissions. A similar +indulgence has to be and is granted in India in like cases. + +----- + +Footnote 14: + + Rice, however, is sent from Lower Burma into India proper. + +----- + +Finance was the standing difficulty of the Roman as it is of the +Anglo-Indian administrator. Indeed, the Roman Empire may be said to have +perished from want of revenue. Heavy taxation, and possibly the +exhaustion of the soil, led to the abandonment of farms, reducing the +rent derivable from the land. The terrible plague of the second century +brought down population, and was followed by a famine. The eastern +provinces had never furnished good fighting material: and the diminution +of the agricultural population of Italy, due partly to this cause, +partly to the growth of large estates worked by slave labour, made it +necessary to recruit the armies from the barbarians on the frontiers. +Even in the later days of the Republic the native auxiliaries were +beginning to be an important part of a Roman army. Moreover, with a +declining revenue, a military establishment such as was needed to defend +the eastern and the northern frontiers could not always be maintained. +The Romans had no means of drawing a revenue from frontier customs, +because there was very little import trade; but dues were levied at +ports and there was a succession tax, which usually stood at five per +cent. In most provinces there were few large fortunes on which an income +or property tax could have been levied, except those of persons who were +already paying up to their capacities as being responsible for the land +tax assessed upon their districts. The salt tax was felt so sorely by +the poor that Aurelian was hailed as a benefactor when he abolished it. + +India has for many years past been, if not in financial straits, yet +painfully near the limit of her taxable resources. There too the salt +tax presses hard upon the peasant; and the number of fortunes from which +much can be extracted by an income or property tax is, relatively to the +population, very small. Comparing her total wealth with her population, +India is a poor country, probably poorer than was the Roman Empire in +the time of Constantine[15]. A heavy burden lies upon her in respect of +the salaries of the upper branches of the Civil Service, which must of +course be fixed at figures sufficient to attract a high order of talent +from England, and a still heavier one in respect of military charges. On +the other hand, she has the advantage of being able, when the guarantee +of the British Government is given for the loan, to borrow money for +railways and other public works, at a rate of interest very low as +compared with what the best Native State would be obliged to offer, or +as compared with that which the Roman Government paid. + +----- + +Footnote 15: + + The total revenue of British India was, in A.D. 1840, 200,000,000 of + rupees, and in 1898-9, 1,014,427,000 rupees, more than a fourth of + which was land revenue and less than one-fourth from railways. (The + exchange value of the rupee, formerly about two shillings, is now + about one shilling and four pence.) £190,000,000 has been expended + upon railways in British India and the Native States. The land revenue + is somewhat increasing with the bringing of additional land under + cultivation. It is estimated that forty-two per cent. of the + cultivable area is available for further cultivation. The funded debt + of India is now £195,000,000, the unfunded about £12,000,000. + +----- + +Under the Republic, Rome levied tribute from the provinces, and spent +some of it on herself, though of course the larger part went to the +general expenses of the military and civil administration. Under the +Emperors that which was spent in Rome became gradually less and less, as +the Emperor became more and more detached from the imperial city, and +after Diocletian, Italy was treated as a province. England, like Spain +in the days of her American Empire and like Holland now, for a time drew +from her Indian conquests a substantial revenue. An inquiry made in 1773 +showed that, since 1765, about two millions a year had been paid by the +Company to the British exchequer. By 1773, however, the Company had +incurred such heavy debts that the exchequer had to lend them money: and +since that time Britain has drawn no tribute from India. She profits by +her dominion only in respect of having an enormous market for her goods, +industrial or commercial enterprises offering comparatively safe +investments for her capital, and a field where her sons can make a +career. Apart from any considerations of justice or of sentiment, India +could not afford to make any substantial contribution to the expenses of +the non-Indian dominions of the Crown. It is all she can do to pay her +own way. + +Those whom Rome sent out to govern the provinces were, in the days of +the Republic and in the days of Augustus, Romans, that is to say Roman +citizens and natives of Italy. Very soon, however, citizens born in the +provinces began to be admitted to the great offices and to be selected +by the Emperor for high employment. As early as the time of Nero, an +Aquitanian chief, Julius Vindex, was legate of the great province of +Gallia Lugdunensis. When the imperial throne itself was filled by +provincials, as was often the case from Trajan onwards, it was plain +that the pre-eminence of Italy was gone. If a man, otherwise eligible, +was not a full Roman citizen, the Emperor forthwith made him one. By the +time of the Antonines (A.D. 138-180) there was practically no +distinction between a Roman and a provincial citizen; and we may safely +assume that the large majority of important posts, both military and +civil, were held by men of provincial extraction. Indeed merit probably +won its way faster to military than to civil distinction, for in +governments which are militant as well as military, promotion by merit +is essential to the success of the national arms, and the soldier +identifies himself with the power he serves even faster than does the +civilian. So, long before full citizenship was granted to the whole +Roman world (about A.D. 217), it is clear that not only the lower posts +in which provincials had always been employed, but the highest also were +freely open to all subjects. A Gaul might be sent to govern Cilicia, or +a Thracian Britain, because both were now Romans rather than Gauls or +Thracians. The fact that Latin and Greek were practically familiar to +nearly all highly educated civil servants, because Latin was the +language of law as well as the tongue commonly spoken in the West, while +Greek was the language of philosophy and (to a great extent) of letters, +besides being the spoken tongue of most parts of the East, made a +well-educated man fit for public employment everywhere, for he was not +(except perhaps in Syria and Egypt and a few odd corners of the Empire) +obliged to learn any fresh language. And a provincial was just as likely +as an Italian to be highly educated. Thus the officials could easily get +into touch with the subjects, and felt hardly more strange if they came +from a distance than a Scotchman feels if he is appointed to a +professorship in Quebec, or an Irishman if he becomes postmaster in a +Norfolk village. Nothing contributed more powerfully to the unity and +the strength of the Roman dominion than this sense of an imperial +nationality. + +The English in India have, as did the Romans, always employed the +natives in subordinate posts. The enormous majority of persons who carry +on the civil administration there at this moment are Asiatics. But the +English, unlike the Romans, have continued to reserve the higher posts +for men of European stock. The contrast in this respect between the +Roman and the English policy is instructive, and goes down to the +foundation of the differences between English and Roman rule. As we have +seen, the City of Rome became the Empire, and the Empire became Rome. +National independence was not regretted, for the East had been +denationalized before the Italian conqueror appeared, and the tribes of +the West, even those who fought best for freedom, had not reached a +genuine national life when Spain, Gaul, and Britain were brought under +the yoke. In the third century A.D. a Gaul, a Spaniard, a Pannonian, a +Bithynian, a Syrian called himself a Roman, and for all practical +purposes was a Roman. The interests of the Empire were his interests, +its glory his glory, almost as much as if he had been born in the shadow +of the Capitol. There was, therefore, no reason why his loyalty should +not be trusted, no reason why he should not be chosen to lead in war, or +govern in peace, men of Italian birth. So, too, the qualities which make +a man capable of leading in war or administering in peace were just as +likely to be found in a Gaul, or a Spaniard, or a German from the Rhine +frontier as in an Italian. In fact, men of Italian birth play no great +part in later imperial history[16]. + +----- + +Footnote 16: + + After the fifth century, Armenians, Isaurians, and Northern + Macedonians figure more largely in the Eastern Empire than do natives + of the provinces round the Aegean. + +----- + +It is far otherwise in India, though there was among the races of India +no nation. The Englishman does not become an Indian, nor the Indian an +Englishman. The Indian does not as a rule, though of course there have +been not a few remarkable exceptions to the rule, possess the qualities +which the English deem to be needed for leadership in war or for the +higher posts of administration in peace[17]. For several reasons, +reasons to be referred to later, he can seldom be expected to feel like +an Englishman, and to have the same devotion to the interests of England +which may be counted on in an Englishman. Accordingly the English have +made in India arrangements to which there was nothing similar in the +Roman Empire. They have two armies, a native and a European, the latter +of which is never suffered to fall below a certain ratio to the former. +The latter is composed entirely of Englishmen. In the former all +military posts in line regiments above that of subahdar (equivalent to +captain) are reserved to Englishmen[18]. The artillery and engineer +services are kept in English hands, _i.e._ there is hardly any native +artillery. It is only, therefore, in the native contingents already +referred to that natives are found in the higher grades. These +contingents may be compared with the auxiliary barbarian troops under +non-Roman commanders whom we find in the later ages of Rome, after +Constantine. Such commanders proved sometimes, like the Vandal Stilicho, +energetic defenders of the imperial throne, sometimes, like the Suevian +Ricimer, formidable menaces to it[19]. But apart from these, the Romans +had but one army; and it was an army in which all subjects had an equal +chance of rising. + +----- + +Footnote 17: + + Among these exceptions may be mentioned Sir Syed Ahmed of Aligurh, and + the late Mr. Justice Trimbak Telang of Bombay, both men of remarkable + force and elevation of character. + +Footnote 18: + + The subahdar, however, is rather a non-commissioned than a + commissioned officer, and is not a member of the British officers’ + mess. + +Footnote 19: + + Russia places Musulmans from the Caucasian provinces in high military + posts. But she has no army corresponding to the native army in India, + and as she has a number of Musulman subjects in European Russia it is + all the more natural for her to have a Colonel Temirhan Shipsheff at + Aralykh and a General Alikhanoff at Merv. + +----- + +In a civil career, the native of India may go higher under the English +than he can in a military one. A few natives, mostly Hindus, and indeed +largely Bengali Hindus, have won their way into the civil service by +passing the competitive Indian Civil Service examination in England, and +some of these have risen to the posts of magistrate and district judge. +A fair proportion of the seats on the benches of the Supreme Courts in +Calcutta, Madras, Bombay, Allahabad, and Lahore have been allotted to +native barristers of eminence, several of whom have shown themselves +equal in point of knowledge and capacity, as well as in integrity, to +the best judges selected from the European bar in India or sent out from +the English bar. No native, however, has ever been thought of for the +great places, such as those of Lieutenant-Governor or Chief +Commissioner, although all British subjects are legally eligible for any +post in the service of the Crown in any part of the British Dominions. + +Regarding the policy of this exclusion there has been much difference of +opinion. As a rule, Anglo-Indian officials approve the course which I +have described as that actually taken. But I know some who think that +there are natives of ability and force of character such as to fit them +for posts military as well as civil, higher than any to which a native +has yet been advanced, and who see advantages in selecting a few for +such posts. They hold, however, that such natives ought to be selected +for civil appointments, not by competitive examination in England but in +India itself by those who rule there, and in respect of personal merits +tested by service. Some opposition to such a method might be expected +from members of the regular civil service, who would consider their +prospects of promotion to be thereby prejudiced. + +Here we touch an extremely interesting point of comparison between the +Roman and the English systems. Both nations, when they started on their +career of conquest, had already built up at home elaborate +constitutional systems in which the rights of citizens, both public and +private civil rights, had been carefully settled and determined. What +was the working of these rights in the conquered territories? How far +were they extended by the conquerors, Roman and English, and with what +results? + +Rome set out from the usual practice of the city republics of the +ancient world. No man enjoyed any rights at all, public or private, +except a citizen of the Republic. A stranger coming to reside in the +city did not, no matter how long he lived there, nor did his son or +grandson, obtain those rights unless he was specially admitted to become +a citizen. From this principle Rome, as she grew, presently found +herself obliged to deviate. She admitted one set of neighbours after +another, sometimes as allies, sometimes in later days, as conquered and +incorporated communities, to a citizenship which was sometimes +incomplete, including only private civil rights, sometimes complete, +including the right of voting in the assembly and the right of being +chosen to a public office. Before the dictatorship of Julius Caesar +practically all Italians, except the people of Cisalpine Gaul, which +remained a province till B.C. 43, had been admitted to civic rights. +Citizenship, complete or partial (_i.e._ including or not including +public rights) had also begun to be conferred on a certain number of +cities or individuals outside Italy. Tarsus in Cilicia, of which St. +Paul was a native, enjoyed it, so he was born a Roman citizen. This +process of enlarging citizenship went on with accelerated speed, in and +after the days of the Flavian Emperors. Under Hadrian, the whole of +Spain seems to have enjoyed civic rights. Long before this date the +ancient right of voting in the Roman popular Assembly had become +useless, but the other advantages attached to the status of citizen were +worth having, for they secured valuable immunities. Finally, early in +the third century A.D., every Roman subject was by imperial edict made a +citizen for all purposes whatsoever. Universal eligibility to office +had, as we have seen, gone ahead of this extension, for all offices lay +in the gift of the Emperor or his ministers; and when it was desired to +appoint any one who might not be a full citizen, citizenship was +conferred along with the office. Thus Rome at last extended to all her +subjects the rights that had originally been confined to her own small +and exclusive community. + +In England the principle that all private civil rights belong to every +subject alike was very soon established, and may be said to have never +been doubted since the final extinction of serfdom in the beginning of +the seventeenth century. Public civil rights, however, did not +necessarily go with private. Everybody, it is true, was (subject to +certain religious restrictions now almost entirely repealed) eligible to +any office to which he might be appointed by the Crown, and was also +(subject to certain property qualifications which lasted till our own +time) capable of being chosen to fill any elective post or function, +such as that of member of the House of Commons. But the right of voting +did not necessarily go along with other rights, whether public or +private, and it is only within the last forty years that it has been +extended by a series of statutes to the bulk of the adult male +population. Now when Englishmen began to settle abroad, they carried +with them all their private rights as citizens, and also their +eligibility to office; but their other public rights, _i.e._ those of +voting, they could not carry, because these were attached to local areas +in England. When territories outside England were conquered, their free +inhabitants, in becoming subjects of the Crown, became therewith +entitled to all such rights of British subjects as were not connected +with residence in Britain: that is to say, they had all the private +civil rights of Englishmen, and also complete eligibility to public +office (unless of course some special disqualification was imposed). The +rights of an English settler in Massachusetts in the seventeenth and +eighteenth centuries were those of an Englishman, except that he could +not vote at an English parliamentary election because he was not +resident in any English constituency; and the same rule became +applicable to a French Canadian after the cession of Canada to the +British Crown. + +So when India was conquered, the same principles were again applied. +Every free Indian subject of the Crown soon became entitled to the +private civil rights of an Englishman, except so far as his own personal +law, Hindu or Musulman or Parsi or Jain, might modify those rights; and +if there was any such modification, that was recognized for his benefit +rather than to his prejudice. Thus the process which the Romans took +centuries to complete was effected almost at once in India by the +application of long established doctrines of English law. Accordingly we +have in India the singular result that although there are in that +country no free institutions (other than those municipal ones previously +referred to) nor any representative government, every Indian subject is +eligible to any office in the gift of the Crown anywhere, and to any +post or function to which any body of electors may select him. He may be +chosen by a British constituency a member of the British House of +Commons, or by a Canadian constituency a member of the House of Commons +of Canada. Two natives of India (both Parsis) have already been chosen, +both by London constituencies, to sit in the British House. So a native +Hindu or Musulman might be appointed by the Crown to be Lord Chief +Justice of England or Governor-General of Canada or Australia. He might +be created a peer. He might become Prime Minister. And as far as legal +eligibility goes, he might be named Governor-General of India, though as +a matter of practice, no Indian has ever been placed in any high Indian +office. Neither birth, nor colour, nor religion constitutes any legal +disqualification. This was expressly declared as regards India by the +India Act of 1833, and has been more than once formally declared since, +but it did not require any statute to establish what flowed from the +principles of our law. And it need hardly be added that the same +principles apply to the Chinese subjects of the Crown in Hong Kong or +Singapore and to the negro subjects of the Crown in Jamaica or Zululand. +In this respect at least England has worthily repeated the liberal +policy of Rome. She has done it, however, not by way of special grants, +but by the automatic and probably uncontemplated operation of the +general principles of her law. + +As I have referred to the influence of English constitutional ideas, it +is worth noting that it is these ideas which have led the English of +late years not only to create in India city municipalities, things +entirely foreign to the native Indian mind, but also to provide by +statute (in 1892) for the admission of a certain number of nominated +non-official members to the legislative councils of the Governors in +Bengal, Bombay, Madras, the North-West Provinces and Oudh, and the +Punjab. These members are nominated, not elected, because it has been +found difficult to devise a satisfactory scheme of election. But the +provision made for the presence of native non-officials testifies to the +wish of the English Government to secure not only a certain amount of +outside opinion, but also a certain number of native councillors through +whom native sentiment may be represented, and may obtain its due +influence on the conduct of affairs. + +The extension of the civil rights of Englishmen to the subjects of the +Crown in India would have been anything but a boon had it meant the +suppression and extinction of native law and custom. This of course it +has not meant. Neither had the extension of Roman conquest such an +effect in the Roman Empire; and even the grant of citizenship to all +subjects did not quite efface local law and usage. As the position and +influence of English law in India, viewed in comparison with the +relation of the older Roman law to the Roman provinces, is the subject +of another of these Essays, I will here pass over the legal side of the +matter, and speak only of the parallel to be noted between the political +action of the conquering nations in both cases. + +Both have shown a prudent wish to avoid disturbing, any further than the +fixed principles of their policy made needful, the usages and beliefs of +their subjects. The Romans took over the social and political system +which they found in each of the very dissimilar regions they conquered, +placed their own officials above it, modified it so far as they found +expedient for purposes of revenue and civil administration generally, +but otherwise let it stand as they found it and left the people alone. +In course of time the law and administration of the conquerors, and the +intellectual influences which literature called into play, did bring +about a considerable measure of assimilation between Romans and +provincials, especially in the life and ideas of the upper classes. But +this was the result of natural causes. The Romans did not consciously +and deliberately work for uniformity. Especially in the sphere of +religion they abstained from all interference. They had indeed no +temptation to interfere either with religious belief or with religious +practice, for their own system was not a universal but a strictly +national religion, and the educated classes had begun to sit rather +loose to that religion before the process of foreign conquest had gone +far. According to the theory of the ancient world, every nation had its +own deities, and all these deities were equally to be respected in their +own country. Whether they were at bottom the same deities under +different names, or were quite independent divine powers, did not +matter. Each nation and each member of a nation was expected to worship +the national gods: but so long as an individual man did not openly +reject or insult those gods, he might if he pleased worship a god +belonging to some other country, provided that the worship was not +conducted with shocking or demoralizing rites, such as led to the +prohibition of the Bacchanalian cult at Rome[20]. The Egyptian Serapis +was a fashionable deity among Roman women as early as the time of +Catullus. We are told that Claudius abolished Druidism on account of its +savage cruelty, but this may mean no more than that he forbade the +Druidic practice of human sacrifices[21]. There was therefore, speaking +broadly, no religious persecution and little religious intolerance in +the ancient world, for the Christians, it need hardly be said, were +persecuted not because of their religion but because they were a secret +society, about which, since it was new, and secret, and Oriental, and +rejected all the gods of all the nations alike, the wildest calumnies +were readily believed. The first religious persecutors were the Persian +Fire-worshipping kings of the Sassanid dynasty, who occasionally worried +their Christian subjects. + +----- + +Footnote 20: + + Constantine prohibited the immoral excesses practised by the Syrians + of Heliopolis. + +Footnote 21: + + ‘Druidarum religionem apud Gallos dirae immanitatis et tantum civibus + sub Augusto interdictam penitus abolevit.’—Sueton. _Vita Claud._ c. + 25. + +----- + +Neither, broadly speaking, was religious propagandism known to the +ancient world. There were no missions, neither foreign missions nor home +missions. If a man did not sacrifice to the gods of his own country, his +fellow citizens might think ill of him. If he was accused of teaching +that the gods did not exist, he might possibly, like Socrates, be put to +death, but nobody preached to him. On the other hand, if he did worship +them, he was in the right path, and it would have been deemed not only +impertinent, but almost impious, for the native of another country to +seek to convert him to another faith, that is to say, to make him +disloyal to the gods of his own country, who were its natural and +time-honoured protectors. The only occasions on which one hears of +people being required to perform acts of worship to any power but the +deities of their country are those cases in which travellers were +expected to offer a prayer or a sacrifice to some local deity whose +territory they were traversing, and whom it was therefore expedient to +propitiate, and those other cases in which a sort of worship was +required to be rendered to the monarch, or the special protecting deity +of the monarch, under whose sway they lived. The edict attributed to +Nebuchadnezzar in the book of Daniel may in this connexion be compared +with the practice in the Roman Empire of adoring the spirit that watched +over the reigning Caesar. To burn incense on the altar of the Genius of +the Emperor was the test commonly proposed to the persons accused of +being Christians. + +All this is the natural result of polytheism. With the coming of faiths +each of which claims to be exclusively and universally true, the face of +the world was changed. Christianity was necessarily a missionary +religion, and unfortunately soon became also, forgetting the precepts of +its Founder, a persecuting religion. Islam followed in the same path, +and for similar reasons. In India the strife of Buddhism with Hinduism +gave rise to ferocious persecutions, which however were perhaps as much +political as religious. When the Portuguese and Spaniards began to +discover and conquer new countries beyond the oceans, the spread of +religion was in the mouths of all the adventurers, and in the minds of +many of the baser as well as of the better sort. Spain accordingly +forced her faith upon all her subjects, and found no great resistance +from the American peoples, though of course their Christianity seldom +went deep, as indeed it remains to-day in many parts of Central and +South America, a thin veneer over the ancient superstitions of the +aborigines. Portugal did the like, so far as she could, in India and in +Africa. So too the decrees by which the French colonizing companies were +founded in the days of Richelieu provided that the Roman Catholic faith +was to be everywhere made compulsory, and that converted pagans were to +be admitted to the full civil rights of Frenchmen[22]. But when the +English set forth to trade and conquer they were not thinking of +religion. The middle of the eighteenth century, when Bengal and Madras +were acquired, was for England an age when persecution had died out and +missionary propagandism had scarcely begun. The East India Company did +not at first interfere in any way with the religious rites it found +practised by the people, however cruel or immoral they might be. It gave +no advantages to Christian converts, and for a good while it even +discouraged the presence of missionaries, lest they should provoke +disturbances. Bishops were thought less dangerous, and one was +appointed, with three Archdeacons under him, by the Act of 1813. A sort +of miniature church establishment, for the benefit of Europeans, still +exists and is supported out of Indian revenues. After a time, however, +some of the more offensive or harmful features of native worship began +to be forbidden. The human sacrifices that occasionally occurred among +the hill tribes were treated as murders, and the practice of Sutti—the +self-immolation of the Hindu widow on her husband’s funeral pyre—was +forbidden as far back as 1829. No hindrance is now thrown in the way of +Christian missions: and there is perfect equality, as respects civil +rights and privileges, not only between the native votaries of all +religions, but also between them and Europeans. + +----- + +Footnote 22: + + I owe this fact to Sir A. C. Lyall (_op. cit._ p. 66). + +----- + +So far as religion properly so-called is concerned, the policy of the +English is simple and easy to apply. But as respects usages which are +more or less associated with religion in the native mind, but which +European sentiment disapproves, difficulties sometimes arise. The +burning of the widow was one of these usages, and has been dealt with at +the risk of offending Hindu prejudice. Infanticide is another; and the +British Government try to check it, even in some of the protected +States. The marriage of young children is a third: and this it has been +thought not yet prudent to forbid, although the best native opinion is +beginning to recognize the evils that attach to it. Speaking generally, +it may be said that the English have, like the Romans but unlike the +Spaniards, shown their desire to respect the customs and ideas of the +conquered peoples. Indifferentism has served them in their career of +conquest as well as religious eclecticism served the Romans, so that +religious sentiment, though it sometimes stimulated the valour of their +native enemies, has not really furnished any obstacle to the +pacification of a conquered people. The English have, however, gone +further than did the Romans in trying to deter their subjects from +practices socially or morally deleterious. + +As regards the work done by the English for education in the +establishment of schools and Universities, no comparison with Rome can +usefully be drawn: because it was not deemed in the ancient world to be +the function of the State to make a general educational provision for +its subjects. The Emperors, however, appointed and paid teachers of the +liberal arts in some of the greater cities. That which the English have +done, however, small as it may appear in comparison with the vast +population they have to care for[23], witnesses to the spirit which has +animated them in seeking to extend to the conquered the opportunities of +progress which they value for themselves. + +----- + +Footnote 23: + + There are in India five examining and degree-granting Universities, + with about 8,000 matriculated students, nearly all of them taught in + the numerous affiliated colleges. The total number of persons returned + as receiving instruction in India is 4,357,000, of whom 402,000 are + girls. + +----- + +The question how far the triumphs of Rome and of England are due to the +republican polity of the one, and the practically republican (though not +until 1867 or 1885 democratic) polity of the other, is so large a one +that I must be content merely to indicate it as well deserving a +discussion. Several similar empires have been built up by republican +governments of the oligarchic type, as witness the empire of Carthage in +the ancient, and that of Venice in the later mediaeval world. One can +explain this by the fact that in such governments there is usually, +along with a continuity of policy hardly to be expected from a +democracy, a constant succession of capable generals and administrators +such as a despotic hereditary monarchy seldom provides, for a monarchy +of that kind must from time to time have feeble or dissolute sovereigns, +under whom bad selections will be made for important posts, policy will +oscillate, and no adequate support will be given to the armies or fleets +which are maintaining the interests of the nation abroad. A republic is +moreover likely to have a larger stock of capable and experienced men on +which to draw during the process of conquering and organizing. The two +conspicuous instances in which monarchies have acquired and long held +vast external dominions are the Empires of Spain and Russia. The former +case is hardly an exception to the doctrine just stated, because the +oceanic Empire of Spain was won quickly and with little fighting against +opponents immeasurably inferior, and because it had no conterminous +enemies to take advantage of the internal decay which soon set in. In +the case of Russia the process has been largely one of natural expansion +over regions so thinly peopled and with inhabitants so backward that no +serious resistance was made to an advance which went on rather by +settlement than by conquest. It is only in the Caucasus and in Turkistan +that Russia has had to establish her power by fighting. Her conflicts +even with the Persians and the Ottoman Turks have been, as Moltke is +reported to have said, battles of the one-eyed against the blind. But it +must be added that Russia has shown during two centuries a remarkable +power of holding a steady course of foreign policy. She sometimes trims +her sails, and lays the ship upon the other tack, but the main direction +of the vessel’s course is not altered. This must be the result of wisdom +or good fortune in the choice of ministers, for the Romanoff dynasty has +not contained more than its fair average of men of governing capacity. + +There is one other point in which the Romans and the English may be +compared as conquering powers. Both triumphed by force of character. +During the two centuries that elapsed between the destruction of +Carthage, when Rome had already come to rule many provinces, and the +time of Vespasian, when she had ceased to be a city and was passing into +a nation conterminous with her dominions, the Romans were the ruling +race of the world, small in numbers, even if we count the peoples of +middle Italy as Romans, but gifted with such talents for war and +government, and possessed of such courage and force of will as to be +able, not only to dominate the whole civilized world and hold down its +peoples, but also to carry on a succession of bloody civil wars among +themselves without giving those peoples any chance of recovering their +freedom. The Roman armies, though superior in discipline to the enemies +they had to encounter, except the Macedonians and Greeks, were not +generally superior in arms, and had no resources of superior scientific +knowledge at their command. Their adversaries in Africa, in Greece, and +in Asia Minor were as far advanced in material civilization as they were +themselves. It was their strenuous and indomitable will, buoyed up by +the pride and self-confidence born of a long succession of victories in +the past, that enabled them to achieve this unparalleled triumph. The +triumph was a triumph of character, as their poet felt when he penned +the famous line, _Moribus antiquis stat res Romana virisque_. And after +the inhabitants of the City had ceased to be the heart of the Empire, +this consciousness of greatness passed to the whole population of the +Roman world when they compared themselves with the barbarians outside +their frontiers. One finds it even in the pages of Procopius, a Syrian +writing in Greek, after the western half of the Empire had been +dismembered by barbarian invasions. + +The English conquered India with forces much smaller than those of the +Romans; and their success in subjugating a still vaster population in a +shorter time may thus appear more brilliant. But the English had +antagonists immeasurably inferior in valour, in discipline, in military +science, and generally also in the material of war, to those whom the +Romans overcame. Nor had they ever either a first-rate general or a +monarch of persistent energy opposed to them. No Hannibal, nor even a +Mithradates, appeared to bar their path. Hyder Ali had no nation behind +him; and fortune spared them an encounter with the Afghan Ahmed Shah and +the Sikh Ranjit Singh. Their most formidable opponents might rather be +compared with the gallant but untrained Celtic Vercingetorix, or the +showy but incompetent Antiochus the Great. It was only when Europeans +like Dupleix came upon the scene that they had men of their own kind to +grapple with; and Dupleix had not the support from home which Clive +could count on in case of dire necessity. Still the conquest of India +was a splendid achievement, more striking and more difficult, if less +romantic, than the conquest of Mexico by Hernan Cortez or the conquest +of Peru by Francisco Pizarro, though it must be admitted that the +courage of these two adventurers in venturing far into unknown regions +with a handful of followers has never been surpassed. Among the English, +as among the Romans, the sense of personal force, the conscious +ascendency of a race so often already victorious, with centuries of fame +behind them, and a contempt for the feebler folk against whom they were +contending, were the main source of that dash and energy and readiness +to face any odds which bore down all resistance. These qualities have +lasted into our own time. No more brilliant examples were ever given of +them than in the defence of the Fort at Lucknow and in the siege of +Delhi at the time of the Indian Mutiny of 1857-8. And it is worth noting +that almost the only disasters that have ever befallen the British arms +have occurred where the general in command was either incompetent, as +must sometimes happen in every army, or was wanting in boldness. In the +East, more than anywhere else, confidence makes for victory, and one +victory leads on to another. + +It is by these qualities that the English continue to hold India. In the +higher grades of the civil administration which they fill there are only +about one thousand persons: and these one thousand control two hundred +and eighty-seven millions, doing it with so little friction that they +have ceased to be surprised at this extraordinary fact. The English have +impressed the imagination of the people by their resistless energy and +their almost uniform success. Their domination seems to have about it an +element of the supernatural, for the masses of India are still in that +mental condition which looks to the supernatural for an explanation of +whatever astonishes it. The British Raj fills them with a sense of awe +and mystery. That nearly three hundred millions of men should be ruled +by a few palefaced strangers from beyond the great and wide sea, +strangers who all obey some distant power, and who never, like the +lieutenants of Oriental sovereigns, try to revolt for their own +benefit,—this seems too wonderful to be anything but the doing of some +unseen and irresistible divinity. I heard at Lahore an anecdote which, +slight as it is, illustrates the way in which the native thinks of these +things. A tiger had escaped from the Zoological Gardens, and its keeper, +hoping to lure it back, followed it. When all other inducements had +failed, he lifted up his voice and solemnly adjured it in the name of +the British Government, to which it belonged, to come back to its cage. +The tiger obeyed. + +Now that we have rapidly surveyed the more salient points of resemblance +or analogy between these two empires, it remains to note the capital +differences between them, one or two of which have been already +incidentally mentioned. On the most obvious of all I have already dwelt. +It is the fact that, whereas the Romans conquered right out from their +City in all directions—south, north, west, and east—so that the capital, +during the five centuries from B.C. 200 (end of the Second Punic War) to +A.D. 325 (foundation of Constantinople), stood not far from the centre +of their dominions, England has conquered India across the ocean, and +remains many thousands of miles from the nearest point of her Indian +territory. Another not less obvious difference is perhaps less important +than it seems. Rome was a city, and Britain is a country. Rome, when she +stepped outside Italy to establish in Sicily her first province, had a +free population of possibly only seventy or eighty thousand souls. +Britain, when she began her career of conquest at Plassy had (if we +include Ireland, then still a distinct kingdom, but then less a source +of weakness than she has sometimes since been), a population of at least +eleven or twelve millions. But, apart from the fact that the distance +from Britain to India round the Cape made her larger population less +available for action in India than was the smaller population of Rome +for action in the Mediterranean, the comparison must not really be made +with Rome as a city, but with Rome as the centre of a large Italian +population, upon which she drew for her armies, and the bulk of which +had, before the end of the Republic, become her citizens. On this point +of dissimilarity no more need be said, because its significance is +apparent. I turn from it to another of greater consequence. + +The relations of the conquering country to the conquered country, and of +the conquering race to the conquered races, are totally different in the +two cases compared. In the case of Rome there was a similarity of +conditions which pointed to and ultimately effected a fusion of the +peoples. In the case of England there is a dissimilarity which makes the +fusion of her people with the peoples of India impossible. + +Climate offers the first point of contrast. Rome, to be sure, ruled +countries some of which were far hotter and others far colder than was +the valley of the Tiber. Doubtless the officer who was stationed in +Nubia complained of the torrid summer, much as an English officer +complains of Quetta or Multan; nor were the winters of Ardoch or Hexham +agreeable to a soldier from Apulia. But if the Roman married in Nubia, +he could bring up his family there. An English officer cannot do this at +Quetta or Multan. The English race becomes so enfeebled in the second +generation by living without respite under the Indian sun that it would +probably die out, at least in the plains, in the third or fourth. Few +Englishmen feel disposed to make India their home, if only because the +physical conditions of life there are so different from those under +which their earlier years were passed. But the Italian could make +himself at home, so far as natural conditions went, almost anywhere from +the Dnieper to the Guadalquivir. + +The second contrast is in the colour of the races. All the races of +India are dark, though individuals may be found among high-caste +Brahmins and among the Parsis of Poona or Gujarat who are as light in +hue as many Englishmen. Now to the Teutonic peoples, and especially to +the English and Anglo-Americans, the difference of colour means a great +deal. It creates a feeling of separation, perhaps even of a slight +repulsion. Such a feeling may be deemed unreasonable or unchristian, but +it seems too deeply rooted to be effaceable in any time we can foresee. +It is, to be sure, not nearly so strong towards members of the more +civilized races of India, with their faces often full of an intelligence +and refinement which witnesses to many generations of mental culture, as +it is in North America towards the negroes of the Gulf Coast, or in +South Africa towards the Kafirs. Yet it is sufficient to be, as a rule, +a bar to social intimacy, and a complete bar to intermarriage. + +Among the highest castes of Hindus and among the most ancient princely +families, such as those famous Rajput dynasties whose lineage runs back +further than does that of any of the royal houses of Europe, there is a +corresponding pride of race quite as strong as that felt by the +best-born European. So, too, some of the oldest Musulman families, +tracing their origin to the relatives of the Prophet himself, are in +respect of long descent equal to any European houses. Nevertheless, +although the more educated and tactful among the English pay due honour +to these families, colour would form an insurmountable barrier to +intermarriage, even were the pride of the Rajputs disposed to invite it. +The oldest of the Rajput dynasties, that of Udaipur, always refused to +give a daughter in marriage even to the Mogul Emperors. + +There was no severing line like this in the ancient world. The only dark +races (other than the Egyptians) with whom the Romans came in contact +were some of the Numidian tribes, few of whom became really Romanized, +and the Nubians of the Middle Nile, also scarcely within the pale of +civilization. The question, therefore, did not arise in the form it has +taken in India. Probably, however, the Romans would have felt and acted +not like Teutons, but rather as the Spanish and Portuguese have done. +Difference of colour does not repel members of these last-named nations. +Among them, unions, that is to say legitimate unions, of whites with +dark-skinned people, are not uncommon, nor is the mulatto or quadroon +offspring kept apart and looked down upon as he is among the +Anglo-Americans. Nothing contributed more to the fusion of the races and +nationalities that composed the Roman Empire than the absence of any +physical and conspicuous distinctions between those races, just as +nothing did more to mitigate the horrors of slavery than the fact that +the slave was usually of a tint and type of features not markedly unlike +those of his master. Before the end of the Republic there were many +freedmen in the Senate, though their presence there was regarded as a +sign of declension. The son of a freed-man passed naturally and +easily—as did the poet Horace—into the best society of Rome when his +personal merits or the favour of a great patron gave him entrance, +though his detractors found pleasure in reminding one another of his +origin. In India it is otherwise. Slavery, which was never harsh there, +has fortunately not come into the matter, in the way it did in the +Southern States of America and in South Africa. But the population is +sharply divided into whites and natives. The so-called Eurasians, a +mixed race due to the unions of whites with persons of Indian race, give +their sympathies to the whites, but are treated by the latter as an +inferior class. They are not numerous enough to be an important factor, +nor do they bridge over the chasm which divides the rulers from the +ruled. It is not of the want of political liberty that the latter +complain, for political liberty has never been enjoyed in the East, and +would not have been dreamt of had not English literature and English +college teaching implanted the idea in the minds of the educated +natives. But the hauteur of the English and the sense of social +incompatibility which both elements feel, are unfortunate features in +the situation, and have been so from the first. Even in 1813 the +representatives of the East India Company stated to a committee of the +House of Commons that ‘Englishmen of classes not under the observation +of the supreme authorities were notorious for the contempt with which, +in their ignorance and arrogance, they contemplated the usages and +institutions of the natives, and for their frequent disregard of justice +and humanity in their dealings with the people of India[24].’ And the +Act of 1833 requires the Government of India ‘to provide for the +protection of the natives from insult and outrage in their persons, +religions, and opinions[25].’ + +----- + +Footnote 24: + + See Ilbert’s _Government of India_, p. 77. + +Footnote 25: + + Ibid. p. 91. + +----- + +It may be thought that, even if colour did not form an obstacle to +intermarriage, religion would. Religion, however, can be changed, and +colour cannot. In North America blacks and whites belong to the same +religious denominations, but the social demarcation remains complete. +Still it is true that the difference of religion does constitute in +India a further barrier not merely to intermarriage but also to intimate +social relations. Among the Musulmans the practice, or at any rate the +legal possibility of polygamy, naturally deters white women from a union +they might otherwise have contemplated. (There have, however, been a few +instances of such unions.) Hinduism stands much further away from +Christianity than does Islam; and its ceremonial rules regarding the +persons in whose company food may be partaken of operate against a form +of social intercourse which cements intimacy among Europeans[26]. + +----- + +Footnote 26: + + The number of Hindus in all India is estimated at 207 millions, that + of Musulmans at fifty-seven millions, aboriginal races nine millions, + Christians two millions. + +----- + +One must always remember that in the East religion constitutes both a +bond of union and a dividing line of severance far stronger and deeper +than it does in Western Europe. It largely replaces that national +feeling which is absent in India and among the Eastern peoples (except +the Chinese and Japanese) generally. Among Hindus and Musulmans +religious practices are inwoven with a man’s whole life. To the Hindu +more especially caste is everything. It creates a sort of nationality +within a nationality, dividing the man of one caste from the man of +another, as well as from the man who stands outside Hinduism altogether. +Among Muslims there is indeed no regular caste (though evident traces of +it remain among the Muhamadans of India); but the haughty exclusiveness +of Islam keeps its votaries quite apart from the professors of other +faiths. The European in India, when he converses with either a Hindu or +a Musulman, feels strongly how far away from them he stands. There is +always a sense of constraint, because both parties know that a whole +range of subjects lies outside discussion, and must not be even +approached. It is very different when one talks to a native Christian of +the upper ranks. There is then no great need for reserve save, of +course, that the racial susceptibilities of the native gentleman who +does not belong to the ruling class must be respected. Community of +religion in carrying the educated native Christian far away from the +native Hindu or Muslim, brings him comparatively near to the European. +Because he is a Christian he generally feels himself more in sympathy +with his European rulers than he does with his fellow subjects of the +same race and colour as himself. + +Here I touch a matter of the utmost interest when one thinks of the more +remote future of India. Political consequences greater than now appear +may depend upon the spread of Christianity there, a spread whose +progress, though at present scarcely perceptible in the upper classes, +may possibly become much more rapid than it has been during the last +century. I do not say that Hinduism or Islam is a cause of hostility to +British rule. Neither do I suggest that a Christian native population +would become fused with the European or Eurasian population. But if the +number of Christians, especially in the middle and upper ranks of Indian +society, were to increase, the difficulty of ascertaining native +opinion, now so much felt by Indian administrators, would be perceptibly +lessened, and the social separation of natives and Europeans might +become less acute, to the great benefit of both sections of the +population. + +When we turn back to the Roman Empire how striking is the absence of any +lines of religious demarcation! One must not speak of toleration as the +note of its policy, because there was nothing to tolerate. All religions +were equally true, or equally useful, each for its own country or +nation. The satirist of an age which had already lost belief in the +Olympian deities might scoff at the beast-gods of Egypt and the +fanaticism which their worship evoked. But nobody thought of converting +the devotees of crocodiles or cats. A Briton brought up by the Druids, +or a Frisian who had worshipped Woden in his youth, found, if he was +sent to command a garrison in Syria, no difficulty in attending a +sacrifice to the Syrian Sun-god, or in marrying the daughter of the +Sun-god’s priest. Possibly the first injunctions to have regard to +religion in choosing a consort that were ever issued in the ancient +world were such as that given by St. Paul when he said, ‘Be not +unequally yoked together with unbelievers.’ Christianity had a reason +for this precept which the other religions had not, because to it all +the other religions were false and pernicious, drawing men away from the +only true God. We may accordingly say that, old-established and strong +as some of the religions were which the Romans found when they began to +conquer the Mediterranean countries, religion did not constitute an +obstacle to the fusion of the peoples of those countries into one Roman +nationality. + +When the Monotheistic religions came upon the scene, things began to +change. Almost the only rebellions against Rome which were rather +religious than political, were those of the Jews. When in the fourth, +fifth, sixth, and seventh centuries, sharp theological controversies +began to divide Christians, especially in the East, dangers appeared +such as had never arisen from religious causes in the days of +heathenism. Schisms, like that of the Donatists, and heresies, began to +trouble the field of politics. The Arian Goths and Vandals remained +distinct from the orthodox provincials whom they conquered. In Egypt, a +country always prone to fanaticism, the Monophysite antagonism to the +orthodoxy of the Eastern Emperors was so bitter that the native +population showed signs of disaffection as early as the time of +Justinian, and they offered, a century later, scarcely any resistance to +those Musulman invaders from Arabia whom they disliked no more than they +did their own sovereign at Constantinople. + +A fourth agency working for fusion which the Roman Empire possessed, and +which the English in India want, is to be found in language and +literature. The conquests of Rome had been preceded by the spread of the +Greek tongue and of Greek culture over the coasts of the Eastern +Mediterranean. Even in the interior of Asia Minor and Syria, though the +native languages continued to be spoken in the cities as late as the +time of Tiberius[27], and probably held their ground in country +districts down till the Arab conquest, Greek was understood by the +richer people, and was a sort of _lingua franca_ for commerce from +Sicily to the Euphrates[28]. Greek literature was the basis of +education, and formed the minds of the cultivated class. It was indeed +familiar to that class even in the western half of the Empire, through +which, by the time of the Antonines, Latin had begun to be generally +spoken, except in remote regions such as the Basque country and the +banks of the Vaal and North-Western Gaul. As the process of unification +usually works downwards from the wealthier and better educated to the +masses, it was of the utmost consequence that the upper class should +have, in these two great languages, a factor constantly operative in the +assimilation of the ideas of peoples originally distinct, in the +diffusion of knowledge, and in the creation of a common type of +civilization. Just as the use of Latin and of the Vulgate maintained a +sort of unity among Christian nations and races even in the darkest and +most turbulent centuries of the Middle Ages, so the use of Latin and +Greek throughout the whole Roman Empire powerfully tended to draw its +parts together. Nor was it without importance that all the subjects of +the Empire had the same models of poetic and prose style in the +classical writers of Greece and in the Latin writers of the pre-Augustan +and Augustan age. Virgil in particular became the national poet of the +Empire, in whom imperial patriotism found its highest expression. + +----- + +Footnote 27: + + As in Lycaonia; cf. Acts xiv. + +Footnote 28: + + There is a curious story that when the head of Crassus was brought to + the Parthian king a passage from the _Bacchae_ of Euripides was + recited by a Greek who was at the Court. + +----- + +Very different have been the conditions of India. When the British came, +they found no national literature, unless we can apply that name to the +ancient Sanskrit epics, written in a tongue which had ceased to be +spoken many centuries before. Persian and Arabic were cultivated +languages, used by educated Musulmans and by a few Hindu servants of the +Musulman princes. The _lingua franca_ called Hindustani or Urdu, which +had sprung up in the camps of the Mogul Emperors, was becoming a means +of intercourse over Northern India, but was hardly used throughout the +South. Only a handful of the population were sufficiently educated to be +accessible to the influences of any literature, or spoke any tongue +except that of their own district. At present five great languages[29], +branches of the Aryan family, divide between them Northern, +North-Western and Middle India, and four others[30] of the Dravidian +type cover Southern India: while many others are spoken by smaller +sections of the people. The language of the English conquerors, which +was adopted as the official language in 1835, is the parent tongue of +only about 250,000 persons out of 287,000,000, less than one in one +thousand. An increasing number of natives of the educated class have +learnt to speak it, but even if we reckon in these, it affects only the +most insignificant fraction of the population. I have already observed +that it was an advantage for England in conquering India, and is an +advantage for her in ruling it, that the inhabitants are so divided by +language as well as by religion and (among the Hindus) by caste that +they could not combine to resist her. Rome had enjoyed, in slighter +measure, a similar advantage. But whereas in the Roman Empire Greek and +Latin spread so swiftly and steadily that the various nationalities soon +began to blend, the absence in India of any two such dominant tongues +and the lower level of intellectual progress keep the vast bulk of the +Indian population without any general vehicle for the interchange of +thought or for the formation of any one type of literary and scientific +culture. There is therefore no national literature for India, nor any +prospect that one will arise. No Cicero forms prose style, no Virgil +inspires an imperial patriotism. The English have established places of +higher instruction on the model not so much of Oxford and Cambridge as +of the Scottish Universities and the new University Colleges which have +recently sprung up in England, together with five examining +Universities. Through these institutions they are giving to the +ambitious youth of India, and especially to those who wish to enter +Government employment or the learned professions, an education of a +European type, a type so remote from the natural quality and +proclivities of the Indian mind that it is not likely to give birth to +any literature with a distinctively Indian character. Indeed the chief +effect of this instruction has so far been to make those who receive it +cease to be Hindus or Musulmans without making them either Christians or +Europeans. It acts as a powerful solvent, destroying the old systems of +conventional morality, and putting little in their place. The results +may not be seen for a generation or two. When they come they may prove +far from happy. + +----- + +Footnote 29: + + Hindi, Bengali, Marathi, Punjabi, and Gujarati. + +Footnote 30: + + Telugu, Tamil, Kanarese, Malayalam. + +----- + +If in the course of ages any one language comes to predominate in India +and to be the language not only of commerce, law, and administration, +but also of literature, English is likely to be that language; and +English will by that time have also become the leading language of the +world[31]. This will tend both to unify the peoples of India and (in a +sense) to bring them nearer to their rulers. By that time, however, if +it ever arrives, so many other changes will also have arrived that it is +vain to speculate on the type of civilization which will then have been +produced. + +----- + +Footnote 31: + + It is estimated that English is at present spoken by about 115 + millions of persons, Russian by 80 millions, German by 70, Spanish by + 50, French by 45. Of these English is increasing the most swiftly, + Russian next, and then German. + +----- + +These considerations have shown us how different have been the results +of English from those of Roman conquest. In the latter case a double +process began from the first. The provinces became assimilated to one +another, and Rome became assimilated to them, or they to her. As her +individuality passed to them it was diluted by their influence. Out of +the one conquering race and the many conquered races there was growing +up a people which, though many local distinctions remained, was by the +end of the fourth century A.D. tending to become substantially one in +religion, one in patriotism, one in its type of intellectual life and of +material civilization. The process was never completed, because the end +of the fourth century was just the time when the Empire began, not from +any internal dissensions, but from financial and military weakness, to +yield to invasions and immigrations which forced its parts asunder. But +it was so far completed that Claudian could write in the days of +Honorius: ‘We who drink of the Rhone and the Orontes are all one +nation.’ In this one huge nation the city and people of Rome had been +merged, their original character so obliterated that they could give +their name to the world. But in India there has been neither a fusion of +the conquerors and the conquered, nor even a fusion of the various +conquered races into one people. Differences of race, language, and +religion have prevented the latter fusion: yet it may some day come. But +a fusion of conquerors and conquered seems to be forbidden by climate +and by the disparity of character and of civilization, as well as by +antagonisms of colour and religion. The English are too unlike the races +of India, or any one of those races, to mingle with them, or to come to +form, in the sense of Claudian’s words, one people. + +The nations and tribes that were overcome and incorporated by Rome were +either the possessors of a civilization as old and as advanced as was +her own, or else, like the Gauls and the Germans, belonged to stocks +full of intellectual force, capable of receiving her lessons, and of +rapidly rising to the level of her culture. But the races of India were +all of them far behind the English in material civilization. Some of +them were and are intellectually backward; others, whose keen +intelligence and aptitude for learning equals that of Europeans, are +inferior in energy and strength of will. Yet even these differences +might not render an ultimate fusion impossible. It is religion and +colour that seem to place that result beyond any horizon to which our +eyes can reach. The semi-barbarous races of Southern Siberia will become +Russians. The Georgians and Armenians of Transcaucasia, unless their +attachment to their national churches saves them, may become Russians. +Even the Turkmans of the Khanates will be Russians one day, as the +Tatars of Kazan and the Crimea are already on the way to become. But the +English seem destined to remain quite distinct from the natives of +India, neither mingling their blood nor imparting their character and +habits. + +So too, it may be conjectured, there will not be, for ages to come, any +fusion of Americans with the races of the Philippine Isles. + +The observation that Rome effaced herself in giving her name and laws to +the world suggests an inquiry into what may be called the retroactive +influence of India upon England. In the annals of Rome, war, conquest, +and territorial expansion pervade and govern the whole story. Her +constitutional, her social, her economic history, from the end of the +Samnite wars onwards, is substantially determined by her position as a +ruling State, first in Italy and then in the Mediterranean world. It was +the influence upon the City of the phenomena of her rule in the +provinces that did most to destroy not only the old constitution but the +old simple and upright character of the Roman people. The provinces +avenged themselves upon their conquerors. In the end, Rome ceases to +have any history of her own, except an architectural history, so +completely is she merged in her Empire. To a great extent this is true +of Italy as well as of Rome. Italy, which had subjected so many +provinces, ends by becoming herself a province—a province no more +important than the others, except in respect of the reverence that +surrounded her name. Her history, from the time of Augustus till that of +Odovaker and Theodorich the Ostrogoth, is only a part of the history of +the Empire. Quite otherwise with England. Though England has founded +many colonies, sent out vast bodies of emigrants, and conquered wide +dominions, her domestic history has been, since she lost Normandy and +Aquitaine, comparatively little affected by these frequent wars and this +immense expansion. One might compose a constitutional history of +England, or an economic and industrial history, or an ecclesiastical +history, or a literary history, or a social history, in which only few +and slight references would need to be made to either the colonies or +India. England was a great European power before she had any colonies or +any Indian territories: and she would be a great European power if all +of these transmarine possessions were to drop off. Only at a few moments +in the century and a half since the battle of Plassy have Indian affairs +gravely affected English politics. Every one remembers Fox’s India Bill, +in 1783, and the trial of Warren Hastings, and the way in which the +Nabobs seemed for a time to be demoralizing society and politics. It was +in India that the Duke of Wellington first showed his powers. It was +through the Indian opium trade that England first came into collision +with China. The notion that Russian ambition might become dangerous to +the security of Britain in India had something to do with the Crimean +War, and with the subsequent policy towards the Turks followed by +England down to 1880. The deplorable Afghan War of 1878-9 led, more +perhaps than anything else, to the fall of Lord Beaconsfield’s Ministry +in 1880. Other instances might be added in which Indian questions have +told upon the foreign policy of Great Britain, or have given rise to +parliamentary strife; although, by a tacit convention between the two +great parties in England, efforts are usually made—and made most +wisely—to prevent questions of Indian administration from becoming any +further than seems absolutely necessary matters of party controversy. +Yet, if these instances be all put together, they are less numerous and +momentous than might have been expected when one considers the magnitude +of the stake which Britain holds in India. And even when we add to these +the effect of Indian markets upon British trade, and the undeniable +influence of the possession of India upon the thoughts and aspirations +of Englishmen, strengthening in them a sense of pride and what is called +an imperial spirit, we shall still be surprised that the control of this +vast territory and of a population more than seven times as large as +that of the United Kingdom has not told more forcibly upon Britain, and +coloured her history more deeply than it has in fact done. Suppose that +England had not conquered India. Would her domestic development, whether +constitutional or social, have taken a course greatly different from +that which it has actually followed? So far as we can judge, it would +not. It has been the good fortune of England to stand far off from the +conquered countries, and to have had a population too large to suffer +sensibly from the moral evils which conquest and the influx of wealth +bring in their train[32]. + +----- + +Footnote 32: + + The absence of slavery and the existence of Christianity will of + course present themselves to every one’s mind as other factors in + differentiating the conditions of the modern from those of the Roman + world. + +----- + +The remark was made at the outset of this discussion that the contact of +the English race with native races in India, and the process by which +the former is giving the material civilization, and a tincture of the +intellectual culture of Europe to a group of Asiatic peoples, is only +part of that contact of European races with native races and of that +Europeanizing of the latter by the former which is going on all over the +world. France is doing a similar work in North Africa and Madagascar. +Russia is doing it in Turkistan and on the Amur; and may probably be +soon engaged upon it in Manchuria. Germany is doing it in tropical +Africa. England is doing it in Egypt and Borneo and Matabililand. The +people of the United States are entering upon it in the Philippine +Islands. Every one of these nations professes to be guided by +philanthropic motives in its action. But it is not philanthropy that has +carried any of them into these enterprises, nor is it clear that the +result will be to increase the sum of human happiness. + +It is in India, however, that the process has been in progress for the +longest time and on the largest scale. Even after a century’s experience +the results cannot be adequately judged, for the country is in a state +of transition, with all sorts of new factors, such as railways, and +newspapers, and colleges, working as well upon the humbler as upon the +wealthier sections of the people. Three things, however, the career of +the English in India has proved. One is, that it is possible for a +European race to rule a subject native race on principles of strict +justice, restraining the natural propensity of the stronger to abuse +their power. India has been, and is, ruled upon such principles. When +oppression or cruelty is perpetrated, it is not by the European official +but by his native subordinates, and especially by the native police, +whose delinquencies the European official cannot always discover. Scorn +or insolence is sometimes displayed towards the natives by Europeans, +and nothing does more to destroy the good effects of just government +than such displays of scorn. But again, it is seldom the European civil +officials, but either private persons or occasionally junior officers in +the army, who are guilty of this abuse of their racial superiority. + +The second thing is that a relatively small body of European civilians, +supported by a relatively small armed force, can maintain peace and +order in an immense population standing on a lower plane of +civilization, and itself divided by religious animosities bitter enough +to cause the outbreak of intestine wars were the restraining hand +withdrawn. + +The third fact is that the existence of a system securing these benefits +is compatible with an absolute separation between the rulers and the +ruled. The chasm between them has in these hundred years of intercourse +grown no narrower. Some even deem it wider, and regret the fact that the +European official, who now visits England more easily and frequently, +does not identify himself so thoroughly with India as did his +predecessors some seventy years ago. As one of the greatest problems of +this age, and of the age which will follow, is and must be the relation +between the European races as a whole on the one hand, and the more +backward races of a different colour on the other hand, this +incompatibility of temper, this indisposition to be fused, or, one may +almost say, this impracticability of fusion, is a momentous result, full +of significance for the future. It was quite otherwise with that first +effort of humanity to draw itself together, which took shape in the +fusion of the races that Rome conquered, and the creation of one +Greco-Roman type of civilization for them. But the conditions of that +small ancient world were very different from those by which mankind +finds itself now confronted. + +It is impossible to think of the future and to recall that first impulse +towards the unity of mankind which closed fourteen centuries ago, +without reverting once more to the Roman Empire, and asking whether the +events which caused, and the circumstances which accompanied, its +dissolution throw any light on the probable fate of British dominion in +the East. + +Empires die sometimes by violence and sometimes by disease. Frequently +they die from a combination of the two, that is to say, some chronic +disease so reduces their vitality that a small amount of external +violence suffices to extinguish the waning life. It was so with the +dominion of Rome. To outward appearance it was the irruption of the +barbarians from the north that tore away the provinces in the west, as +it was the assault of the Turks in 1453 that gave the last death blow to +the feeble and narrowed Empire which had lingered on in the East. But +the dissolution and dismemberment of the western Roman Empire, beginning +with the abandonment of Britain in A.D. 411, and ending with the +establishment of the Lombards in Italy in A.D. 568, with the conquest of +Africa by the Arab chief Sidi Okba in the seventh century, and with the +capture of Sicily by Musulman fleets in the ninth, were really due to +internal causes which had been for a long time at work. In some +provinces at least the administration had become inefficient or corrupt, +and the humbler classes were oppressed by the more powerful. The +population had in many regions been diminished. In nearly all it had +become unwarlike, so that barbarian levies, raised on the frontier, had +taken the place of native troops. The revenue was unequal to the task of +maintaining an army sufficient for defence. How far the financial +straits to which the government was reduced were due to the exhaustion +of the soil, how far to maladministration is not altogether easy to +determine. They had doubtless been aggravated by the disorders and +invasions of A.D. 260-282. Neither can we tell whether the intellectual +capacity of the ruling class and the physical vigour of the bulk of the +population may not have declined. But it seems pretty clear that the +armies and the revenue that were at the disposal of Trajan would have +been sufficient to defend the Empire three centuries later, when the +first fatal blows were struck; and we may therefore say that it was +really from internal maladies, from anaemia or atrophy, from the want of +men and the want of money, perhaps also from the want of wisdom, rather +than from the appearance of more formidable foes, that the Empire +perished in the West. + +British power in India shows no similar signs of weakness, for though +the establishment of internal peace is beginning to make it less easy to +recruit the native army with first-class fighting-men, such as the +Punjab used to furnish, it has been hitherto found possible to keep that +army up to its old standard of numbers and efficiency. Still the warning +Rome has bequeathed is a warning not to be neglected. Her great +difficulty was finance and the impoverishment of the cultivator. Finance +and the poverty of the cultivator, who is always in danger of famine, +and is taxed to the full measure of his capacity—these are the standing +difficulties of Indian administration; and they do not grow less, for, +as population increases, the struggle for food is more severe, and the +expenditure on frontier defence, including strategic railways, has gone +on rapidly increasing. + +As England seems to be quite as safe from rebellion within India as was +Rome within her Empire, so is she stronger against external foes than +Rome was, for she has far more defensible frontiers, viz. the sea which +she commands, and a tremendous mountain barrier in whose barren gorges a +comparatively small force might repel invaders coming from a distance +and obliged to carry their food with them. There is really, so far as +can be seen at present, only one danger against which the English have +to guard, that of provoking discontent among their subjects by laying on +them too heavy a burden of taxation. It has been suggested that when the +differences of caste and religion which now separate the peoples of +India from one another have begun to disappear, when European +civilization has drawn them together into one people, and European ideas +have created a large class of educated and restless natives ill disposed +to brook subjection to an alien race, new dangers may arise to threaten +the permanence of British power. Such possibilities, however, belong to +a future which is still far distant. + +It is, of course, upon England in the last resort that the defence of +India rests. The task is well within her strength, though serious enough +to make it fitting that a prudent and pacific spirit should guide her +whole foreign and colonial policy, that she should neither embark on +needless wars nor lay on herself the burden of holding down disaffected +subjects. + +England must be prepared to command the sea, and to spare 80,000 of her +soldiers to garrison the country. Were she ever to find herself unable +to do this, what would become of India? Its political unity, which +depends entirely on the English Raj, would vanish like a morning mist. +Wars would break out, wars of ambition, or plunder, or religion, which +might end in the ascendency of a few adventurers, not necessarily +belonging to the reigning native dynasties, but probably either Pathans, +or Sikhs, or Musulmans of the north-west. The Marathas might rise in the +West. The Nepalese might descend upon Bengal. Or perhaps the country +would, after an interval of chaos, pass into the hands of some other +European Power. To India severance from England would mean confusion, +bloodshed, and pillage. To England however, apart from the particular +events which might have caused the snapping of the tie, and apart from +the possible loss of a market, severance from India need involve no +lasting injury. To be mistress of a vast country whose resources for +defence need to be supplemented by her own, adds indeed to her fame, but +does not add to her strength. England was great and powerful before she +owned a yard of land there, and might be great and powerful again with +no more foothold in the East than would be needed for the naval +fortresses which protect her commerce. + +Happily, questions such as these are for the moment purely speculative. + + + + + II + + THE EXTENSION OF ROMAN AND + ENGLISH LAW THROUGHOUT + THE WORLD + + + I. THE REGIONS COVERED BY ROMAN AND ENGLISH LAW. + +From a general comparison of Rome and England as powers conquering and +administering territories beyond their original limits, it is natural to +pass on to consider one particular department of the work which +territorial extension has led them to undertake, viz. their action as +makers of a law which has spread far out over the world. Both nations +have built up legal systems which are now—for the Roman law has survived +the Roman Empire, and is full of vitality to-day—in force over immense +areas that were unknown to those who laid the foundations of both +systems. In this respect Rome and England stand alone among nations, +unless we reckon in the law of Islam which, being a part of the religion +of Islam, governs Musulmans wherever Musulmans are to be found. + +Roman law, more or less modified by national or local family customs or +land customs and by modern legislation, prevails to-day in all the +European countries which formed part either of the ancient or of the +mediaeval Roman Empire, that is to say, in Italy, in Greece and the rest +of South-Eastern Europe (so far as the Christian part of the population +is concerned), in Spain, Portugal, Switzerland, France, Germany +(including the German and Slavonic parts of the Austro-Hungarian +monarchy), Belgium, Holland. The only exception is South Britain, which +lost its Roman law with the coming of the Angles and Saxons in the fifth +century. The leading principles of Roman jurisprudence prevail also in +some other outlying countries which have borrowed much of their law from +some one or more of the countries already named, viz. Denmark, Norway, +Sweden, Russia, and Hungary. Then come the non-European colonies settled +by some among the above States, such as Louisiana, the Canadian province +of Quebec, Ceylon, British Guiana, South Africa (all the above having +been at one time colonies either of France or of Holland), German +Africa, and French Africa, together with the regions which formerly +obeyed Spain or Portugal, including Mexico, Central America, South +America, and the Philippine Islands. Add to these the Dutch and French +East Indies, and Siberia. There is also Scotland, which has since the +establishment of the Court of Session by King James the Fifth in 1532 +built up its law out of Roman Civil and (to some slight extent) Roman +Canon Law[33]. + +----- + +Footnote 33: + + There is scarcely a trace of Celtic custom in modern Scottish law. The + law of land, however, is largely of feudal origin; and commercial law + has latterly been influenced by that of England. + +----- + +English law is in force not only in England, Wales, and Ireland but also +in most of the British colonies. Quebec, Ceylon, Mauritius, South +Africa, and some few of the West Indian islands follow the Roman +law[34]. The rest, including Australia, New Zealand, and all Canada +except Quebec, follow English; as does also the United States, except +Louisiana, but with the Hawaiian Islands, and India, though in India, as +we shall see, native law is also administered. + +----- + +Footnote 34: + + In these West Indian islands, however, that which remains of Spanish + law, as in Trinidad and Tobago, and of French law, as in St. Vincent, + is now comparatively slight; and before long the West Indies (except + Cuba and Puerto Rico, Guadeloupe and Martinique) will be entirely + under English law. See as to the British colonies generally, Sir C. P. + Ilbert’s _Legislative Methods and Forms_, chap. ix. + +----- + +Thus between them these two systems cover nearly the whole of the +civilized, and most of the uncivilized world. Only two considerable +masses of population stand outside—the Musulman East, that is, Turkey, +North Africa, Persia, Western Turkistan and Afghanistan, which obey the +sacred law of Islam, and China, which has customs all her own. It is +hard to estimate the total number of human beings who live under the +English common law, for one does not know whether to reckon in the +semi-savage natives of such regions as Uganda, for instance, or Fiji. +But there are probably one hundred and thirty millions of civilized +persons (without counting the natives of India) who do: and the number +living under some modern form of the Roman law is still larger. + +It is of the process by which two systems which had their origin in two +small communities, the one an Italian city, the other a group of +Teutonic tribes, have become extended over nine-tenths of the globe that +I propose to speak in the pages that follow. There are analogies between +the forms which the process took in the two cases. There are also +contrasts. The main contrast is that whereas we may say that (roughly +speaking) Rome extended her law by conquest, that is, by the spreading +of her power, England has extended hers by settlement, that is, by the +spreading out of her race. In India, however, conquest rather than +colonization has been the agency employed by England, and it is +therefore between the extension of English law to India and the +extension of Roman law to the Roman Empire that the best parallel can be +drawn. It need hardly be added that the Roman law has been far more +changed in descending to the modern world and becoming adapted to modern +conditions of life than the law of England has been in its extension +over new areas. That extension is an affair of the last three centuries +only, and the whole history of English law is of only some eleven +centuries reckoning from Kings Ine and Alfred, let us say, to A.D. 1900, +or of eight, if we begin with King Henry the Second, whereas that of +Roman law covers twenty-five centuries, of which all but the first three +have witnessed the process of extension, so early did Rome begin to +impose her law upon her subjects. To the changes, however, which have +passed on the substance of the law we shall return presently. Let us +begin by examining the causes and circumstances which induced the +extension to the whole ancient world of rules and doctrines that had +grown up in a small city. + + + II. THE DIFFUSION OF ROMAN LAW BY CONQUEST. + +The first conquests of Rome were made in Italy. They did not, however, +involve any legal changes, for conquest meant merely the reduction of +what had been an independent city or group of cities or tribes to +vassalage, with the obligation of sending troops to serve in the Roman +armies. Local autonomy was not (as a rule) interfered with; and such +autonomy included civil jurisdiction, so the Italic and Greco-Italic +cities continued to be governed by their own laws, which in the case at +least of Oscan and Umbrian communities usually resembled that of Rome, +and which of course tended to become assimilated to it even before Roman +citizenship was extended to the Italian allies. With the annexation of +part of Sicily in A.D. 230 the first provincial government was set up, +and the legal and administrative problems which Rome had to deal with +began to show themselves. Other provinces were added in pretty rapid +succession, the last being Britain (invaded under Claudius in A.D. 43). +Now although in all these provinces the Romans had to maintain order, to +collect revenue and to dispense justice, the conditions under which +these things, and especially the dispensing of justice, had to be done +differed much in different provinces. Some, such as Sicily, Achaia, +Macedonia and the provinces of Western Asia Minor, as well as Africa +(_i.e._ such parts of that province as Carthage had permeated), were +civilized countries, where law-courts already existed in the cities[35]. +The laws had doubtless almost everywhere been created by custom, for the +so-called Codes we hear of in Greek cities were often rather in the +nature of political constitutions and penal enactments than summarized +statements of the whole private law; yet in some cities the customs had +been so summarized[36]. Other provinces, such as those of Thrace, +Transalpine Gaul, Spain, and Britain, were in a lower stage of social +organization, and possessed, when they were conquered, not so much +regular laws as tribal usages, suited to their rude inhabitants. In the +former set of cases not much new law was needed. In the latter set the +native customs could not meet the needs of communities which soon began +to advance in wealth and culture under Roman rule, so law had to be +created. + +----- + +Footnote 35: + + Cicero says of Sicily, ‘Siculi hoc iure sunt ut, quod civis cum cive + agat, domi certet suis legibus; quod Siculus cum Siculo non eiusdem + civitatis, ut de eo praetor iudices sortiatur’; _In Verrem_, ii. 13, + 32. + +Footnote 36: + + The laws of Gortyn in Crete, recently published from an inscription + discovered there, apparently of about 500 B.C., are a remarkable + instance. Though not a complete code, they cover large parts of the + field of law. + +----- + +There were also in all these provinces two classes of inhabitants. One +consisted of those who enjoyed Roman citizenship, not merely men of +Italian birth settled there but also men to whom citizenship had been +granted (as for instance when they retired from military service), or +the natives of cities on which (as to Tarsus in Cilicia, St. Paul’s +birthplace) citizenship had been conferred as a boon[37]. This was a +large class, and went on rapidly increasing. To it pure Roman law was +applicable, subject of course to any local customs. + +----- + +Footnote 37: + + When I speak of citizenship, it is not necessarily or generally + political citizenship that is to be understood, but the citizenship + which carried with it private civil rights (those rights which the + Romans call _connubium_ and _commercium_), including Roman family and + inheritance law and Roman contract and property law. Not only the + civilized Spaniards but the bulk of the upper class in Greece seem to + have become citizens by the time of the Antonines. + +----- + +The other class consisted of the provincial subjects who were merely +subjects, and, in the view of the Roman law, aliens (_peregrini_). They +had their own laws or tribal customs, and to them Roman law was +primarily inapplicable, not only because it was novel and unfamiliar, so +strange to their habits that it would have been unjust as well as +practically inconvenient to have applied it to them, but also because +the Romans, like the other civilized communities of antiquity, had been +so much accustomed to consider private legal rights as necessarily +connected with membership of a city community that it would have seemed +unnatural to apply the private law of one city community to the citizens +of another. It is true that the Romans after a time disabused their +minds of this notion, as indeed they had from a comparatively early +period extended their own private civil rights to many of the cities +which had become their subject allies. Still it continued to influence +them at the time (B.C. 230 to 120) when they were laying out the lines +of their legal policy for the provinces. + +Of that legal policy I must speak quite briefly, partly because our +knowledge, though it has been enlarged of late years by the discovery +and collection of a great mass of inscriptions, is still imperfect, +partly because I could not set forth the details without going into a +number of technical points which might perplex readers unacquainted with +the Roman law. It is only the main lines on which the conquerors +proceeded that can be here indicated. + +Every province was administered by a governor with a staff of +subordinate officials, the higher ones Roman, and (under the Republic) +remaining in office only so long as did the governor. The governor was +the head of the judicial as well as the military and civil +administration, just as the consuls at Rome originally possessed +judicial as well as military and civil powers, and just as the praetor +at Rome, though usually occupied with judicial work, had also both +military and civil authority. The governor’s court was the proper +tribunal for those persons who in the provinces enjoyed Roman +citizenship, and in it Roman law was applied to such persons in matters +touching their family relations, their rights of inheritance, their +contractual relations with one another, just as English law is applied +to Englishmen in Cyprus or Hong Kong. No special law was needed for +them. As regards the provincials, they lived under their own law, +whatever it might be, subject to one important modification. Every +governor when he entered his province issued an Edict setting forth +certain rules which he proposed to apply during his term of office. +These rules were to be valid only during his term, for his successor +issued a fresh Edict, but in all probability each reproduced nearly all +of what the preceding Edict had contained. Thus the same general rules +remained continuously in force, though they might be modified in detail, +improvements which experience had shown to be necessary being from time +to time introduced[38]. This was the method which the praetors followed +at Rome, so the provincial governors had a precedent for it and knew how +to work it. Now the Edict seems to have contained, besides its +provisions regarding the collection of revenue and civil administration +in general, certain more specifically legal regulations, intended to +indicate the action which the governor’s court would take not only in +disputes arising between Roman citizens, but also in those between +citizens and aliens, and probably also to some extent in those between +aliens themselves. Where the provisions of the Edict did not apply, +aliens would be governed by their own law. In cities municipally +organized, and especially in the more civilized provinces, the local +city courts would doubtless continue to administer, as they had done +before the Romans came, their local civil law; and in the so-called free +cities, which had come into the Empire as allies, these local courts had +for a long time a wide scope for their action. Criminal law, however, +would seem to have fallen within the governor’s jurisdiction, at any +rate in most places and for the graver offences, because criminal law is +the indispensable guarantee for public order and for the repression of +sedition or conspiracy, matters for which the governor was of course +responsible[39]. Thus the governor’s court was not only that which +dispensed justice between Roman citizens, and which dealt with questions +of revenue, but was also the tribunal for cases between citizens and +aliens, and for the graver criminal proceedings. It was apparently also +a court which entertained some kinds of suits between aliens, as for +instance between aliens belonging to different cities, or in districts +where no regular municipal courts existed, and (probably) dealt with +appeals from those courts where they did exist. Moreover where aliens +even of the same city chose to resort to it they could apparently do so. +I speak of courts rather than of law, because it must be remembered that +although we are naturally inclined to think of law as coming first, and +courts being afterwards created to administer law, it is really courts +that come first, and that by their action build up law partly out of +customs observed by the people and partly out of their own notions of +justice. This, which is generally true of all countries, is of course +specially true of countries where law is still imperfectly developed, +and of places where different classes of persons, not governed by the +same legal rules, have to be dealt with. + +----- + +Footnote 38: + + As to this see Essay XIV, vol. ii. p. 274 sqq. + +Footnote 39: + + In St. Paul’s time, however, the Athenian Areopagus would seem to have + retained its jurisdiction; cf. Acts xvii. 19. The Romans treated + Athens with special consideration. + +----- + +The Romans brought some experience to the task of creating a judicial +administration in the provinces, where both citizens and aliens had to +be considered, for Rome herself had become, before she began to acquire +territories outside Italy, a place of residence or resort for alien +traders, so that as early as B.C. 247 she created a magistrate whose +special function it became to handle suits between aliens, or in which +one party was an alien. This magistrate built up, on the basis of +mercantile usage, equity, and common sense, a body of rules fit to be +applied between persons whose native law was not the same; and the +method he followed would naturally form a precedent for the courts of +the provincial governors. + +Doubtless the chief aim, as well as the recognized duty, of the +governors was to disturb provincial usage as little as they well could. +The temptations to which they were exposed, and to which they often +succumbed, did not lie in the direction of revolutionizing local law in +order to introduce either purely Roman doctrines or any artificial +uniformity[40]. They would have made trouble for themselves had they +attempted this. And why should they attempt it? The ambitious governors +desired military fame. The bad ones wanted money. The better men, such +as Cicero, and in later days Pliny, liked to be fêted by the provincials +and have statues erected to them by grateful cities. No one of these +objects was to be attained by introducing legal reforms which theory +might suggest to a philosophic statesman, but which nobody asked for. It +seems safe to assume from what we know of official human nature +elsewhere, that the Roman officials took the line of least resistance +compatible with the raising of money and the maintenance of order. These +things being secured, they would be content to let other things alone. + +----- + +Footnote 40: + + One of the charges against Verres was that he disregarded all kinds of + law alike. Under him, says Cicero, the Sicilians ‘neque suas leges + neque nostra senatus consulta neque communia iura tenuerunt’; _In + Verr._ i. 4, 13. + +----- + +Things, however, have a way of moving even when officials may wish to +let them rest. When a new and vigorous influence is brought into a +mixture of races receptive rather than resistent (as happened in Asia +Minor under the Romans), or when a higher culture acts through +government upon a people less advanced but not less naturally gifted (as +happened in Gaul under the Romans), changes must follow in law as well +as in other departments of human action. Here two forces were at work. +One was the increasing number of persons who were Roman citizens, and +therefore lived by the Roman law. The other was the increasing tendency +of the government to pervade and direct the whole public life of the +province. When monarchy became established as the settled form of the +Roman government, provincial administration began to be better +organized, and a regular body of bureaucratic officials presently grew +up. The jurisdiction of the governor’s court extended itself, and was +supplemented in course of time by lower courts administering law +according to the same rules. The law applied to disputes arising between +citizens and non-citizens became more copious and definite. The +provincial Edicts expanded and became well settled as respects the +larger part of their contents. So by degrees the law of the provinces +was imperceptibly Romanized in its general spirit and leading +conceptions, probably also in such particular departments as the +original local law of the particular province had not fully covered. But +the process did not proceed at the same rate in all the provinces, nor +did it result in a uniform legal product, for a good deal of local +customary law remained, and this customary law of course differed in +different provinces. In the Hellenic and Hellenized countries the +pre-existing law was naturally fuller and stronger than in the West; and +it held its ground more effectively than the ruder usages of Gauls or +Spaniards, obtaining moreover a greater respect from the Romans, who +felt their intellectual debt to the Greeks. + +It may be asked what direct legislation there was during this period for +the provinces. Did the Roman Assembly either pass statutes for them, as +Parliament has sometimes done for India, or did the Assembly establish +in each province some legislative authority? So far as private law went +Rome did neither during the republican period[41]. The necessity was not +felt, because any alterations made in Roman law proper altered it for +Roman citizens who dwelt in the provinces no less than for those in +Italy, while as to provincial aliens, the Edict of the governor and the +rules which the practice of his courts established were sufficient to +introduce any needed changes. But the Senate issued decrees intended to +operate in the provinces, and when the Emperors began to send +instructions to their provincial governors or to issue declarations of +their will in any other form, these had the force of law, and +constituted a body of legislation, part of which was general, while part +was special to the province for which it was issued. + +----- + +Footnote 41: + + The _Lex Sempronia_ mentioned by Livy, xxxv. 7, seems to be an + exception, due to very special circumstances. + +----- + +Meantime—and I am now speaking particularly of the three decisively +formative centuries from B.C. 150 to A.D. 150—another process had been +going on even more important. The Roman law itself had been changing its +character, had been developing from a rigid and highly technical system, +archaic in its forms and harsh in its rules, preferring the letter to +the spirit, and insisting on the strict observance of set phrases, into +a liberal and elastic system, pervaded by the principles of equity and +serving the practical convenience of a cultivated and commercial +community. The nature of this process will be found described in other +parts of these volumes[42]. Its result was to permeate the original law +of Rome applicable to citizens only (_ius civile_) with the law which +had been constructed for the sake of dealing with aliens (_ius +gentium_), so that the product was a body of rules fit to be used by any +civilized people, as being grounded in reason and utility, while at the +same time both copious in quantity and refined in quality. + +----- + +Footnote 42: + + See Essay XI, vol. ii., and Essay XIV, vol. ii. p. 291. + +----- + +This result had been reached about A.D. 150, by which time the laws of +the several provinces had also been largely Romanized. Thus each body of +law—if we may venture for this purpose to speak of provincial law as a +whole—had been drawing nearer to the other. The old law of the city of +Rome had been expanded and improved till it was fit to be applied to the +provinces. The various laws of the various provinces had been constantly +absorbing the law of the city in the enlarged and improved form latterly +given to it. Thus when at last the time for a complete fusion arrived +the differences between the two had been so much reduced that the fusion +took place easily and naturally, with comparatively little disturbance +of the state of things already in existence. One sometimes finds on the +southern side of the Alps two streams running in neighbouring valleys. +One which has issued from a glacier slowly deposits as it flows over a +rocky bed the white mud which it brought from its icy cradle. The other +which rose from clear springs gradually gathers colouring matter as in +its lower course it cuts through softer strata or through alluvium. When +at last they meet, the glacier torrent has become so nearly clear that +the tint of its waters is scarcely distinguishable from that of the +originally bright but now slightly turbid affluent. Thus Roman and +provincial law, starting from different points but pursuing a course in +which their diversities were constantly reduced, would seem to have +become so similar by the end of the second century A.D. that there were +few marked divergences, so far as private civil rights and remedies were +concerned, between the position of citizens and that of aliens. + +Here, however, let a difference be noted. The power of assimilation was +more complete in some branches of law than it was in others; and it was +least complete in matters where old standing features of national +character and feeling were present. In the Law of Property and Contract +it had advanced so far as to have become, with some few exceptions[43], +substantially identical. The same may be said of Penal Law and the +system of legal procedure. But in the Law of Family Relations and in +that of Inheritance, a matter closely connected with family relations, +the dissimilarities were still significant; and we shall find this +phenomenon reappearing in the history of English and Native Law in +India. + +----- + +Footnote 43: + + Such as the technical peculiarities of the Roman _stipulatio_, and the + Greek _syngraphe_. + +----- + +Two influences which I have not yet dwelt upon had been, during the +second century, furthering the assimilation. One was the direct +legislation of the Emperor which, scanty during the first age of the +monarchy, had now become more copious, and most of which was intended to +operate upon citizens and aliens alike. The other was the action of the +Emperor as supreme judicial authority, sometimes in matters brought +directly before him for decision, more frequently as judge of appeals +from inferior tribunals. He had a council called the Consistory which +acted on his behalf, because, especially in the troublous times which +began after the reign of Marcus Aurelius and presaged the ultimate +dissolution of the Empire, the sovereign was seldom able to preside in +person. The judgements of the Consistory, being delivered in the +Emperor’s name as his, and having equal authority with statutes issued +by him, must have done much to make law uniform in all the provinces and +among all classes of subjects[44]. + +----- + +Footnote 44: + + These _decreta_ of the Emperor were reckoned among his + _Constitutiones_ (as to which see Essay XIV, vol. ii. p. 308 sqq.). + There does not seem to have been any public record kept and published + of them, but many of them would doubtless become diffused through the + law schools and otherwise. The first regular collections of imperial + constitutions known to us belong to a later time. + +----- + + + III. THE ESTABLISHMENT OF ONE LAW FOR + THE EMPIRE. + +Finally, in the beginning of the third century A.D., the decisive step +was taken. The distinction between citizens and aliens vanished by the +grant of full citizenship to all subjects of the Empire, a grant however +which may have been, in the first instance, applied only to organized +communities, and not also to the backward sections of the rural +population, in Corsica, for instance, or in some of the Alpine valleys. +Our information as to the era to which this famous Edict of Caracalla’s +belongs is lamentably scanty. Gaius, who is the best authority for the +middle period of the law, lived fifty or sixty years earlier. The +compilers of Justinian’s _Digest_, which is the chief source of our +knowledge for the law as a whole, lived three hundred years later, when +the old distinctions between the legal rights of citizens and those of +aliens had become mere matters of antiquarian curiosity. These compilers +therefore modified the passages of the older jurists which they inserted +in the _Digest_ so as to make them suit their own more recent time. As +practical men they were right, but they have lessened the historical +value of these fragments of the older jurists, just as the modern +restorer of a church spoils it for the purposes of architectural +history, when he alters it to suit his own ideas of beauty or +convenience. Still it may fairly be assumed that when Caracalla’s grant +of citizenship was made the bulk of the people, or at least of the town +dwellers, had already obtained either a complete or an incomplete +citizenship in the more advanced provinces, and that those who had not +were at any rate enjoying under the provincial Edicts most of the civil +rights that had previously been confined to citizens, such for instance +as the use of the so-called Praetorian Will with its seven seals. + +How far the pre-existing local law of different provinces or districts +was superseded at one stroke by this extension of citizenship, or in +other words, what direct and immediate change was effected in the modes +of jurisdiction and in the personal relations of private persons, is a +question which we have not the means of answering. Apparently many +difficulties arose which further legislation, not always consistent, was +required to deal with[45]. One would naturally suppose that where Roman +rules differed materially from those which a provincial community had +followed, the latter could not have been suddenly substituted for the +former. + +----- + +Footnote 45: + + See upon this subject the learned and acute treatise (by which I have + been much aided) of Dr. L. Mitteis, _Reichsrecht und Volksrecht in den + östlichen Provinzen des Römischen Kaiserreichs_, chap. vi. + +----- + +A point, for instance, about which we should like to be better informed +is whether the Roman rules which gave to the father his wide power over +his children and their children were forthwith extended to provincial +families. The Romans themselves looked upon this paternal power as an +institution peculiar to themselves. To us moderns, and especially to +Englishmen and Americans, it seems so oppressive that we cannot but +suppose it was different in practice from what it looks on paper. And +although it had lost some of its old severity by the time of the +Antonines, one would think that communities which had not grown up under +it could hardly receive it with pleasure. + +From the time of Caracalla (A.D. 211-217) down till the death of +Theodosius the Great (A.D. 395) the Empire had but one law. There was +doubtless a certain amount of special legislation for particular +provinces, and a good deal of customary law peculiar to certain +provinces or parts of them. Although before the time of Justinian it +would seem that every Roman subject, except the half-barbarous peoples +on the frontiers, such as the Soanes and Abkhasians of the Caucasus or +the Ethiopic tribes of Nubia, and except a very small class of freedmen, +was in the enjoyment of Roman citizenship, with private rights +substantially the same, yet it is clear that in the East some Roman +principles and maxims were never fully comprehended by the mass of the +inhabitants and their legal advisers of the humbler sort, while other +principles did not succeed in displacing altogether the rules to which +the people were attached. We have evidence in recently recovered +fragments of an apparently widely used law-book, Syriac and Armenian +copies of which remain, that this was the case in the Eastern provinces, +and no doubt it was so in others also. In Egypt, for instance, it may be +gathered from the fragments of papyri which are now being published, +that the old native customs, overlaid or re-moulded to some extent by +Greek law, held their ground even down to the sixth or seventh +century[46]. Still, after making all allowance for these provincial +variations, philosophic jurisprudence and a levelling despotism had done +their work, and given to the civilized world, for the first and last +time in its history, one harmonious body of legal rules. + +----- + +Footnote 46: + + This is carefully worked out both as to Syria and to Egypt by Dr. + Mitteis, _op. cit._ He thinks (pp. 30-33) that the law of the Syrian + book, where it departs from pure Roman law as we find it in the + _Corpus Iuris_, is mainly of Greek origin, though with traces of + Eastern custom. He also suggests that the opposition, undoubtedly + strong, of the Eastern Monophysites to the Orthodox Emperors at + Constantinople may have contributed to make the Easterns cling the + closer to their own customary law. The Syrian book belongs to the + fifth century A.D., and is therefore earlier than Justinian (Bruns und + Sachau, _Syrisch-römisches Rechtsbuch aus dem fünften Jahrhundert_). + +----- + +The causes which enabled the Romans to achieve this result were, broadly +speaking, the five following:— + +(1) There was no pre-existing body of law deeply rooted and strong +enough to offer resistance to the spread of Roman law. Where any highly +developed system of written rules or customs existed, it existed only in +cities, such as those of the Greek or Graecized provinces on both sides +of the Aegean. The large countries, Pontus, for instance, or Macedonia +or Gaul, were in a legal sense unorganized or backward. Thus the Romans +had, if not a blank sheet to write on, yet no great difficulty in +overspreading or dealing freely with what they found. + +(2) There were no forms of faith which had so interlaced religious +feelings and traditions with the legal notions and customs of the people +as to give those notions and customs a tenacious grip on men’s +affection. Except among the Jews, and to some extent among the +Egyptians, Rome had no religious force to overcome such as Islam and +Hinduism present in India. + +(3) The grant of Roman citizenship to a community or an individual was a +privilege highly valued, because it meant a rise in social status and +protection against arbitrary treatment by officials. Hence even those +who might have liked their own law better were glad to part with it for +the sake of the immunities of a Roman citizen. + +(4) The Roman governor and the Roman officials in general had an +administrative discretion wider than officials enjoy under most modern +governments, and certainly wider than either a British or an United +States legislature would delegate to any person. Hence Roman governors +could by their Edicts and their judicial action mould the law and give +it a shape suitable to the needs of their province with a freedom of +handling which facilitated the passage from local law or custom to the +jurisprudence of the Empire generally. + +(5) Roman law itself, _i.e._ the law of the city, went on expanding and +changing, ridding itself of its purely national and technical +peculiarities, till it became fit to be the law of the whole world. This +process kept step with, and was the natural expression of, the political +and social assimilation of Rome to the provinces and of the provinces to +Rome. + +At the death of Theodosius the Great the Roman Empire was finally +divided into an Eastern and a Western half; so that thenceforward there +were two legislative authorities. For the sake of keeping the law as +uniform as possible, arrangements were made for the transmission by each +Emperor to the other of such ordinances as he might issue, in order that +these might be, if approved, issued for the other half of the Empire. +These arrangements, however, were not fully carried out: and before long +the Western Empire drifted into so rough a sea that legislation +practically stopped. The great Codex of Theodosius the Second (a +collection of imperial enactments published in A.D. 438) was however +promulgated in the Western as well as in the Eastern part of the Empire, +whereas the later Codex and Digest of Justinian, published nearly a +century later, was enacted only for the East, though presently extended +(by re-conquest) to Italy, Sicily, and Africa. Parts of the Theodosian +Codex were embodied in the manuals of law made for the use of their +Roman subjects by some of the barbarian kings. It continued to be +recognized in the Western provinces after the extinction of the imperial +line in the West in A.D. 476: and was indeed, along with the manuals +aforesaid, the principal source whence during a long period the Roman +population drew their law in the provinces out of which the kingdoms of +the Franks, Burgundians, and Visigoths were formed. + +Then came the torpor of the Dark Ages. + + + IV. THE EXTENSION OF ROMAN LAW AFTER THE + FALL OF THE WESTERN EMPIRE. + +Upon the later history of the Roman law and its diffusion through the +modern world I can but briefly touch, for I should be led far away from +the special topic here considered. The process of extension went on in +some slight measure by conquest, but mainly by peaceful means, the less +advanced peoples, who had no regular legal system of their own, being +gradually influenced by and learning from their more civilized +neighbours to whom the Roman system had descended. The light of legal +knowledge radiated forth from two centres, from Constantinople over the +Balkanic and Euxine countries between the tenth and the fifteenth +centuries, from Italy over the lands that lay north and west of her from +the twelfth to the sixteenth century. Thereafter it is Germany, Holland, +and France that have chiefly propagated the imperial law, Germany by her +universities and writers, France and Holland both through their jurists +and as colonizing powers. + +In the history of the mediaeval and modern part of the process of +extension five points or stages of especial import may be noted. + +The first is the revival of legal study which began in Italy towards the +end of the eleventh century A.D., and the principal agent in which was +the school of Bologna, famous for many generations thereafter. From that +date onward the books of Justinian, which had before that time been +superseded in the Eastern Empire, were lectured and commented on in the +universities of Italy, France, Spain, England, Germany, and have +continued to be so till our own day. They formed, except in England +where from the time of Henry the Third onwards they had a powerful and +at last a victorious rival in the Common Law, the basis of all legal +training and knowledge. + +The second is the creation of that vast mass of rules for the guidance +of ecclesiastical matters and courts—courts whose jurisdiction was in +the Middle Ages far wider than it is now—which we call the Canon Law. +These rules, drawn from the canons of Councils and decrees of Popes, +began to be systematized during the twelfth century, and were first +consolidated into an ordered body by Pope Gregory the Ninth in the +middle of the thirteenth[47]. They were so largely based on the Roman +law that we may describe them as being substantially a development of +it, partly on a new side, partly in a new spirit, and though they +competed with the civil law of the temporal courts, they also extended +the intellectual influence of that law. + +----- + +Footnote 47: + + Other parts were added later. + +----- + +The third is the acceptance of the Roman law as being of binding +authority in countries which had not previously owned it, and +particularly in Germany and Scotland. It was received in Germany because +the German king (after the time of Otto the Great) was deemed to be also +Roman Emperor, the legitimate successor of the far-off assemblies and +magistrates and Emperors of old Rome; and its diffusion was aided by the +fact that German lawyers had mostly received their legal training at +Italian universities. It came in gradually as subsidiary to Germanic +customs, but the judges, trained in Italy in the Roman system, required +the customs to be proved, and so by degrees Roman doctrines supplanted +them, though less in the Saxon districts, where a native law-book, the +_Sachsenspiegel_, had already established its influence. The acceptance +nowhere went so far as to supersede the whole customary law of Germany, +whose land-rights, for instance, retained their feudal character. The +formal declaration of the general validity of the _Corpus Iuris_ in +Germany is usually assigned to the foundation by the Emperor Maximilian +I, in 1495, of the Imperial Court of Justice (Reichskammergericht). As +Holland was then still a part of the Germanic Empire, as well as of the +Burgundian inheritance, it was the law of Holland also, and so has +become the law of Java, of Celebes, and of South Africa. In Scotland it +was adopted at the foundation of the Court of Session, on the model of +the Parlement of Paris, by King James the Fifth. Political antagonism to +England and political attraction to France, together with the influence +of the Canonists, naturally determined the King and the Court to follow +the system which prevailed on the European continent. + +The fourth stage is that of codification. In many parts of Gaul, though +less in Provence and Languedoc, the Roman law had gone back into that +shape of a body of customs from which it had emerged a thousand years +before; and in Northern and Middle Gaul some customs, especially in +matters relating to land, were not Roman. At last, under Lewis the +Fourteenth, a codifying process set in. Comprehensive Ordinances, each +covering a branch of law, began to be issued from 1667 down to 1747. +These operated throughout France, and, being founded on Roman +principles, further advanced the work, already prosecuted by the +jurists, of Romanizing the customary law of Northern France. That of +Southern France (the _pays du droit écrit_) had been more specifically +Roman, for the South had been less affected by Frankish conquest and +settlement. The five Codes promulgated by Napoleon followed in 1803 to +1810[48]. Others reproducing them with more or less divergence have been +enacted in other Romance countries. + +----- + +Footnote 48: + + Among the States in which the French Code has been taken as a model + are Belgium, Italy, Spain, Portugal, Mexico, and Chili. See an article + by Mr. E. Schuster in the _Law Quarterly Review_ for January, 1896. + +----- + +In Prussia, Frederick the Second directed the preparation of a Code +which became law after his death, in 1794. From 1848 onwards parts of +the law of Germany (which differed in different parts of the country) +began to be codified, being at first enacted by the several States, each +for itself, latterly by the legislature of the new Empire. Finally, +after twenty-two years of labour, a new Code for the whole German Empire +was settled, was passed by the Chambers, and came into force on the +first of January, 1900. It does not, however, altogether supersede +pre-existing local law. This Code, far from being pure Roman law, +embodies many rules due to mediaeval custom (especially custom relating +to land-rights) modernized to suit modern conditions, and also a great +deal of post-mediaeval legislation[49]. Some German jurists complain +that it is too Teutonic; others that it is not Teutonic enough. One may +perhaps conclude from these opposite criticisms that the codifiers have +made a judiciously impartial use of both Germanic and Roman materials. + +----- + +Footnote 49: + + An interesting sketch of the ‘reception’ of Roman law in Germany (by + Dr. Erwin Grüber) may be found in the Introduction to Mr. Ledlie’s + translation of Sohm’s _Institutionen_ (1st edition). + +----- + +Speaking broadly, it may be said that the groundwork of both the French +and the German Codes—that is to say their main lines and their +fundamental legal conceptions—is Roman. Just as the character and genius +of a language are determined by its grammar, irrespective of the number +of foreign words it may have picked up, so Roman law remains Roman +despite the accretion of the new elements which the needs of modern +civilization have required it to accept. + +The fifth stage is the transplantation of Roman law in its modern forms +to new countries. The Spaniards and Portuguese, the French, the Dutch, +and the Germans have carried their respective systems of law with them +into the territories they have conquered and the colonies they have +founded; and the law has often remained unchanged even when the +territory or the colony has passed to new rulers. For law is a tenacious +plant, even harder to extirpate than is language; and new rulers have +generally had the sense to perceive that they had less to gain by +substituting their own law for that which they found than they had to +lose by irritating their new subjects. Thus, Roman-French law survives +in Quebec (except in commercial matters) and in Louisiana, Roman-Dutch +law in Guiana and South Africa. + +The cases of Poland, Russia and the Scandinavian kingdoms are due to a +process different from any of those hitherto described. The law of +Russia was originally Slavonic custom, influenced to some extent by the +law of the Eastern Roman Empire, whence Russia took her Christianity and +her earliest literary impulse. In its present shape, while retaining in +many points a genuinely Slavonic character, and of course far less +distinctly Roman than is the law of France, it has drawn so much, +especially as regards the principles of property rights and contracts, +from the Code Napoléon and to a less degree from Germany, that it may be +described as being Roman ‘at the second remove,’ and reckoned as an +outlying and half-assimilated province, so to speak, of the legal realm +of Rome. Poland, lying nearer Germany, and being, as a Catholic country, +influenced by the Canon Law, as well as by German teaching and German +books, adopted rather more of Roman doctrine than Russia did[50]. Her +students learnt Roman law first at Italian, afterwards at German +Universities, and when they became judges, naturally applied its +principles. The Scandinavian countries set out with a law purely +Teutonic, and it is chiefly through the German Universities and the +influence of German juridical literature that Roman principles have +found their way in and coloured the old customs. Servia, Bulgaria and +Rumania, on the other hand, were influenced during the Middle Ages by +the law of the Eastern Empire, whence they drew their religion and their +culture. Thus their modern law, whose character is due partly to these +Byzantine influences—of course largely affected by Slavonic custom—and +partly to what they have learnt from France and Austria, may also be +referred to the Roman type. + +----- + +Footnote 50: + + In Lithuania the rule was that where no express provision could be + found governing a case, recourse should be had to ‘the Christian + laws.’ Speaking generally, one may say that it was by and with + Christianity that Roman law made its way in the countries to the east + of Germany and to the north of the Eastern Empire. + +----- + + + V. THE DIFFUSION OF ENGLISH LAW. + +England, like Rome, has spread her law over a large part of the globe. +But the process has been in her case not only far shorter but far +simpler. The work has been (except as respects Ireland) effected within +the last three centuries; and it has been effected (except as regards +Ireland and India) not by conquest but by peaceful settlement. This is +one of the two points in which England stands contrasted with Rome. The +other is that her own law has not been affected by the process. It has +changed within the seven centuries that lie between King Henry the +Second and the present day, almost if not quite as much as the law of +Rome changed in the seven centuries between the enactment of the Twelve +Tables and the reign of Caracalla. But these changes have not been due, +as those I have described in the Roman Empire were largely due, to the +extension of the law of England to new subjects. They would apparently +have come to pass in the same way and to the same extent had the English +race remained confined to its own island. + +England has extended her law over two classes of territories. + +The first includes those which have been peacefully settled by +Englishmen—North America (except Lower Canada), Australia, New Zealand, +Fiji, the Falkland Isles. All of these, except the United States, have +remained politically connected with the British Crown. + +The second includes conquered territories. In some of these, such as +Wales, Ireland, Gibraltar, the Canadian provinces of Ontario and Nova +Scotia, and several of the West India Islands, English law has been +established as the only system, applicable to all subjects[51]. In +others, such as Malta, Cyprus, Singapore, and India, English law is +applied to Englishmen and native law to natives, the two systems being +worked concurrently. Among these cases, that which presents problems of +most interest and difficulty is India. But before we consider India, a +few words may be given to the territories of the former class. They are +now all of them, except the West Indies, Fiji and the Falkland Isles, +self-governing, and therefore capable of altering their own law. This +they do pretty freely. The United States have now forty-nine +legislatures at work, viz. Congress, forty-five States, and three +Organized Territories. They have turned out an immense mass of law since +their separation from England. But immense as it is, and bold as are +some of the experiments which may be found in it, the law of the United +States remains (except of course in Louisiana) substantially English +law. An English barrister would find himself quite at home in any +Federal or State Court, and would have nothing new to master, except a +few technicalities of procedure and the provisions of any statutes which +might affect the points he had to argue. And the patriarch of American +teachers of law (Professor C. C. Langdell of the Law School in Harvard +University), consistently declining to encumber his expositions with +references to Federal or State Statutes, continues to discourse on the +Common Law of America, which differs little from the Common Law of +England. The old Common Law which the settlers carried with them in the +seventeenth century has of course been developed or altered by the +decisions of American Courts. These, however, have not affected its +thoroughly English character. Indeed, the differences between the +doctrines enounced by the Courts of different States are sometimes just +as great as the differences between the views of the Courts of +Massachusetts or New Jersey and those of Courts in England. + +----- + +Footnote 51: + + It has undergone little or no change in the process. The Celtic + customs disappeared in Wales; the Brehon law, though it was contained + in many written texts and was followed over the larger part of Ireland + till the days of the Tudors, has left practically no trace in the + existing law of Ireland, which is, except as respects land, some penal + matters, and marriage, virtually identical with the law of England. + +----- + +The same is true of the self-governing British colonies. In them also +legislation has introduced deviations from the law of the mother +country. More than forty years ago New Zealand, for instance, repealed +the Statute of Uses, which is the corner-stone of English conveyancing; +and the Australian legislatures have altered (among other things) the +English marriage law. But even if the changes made by statute had been +far greater than they have been, and even if there were not, as there +still is, a right of appeal from the highest Courts of these colonies to +the Crown in Council, their law would still remain, in all its essential +features, a genuine and equally legitimate offspring of the ancient +Common Law. + +We come now to the territories conquered by England, and to which she +has given her law whether in whole or in part. Among these it is only of +India that I shall speak, as India presents the phenomena of contact +between the law of the conqueror and that of the conquered on the +largest scale and in the most instructive form. What the English have +done in India is being done or will have to be done, though nowhere else +on so vast a scale, by the other great nations which have undertaken the +task of ruling and of bestowing what are called the blessings of +civilization upon the backward races. Russia, France, Germany, and now +the United States also, all see this task before them. To them +therefore, as well as to England, the experience of the British +Government in India may be profitable. + + + VI. ENGLISH LAW IN INDIA. + +When the English began to conquer India they found two great systems of +customary law in existence there, the Musulman and the Hindu. There were +other minor bodies of custom, prevailing among particular sects, but +these may for the present be disregarded. Musulman law regulated the +life and relations of all Musulmans; and parts of it, especially its +penal provisions, were also applied by the Musulman potentates to their +subjects generally, Hindus included. The Musulman law had been most +fully worked out in the departments of family relations and inheritance, +in some few branches of the law of contract, such as money loans and +mortgages and matters relating to sale, and in the doctrine of +charitable or pious foundations called Wakuf. + +In the Hindu principalities, Hindu law was dominant, and even where the +sovereign was a Musulman, the Hindu law of family relations and of +inheritance was recognized as that by which Hindus lived. There were +also of course many land customs, varying from district to district, +which both Hindus and Musulmans observed, as they were not in general +directly connected with religion. In some regions, such as Oudh and what +are now the North-West provinces, these customs had been much affected +by the land revenue system of the Mogul Emperors. It need hardly be said +that where Courts of law existed, they administered an exceedingly rough +and ready kind of justice, or perhaps injustice, for bribery and +favouritism were everywhere rampant. + +There were also mercantile customs, which were generally understood and +observed by traders, and which, with certain specially Musulman rules +recognized in Musulman States, made up what there was of a law of +contracts. + +Thus one may say that the law (other than purely religious law) which +the English administrators in the days of Clive and Warren Hastings +found consisted of— + +First, a large and elaborate system of Inheritance and Family Law, the +Musulman pretty uniform throughout India, though in some regions +modified by Hindu custom, the Hindu less uniform. Each was utterly +unlike English law and incapable of being fused with it. Each was +closely bound up with the religion and social habits of the people. Each +was contained in treatises of more or less antiquity and authority, some +of the Hindu treatises very ancient and credited with almost divine +sanction, the Musulman treatises of course posterior to the Koran, and +consisting of commentaries upon that Book and upon the traditions that +had grown up round it. + +Secondly, a large mass of customs relating to the occupation and use of +land and of various rights connected with tillage and pasturage, +including water-rights, rights of soil-accretion on the banks of rivers, +and forest-rights. The agricultural system and the revenue system of the +country rested upon these land customs, which were of course mostly +unwritten and which varied widely in different districts. + +Thirdly, a body of customs, according to our ideas comparatively scanty +and undeveloped, but still important, relating to the transfer and +pledging of property, and to contracts, especially commercial contracts. + +Fourthly, certain penal rules drawn from Musulman law and more or less +enforced by Musulman princes. + +Thus there were considerable branches of law practically non-existent. +There was hardly any law of civil and criminal procedure, because the +methods of justice were primitive, and would have been cheap, but for +the prevalence of corruption among judges as well as witnesses. There +was very little of the law of Torts or Civil Wrongs, and in the law of +property of contracts and of crimes, some departments were wanting or in +a rudimentary condition. Of a law relating to public and constitutional +rights there could of course be no question, since no such rights +existed. + +In this state of facts the British officials took the line which +practical men, having their hands full of other work, would naturally +take, viz. the line of least resistance. They accepted and carried on +what they found. Where there was a native law, they applied it, Musulman +law to Musulmans, Hindu law to Hindus, and in the few places where they +were to be found, Parsi law to Parsis, Jain law to Jains. Thus men of +every creed—for it was creed, not race nor allegiance by which men were +divided and classified in India—lived each according to his own law, as +Burgundians and Franks and Romanized Gauls had done in the sixth century +in Europe. The social fabric was not disturbed, for the land customs and +the rules of inheritance were respected, and of course the minor +officers, with whom chiefly the peasantry came in contact, continued to +be natives. Thus the villager scarcely felt that he was passing under +the dominion of an alien power, professing an alien faith. His life +flowed on in the same equable course beside the little white mosque, or +at the edge of the sacred grove. A transfer of power from a Hindu to a +Musulman sovereign would have made more difference to him than did the +establishment of British rule; and life was more placid than it would +have been under either a rajah or a sultan, for the marauding bands +which had been the peasants’ terror were soon checked by European +officers. + +So things remained for more than a generation. So indeed things remain +still as respects those parts of law which are inwoven with religion, +marriage, adoption (among Hindus) and other family relations, and with +the succession to property. In all these matters native law continues to +be administered by the Courts the English have set up; and when cases +are appealed from the highest of those Courts to the Privy Council in +England, that respectable body determines the true construction to be +put on the Koran and the Islamic Traditions, or on passages from the +mythical Manu, in the same business-like way as it would the meaning of +an Australian statute[52]. Except in some few points to be presently +noted, the Sacred Law of Islam and that of Brahmanism remain unpolluted +by European ideas. Yet they have not stood unchanged, for the effect of +the more careful and thorough examination which the contents of these +two systems have received from advocates, judges, and text-writers, both +native and English, imbued with the scientific spirit of Europe, has +been to clarify and define them, and to develop out of the half-fluid +material more positive and rigid doctrines than had been known before. +Something like this may probably have been done by the Romans for the +local or tribal law of their provinces. + +----- + +Footnote 52: + + It is related that a hill tribe of Kols, in Central India, had a + dispute with the Government of India over some question of forest + rights. The case having gone in their favour, the Government appealed + to the Judicial Committee. Shortly afterwards a passing traveller + found the elders of the tribe assembled at the sacrifice of a kid. He + inquired what deity was being propitiated, and was told that it was a + deity powerful but remote, whose name was Privy Council. + +----- + +In those departments in which the pre-existing customs were not +sufficient to constitute a body of law large enough and precise enough +for a civilized Court to work upon, the English found themselves obliged +to supply the void. This was done in two ways. Sometimes the Courts +boldly applied English law. Sometimes they supplemented native custom by +common sense, _i.e._ by their own ideas of what was just and fair. The +phrase ‘equity and good conscience’ was used to embody the principles by +which judges were to be guided when positive rules, statutory or +customary, were not forthcoming. To a magistrate who knew no law at all, +these words would mean that he might follow his own notions of ‘natural +justice,’ and he would probably give more satisfaction to suitors than +would his more learned brother, trying to apply confused recollections +of Blackstone or Chitty. In commercial matters common sense would be +aided by the usage of traders. In cases of Tort native custom was not +often available, but as the magistrate who dealt out substantial justice +would give what the people had rarely obtained from the native courts, +they had no reason to complain of the change. As to rules of evidence, +the young Anglo-Indian civilian would, if he were wise, forget all the +English technicalities he might have learnt, and make the best use he +could of his mother-wit[53]. + +----- + +Footnote 53: + + For the facts given in the following pages I am much indebted to the + singularly lucid and useful treatise of Sir C. P. Ilbert (formerly + Legal Member of the Viceroy’s Council) entitled _The Government of + India_. + +----- + +For the first sixty years or more of British rule there was accordingly +little or no attempt to Anglify the law of India, or indeed to give it +any regular and systematic form. Such alterations as it underwent were +the natural result of its being dispensed by Europeans. But to this +general rule there were two exceptions, the law of Procedure and the law +of Crimes. Courts had been established in the Presidency towns even +before the era of conquest began. As their business increased and +subordinate Courts were placed in the chief towns of the annexed +provinces, the need for some regular procedure was felt. An Act of the +British Parliament of A.D. 1781 empowered the Indian Government to make +regulations for the conduct of the provincial Courts, as the Court at +Fort William (Calcutta) had already been authorized to do for itself by +an Act of 1773. Thus a regular system of procedure, modelled after that +of England, was established; and the Act of 1781 provided that the rules +and forms for the execution of process were to be accommodated to the +religion and manners of the natives. + +As respects penal law, the English began by adopting that which the +Musulman potentates had been accustomed to apply. But they soon found +that many of its provisions were such as a civilized and nominally +Christian government could not enforce. Mutilation as a punishment for +theft, for instance, and stoning for sexual offences, were penalties not +suited to European notions; and still less could the principle be +admitted that the evidence of a non-Musulman is not receivable against +one of the Faithful. Accordingly a great variety of regulations were +passed amending the Musulman law of crimes from an English point of +view. In Calcutta the Supreme Court did not hesitate to apply English +penal law to natives; and applied it to some purpose at a famous crisis +in the fortunes of Warren Hastings when (in 1775) it hanged Nuncomar for +forgery under an English statute of 1728, which in the opinion of many +high authorities of a later time had never come into force at all in +India. It was inevitable that the English should take criminal +jurisdiction into their own hands—the Romans had done the same in their +provinces—and inevitable also that they should alter the penal law in +conformity with their own ideas. But they did so in a very haphazard +fashion. The criminal law became a patchwork of enactments so confused +that it was the first subject which invited codification in that second +epoch of English rule which we are now approaching. + +Before entering on this remarkable epoch, one must remember that the +English in India, still a very small though important class, were +governed entirely by English law. So far as common law and equity went, +this law was exactly the same as the contemporaneous law of England. But +it was complicated by the fact that a number of Regulations, as they +were called, had been enacted for India by the local government, that +many British statutes were not intended to apply and probably did not +apply to India (though whether they did or not was sometimes doubtful), +and that a certain number of statutes had been enacted by Parliament +expressly for India. Thus though the law under which the English lived +had not been perceptibly affected by Indian customs, it was very +confused and troublesome to work. That the learning of the judges sent +from home to sit in the Indian Courts was seldom equal to that of the +judges in England was not necessarily a disadvantage, for in traversing +the jungle of Indian law the burden of English case lore would have too +much impeded the march of justice. + +The first period of English rule, the period of rapid territorial +extension and of improvised government, may be said to have ended with +the third Maratha war of 1817-8. The rule of Lord Amherst and Lord +William Bentinck (1823-35) was a comparatively tranquil period, when +internal reforms had their chance, as they had in the Roman Empire under +Hadrian and Antoninus Pius. This was also the period when a spirit of +legal reform was on foot in England. It was the time when the ideas of +Bentham had begun to bear fruit, and when the work begun by Romilly was +being carried on by Brougham and others. Both the law applied to +Englishmen, and such parts of native law as had been cut across, filled +up, and half re-shaped by English legal notions and rules, called loudly +for simplification and reconstruction. + +The era of reconstruction opened with the enactment, in the India +Charter Act of 1833, of a clause declaring that a general judicial +system and a general body of law ought to be established in India +applicable to all classes, Europeans as well as natives, and that all +laws and customs having legal force ought to be ascertained, +consolidated, and amended. The Act then went on to provide for the +appointment of a body of experts to be called the Indian Law Commission, +which was to inquire into and report upon the Courts, the procedure and +the law then existing in India. Of this commission, Macaulay, appointed +in 1833 legal member of the Governor-General’s Council, was the moving +spirit: and with it the work of codification began. It prepared a Penal +Code, which however was not passed into law until 1860, for its activity +declined after Macaulay’s return to England and strong opposition was +offered to his draft by many of the Indian judges. A second Commission +was appointed under an Act of 1853, and sat in England. It secured the +enactment of the Penal Code, and of Codes of Civil and of Criminal +Procedure. A third Commission was created in 1861, and drafted other +measures. The Government of India demurred to some of the proposed +changes and evidently thought that legislation was being pressed on +rather too fast. The Commission, displeased at this resistance, resigned +in 1870; and since then the work of preparing as well as of carrying +through codifying Acts has mostly been done in India. The net result of +the sixty-six years that have passed since Macaulay set to work in 1834 +is that Acts codifying and amending the law, and declaring it applicable +to both Europeans and natives, have been passed on the topics +following:— + +Crimes (1860). + +Criminal Procedure (1861, 1882, and 1898). + +Civil Procedure (1859 and 1882). + +Evidence (1872). + +Limitation of Actions (1877). + +Specific Relief (1877). + +Probate and Administration (1881). + +Contracts (1872) (but only the general rules of contract with a few +rules on particular parts of the subject). + +Negotiable Instruments (1881) (but subject to native customs). + +Besides these, codifying statutes have been passed which do not apply +(at present) to all India, but only to parts of it, or to specified +classes of the population, on the topics following:— + +Trusts (1882). + +Transfer of Property (1882). + +Succession (1865). + +Easements (1882). + +Guardians and Wards (1890). + +These statutes cover a large part of the whole field of law, so that the +only important departments not yet dealt with are those of Torts or +Civil Wrongs (on which a measure not yet enacted was prepared some years +ago); certain branches of contract law, which it is not urgent to +systematize because they give rise to lawsuits only in the large cities, +where the Courts are quite able to dispose of them in a satisfactory +way; Family Law, which it would be unsafe to meddle with, because the +domestic customs of Hindus, Musulmans, and Europeans are entirely +different; and Inheritance, the greater part of which is, for the same +reason, better left to native custom. Some points have, however, been +covered by the Succession Act already mentioned. Thus the Government of +India appear to think that they have for the present gone as far as they +prudently can in the way of enacting uniform general laws for all +classes of persons. Further action might displease either the Hindus or +the Musulmans, possibly both: and though there would be advantages in +bringing the law of both these sections of the population into a more +clear and harmonious shape, it would in any case be impossible to frame +rules which would suit both of them, and would also suit the Europeans. +Here Religion steps in, a force more formidable in rousing opposition or +disaffection than any which the Romans had to fear. + +In such parts of the law as are not covered by these enumerated Acts, +Englishmen, Hindus and Musulmans continue to live under their respective +laws. So do Parsis, Sikhs, Buddhists (most numerous in Burma), and +Jains, save that where there is really no native law or custom that can +be shown to exist, the judge will naturally apply the principles of +English law, handling them, if he knows how, in an untechnical way. Thus +beside the new stream of united law which has its source in the +codifying Acts, the various older streams of law, each representing a +religion, flow peacefully on. + +The question which follows—What has been the action on the other of each +of these elements? resolves itself into three questions:— + +How far has English Law affected the Native Law which remains in force? + +How far has Native Law affected the English Law which is in force? + +How have the codifying Acts been framed—_i.e._ are they a compromise +between the English and the native element, or has either predominated +and given its colour to the whole mass? + +The answer to the first question is that English influence has told but +slightly upon those branches of native law which had been tolerably +complete before the British conquest, and which are so interwoven with +religion that one may almost call them parts of religion. The Hindu and +Musulman customs which regulate the family relations and rights of +succession have been precisely defined, especially those of the Hindus, +which were more fluid than the Muslim customs, and were much less +uniform over the whole country. Trusts have been formally legalized, and +their obligation rendered stronger. Adoption has been regularized and +stiffened, for its effects had been uncertain in their legal operation. +Where several doctrines contended, one doctrine has been affirmed by the +English Courts, especially by the Privy Council as ultimate Court of +Appeal, and the others set aside. Moreover the Hindu law of Wills has +been in some points supplemented by English legislation, and certain +customs repugnant to European ideas, such as the self-immolation of the +widow on the husband’s funeral pyre, have been abolished. And in those +parts of law which, though regulated by local custom, were not +religious, some improvements have been effected. The rights of the +agricultural tenant have been placed on a more secure basis. Forest +rights have been ascertained and defined, partly no doubt for the sake +of the pecuniary interests which the Government claims in them, and +which the peasantry do not always admit. But no attempt has been made to +Anglify these branches of law as a whole. + +On the other hand, the law applicable to Europeans only has been +scarcely (if at all) affected by native law. It remains exactly what it +is in England, except in so far as the circumstances of India have +called for special statutes. + +The third question is as to the contents of those parts of the law which +are common to Europeans and Natives, that is to say, the parts dealt by +the codifying Acts already enumerated. Here English law has decisively +prevailed. It has prevailed not only because it would be impossible to +subject Europeans to rules emanating from a different and a lower +civilization, but also because native custom did not supply the +requisite materials. Englishmen had nothing to learn from natives as +respects procedure or evidence. The native mercantile customs did not +constitute a system even of the general principles of contract, much +less had those principles been worked out in their details. Accordingly +the Contract Code is substantially English, and where it differs from +the result of English cases, the differences are due, not to the +influence of native ideas or native usage, but to the views of those who +prepared the Code, and who, thinking the English case-law susceptible of +improvement, diverged from it here and there just as they might have +diverged had they been preparing a Code to be enacted for England. There +are, however, some points in which the Penal Code shows itself to be a +system intended for India. The right of self-defence is expressed in +wider terms than would be used in England, for Macaulay conceived that +the slackness of the native in protecting himself by force made it +desirable to depart a little in this respect from the English rules. +Offences such as dacoity (brigandage by robber bands), attempts to bribe +judges or witnesses, the use of torture by policemen, kidnapping, the +offering of insult or injury to sacred places, have been dealt with more +fully and specifically than would be necessary in a Criminal Code for +England. Adultery has, conformably to the ideas of the East, been made a +subject for criminal proceedings. Nevertheless these, and other similar, +deviations from English rules which may be found in the Codes enacted +for Europeans and natives alike, do not affect the general proposition +that the codes are substantially English. The conquerors have given +their law to the conquered. When the conquered had a law of their own +which this legislation has effaced, the law of the conquerors was +better. Where they had one too imperfect to suffice for a growing +civilization, the law of the conquerors was inevitable. + + + VII. THE WORKING OF THE INDIAN CODES. + +Another question needs to be answered. It has a twofold interest, +because the answer not only affects the judgement to be passed on the +course which the English Government in India has followed, but also +conveys either warning or encouragement to England herself. This +question is—How have these Indian Codes worked in practice? Have they +improved the administration of justice? Have they given satisfaction to +the people? Have they made it easier to know the law, to apply the law, +to amend the law where it proves faulty? + +When I travelled in India in 1888-9 I obtained opinions on these points +from many persons competent to speak. There was a good deal of +difference of view, but the general result seemed to be as follows. I +take the four most important codifying Acts, as to which it was most +easy to obtain profitable criticisms. + +The two Procedure Codes, Civil and Criminal, were very generally +approved. They were not originally creative work, but were produced by +consolidating and simplifying a mass of existing statutes and +regulations, which had become unwieldy and confused. Order was evoked +out of chaos, a result which, though beneficial everywhere, was +especially useful in the minor Courts, whose judges had less learning +and experience than those of the five High Courts at Calcutta, Madras, +Bombay, Allahabad and Lahore. + +The Penal Code was universally approved; and it deserves the praise +bestowed on it, for it is one of the noblest monuments of Macaulay’s +genius. To appreciate its merits, one must remember how much, when +prepared in 1834, it was above the level of the English criminal law of +that time. The subject is eminently fit to be stated in a series of +positive propositions, and so far as India was concerned, it had rested +mainly upon statutes and not upon common law. It has been dealt with in +a scientific, but also a practical commonsense way: and the result is a +body of rules which are comprehensible and concise. To have these on +their desks has been an immense advantage for magistrates in the country +districts, many of whom have had but a scanty legal training. It has +also been claimed for this Code that under it crime has enormously +diminished: but how much of the diminution is due to the application of +a clear and just system of rules, how much to the more efficient police +administration, is a question on which I cannot venture to +pronounce[54]. + +----- + +Footnote 54: + + The merits of this Code are discussed in an interesting and suggestive + manner by Mr. H. Speyer in an article entitled _Le Droit Pénal + Anglo-indien_, which appeared in the _Revue de l’Université de + Bruxelles_ in April, 1900. + +----- + +No similar commendation was bestowed on the Evidence Code. Much of it +was condemned as being too metaphysical, yet deficient in subtlety. Much +was deemed superfluous, and because superfluous, possibly perplexing. +Yet even those who criticized its drafting admitted that it might +possibly be serviceable to untrained magistrates and practitioners, and +I have myself heard some of these untrained men declare that they did +find it helpful. They are a class relatively larger in India than in +England. + +It was with regard to the merits of the Contract Code that the widest +difference of opinion existed. Any one who reads it can see that its +workmanship is defective. It is neither exact nor subtle, and its +language is often far from lucid. Every one agreed that Sir J. F. +Stephen (afterwards Mr. Justice Stephen), who put it into the shape in +which it was passed during his term of office as Legal Member of +Council, and was also the author of the Evidence Act, was a man of great +industry, much intellectual force, and warm zeal for codification. But +his capacity for the work of drafting was deemed not equal to his +fondness for it. He did not shine either in fineness of discrimination +or in delicacy of expression. Indian critics, besides noting these +facts, went on to observe that in country places four-fifths of the +provisions of the Contract Act were superfluous, while those which were +operative sometimes unduly fettered the discretion of the magistrate or +judge, entangling him in technicalities, and preventing him from meting +out that substantial justice which is what the rural suitor needs. The +judge cannot disregard the Act, because if the case is appealed, the +Court above, which has only the notes of the evidence before it, and +does not hear the witnesses, is bound to enforce the provisions of the +law. In a country like India, law ought not to be too rigid: nor ought +rights to be stiffened up so strictly as they are by this Contract Act. +Creditors had already, through the iron regularity with which the +British Courts enforce judgements by execution, obtained far more power +over debtors than they possessed in the old days, and more than the +benevolence of the English administrator approves. The Contract Act +increases this power still further. This particular criticism does not +reflect upon the technical merits of the Act in itself. But it does +suggest reasons which would not occur to a European mind, why it may be +inexpedient by making the law too precise to narrow the path in which +the judge has to walk. A stringent administration of the letter of the +law is in semi-civilized communities no unmixed blessing. + +So much for the rural districts. In the Presidency cities, on the other +hand, the Contract Code is by most experts pronounced to be unnecessary. +The judges and the bar are already familiar with the points which it +covers, and find themselves—so at least many of them say—rather +embarrassed than aided by it. They think it cramps their freedom of +handling a point in argument. They prefer the elasticity of the common +law. And in point of fact, they seem to make no great use of the Act, +but to go on just as their predecessors did before it was passed. + +These criticisms may need to be discounted a little, in view of the +profound conservatism of the legal profession, and of the dislike of men +trained at the Temple or Lincoln’s Inn to have anything laid down or +applied on the Hooghly which is not being done at the same moment on the +Thames. And a counterpoise to them may be found in the educational value +which is attributed to the Code by magistrates and lawyers who have not +acquired a mastery of contract law through systematic instruction or +through experience at home. To them the Contract Act is a manual +comparatively short and simple, and also authoritative; and they find it +useful in enabling them to learn their business. On the whole, +therefore, though the Code does not deserve the credit which has +sometimes been claimed for it, one may hesitate to pronounce its +enactment a misfortune. It at any rate provides a basis on which a +really good Code of contractual law may some day be erected. + +Taking the work of Indian codification as a whole, it has certainly +benefited the country. The Penal Code and the two Codes of Procedure +represent an unmixed gain. The same may be said of the consolidation of +the statute law, for which so much was done by the energy and skill of +Mr. Whitley Stokes. And the other codifying acts have on the whole +tended both to improve the substance of the law and to make it more +accessible. Their operation has, however, been less complete than most +people in Europe realize, for while many of them are confined to certain +districts, others are largely modified by the local customs which they +have (as expressed in their saving clauses) very properly respected. If +we knew more about the provinces of the Roman Empire we might find that +much more of local custom subsisted side by side with the apparently +universal and uniform imperial law than we should gather from reading +the compilations of Justinian. + +It has already been observed that Indian influences have scarcely at all +affected English law as it continues to be administered to Englishmen in +India. Still less have they affected the law of England at home. It +seems to have been fancied thirty or forty years ago, when law reform in +general and codification in particular occupied the public mind more +than they do now, that the enactment of codes of law for India, and the +success which was sure to attend them there, must react upon England and +strengthen the demand for the reduction of her law into a concise and +systematic form. No such result has followed. The desire for +codification in England has not been perceptibly strengthened by the +experience of India. Nor can it indeed be said that the experience of +India has taught jurists or statesmen much which they did not know +before. That a good code is a very good thing, and that a bad code is, +in a country which possesses competent judges, worse than no code at +all—these are propositions which needed no Indian experience to verify +them. The imperfect success of the Evidence and Contract Acts has done +little more than add another illustration to those furnished by the +Civil Code of California and the Code of Procedure in New York of the +difficulty which attends these undertakings. Long before Indian +codification was talked of, Savigny had shown how hard it is to express +the law in a set of definite propositions without reducing its +elasticity and impeding its further development. His arguments scarcely +touch penal law, still less the law of procedure, for these are not +topics in which much development need be looked for. But the future +career of the Contract Act and of the projected Code of Torts, when +enacted, may supply some useful data for testing the soundness of his +doctrine. + +One reason why these Indian experiments have so little affected English +opinion may be found in the fact that few Englishmen have either known +or cared anything about them. The British public has not realized how +small is the number of persons by whom questions of legal policy in +India have during the last seventy years been determined. Two or three +officials in Downing Street and as many in Calcutta have practically +controlled the course of events, with little interposition from outside. +Even when Commissions have been sitting, the total number of those whose +hand is felt has never exceeded a dozen. It was doubtless much the same +in the Roman Empire. Indeed the world seldom realizes by how few persons +it is governed. There is a sense in which power may be said to rest with +the whole community, and there is also a sense in which it may be said, +in some governments, to rest with a single autocrat. But in reality it +almost always rests with an extremely small number of persons, whose +knowledge and will prevail over or among the titular possessors of +authority. + +Before we attempt to forecast the future of English law in India, let us +cast a glance back at the general course of its history as compared with +that of the law of Rome in the ancient world. + + + VIII. COMPARISON OF THE ROMAN LAW WITH + ENGLISH LAW IN INDIA. + +Rome grew till her law became first that of Italy, then that of +civilized mankind. The City became the World, _Urbs_ became _Orbis_, to +adopt the word-play which was once so familiar. Her law was extended +over her Empire by three methods:— + +Citizenship was gradually extended over the provinces till at last all +subjects had become citizens. + +Many of the principles and rules of the law of the City were established +and diffused in the provinces by the action of Roman Magistrates and +Courts, and especially by the Provincial Edict. + +The ancient law of the City was itself all the while amended, purged of +its technicalities, and simplified in form, till it became fit to be the +law of the World. + +Thus, when the law of the City was formally extended to the whole Empire +by the grant of citizenship to all subjects, there was not so much an +imposition of the conqueror’s law upon the conquered as the completion +of a process of fusion which had been going on for fully four centuries. +The fusion was therefore natural; and because it was natural it was +complete and final. The separation of the one great current of Roman law +into various channels, which began in the fifth century A.D. and has +continued ever since, has been due to purely historical causes, and of +late years (as we shall see presently) the streams that flow in these +channels have tended to come nearer to one another. + +During the period of more than four centuries (B.C. 241 to A.D. 211-7), +when these three methods of development and assimilation were in +progress, the original law of the City was being remoulded and amended +in the midst of and under the influence of a non-Roman population of +aliens (_peregrini_) at Rome and in the provinces, and that semi-Roman +law which was administered in the provinces was being created by +magistrates and judges who lived in the provinces and who were, after +the time of Tiberius, mostly themselves of provincial origin. Thus the +intelligence, reflection, and experience of the whole community played +upon and contributed to the development of the law. Judges, advocates, +juridical writers and teachers as well as legislators, joined in the +work. The completed law was the outcome of a truly national effort. +Indeed it was largely through making a law which should be fit for both +Italians and provincials that the Romans of the Empire became almost a +nation. + +In India the march of events has been different, because the conditions +were different. India is ten thousand miles from England. The English +residents are a mere handful. + +The Indian races are in a different stage of civilization from the +English. They are separated by religion; they are separated by colour. + +There has therefore been no fusion of English and native law. Neither +has there been any movement of the law of England to adapt itself to +become the law of her Indian subjects. English law has not, like Roman, +come halfway to meet the provinces. It is true that no such +approximation was needed, because English law had already reached, a +century ago, a point of development more advanced than Roman law had +reached when the conquest of the provinces began, and the process of +divesting English law of its archaic technicalities went on so rapidly +during the nineteenth century under purely home influences, that neither +the needs of India nor the influences of India came into the matter at +all. + +The Romans had less resistance to meet with from religious diversities +than the English have had, for the laws of their subjects had not so +wrapped their roots round religious belief or usage as has been the case +in India. But they had more varieties of provincial custom to consider, +and they had, especially in the laws of the Hellenized provinces, +systems more civilized and advanced first to recognize and ultimately to +supersede than any body of law which the English found. + +There is no class in India fully corresponding to the Roman citizens +domiciled in the provinces during the first two centuries of the Roman +Empire. The European British subjects, including the Eurasians, are +comparatively few, and they are to a considerable extent a transitory +element, whose true home is England. Only to a very small extent do they +enjoy personal immunities and privileges such as those that made Roman +citizenship so highly prized, for the English, more liberal than the +Romans, began by extending to all natives of India, as and when they +became subjects of the British Crown, the ordinary rights of British +subjects enjoyed under such statutes as Magna Charta and the Bill of +Rights. The natives of India have entered into the labours of the barons +at Runnymede and of the Whigs of 1688. + +What has happened has been that the English have given to India such +parts of their own law (somewhat simplified in form) as India seemed +fitted to receive. These parts have been applied to Europeans as well as +to natives, but they were virtually applicable to Europeans before +codification began. The English rulers have filled up those departments +in which there was no native law worthy of the name, sometimes, however, +respecting local native customs. Here one finds an interesting parallel +to the experience of the Romans. They, like the English, found criminal +law and the law of procedure to be the departments which could be most +easily and promptly dealt with. They, like the English, were obliged to +acquiesce in the retention by a part of the population of some ancient +customs regarding the Family and the Succession to Property. But this +acquiescence was after all partial and local; whereas the English have +neither applied to India the more technical parts of their own law, such +as that relating to land, nor attempted to supersede those parts of +native law which are influenced by religion, such as the parts which +include family relations and inheritance. Thus there has been no general +fusion comparable to that which the beginning of the third century A.D. +saw in the Roman Empire. + +As respects codification, the English have in one sense done more than +the Romans, in another sense less. They have reduced such topics as +penal law and procedure, evidence and trusts, to a compact and +well-ordered shape, which is more than Justinian did for any part of the +Roman law. But they have not brought the whole law together into one +_Corpus Iuris_, and they have left large parts of it in triplicate, so +to speak, that is to say, consisting of rules which are entirely +different for Hindus, for Musulmans, and for Europeans. + +Moreover, as it is the law of the conquerors which has in India been +given to the conquered practically unaffected by native law, so also the +law of England has not been altered by the process. It has not been +substantially altered in India. The uncodified English law there is the +same (local statutes excepted) as the law of England at home. Still less +has it been altered in England itself. Had Rome not acquired her Empire, +her law would never have grown to be what it was in Justinian’s time. +Had Englishmen never set foot in India, their law would have been, so +far as we can tell, exactly what it is to-day. + +Neither have those natives of India who correspond to the provincial +subjects of Rome borne any recognizable share in the work of Indian +legal development. Some of them have, as text-writers or as judges, +rendered good service in elucidating the ancient Hindu customs. But the +work of throwing English law into the codified form in which it is now +Applied in India to Europeans and natives alike has been done entirely +by Englishmen. In this respect also the more advanced civilization has +shown its dominant creative force. + + + IX. THE FUTURE OF ENGLISH LAW IN INDIA. + +Here, however, it is fit to remember that we are not, as in the case of +the Romans, studying a process which has been completed. For them it was +completed before the fifth century saw the dissolution of the western +half of the Empire. For India it is still in progress. Little more than +a century has elapsed since English rule was firmly established; only +half a century since the Punjab and (shortly afterwards) Oudh were +annexed. Although the Indian Government has prosecuted the work of +codification much less actively during the last twenty years than in the +twenty years preceding, and seems to conceive that as much has now been +done as can safely be done at present, still in the long future that +seems to lie before British rule in India the equalization and +development of law may go much further than we can foresee to-day. The +power of Britain is at this moment stable, and may remain so if she +continues to hold the sea and does not provoke discontent by excessive +taxation. + +Two courses which legal development may follow are conceivable. One is +that all those departments of law whose contents are not determined by +conditions peculiar to India will be covered by further codifying acts, +applicable to Europeans and natives alike, and that therewith the +process of equalization and assimilation will stop because its natural +limits will have been reached. The other is that the process will +continue until the law of the stronger and more advanced race has +absorbed that of the natives and become applicable to the whole Empire. + +Which of these two things will happen depends upon the future of the +native religions, and especially of Hinduism and of Islam, for it is in +religion that the legal customs of the natives have their roots. Upon +this vast and dark problem it may seem idle to speculate; nor can it be +wholly dissevered from a consideration of the possible future of the +religious beliefs which now hold sway among Europeans. Both Islam and +Hinduism are professed by masses of human beings so huge, so tenacious +of their traditions, so apparently inaccessible to European influences, +that no considerable declension of either faith can be expected within a +long period of years. Yet experience, so far as it is available, goes to +show that no form of heathenism, not even an ancient and in some +directions highly cultivated form like Hinduism, does ultimately +withstand the solvent power of European science and thought. Even now, +though Hinduism is growing every day, at the expense of the ruder +superstitions among the hill-folk, it is losing its hold on the educated +class, and it sees every day members of its lower castes pass over to +Islam. So Islam also, deeply rooted as it may seem to be, wanes in the +presence of Christianity, and though it advances in Central Africa, +declines in the Mediterranean countries. It has hitherto declined not by +the conversion of its members to other faiths, but by the diminution of +the Muslim population; yet one must not assume that when the Turkish +Sultanate or Khalifate has vanished, it may not lose much of its present +hold upon the East. Possibly both Hinduism and Islam may, so potent are +the new forces of change now at work in India, begin within a century or +two to show signs of approaching dissolution. Polygamy may by that time +have disappeared. Other peculiar features of the law of family and +inheritance will tend to follow, though some may survive through the +attachment to habit even when their original religious basis has been +forgotten. + +In the Arctic seas, a ship sometimes lies for weeks together firmly +bound in a vast ice-field. The sailor who day after day surveys from the +masthead the dazzling expanse sees on every side nothing but a solid +surface, motionless and apparently immoveable. Yet all the while this +ice-field is slowly drifting to the south, carrying with it the embedded +ship. At last, when a warmer region has been reached and the south wind +has begun to blow, that which overnight was a rigid and glittering plain +is in the light of dawn a tossing mass of ice-blocks, each swiftly +melting into the sea, through which the ship finds her homeward path. So +may it be with these ancient religions. When their dissolution comes, it +may come with unexpected suddenness, for the causes which will produce +it will have been acting simultaneously and silently over a wide area. +If the English are then still the lords of India, there will be nothing +to prevent their law from becoming (with some local variations) the law +of all India. Once established and familiar to the people, it will be +likely to remain, whatever political changes may befall, for nothing +clings to the soil more closely than a body of civilized law once well +planted. So the law of England may become the permanent heritage, not +only of the hundreds of millions who will before the time we are +imagining be living beyond the Atlantic, but of those hundreds of +millions who fill the fertile land between the Straits of Manaar and the +long rampart of Himalayan snows. + +We embarked on this inquiry for the sake of ascertaining what light the +experience of the English in India throws upon the general question of +the relation of the European nations to those less advanced races over +whom they are assuming dominion, and all of whom will before long own +some European master[55]. + +----- + +Footnote 55: + + Among the ‘less advanced races’ one must not now include the Japanese, + but one may include the Turks and the Persians. The fate of China + still hangs in the balance. It is not to be assumed that she will be + ruled, though she must come to be influenced, and probably more and + more influenced, by Europeans. + +----- + +These races fall into two classes, those which do and those which do not +possess a tolerably complete system of law. Turks, Persians, Egyptians, +Moors, and Siamese belong to the former class; all other non-European +races to the latter. + +As to the latter there is no difficulty. So soon as Kafirs or Mongols or +Hausas have advanced sufficiently to need a regular set of legal rules, +they will (if their European masters think it worth while) become +subject to the law of those masters, of course more or less +differentiated according to local customs or local needs. It may be +assumed that French law will prevail in Madagascar, and English law in +Uganda, and Russian law in the valley of the Amur. + +Where, however, as is the case in the Musulman and perhaps also in the +Buddhist countries belonging to the former class, a legal system which, +though imperfect, especially on the commercial side, has been carefully +worked out in some directions, holds the field and rests upon religion, +the question is less simple. The experience of the English in India +suggests that European law will occupy the non-religious parts of the +native systems, and will tend by degrees to encroach upon and permeate +even the religious parts, though so long as Islam (or Brahmanism) +maintains its sway the legal customs and rules embedded in religion will +survive. No wise ruler would seek to efface them so far as they are +neither cruel nor immoral. It is only these ancient religions—Hinduism, +Buddhism, and especially Islam—that can or will resist, though perhaps +only for a time, and certainly only partially, the rising tide of +European law. + + + X. PRESENT POSITION OF ROMAN AND ENGLISH LAW IN THE WORLD. + +European law means, as we have seen, either Roman law or English law, so +the last question is: Will either, and if so which, of these great rival +systems prevail over the other? + +They are not unequally matched. The Roman jurists, if we include Russian +as a sort of modified Roman law, influence at present a larger part of +the world’s population, but Bracton and Coke and Mansfield might rejoice +to perceive that the doctrines which they expounded are being diffused +even more swiftly, with the swift diffusion of the English tongue, over +the globe. It is an interesting question, this competitive advance of +legal systems, and one which would have engaged the attention of +historians and geographers, were not law a subject which lies so much +outside the thoughts of the lay world that few care to study its +historical bearings. It furnishes a remarkable instance of the tendency +of strong types to supplant and extinguish weak ones in the domain of +social development. The world is, or will shortly be, practically +divided between two sets of legal conceptions of rules, and two only. +The elder had its birth in a small Italian city, and though it has +undergone endless changes and now appears in a variety of forms, it +retains its distinctive character, and all these forms still show an +underlying unity. The younger has sprung from the union of the rude +customs of a group of Low German tribes with rules worked out by the +subtle, acute and eminently disputatious intellect of the Gallicized +Norsemen who came to England in the eleventh century. It has been much +affected by the elder system, yet it has retained its distinctive +features and spirit, a spirit specially contrasted with that of the +imperial law in everything that pertains to the rights of the individual +and the means of asserting them. And it has communicated something of +this spirit to the more advanced forms of the Roman law in +constitutional countries. + +At this moment the law whose foundations were laid in the Roman Forum +commands a wider area of the earth’s surface, and determines the +relations of a larger mass of mankind. But that which looks back to +Westminster Hall sees its subjects increase more rapidly, through the +growth of the United States and the British Colonies, and has a prospect +of ultimately overspreading India also. Neither is likely to overpower +or absorb the other. But it is possible that they may draw nearer, and +that out of them there may be developed, in the course of ages, a system +of rules of private law which shall be practically identical as regards +contracts and property and civil wrongs, possibly as regards offences +also. Already the commercial law of all civilized countries is in +substance the same everywhere, that is to say, it guarantees rights and +provides remedies which afford equivalent securities to men in their +dealings with one another and bring them to the same goal by slightly +different paths. + +The more any department of law lies within the domain of economic +interest, the more do the rules that belong to it tend to become the +same in all countries, for in the domain of economic interest Reason and +Science have full play. But the more the element of human emotion enters +any department of law, as for instance that which deals with the +relations of husband and wife, or of parent and child, or that which +defines the freedom of the individual as against the State, the greater +becomes the probability that existing divergences between the laws of +different countries may in that department continue, or even that new +divergences may appear. + +Still, on the whole, the progress of the world is towards uniformity in +law, and towards a more evident uniformity than is discoverable either +in the sphere of religious beliefs or in that of political institutions. + + + + + III + + FLEXIBLE AND RIGID + CONSTITUTIONS[56] + + + I. THE CONSTITUTIONS OF ROME AND ENGLAND. + +Rome and England are the two States whose constitutions have had the +greatest interest for the world, and have exerted the greatest influence +upon it. Out of the republic on the Tiber, a city with a rural territory +round it no bigger than Surrey or Rhode Island, grew a World Empire, and +the framework of that Empire retained till its fall traces of the +institutions under which the little republic, circled and threatened by +a crowd of hostile States, had risen to show herself the strongest of +them all. In England a monarchy, first tribal and then feudal, developed +from very small beginnings into a second World Empire of a wholly +different type, while at the same time the ancient form of government, +through a series of struggles and efforts, guided by an only +half-conscious purpose, slowly developed itself into a system +monarchical only in name. That system became in the eighteenth century +the starting-point for all modern political philosophy[57], and in the +nineteenth the model for nearly all the schemes of free representative +polity that have arisen in the Old World as well as for many in the +newer countries. + +----- + +Footnote 56: + + This Essay was delivered, in the form of two lectures, in 1884, and + the names Flexible and Rigid were then suggested for the two types of + Constitution here described. It has been enlarged and revised and + brought up to date, but the substance remains the same. + +Footnote 57: + + The interest which the English Constitution excited in Montesquieu may + be compared with that which the Roman excited in Polybius. + +----- + +It is, however, not merely the range of their influence, nor merely the +fact that, as the Roman Constitution worked upon the whole of the +ancient, so the English Constitution has worked upon the whole of the +modern world, that makes these two systems deserve constant study. +Constitutions are the expression of national character, as they in their +turn mould the character of those who use them; and the same causes +which made both peoples great have made their political institutions +also strong and rich, specially full of instruction for all nations in +all times. There were in the fifth century B.C. hundreds of +commonwealths in the Mediterranean countries with republican frames of +government, many of which bore a general resemblance to that of Rome. +There were in the fourteenth century A.D. several monarchies in Europe +similar in their constitutional outlines to that of England, and with +what seemed an equal promise of rich and free development. Of the +former, Rome alone survived, destroying or absorbing all the rest. Of +the latter, that of England is the only one which had at the end of the +eighteenth century grown into a system at once broad-based and strong, a +system which secured both public order and the freedom of the individual +citizen, and in which the people were able to make their voice heard and +to influence the march of national policy. All the others had either +degenerated into despotisms or remained comparatively crude and +undeveloped. Thus when, after the flood of Napoleonic conquest had +subsided, the peoples of the European continent began to essay the +establishment of free constitutions, they found in that of England the +model fittest to be followed, and sought to adapt its principles to +their own several conditions. + +England, moreover, has been the parent of free governments in a further +sense. Though she has not, like Rome, stretched her system of government +till it embraced the world, she has reproduced it in those parts of her +transoceanic dominions where her children have been able to form +self-governing communities. Reduced copies of the British Constitution +have been created in seventeen self-governing colonies. Seven of these +have in North America been united in a Federation whose frame of +government is built on British lines. Six others, in Australia, have +been similarly grouped in another Federal Government of a not less +distinctively British type. And an independent Republic, far vaster in +population than all these colonies put together, has, less closely, but +yet in the main and essential points, reproduced the principles, +although not the form, of the institutions of the motherland. It is, +therefore, to Rome and to England that the eye of the student of +political constitutions will most often turn. They represent the most +remarkable developments of ordered political life for the ancient and +for the modern world respectively. And whoever attempts to classify +Constitutions and to note the distinctive features of the principal +types they present, will find that it is from Rome and from England that +illustrations can most frequently and most profitably be drawn[58]. + +----- + +Footnote 58: + + As to the countries or peoples in which Constitutions in the proper + sense can be said to exist, see Note at the end of this Essay. + +----- + + + II. THE TRADITIONAL CLASSIFICATION OF CONSTITUTIONS. + +The old-fashioned classification of Constitutions which has come down to +our own times is based on the distinction of Written and Unwritten Law, +itself an ill-expressed and rather confusing distinction, because _ius +non scriptum_ is intended to denote customs: and when customs have been +recorded in writing, they can hardly continue to be called unwritten. +This classification places in the category of Written Constitutions +those which are expressly set forth in a specially important document or +documents, and in the category of Unwritten those which began, not in +formal agreements, but in usage, a usage which lives in men’s +recollections, and which, even when it has been to a large extent +defined, and secured against error, by being committed to writing, is +recorded as embodying that which men have observed, and are deemed +likely to continue to observe, not as that to which they have bound +themselves formally by a law. + +These terms are, however, not happy terms, although the distinction they +aim at expressing is a real distinction. The line which they attempt to +draw between the two classes of Constitutions is not a clear or sharp +line, because in all Written Constitutions there is and must be, as we +shall presently see, an element of unwritten usage, while in the +so-called Unwritten ones the tendency to treat the written record of +custom or precedent as practically binding is strong, and makes that +record almost equivalent to a formally enacted law, not to add that +Unwritten Constitutions, though they began in custom, always include +some statutes. Moreover, these names, while they dwell on a superficial +distinction, ignore a more essential one to be presently mentioned. Let +us therefore try to find a better classification. + +If we survey Constitutions generally, in the past as well as in the +present, we find them conforming to one or other of two leading types. +Some are natural growths, unsymmetrical both in their form and in their +contents. They consist of a variety of specific enactments or agreements +of different dates, possibly proceeding from different sources, +intermixed with customary rules which rest only on tradition or +precedent, but are deemed of practically equal authority. Other +Constitutions are works of conscious art, that is to say, they are the +result of a deliberate effort on the part of the State to lay down once +for all a body of coherent provisions under which its government shall +be established and conducted. Such Constitutions are usually comprised +in one instrument—possibly, however, in more than one—an instrument +solemnly enacted whose form and title distinguish it from ordinary laws. +We may provisionally call these two types the Old and the New, because +all ancient and mediaeval as well as some few recent Constitutions are +of the former kind, while most modern ones belong to the latter. The +distinction corresponds roughly to that drawn, in England and America, +between common law and statute law, or to the Roman distinction between +_ius_ and _lex_, so that we might describe the types as Common Law +Constitutions and Statutory Constitutions respectively. Yet the line of +demarcation is not always a plain one. In countries with constitutions +of the Common Law type, statutes are frequently passed, declaring or +modifying or abolishing antecedent usage, which supersede and replace +parts, possibly large parts, of the common law maxims, so that at last +most of the leading rules can be found in a few great statutes. On the +other hand, the Statutory Constitutions become developed by +interpretation and fringed with decisions and enlarged or warped by +custom, so that after a time the letter of their text no longer conveys +their full effect. It is, therefore, desirable to have some more +definite and characteristic test or criterion whereby to mark off the +two types which have been just described in general terms. + + + III. A PROPOSED NEW CLASSIFICATION OF CONSTITUTIONS. + +Such a criterion may be found in the relation which each Constitution +bears to the ordinary laws of the State, and to the ordinary authority +which enacts those laws. Some constitutions, including all that belong +to the older or Common Law type, are on the level of the other laws of +the country, whether those laws exist in the form of statutes only, or +also in the form of recorded decisions defining and confirming a custom. +Such constitutions proceed from the same authorities which make the +ordinary laws; and they are promulgated or repealed in the same way as +ordinary laws. In such cases the term ‘Constitution’ denotes nothing +more than such and so many of the statutes and customs of the country as +determine the form and arrangements of its political system. And (as +will presently appear) it is often difficult to say of any particular +law whether it is or is not a part of the political Constitution. + +Other constitutions, most of them belonging to the newer or Statutory +class, stand above the other laws of the country which they regulate. +The instrument (or instruments) in which such a constitution is embodied +proceeds from a source different from that whence spring the other laws, +is repealable in a different way, exerts a superior force. It is +enacted, not by the ordinary legislative authority, but by some higher +or specially empowered person or body. If it is susceptible of change, +it can be changed only by that authority or by that special person or +body. When any of its provisions conflict with a provision of the +ordinary law, it prevails, and the ordinary law must give way. These are +features, partly political, partly legal, which mark off the two types +of Constitution from one another; and although it will appear that in +some few cases the question to which type the Constitution of a +particular State belongs may be a nice one, still the general legal +criteria to be applied are clear and definite. In a State possessing a +constitution of the former—the older—type, all laws (excluding of course +by-laws, municipal regulations, and so forth) are of the same rank and +exert the same force. There is, moreover, only one legislative authority +competent to pass laws in all cases and for all purposes. But in a State +whose Constitution belongs to the latter—the newer—type, there are two +kinds of laws, one kind higher than the other, and more universally +potent; and there are likewise two legislative authorities, one superior +and capable of legislating for all purposes whatsoever, the other +inferior and capable of legislating only so far as the superior +authority has given it the right and function to do so. + +The difference of these two types is best explained by illustrative +instances. At Rome in the second century B.C. there was but one kind of +enactment. All _leges_ passed by the general assembly (whether _comitia +centuriata_ or _comitia tributa_) were of the same generality and the +same force. There was but one legislative authority, the people voting +in the _comitia_. So in England, during the last few centuries, there +has been but one direct legislative authority, viz. Parliament, which is +supreme, and all whose acts bind every citizen everywhere. Accordingly +in England the laws called constitutional differ only in respect of +their subject-matter from other laws, but are of no higher order. Each +of such laws, though we call them in their totality ‘the British +Constitution,’ is alterable by the ordinary legislative authority at any +moment, just like other laws. Between an Act for making a railway from +Manchester to Liverpool and an Act extending the electoral suffrage to +all householders or disestablishing the Protestant Episcopal Church in +Ireland there is no difference whatever in point of form or in degree of +authority. In Switzerland, however, and in France the case is different. +The Constitution of the Swiss Confederation is a document which was +enacted by the people, and any amendment of which needs to be similarly +enacted by them, whereas ordinary laws are passed by the Federal +legislature of two Houses[59]. The present Constitution of the French +Republic was enacted by the two Chambers sitting together as a +Constituent Assembly, and can be amended only by the Chambers sitting +together in that capacity, after each Chamber has separately resolved +that revision is needed, whereas ordinary laws are passed by the two +Chambers sitting separately. Thus both in Switzerland and in France +there is a distinction in the enacting authority, and therewith also a +distinction in the quality and force of the laws enacted, the law which +is called the Constitution being entirely superior to the other laws +which are passed by the legislature in the ordinary every-day course of +its action. + +----- + +Footnote 59: + + It is unnecessary for the present purpose to call attention to the + complication introduced in Switzerland by the application of the + Referendum plan to ordinary laws. + +----- + +What in the case of each State of the latter or newer type may be the +higher (and indeed supreme) authority which is alone competent to enact +a Constitution depends upon the provisions of each particular system. It +may be the whole people, voting by what is sometimes, though not very +happily, called a plebiscite. It may be a body specially elected for the +purpose, which dissolves when its work has been completed. It may be +certain local bodies, each voting separately on the same instrument +submitted to them. It may be, as in the case just mentioned of France, +the ordinary legislature sitting in a peculiar way, or acting by a +prescribed majority, or rendering several successive votes to the same +effect at prescribed intervals of time. These are matters of detail. The +essential point is that in States possessing Constitutions of the newer +type that paramount or fundamental law which is called the Constitution +takes rank above the ordinary laws, and cannot be changed by the +ordinary legislative authority. + +I have sought in many quarters for names, necessarily metaphorical +names, suitable to describe these two types of Constitution. They might +be called Moving and Stationary, because those of the older kind are +virtually never at rest, but are always undergoing some sort of change, +however slight, in the course of ordinary legislation, while those of +the newer type abide fixed and stable in their place. Or they might be +described, the former as Fluid, and the latter as Solid or Crystallized. +When a man desires to change[60] the composition of a liquid, he pours +in some other liquid or dissolves a solid in the liquid, and shakes the +mixture. But he who wishes to alter the composition of a solid must +first dissolve it or fuse it, and then, having got it into a liquid or +gaseous state, must mix in or extract (as the case may be) the other +substance. The analogy between these two processes and those whereby a +Constitution of the older and one of the newer type are respectively +changed might justify these names. But there is another and simpler +metaphor, which, though not quite perfect, seems on the whole +preferable. Constitutions of the older type may be called Flexible, +because they have elasticity, because they can be bent and altered in +form while retaining their main features. Constitutions of the newer +kind cannot, because their lines are hard and fixed. They may therefore +receive the name of Rigid Constitutions: and by these two names I +propose that we shall call them for the purposes of this inquiry. If the +characteristics of the two types have not been made sufficiently clear +by what has been already said, they will probably become clear in the +more detailed examination of them, to which we may now proceed. + +----- + +Footnote 60: + + _I.e._ to change mechanically, not necessarily chemically. + +----- + +I begin with Flexible Constitutions, not only because they are more +familiar to students of Roman history and to Englishmen, but also +because they are anterior in date. They are indeed the only +constitutions which the ancient world possessed, for although, in the +absence of Aristotle’s famous treatise _On Politics_, we know +comparatively little about most of the constitutions even of the more +famous Greek cities (except Athens), and practically nothing about any +others, save those of Rome and Carthage, there are reasons, to be given +presently, why we may safely assume that all of them belonged to the +Flexible type. But in the modern world they have become rare. Excluding +despotically governed countries, such as Russia, Turkey, and Montenegro, +there are now only three in Europe, those of the United Kingdom, of +Hungary—an ancient and very interesting Constitution, presenting +remarkable analogies to that of England—and of Italy, whose +constitution, though originally set forth in one document, has been so +changed by legislation as to seem now properly referable to the Flexible +type. Elsewhere than in Europe, all Constitutions would appear to be +Rigid[61]. + +----- + +Footnote 61: + + Except that of the late South African Republic (Transvaal). The cases + of the British self-governing colonies will be presently referred to. + +----- + +But a preliminary objection deserves to be first considered. Can we +properly talk of a Constitution at all in States which, like Rome and +England, draw no formal and technical distinction between laws of +different kinds? Since there was at Rome and is in England but one +legislative authority, and all its statutes are of equal force, how +distinguish those which relate to the general frame of government from +those which embody the minor details of administration? The great Reform +Act of A.D. 1832, for instance—and the same remark applies to the +parliamentary reform Acts of 1867 and 1884—was clearly a constitutional +statute. But it contained minor provisions which no one could call +fundamental, and some of which were soon changed by other statutes which +would scarcely be described as constitutional. There are many statutes +of which, as of the Municipal Reform Act of 1834 (and I may add as of +the Local Government Acts of 1888 and 1894), it would be hard to say +whether they are or are not constitutional statutes, and there are +statutes which would not be termed constitutional (such as the Scottish +Universities Act of 1852), which have in fact modified such a momentous +constitutional document as the Act of Union with Scotland (5 Anne, c. 6, +art. xxv). + +Technically, therefore, we cannot draw a distinction between +constitutional and other laws. There was in strictness no Roman +Constitution. There is no British Constitution. That is to say, there +are no laws which can be definitely marked off as Fundamental Laws, +defining and distributing the powers of government, the mode of creating +public authorities, the rights and immunities of the citizen. That which +we call the Constitution of the Roman State, that which we now call the +Constitution of the United Kingdom, is a mass of precedents, carried in +men’s memories or recorded in writing, of dicta of lawyers or statesmen, +of customs, usages, understandings and beliefs bearing upon the methods +of government, together with a certain number of statutes, some of them +containing matters of petty detail, others relating to private just as +much as to public law, nearly all of them presupposing and mixed up with +precedents and customs, and all of them covered with a parasitic growth +of legal decisions and political habits, apart from which the statutes +would be almost unworkable, or at any rate quite different in their +working from what they really are. The most skilful classifier could not +draw up a list that would bear criticism of Roman or of British statutes +embodying the Constitution of either State: and even if such a list were +prepared, the statutes so classified would fail to contain some cardinal +doctrines and rules. Such a list, for instance, of British statutes +would contain nothing about the Cabinet, and very little about the +relations of the House of Commons to the House of Lords. On such +subjects as the control of the House of Commons over foreign affairs, +the obligation of the Crown to take, or the possible right of the Crown +in certain cases to overrule, the advice of its ministers, no light +would be thrown. Yet the statutes form the clearest and most manageable +part of the materials which make up the British Constitution. Those +other materials which have been referred to are by their very nature +vague and indeterminate, unsusceptible of classification, and in many +instances incapable of being set forth in definite rules[62]. A certain +part of them is already, or is on the way to become, obsolete. Another +part is matter of controversy between different schools of jurists or +historians. The same thing was true of Rome, for at Rome it would seem +that no statute defined the power of the consuls, nor their relation to +the Senate, nor set limits to the quasi-legislative authority of that +great magistrate the Praetor. So far from being clearly ascertained were +the powers of the Senate, that in Cicero’s time it was matter of +constitutional debate whether its decrees had or had not the full force +of law[63]; and men took one view or the other according to their +political proclivities, just as in England men at one time differed +regarding the right of the House of Lords to deal with money bills. + +----- + +Footnote 62: + + This point has been brought out with admirable force in Mr. Dicey’s + _Law of the Constitution_. + +Footnote 63: + + See as to this, Essay XIV, vol. ii. p. 304. + +----- + +These facts are of course obvious enough to-day to every English lawyer, +and indeed to those laymen who have some tincture of historical or legal +knowledge. It is otherwise with the general public. To them the word +Constitution seems to represent something definite and positive. Much of +the current talk about the danger of altering the British +Constitution[64] seems to spring from the notion that the name +represents a concrete thing, an ascertainable and positive definite body +of rules laid down in black and white. The Romans had no single word to +convey what we mean by ‘Constitution.’ Even in the last days of the +Republic Cicero had to use such phrases as _forma_, or _ratio_, or +_genus rei publicae_, or _leges et instituta_; and what we call +‘constitutional law’ appears in the jurists of the Empire as _ius quod +ad statum rei Romanae spectat_[65]. + +----- + +Footnote 64: + + I have allowed these lines to remain, though they were more applicable + in 1884 than they are in 1901, when so many changes have been effected + that arguments about the danger of changing the Constitution are less + frequently heard. + +Footnote 65: + + Ulpian in _Digest_, i. 1, 2. + +----- + +The objection, however, which we have been considering, goes only to +misconceptions that may arise from the word ‘Constitution,’ not to the +use of the word itself, for some such word is indispensable. The thing +exists, and there must be a name to describe it. A thing is not the less +real because its limits cannot be sharply defined. A hill is a hill and +a plain a plain, though you cannot fix the point where the hill subsides +into the plain. The aggregate of the laws and customs through and under +which the public life of a State goes on may fitly be called its +Constitution; and even the still vaguer phrases, ‘Spirit of the +Constitution,’ ‘Principles of the Constitution,’ may properly be used, +since they too describe a general quality or tendency pervading the +whole mass of laws and customs that rule a State which gives to this +mass a character differing from that of the Constitution of any other +State; just as each great nation has what we call a National Character, +though this character can be more easily recognized than defined. + + + IV. THE ORIGIN OF FLEXIBLE CONSTITUTIONS. + +Now let us return to consider the history and the attributes of Flexible +Constitutions. We have seen that they are older than those of the Rigid +type. It may be thought that this is so because they are more compatible +with a rude condition of society, and because springing out of custom, +always the first source of law, they are the simplest and most obvious +form which regular political society can take. This is true, but does +not fully explain the phenomena. + +A Constitution properly so called is a frame of political society +organized through and by law, that is to say, one in which law has +established permanent institutions with recognized functions and +definite rights. Now such forms of organized political society appear +first in small communities, whether Urban, like the City States of +Greece, or Rural, like those of early England or mediaeval Switzerland. +Wherever in the earlier stages of civilization we find large +communities, like Egypt, Assyria, Peru, Russia in the sixteenth century, +we find that a tribal organization has passed into a despotism[66], +apparently without passing through the intermediate stage of a more or +less restricted monarchy. Now in a small area men usually organize +themselves in a regular community by vesting legal authority in a mass +meeting of the citizens. The Folk Mot of our Teutonic ancestors, like +the still surviving Landesgemeinde of Uri or Appenzell, represents in a +rural community what the ἀγορά represents in Homeric Greece, what the +ἐκκλησία represents in the later Greek cities, and what the _comitia_ +represent at Rome; I might add, what (in a more rudimentary form) the +popular meeting represents to-day in Albania and what the similar +meeting called a _Pitso_ represents among the Basuto and Bechuana +Kafirs. Such meetings, like the New England Town Meeting, are Primary, +not Representative. They consist of all the freemen within the +community, though, in their earlier stage, it is in practice the leading +men who determine the action of the whole assembly. They make such laws +as there are. Being not only the supreme, but the only legislative +authority, they can at any moment change the laws they deem fundamental, +if there are any such laws, for the more backward races remain in the +stage of mere custom, and do not reach the conception of a fundamental +law. Whether the system of their government is formally embodied in one +group of specially important laws, or, as more often happens, is left to +be collected from a number of enactments connected and supplemented by +usages, that system remains on a level with all the other laws and +usages, because it emanates from the same source, viz. the governing +primary assembly. It is not till the growth of some scheme of +representation has made familiar the distinction between the authority +of the people themselves and that of their representatives that truly +Rigid Constitutions appear, for it is not till then that a method +suggests itself of enacting a kind of law which shall be superior to +that which the ordinary legislative body creates. Accordingly the +Primary Assembly, whether in ancient Greece and Italy or in mediaeval +Europe, works for some time, and may create by its constant action what +is practically a Constitution (_i.e._ a set of established rules +embodying and directing the practice of government), before the idea of +a regular political Constitution emerges. That idea comes into being +when in the progress of political thought and of jurisprudence men begin +to distinguish between laws and customs which relate to the structure of +the State and the management of its affairs and those which relate to +other matters, such as the civil rights of individuals; and when they +also distinguish between rules and usages which are fixed and settled, +because generally observed and regularly applied to recurrent facts, and +the particular decisions taken in particular cases. In this sense the +Romans may have begun to feel they had a Constitution before they had +gone far in the conquest of Italy. Our English ancestors reached the +same consciousness in the fourteenth century, when much stress began to +be laid upon political precedents, and Parliament, by this time a +Representative body, and thereby entitled to speak for the nation, had +definitely established its rights as against the Crown[67]. The +Confirmation of the Charters together with the statute De Tallagio Non +Concedendo of A.D. 1297 is often taken as marking the first form of the +plainly settled English Constitution, but perhaps the successful +resistance of Parliament to King Edward the Third sixty years later is a +better point to choose. Anyhow the language of Chief Justice Fortescue +(under Henry the Sixth) shows how clearly drawn the main lines of the +Constitution had become in his time. When this stage has been reached, +efforts are sometimes made to give to these constitutional rules, or to +certain among them, an exceptional degree of force and permanence. Such +rules may be embodied in a document of special sanctity; or they may be +protected by oaths. But the creation of a truly Rigid Constitution comes +later, when some system of representation has appeared. I shall +presently return to examine the causes which produce it. + +----- + +Footnote 66: + + I use the term ‘despotism’ for convenience, but of course no monarchy + is absolutely despotic, and least of all perhaps in the ruder ages; + for monarchs are always amenable to public opinion, and most so when + they are the leaders of a tribe or people in arms. The real + distinction is between a government checked by religious sentiment + consecrating ancient usage and by the fear of insurrection, and a + government checked by well-established institutions and legal rules. + As to Russia, it may be noted that though she has no Constitution in + the proper sense, there are said to exist three Fundamental Laws of + the Empire—that declaring the sovereign’s autocratic power, that + requiring him (or her) to be a member of the Orthodox Church of the + East, and that fixing the rule of succession to the throne. + +Footnote 67: + + The history of England illustrates what is here said regarding small + and large communities. The Folk Mot of the West Saxons when it passed + into the Magnum Concilium of all England, though it remained in theory + a Primary Assembly, was practically no longer a meeting of all + freemen. It could not have continued to embody and safeguard the + constitutional rights of the people but for the later invention of + Representation, which made it again a virtually Popular though no + longer a Primary Assembly. + +----- + + + V. THE STRENGTH AND WEAKNESS OF FLEXIBLE CONSTITUTIONS. + +The names ‘Flexible’ or ‘Fluid’ which I have suggested for Constitutions +of this type, seem to suggest that they are unstable, with no guarantee +of solidity and permanence. They are in a state of perpetual flux, like +the river of Heraclitus, into which a man cannot step twice. Not only +are new laws constantly passed which more or less affect them, but their +mere working tends to alter them daily. Just as every man’s character is +being every day insensibly modified by the acts he does, by the thoughts +he cherishes, by the emotions which each new experience of life brings +with it, so every decade saw the Constitution of Rome, and sees the +Constitution of England, slightly different at the end of even so short +a period from what it was at the beginning. Even a deliberately +conservative policy cannot arrest this process of variation. If the +change does not for a time appear in the laws, it is in progress in the +minds of men, and may have all the more violent a working when it begins +to tell upon legislation. A reaction, such as that carried through by +Lucius Cornelius Sulla at Rome, or that which followed the fall of the +Cromwellian Protectorate in England, is almost as fertile in change as a +time of revolution. The past can never be effaced, since the +recollection of it is an element in shaping the future, and the measures +taken to restore a _status quo ante_ always contain much which was not +in that _status quo ante_, much which is in itself new, and the source +of further novelties. The only cases in which constitutional development +can be said to stop are those where, as at Venice and in some of the +cities of post-mediaeval Switzerland, an oligarchy gets control of the +government, and, in extinguishing the spirit and the habits of freedom, +arrests the natural processes of movement and development until some +powerful neighbour overthrows the State, or internal economic changes +induce a revolution. Even under a despotism, the system of government +changes insensibly from century to century, as it did in the old French +monarchy, and as it has recently done among a people so stagnant as the +Turks. But despotic systems, being scarcely classifiable as +Constitutions, do not come within our present inquiry. + +These things being so, it seems natural to assume that Flexible (the +so-called ‘unwritten’) Constitutions, having been enacted and being +alterable by the ordinary legislative authority, and not being contained +in any specially sacred instrument, will in fact be subject to frequent +and large changes, and will moreover be so readily transgressed in +practice, that they will furnish an insufficient guarantee for public +order and for the protection of private rights. + +The facts, however, do not support this assumption. Let us take our two +typical instances, Rome and England. The Roman Constitution is an +extreme case of a Frame of Government capable of being changed in the +quickest and simplest way. Nothing was needed but a vote of the +_comitia_, on the proposition of a competent magistrate, accompanied by +the silence of the tribunes. No doubt any single tribune could paralyse +the action of the _comitia_, but in such a community as Rome became in +the later days of the Republic it must often have been easy for those +who desired a change to ‘get at,’ or to remove, an obnoxious tribune. +Yet the Constitution of Rome, regarded on its legal side, changed +comparatively little in the three centuries that lie between the +Licinian laws and the age of Sulla, for most of those deviations from +ancient usage which, as we can now see, were working towards its fall, +were in form quite legal, being merely occasional resorts to expedients +which the Constitution recognized, though they had been more rarely and +more cautiously used in older and better days. So in England, the +exercise of the sovereign power is lodged in an assembly which can, on +occasion, act with extraordinary promptitude, as when some while ago +(April 9, 1883) the Explosives Act was passed through the House of +Commons in a few hours (the standing orders having been suspended), and +having been forthwith passed by the House of Lords also, received the +royal assent next day. So the most sacred rules and principles of the +Constitution might with perfect legality of form be abolished—Magna +Charta and the Bill of Rights and the Act of Settlement included—just as +quickly as the Explosives Act was passed. Yet the main lines of the +English frame of government have since 1689 and 1701 remained legally +the same; and the most important changes made since the latter year have +been effected after long and strenuous controversies[68]. We all know +how hard it is to secure even small constitutional improvements, such as +the abolition of the provision, confessedly useless and certainly +troublesome, which obliges a member of the House of Commons to vacate +his seat and seek re-election on his being appointed a Minister of the +Crown. + +----- + +Footnote 68: + + The two most important changes, the Union with Scotland and the Union + with Ireland, were, however, among those most quickly carried through. + +----- + +One explanation of this apparent paradox is (though sometimes neglected) +obvious enough. The stability of any constitution depends not so much on +its form as on the social and economic forces that stand behind and +support it; and if the form of the constitution corresponds to the +balance of those forces, their support maintains it unchanged. Two other +reasons deserve to be more fully stated. + +A Flexible or Common Law Constitution sometimes owes its stability to +the very conditions which have enabled it to grow out of isolated laws +and mere usages into a firmly settled Frame of Government. There have no +doubt been many cases, such as those of most of the Greek cities of +antiquity, where the eager restless spirit of the people and the +violence of faction never allowed any system of government to last long +enough to strike deep root. Such constitutions were often enacted all in +one piece, and would have been made Rigid, had the citizens who enacted +them known how to make them so. They were seldom the growth of +long-continued usage. But the best instances of Flexible Constitutions +have been those which grew up and lived on in nations of a conservative +temper, nations which respected antiquity, which valued precedents, +which liked to go on doing a thing in the way their fathers had done it +before them. This type of national character is what enables the +Flexible Constitution to develop; this supports and cherishes it. The +very fact that the legal right to make extensive changes has long +existed, and has not been abused, disposes an assembly to be cautious +and moderate in the use of that right. Those who have always enjoyed +power are least likely to abuse it[69]. This truth might be illustrated +both from Rome and from England; and, indeed, from Switzerland also, +though the argument which tries to prove the stupid conservatism of +democracy from the habits of rural communities in the last-named country +has been pressed too far by Sir H. Maine and others, since in rural +communities, where nearly every one is a citizen, and well off, and most +men about equally well off, the usual motives for making political +changes do not exist. + +----- + +Footnote 69: + + Ἀρχαιοπλούτων δεσποτῶν πολλὴ χάρις, Aesch. _Agam._ 1002. + +----- + +A further reason may be found in the fact that a constitution which has +come down in the form of a mass of laws, precedents and customs is not +only more mysterious, and therefore more august, to the minds of the +ordinary citizens than one they can read in a document, but is not felt +by them to lie at their mercy and to live only by their pleasure. A +constitution embodied in a document which they have seen drafted, and +have enacted by their votes, has no element of antiquity or mystery. It +issues from the sovereignty of the people, it reminds them of their +sovereignty, it suggests to them nothing more exalted. Perhaps it has +been the work of one party in the State; and if that party becomes +discredited, it may share the discredit. The dignity which a remote and +half mythic origin gives to constitutions, as it does to royal families, +was in the ancient world and the Middle Ages enhanced by religious +associations. In Greece and Italy the tutelary deities of the city +watched over the oldest laws. In mediaeval countries the order of the +State seemed an expression of the Will of God. Although these sentiments +have vanished from the modern world, the fact that an old constitution +represents a long course of progressive development, or, to use a +somewhat vulgarized term, of evolution, gives it some claim on the +respect of imaginative or philosophical minds. These sources of moral +strength have been found sufficient in many countries to secure an +enduring life for political institutions which the people, or a +legislative body, had it in their power to change, and which, in some +instances, ought to have been replaced by other institutions more suited +to their altered environment. + +It would, therefore, be an error to pronounce Flexible Constitutions +unstable. Their true note, their distinctive merit, is to be elastic. +They can be stretched or bent so as to meet emergencies, without +breaking their framework; and when the emergency has passed, they slip +back into their old form, like a tree whose outer branches have been +pulled on one side to let a vehicle pass. Just because their form is not +rigidly fixed, a temporary change is not felt to be a serious change. +The sentiment of respect for the established order is not shaken. The +old habits are maintained, and the machine, modified perhaps in some +detail which the mass of the people scarcely notice, seems to go on +working as before. + +Whether the working is really the same is another matter. During two +centuries and a half, from Edward the Third till James the First, the +Constitution of England remained in its legal aspect scarcely altered. +Though at some moments within that period Parliament seemed to have +mightily gained on the Crown, and at others the Crown seemed to be +dominating Parliament, yet it was, until the Civil War, doubtful whether +any permanent change had been effected. From the days of Queen Anne to +those of William the Fourth the Constitution preserved a legal character +practically the same. But it had been altered essentially in substance. +So we may say that while the Flexible character of a constitution +sometimes enables it to recover from shocks without injury, that +character sometimes conceals the effects of a shock, since these effects +may take the form of changes of usage and changes of opinion among the +citizens which have not been expressed, perhaps hardly can be expressed, +in a definite legal form. The relations to one another of the two Houses +of the British Parliament, and the relations of Parliament to the now +self-governing British Colonies, are instances in point. + +No constitution illustrates these phenomena better than did that of +Rome. It was a complicated piece of work, made of many pieces, firmly +attached, yet each piece playing freely. It had to be bent, twisted, +stretched in many ways, under the pressure of divers exigencies. But it +stood the strain of being bent or stretched, and when the force that had +bent it was withdrawn, could return so nearly to its original shape as +to seem to have never been disturbed. The change from consuls to +military tribunes, the frequent appointment of a dictator, the memorable +episode of the Decemvirate, the creation of new magistracies, even the +admission of new and sometimes large masses of persons to citizenship +and voting power, and the adaptation of its old machinery to the new +task of governing conquered provinces, did not, during several +centuries, permanently disturb its balance or seriously shake its main +principles. Suspensions of the ordinary rights of the private citizen, +extensions of the ordinary powers of the magistrate, which would have +ruined most States by setting dangerous precedents, were at Rome found +harmless because law and custom recognized them as expedients available +in case of need, and, in legalizing them, took away their revolutionary +character. Thus, being parts of the Constitution, though parts to be +used only in emergencies, they did not shock conservative sentiment nor +encourage attempts pernicious to freedom—did not, that is to say, until +at last the character of the city population had so completely changed +and the dominions of the Republic had so prodigiously grown that the old +Constitution was obviously out of date, unfit for work immensely heavier +than that for which it had been constructed. + +A Greek city, or an Italian city of the Middle Ages, which delivered +itself into the hands of a dictator when pressed by its neighbours, +almost invariably found that it had given itself a master who refused to +resign his power when the danger was past, but continued to rule as a +Tyrant or Signore. This happened not merely because the people were +passionate and the leading men ambitious, for there was plenty both of +passion and of ambition among the Romans, but largely because in those +cities no provision was made for such emergencies; so that when it +became necessary to place extraordinary powers in one or few hands, the +Constitution received a violent wrench, from which it might not recover. +At Rome the contingency had been foreseen, and the mode of meeting it +was legal. A spirit had been formed among the body of the people as well +as among the leading men which held ambition in check. The dictator was +not intoxicated by his elevation. The citizens did not lose their faith +in the soundness of their system; and it justified their confidence. + +The elasticity of the British Constitution appears in somewhat different +features, less striking perhaps than those which mark Rome, but not less +useful. We English appoint no dictators, seeing that we have always +fortunately had a permanent head of the Executive, though latterly one +rather nominal than real, and have seldom been exposed to the dangers +which the city-states of the ancient world had to fear. But we have kept +in reserve a wide and vague prerogative, which, though it cannot in +practice be put in force against the will of the representative House of +Parliament, may be employed to effect things far more important than +many other things for which express legislative authority is required. +The control of the army and navy and the control of foreign policy are +instances. There are, moreover, ways in which the normal powers of the +Executive may be immensely increased. When a statute, such as the Habeas +Corpus Act, is suspended, or when a Vote of Credit for a very large sum +of money is passed, the control of the ordinary law and courts in the +one case, and the control of the House of Commons in the other case, +over the Ministers of the Crown, is for the time being (especially if +Parliament is not sitting) and for some purposes practically suspended; +and the Sovereign (or rather the Cabinet) of to-day is almost replaced +in the position of the last Tudor or the first Stuart. Stringent +measures to repress disorder may be taken at home, military operations +may be threatened or begun abroad which would be beyond the legal +competence of the Crown in the former case and its ordinary +discretionary powers and functions, as fixed by custom, in the latter. +So too when it became necessary in view, not of an emergency, but of the +general convenience of administration, to delegate to inferior +authorities the supreme legislative power of Parliament, advantage was +taken of the old royal prerogative and of that ancient body the Privy +Council. Parliament gave power to the Crown to issue Orders in Council +dealing with large classes of matters which must otherwise have been +dealt with by statute; and these Orders take effect sometimes at once, +sometimes when a certain period has elapsed during which they have lain +before Parliament and received from it no disapproval. In this way a +vast mass of secondary legislation is annually enacted which, though it +does not directly issue from Parliament, carries parliamentary +authority, and does not infringe the principle that Parliament is the +only true source of law. And, similarly, out of the ancient judicial +functions of the Crown and of the Council which advised the Crown, +functions which a century ago seemed to be lapsing into desuetude, there +has been evolved a new system of judicature. A body called the Judicial +Committee of the Privy Council, somewhat resembling the Consistory of +the Roman Emperors, has been created, and now acts as a Supreme Court of +Appeal for all the transmarine possessions of Britain, whether Indian or +Colonial. + +The merit of this elastic quality in such Constitutions as the Roman and +the British is that it affords a means of preventing or minimizing +revolutions by meeting them halfway. Let us note how each kind of +Constitution, the Rigid and the Flexible, behaves when a serious crisis +arrives, in which one section of the nation is bent on changing the +Constitution, and the other on maintaining it. A Rigid Constitution, if +the legal means provided for altering it cannot be used for the want of +the prescribed legal majority, resists the pressure. It may of course +resist successfully, but if so, probably after a conflict which has +shaken the State and excited hostility to it in the minds of a large +part of the people. It may, however, if the assailing forces are very +strong, be broken, and if so, broken past mending. A Flexible +Constitution, however, being more easily and promptly alterable, and +being usually a less firmly welded and cohesive structure, can bend +without breaking, can be modified in such a way as to satisfy popular +demands, can escape revolution by the practical submission of one of the +contending forces in the particular dispute, that submission being +recognized as a precedent which will be followed, even though it has not +been embodied in any law or other formal document. The extinction of the +right once claimed by the House of Lords to alter money bills is one +instance. Or it may be made to evolve some organ which, though really +new, conceals its novelty by keeping some of the old colour, and thus it +may continue to work with no palpable breach of continuity. The +knowledge that a constitution can be changed without any tremendous +effort helps to make a party of revolution less violent and a party of +resistance less stubborn, disposing both to some compromise. At Rome the +resort to the appointment of military tribunes with consular power when +the plebs demanded, and the patricians would not yet consent to the +election of a plebeian Consul, delayed revolution till opinion had so +changed that the danger of revolution had passed away. So, later, the +compromise by which a Praetor was created with the functions of a Consul +but with a special range of duties appeased conservative feeling and +smoothed the passage from the old order to the new. The history of the +English Constitution is a history of continual small changes, no single +one of which, hardly even the Bill of Rights at the time of the +so-called Revolution, or the Reform Act of 1832, made the system look +substantially different. Something no doubt was cut away, and something +was added, but the structure as a whole seemed the same, because far +more of the old was left than there was added of the new. + +The two main processes which have turned the government of England from +the monarchy of the Tudors into what may be called the plutocratic +democracy of to-day have been the limitation of the royal prerogative +and the transference of the right of suffrage from a few to the +multitude. Both processes have gone on slowly, by a succession of steps, +each comparatively small, but all in the same direction. Accordingly the +strife of parties has been mitigated by the existence at all, or nearly +all, moments, of a large body of persons who desired reform, but only a +moderate reform. They are the persons who impose compromise on the +extremists to the right and to the left of them, and they can do so +because the Constitution permits small reforms to be easily effected. +The party of change, which would be a party of revolution if it was +obliged to have large changes or none, is apt to be divided, and its +more moderate section is, or soon passes into, a party only of reform. +The English Chartists of 1840-50 caused some alarm. But between them and +the old Constitutional Whigs there were several sections of opinion +passing by imperceptible gradations into one another; and when it was +seen that the current was setting towards changes approximating to those +which the Chartists demanded, their less violent men were by degrees +reabsorbed into the general body of the Whig or Liberal party, the +latter at the same time moving with the times; and some of those +changes, in particular vote by ballot, were ultimately obtained with no +great friction. + +It must nevertheless be remembered that in the history of most States a +crisis is apt to arrive when elasticity becomes a danger, in that it +tempts people to abuse the facility for change. There is no better sign +of strength in a man’s physical constitution than his being able to make +some short, sudden, and violent effort without suffering afterwards from +doing so; and there is nothing of which the happy possessor of such +strength is more proud. But most men who have reached middle life are +aware that the temptation to strain one’s strength in this exultant +spirit is perilous. Repeated impunity is apt to encourage a man to go on +trying experiments when the conditions are perhaps less favourable, or +when the reserve of force is less abundant than it was in youth. The +story goes that the famous Milo of Croton, passing alone through a +forest, saw an oak into which woodmen who were preparing to fell it had +driven wedges. Pulling out the wedges, he tried to rive it asunder. But +he had no longer the fullness of his youthful strength. The returning +tree caught him by the hands and held him fast till he died. In our own +days Captain Webb, stimulated by his feat in swimming across the English +Channel, sought still bolder exploits, and perished in the Whirlpool +Rapid below Niagara Falls. So the Romans, having many a time given +exceptional powers for special occasions to their magistrates, found at +last that they had created precedents which enabled the old free +Constitution to be in substance overthrown. Sulla became a dictator of a +new kind. After a while he resigned his power, but the example showed +that monarchy was not far off. Julius Caesar also received exceptional +authority, and used it to form an army which extinguished the Republic. +The dictatorship he had held passed under other forms into permanent +absolutism, and what was practically a revolution was ultimately carried +through with a certain deference to the old constitutional forms. In +England, Parliament, during the sixteenth century, once or twice gave +powers to the Crown which brought the Constitution into danger. In the +seventeenth century the monarchy was abolished, and a Protectorate set +up by revolutionary methods. This was the result of a war which had +destroyed a vital part of the old machine, much to the regret of most of +those who had in the first instance taken up arms. We have never since +that date (except under King James the Second) seen the Constitution in +any real danger. + +It is, however, often suggested that the enormous power possessed by +Parliament might be used to upset fundamental institutions with reckless +haste, and that it might therefore be prudent to impose restrictions on +parliamentary action. And those who note the way in which Parliament +bends and staggers under the increasing burden of work laid on it, +coupled with the inadequacy of its rules to secure the prompt dispatch +of business[70], have frequently predicted that the House of Commons may +one day deliver itself into the hands of the Cabinet, the power of party +organization having grown so strong that the head of each Cabinet will +be deemed a sort of dictator, drawing his authority, nominally of +course, from the House of Commons, but really from a so-called direct +‘mandate’ of the electors[71]. Others draw a yet more horrible picture +of a party machine, which they call the Caucus, dictating a policy to +the electors on the one hand, and to the Cabinet on the other, itself +reigning in the spirit of a tyrant, but under the forms of the +Constitution. If the British Constitution, as we have hitherto known it, +should perish, there is little reason to fear it will do so in this +eminently ignoble fashion[72]. + +----- + +Footnote 70: + + This was written in 1884. Since that year sweeping changes have been + made in the procedure of the House of Commons which have greatly + curtailed the rights and opportunities of private members while + increasing the powers of the Ministry of the day. They have not, + however, made that House able to discharge all or nearly all the work + that falls on it; and it is becoming (under the new rules) less and + less careful in the exercise of its powers of voting money. + +Footnote 71: + + This apprehension was often expressed between 1880 and 1885. Nothing + has occurred since to justify it so far as the dictatorship of any + single person is concerned; and it may have in great part arisen from + the fact that from 1867 to 1885 the headships of both the two great + parties had been vested in exceptionally vigorous and influential + leaders. There can however be no doubt that the power of the Cabinet + as against the House of Commons has grown steadily and rapidly: and it + appears (1901) to be still growing. + +Footnote 72: + + Of this supposed danger also much less is heard now than in 1884. The + thing that was then called the ‘Birmingham Caucus’ has ceased to be + used to terrify the timid. + +----- + +When Flexible Constitutions come to an end, they do so in one of two +ways. Sometimes they pass into an autocracy, either dying a violent +death by revolution, or expiring in a more natural manner through the +extension and development, under legal forms, of one of their organs, to +a point at which it practically supersedes and replaces the other +organs. Sometimes, on the other hand, they pass into Rigid +Constitutions. The causes which induce this latter change belong, +however, to the examination of that second type of Constitution; and +will be considered when we have surveyed some further features +characteristic of the Flexible type. + + + VI. ARISTOCRACIES AND FLEXIBLE CONSTITUTIONS. + +Flexible Constitutions have a natural affinity for an aristocratic +structure of government. I do not mean merely that they spring up at +times when power is in the hands of the well-born or rich, for the stage +of society in which constitutions, properly so called, begin to exist, +is nearly always oligarchic, even if there be a monarch at the head of +it. But there is a sort of natural attraction between an aristocracy and +an undefined and elastic form of government, as there has begun to be, +in most modern countries, a natural repulsion between such a form and a +pure democracy. It needs a good deal of knowledge, skill and experience +to work a Flexible Constitution safely, and it is only in the educated +classes that these qualities can be looked for. The masses of a modern +nation seldom appreciate the worth of ancient usages and forms, or the +methods of applying precedents. In small democratic communities, such as +are the Forest Cantons of Switzerland, this attachment to custom may be +found, because there traditions have passed into the life of the people, +and the maintenance of ancient forms has become a matter of local pride. +But in a large nation it is only educated men who can comprehend the +arrangements of a complicated system with a long history, who can follow +its working, and themselves apply its principles to practice. The +uninstructed like something plain, simple and direct. The _arcana +imperii_ inspire suspicion, a suspicion seldom groundless, because the +initiated are apt to turn a knowledge of secrets to selfish purposes. +Now a Common Law Constitution with its long series of precedents, some +half obsolete, some of doubtful interpretation, is full of _arcana_. +Even to-day, though the process of clarification and simplification has +gone on fast since 1832, dark places are still left in the British +Constitution. + +There is, however, a further reason why Common Law Constitutions accord +better with aristocratic than with democratic sentiment. They allow a +comparatively wide discretion to the chief officials of State, such as +the higher magistrates at Rome and the Ministers of the Crown in +England. The functions of these officials are not very strictly defined, +because legal enactments, though they limit power in certain directions +(far more rigidly now in England than was the case at Rome), do not draw +a completely closed circle round it, but leave certain gaps, through +which tradition and precedent permit it, so to speak, to shoot out and +play freely. Aristocracies prize this latitude. They prize it because it +is mainly to prominent members of their class that offices fall, and +these persons are then able to act with freedom, to assert their +individual wills, to carry out their views unchecked by the dread of +transgressing a statute. On the other hand, the less conspicuous members +of the upper class have at any rate little reason to fear harm from the +wide authority of the officials, because their social position, and the +influence of their family connexions, protect them from arbitrary +treatment. The masses of the people have neither advantage. Very few of +them can hope to enjoy power. Any one of them may suffer from an +exercise of it, which, because not positively illegal, gives him no +claim for redress. They have, therefore, everything to gain and nothing +to lose if they can restrict it by those definite and fixed limitations +which are congenial to Rigid rather than to Flexible Constitutions. And +in the history of most peoples a time arrives when, the love of equality +being reinforced by the distrust of authority, there is a movement to +cut down the powers of the rulers to the lowest point compatible with +the safety of the State. The extent to which this process has gone is in +any nation a fair test of the gains made by the democratic principle +upon the aristocratic. But in this respect the course things have taken +in England has been very unlike that which they took at Rome. One of the +first events which the authentic history of Rome records is the effort +of the plebeians to secure a limitation of the power of the Consuls by +having statutes passed to define it. The effort failed. It is +characteristic of the Romans that it should have failed. Statutes, known +afterwards as the Laws of the Twelve Tables, were enacted, statutes +which doubtless on the whole improved the position of the plebeians. But +the powers of the Consuls remained wide and legally indefinite down till +the time when life went out of them under the shadow of an autocrat who +ruled for life. Limited of course these powers had to be as time went on +and the popular element in the constitution was developed, but the +limitations were imposed, not by narrowing the powers themselves, but by +the introduction of new factors. The two Consuls, being chosen from a +circle less narrow than in the old days, were more frequently at +variance with one another. Other officials were set up over against the +Consuls, who could (if they pleased) interfere to restrain the Consuls. +And thirdly, the permanent non-representative Council of Elders (the +Senate), composed mainly of ex-officials, increased its influence, and +could generally hold the magistrates in check. Things went very +differently in England. There the prerogative of the Crown was the force +of which the nobles as well as the commons stood in dread, and they +united in the effort to restrict it down till a time when the commons +were strong enough to dispense with the help of more than a section of +the landowning magnates. In steadily reducing the prerogative of the +Crown, in lopping off some parts of it and strictly defining others, +they restricted the powers of the Crown and its Ministers, until at last +they had so firmly established the right of the representative assembly +to prescribe to the Crown what persons it should employ as Ministers +that the old motive for limiting the prerogative vanished. Those who had +been feared as masters were now trusted as servants. The people no +longer disliked what was left of the royal prerogative, because their +representatives could control the persons who wielded it, and the +members of the ruling assembly began to feel that it was in the public +interest, and not against their own personal interest, to maintain the +powers of Ministers, because many things could be done more easily and +more promptly through these powers than by the passing of statutes for +dealing with each matter in detail. There may even be a danger, in this +new condition of things, that the royal prerogative will be used too +freely, because that prerogative now means the will of the leaders of +the parliamentary majority, whose action might at a moment of excitement +be applauded and sustained by their followers even should it transcend +the limits fixed by constitutional usage. + +It has been already remarked that the system of checks in the Roman +Constitution differed essentially from that employed in the English. +Every constitution must of course have a system of checks, else it will +quickly perish, or, to vary the metaphor, it must so dispose the ballast +as to enable the vessel to recover her equilibrium after a violent +oscillation. At Rome the checks consisted in the coexistence of various +magistrates who could arrest one another’s action, and in a permanent +Senate with a large though somewhat ill-defined control, while the +popular assembly, in theory omnipotent, was in fact restrained by a +number of curious features in its procedure which made it much less +effective than was the primary popular assembly in most of the Greek +republics. It could act only when convoked by a magistrate, could have +its action stopped by another magistrate, and was frequently overreached +or circumvented by the Senate. In England, on the other hand, the Crown, +which before the conflicts of the seventeenth century had been the +predominant power which needed to be checked, and which frequently was +checked, by Parliament, becomes after that time capable only of +occasionally baffling (and that less and less as time went on) the now +predominant Parliament, while the restraint on hasty or violent action +by Parliament was found, partly in the division of Parliament into two +Houses, and partly, especially after the Upper House had begun to lose +moral weight, and had passed more and more under the control of one +party in the State, in the fact that an assembly of representatives, +nearly all of whom belonged to the wealthier and so-called upper +classes, was pervaded by a conservative temper. A representative body, +the members of which are mostly satisfied with the world as it is, and +who are sufficiently instructed to respect the traditions of +administration, is, except where a question arises which stirs class +passions, less prone to ill-considered action than is an assembly of all +the citizens, such as was the Ecclesia of Athens or Syracuse, where the +large majority were humble folk, and where the sympathy of numbers made +the ascendency of emotion over reason doubly dangerous. Thus, as +compared with the democracies of the city-states of antiquity, the +representative character of the assemblies of modern Europe has been a +moderating factor. But these assemblies are now changing their +character, as the countries in which they exist have changed. The +progress of science has, through the agency of railways and telegraphs, +of generally diffused education, and of cheap newspapers, so brought the +inhabitants of large countries into close and constant relations with +one another and with their representatives, that the conditions of a +small city-state are being reproduced. A man living at Kirkwall knows +what happened last night in London, eight hundred miles away, sooner and +more fully than a man living in Marathon (distant eight hours’ walking) +knew what had happened the day before in Athens. The same news reaches +all the citizens at the same time, the same emotion affects all +simultaneously, and is intensified by reverberation through the press. +The nation is, so to speak, compressed into a much smaller space than it +filled three centuries ago, and has become much more like a primary +assembly than it was then. If concurrently with this change there should +come, as some presage, a closer and more constant control of the members +of the representative assembly by their constituents, the +representatives becoming rather delegates acting under instructions than +men chosen to speak and vote because they are deemed trusty and +intelligent, much of the moderative value which the representative +system has possessed will disappear. + +It need not be thought that in England at least there is any immediate +risk of evils to be expected from the change which has been noted. +Representatives have not yet become delegates, and if they do, it will +be rather their own fault than that of the electors, for the electors +respect courage and value independence. In England the power of party +organizations over constituencies and members, if it grows, grows +slowly. It is, in fact, not so much these organizations as small +sections of opinion or organized ‘interests,’ seeking some advantage for +themselves, that try to terrorize candidates. There is still a valuable +check on possible recklessness on the part of Parliament in the fact +that it is (unlike some popular assemblies) guided by responsible +Ministers, who have hitherto seldom been mere demagogues, and who have +experience behind them, prospects of future dignity before them, and the +opinion of their own class around them. All that I wish to point out is +that a change has passed on the conditions under which representative +assemblies act, which in making them more swiftly responsive to public +sentiment, increases some of the risks always incident to popular +government. History has not spoken her last word about Flexible +Constitutions. Rather may she be opening a new stage in their +development. + + + VII. THE INFLUENCE OF CONSTITUTIONS ON THE MIND OF A NATION. + +We have been considering what are the conditions present in a nation +which make it prefer a particular kind of constitution. Now let us +approach the converse question, and inquire what will be the influence +on the political ideas and habits of a nation of these Constitutions of +the Common Law, or Flexible type, and what are the features of national +character which will enable such constitutions to live on and prosper. + +Forms of government are causes as well as effects, and give an +intellectual and moral training to the peoples that live under them, as +the character of a parent affects the children of the household. Now the +Common Law Constitution, with its complexity, its delicately adjusted +and balanced machinery, its inconsistencies, its _nuances_—one is driven +to French because there is no English word to express the tendency of a +tendency—its abundance of unsettled points, in which a refined sense can +perceive what the decision ought in each case to be without being able +to lay down a plain and positive rule—such a constitution must +undoubtedly polish and mature in the governing class a sort of tact and +judgement, a subtlety of discrimination and a skill in applying old +principles to new combinations of facts, which make it safe for a people +to leave wide powers to their magistrates or their governing assembly. A +sense grows up among those who have to work the constitution as to what +is and is not permissible under it, and that which cannot be expressed +in the stiff phrases of a code is preserved in the records of precedents +and shines through the traditions which form the minds of the rulers. +This kind of constitution lives by what is called its Spirit. ‘The +letter killeth, but the spirit giveth life.’ + +Evidently, however, it is only among certain nations with certain gifts +that such a constitution will come to maturity and become a subject for +science as well as a work of art. Three things seem needful. One is +legal-mindedness, a liking and a talent for law. Another is a +conservative temper, by which I mean the caution which declines to make +changes save when a proved need for change arises, so that changes are +made not suddenly, but slowly and bit by bit. The third is that +intellectual freshness and activity which refuses to be petrified by +respect for law or by aversion to change. It is only where these three +qualities are fitly mixed or evenly balanced that either a great system +of law or a finely tempered and durable constitution can grow up. Many +otherwise gifted peoples have, like the Athenians in ancient and, _longo +intervallo_, the Spaniards in modern times, wanted one or other of these +qualities, and have therefore failed to enrich the world by law or by +constitutions. Perhaps it was partly owing to their possessing other +gifts, scarcely compatible with these, that the Athenians did fail. + +But although, when a nation has reached the point at which its law +begins to be scientific, the law and the constitution become teachers, +it must be remembered that the training they give is mainly given to the +classes which practise law and administer the State. For though a nation +as a whole may come to understand and appreciate in outline its +constitution, and may attain to a fairly correct notion of the functions +of each organ of government, only a comparatively small section +comprehends the system well enough to work it or to criticize its +working. For such comprehension there is needed not only some knowledge +of history but also close and continuous observation of the machinery in +motion, and either participation in the business of governing or +association with those who are carrying on that business. The mass of +the nation cannot be expected to possess this familiarity. They are like +the passengers on board an ocean steamer, who hear the clank of the +engine and watch the stroke of the piston and admire the revolution of +the larger wheels, and know that steam acts by expansion, but do not +know how the less conspicuous but not less essential parts of the +machinery play into the other parts, and have little notion of the use +of fly-wheels and connecting-rods and regulators. They can see in what +direction the vessel is moving, and can conjecture the rate of speed, +but they must depend on the engineers for the management of boilers and +engines, as they do on the captain for the direction of the ship’s +course. In the earlier stages of national life, the masses are usually +as well content to leave governing to a small upper class as passengers +are to trust the captain and the engineers. But when the masses obtain, +and feel that they have obtained, the sovereignty of the country, this +acquiescence can no longer be counted on. Men without the requisite +knowledge or training, men who, to revert to our illustration, know no +more than that steam acts by expansion and that a motion in straight +lines has to be turned into a rotary one, men who are not even aware of +the need for knowledge and training, men with little respect for +precedents, and little capacity for understanding their bearing, may +take command of engines and ship: and the representative assembly may be +filled by those who have no sense of the dangers to which an abuse of +the vast powers of the assembly may lead. If such a change arrives, it +imposes a severe strain on the constitution; and that elasticity which +has been its merit may prove its danger. + +It may accordingly be said that one of three conditions is generally +necessary for the salvation of a Flexible Constitution. Either (1) the +supremacy must remain in the hands of a politically educated and +politically upright minority, or (2) the bulk of the people must be +continuously and not fitfully interested in and familiar with politics, +or (3) the bulk of the people, though legally supreme, must remain +content, while prescribing certain general principles, to let the +trained minority manage the details of the business of governing. Of +these conditions the first has disappeared from nearly all civilized +countries. The second has always been rare, and in large industrial +countries is at present unattainable. The best chance of success is +therefore to be found in the presence of the third; but it needs to be +accompanied by a tone and taste and sense of public honour among the +people which will recoil from the mere demagogue. + +Both the influence of its constitution upon a nation and the need of +certain qualities in order to work a Flexible Constitution are well +illustrated in the history of the Roman commonwealth. Of all famous +constitutions it was the most flexible. It lived long and overcame many +perils because it grew up among a people who possessed in an eminent +degree the three qualities of legalmindedness, of conservatism, and of +keen practical intelligence. It trained the national mind to a respect +for order and legality, and had doubtless much to do with the forming of +that constructive genius which created the whole system of Roman private +law. It fell at last because the mass of the citizens became unfit to +discharge their function in the scheme. They did not, it is true, press +into the inner circle of the governing class. The success first of the +well-born and then of the rich in keeping the offices in their own hands +all through is one of the most remarkable features of Roman history. But +they were corrupt and reckless in the bestowal of power, and had really +ceased to care for the freedom and welfare of the State. The ruling +classes, on the other hand, were tempted by the demoralization of the +masses to be their corrupters, and lost their old respect for legality. +Even a conscientious philosopher like Cicero did not scruple to put +prisoners to death without trial, and to justify himself by citing an +act of lawless violence done four centuries before. The leading Romans +of that day were as fit as ever to work the system, so far as skill and +knowledge went, but they had not the old regard for its principles, nor +the old sense of public duty; and the prizes which office offered now +that Rome was mistress of the world were too huge for average virtue to +resist. The moral forces which had enabled the Roman Constitution to +work in spite of its extraordinary complexity, and to live, in spite of +the risks to which its own nature exposed it, were now fatally +enfeebled. These abuses of power on the one hand, and on the other hand +the deadlocks which the system of checks caused, grew more frequent and +serious. Each successive wrench which the machine received became more +violent, because neither faction had patriotism enough to try to ease +them off, and so break the force of the shock. From the beginning of the +Republic the chief danger had lain in the immense powers vested in the +magistrates. These powers had been necessary, because the State was +constantly exposed to attacks from without; and nothing but the sense of +devotion to the interests of the State had controlled the party spirit +which rages more fiercely within the walls of a city than it does in a +large and scattered community. Now that Rome had vast dominions to rule, +and now that her frontiers extended to the very verge of civilization, +involving her in long wars with great monarchies or groups of tribes on +those frontiers, large powers had to be entrusted to military chiefs, +and entrusted for long periods. Thus the Republican constitution fell +through the very faults which had always lain deep in its bosom, though +an over-mastering patriotism had in earlier days kept them harmless. + +It is never easy, in studying the history of an institution, to +determine how much of its success or its failure is due to its own +character, how much to the conditions, external and domestic, in the +midst of which it has to work. The fortunes of the Roman Constitution +would doubtless have been different had Rome been less pressed by +foreign enemies in her earlier days, or had she been less of a +conquering power in her later. So too it is hard to compare States so +different as Rome—whose Constitution was always that of a City, and +failed to widen itself so as to become a Constitution for Italy—and +England, whose Constitution has always since the days of Ecghbert and +Alfred been that of a large and originally a rural and scattered +community. If, however, the comparison is attempted, we may observe that +England never, after the fourteenth century, recognized such vast powers +in the Crown (whether in the Crown personally or as exercised by its +Ministers) as Rome granted to her magistrates. In the sphere of public +law England has applied more successfully than Rome did the conception +of the inviolability of the rights of the citizen as against the organs +of the State, although that conception is itself Roman. With all their +legal genius the Romans were too much penetrated by the idea of the +necessary amplitude of State power to fix just limits to the action of +the Executive. When it was necessary to provide for checking a +magistrate, they set up another magistrate to do it, instead of limiting +magisterial powers by statute. Nor did they ever succeed as the English +have done in disengaging the judicial from the executive department of +government. In both these respects part of the merits of the English +Constitution may be ascribed to Norman feudalism, whose precise +definition of the respective rights of lord and vassal—all the lords but +one being also vassals, and the greater vassals being also lords—helped +to form and imprint deep the idea that powers, however strong within a +definite sphere, may be strictly confined to that sphere, and that the +limits of the sphere are fit matter for judicial determination. Perhaps +the existence in the clergy of a large class of men enjoying specific +immunities the exact range of which had to be settled, and, where +possible, judicially settled, may have also contributed to train this +habit of mind. The extent to which England, favoured no doubt by her +insular position, was able to secure domestic freedom while leaving a +large discretionary authority to the Crown, is usually credited to the +rise of the House of Commons and the vigilance of its control. But much +is also to be ascribed to that precise definition of the rights of the +individual which has made life and property secure from injury on the +part of the State, to the habit of holding officials liable for acts +done in excess of their functions, and to that ultimate detachment of +the judiciary from the influence of the Crown which has enabled the +individual to secure by legal process the enforcement of his rights. +These principles have sunk deep into the mind of the nation, and have +been of the utmost service in forming the habits of thought and action +by which free constitutions have to be worked. They are just as strong +as if they were embodied in a Rigid Constitution, instead of being +legally at the mercy of Parliament. But that is because they have +centuries of tradition behind them, and because the English are a people +who respect tradition and have been trained to appreciate the value of +the principles which their ancestors established. + + + VIII. CAPACITY OF CONSTITUTIONS FOR TERRITORIAL EXPANSION. + +One point more remains to be mentioned before we quit constitutions of +the Flexible type, viz. their suitability to a State which is expanding +its territory and taking in other communities whether by conquest or by +treaty. + +Such constitutions seem especially well suited to countries which are +passing through periods of change, whether internal or external. When +new classes of the population have to be admitted to share in political +power, or when the inhabitants of newly-acquired territories have to be +taken in as citizens, this is most quickly and easily effected by the +action of the ordinary legislature. Both Rome and England availed +themselves of this flexibility in the earlier stages of their growth. +England, itself created as a State by the expansion of the West Saxons, +enlarged herself to include Wales with no disturbance of her former +Constitution, and similarly fused herself with Scotland in 1707 and with +Ireland in 1800, in both cases altering the Constitution of the enlarged +State no further than by the admission of additional members to the two +Houses of Parliament, and by the suppression of certain offices in the +smaller kingdoms. The ease with which the earlier expansions were +effected may be attributed to the fact that in mediaeval times the +prominence of the king made the submission of any tribe or territory to +him carry with it the incorporation of that tribe or territory into his +former dominions. The popular assembly of a community, such as were the +South Saxons, for instance, sank into a secondary place as soon as the +king was head of the South Saxons as well as of the West Saxons, for the +council of the united people which he summoned and over which he +presided became the national assembly for all his subjects. In later +times, though Scotland and Ireland had their separate Parliaments, these +could be readily united with that of England, because in all three +countries the popular House was representative. Here, however, England +has stopped. The vast dominions which she possesses beyond the oceans, +while legally subject to her Crown and Parliament, have not been brought +into the constitutional scheme of the motherland. Indeed they could +hardly be brought in without a reconstruction of the present frame of +government, which would probably have to be effected by the +establishment of a Rigid Constitution. + +Similarly the Roman State had its first beginnings in the union of +neighbouring tribes, whose popular assemblies coalesced into one +assembly. As time went on, the flexibility of the constitution permitted +the extension of political rights to a number of communities which had +lain outside the old Roman territory. But the process presently stopped +(so far as effective political expansion was concerned), because the +representative system had not yet been invented. When after the great +revolt of the Allies in B.C. 90 Rome was compelled to grant full +citizenship to a large number of Italian communities, she did not take +what moderns might think the obvious course of creating a representative +assembly to which these allied communities might send elected delegates, +but merely distributed the new citizens among her old tribes, an +expedient which so far improved the position of the Allies that they +became legally equal to Roman citizens, and acquired thereby various +privileges and exemptions, but which extended to them practically no +share in the government, since few could not come to Rome to give their +votes in the assembly of the people. It may well have been that neither +the oligarchs nor the leaders of the so-called popular party at Rome +were willing to resign a substantial part of the power of the +inhabitants of the City, with the opportunities of bribing and being +bribed, in exchange for the primacy of a Federal or quasi-Federal +Italian republic. But that the notion of a representative assembly had +not crossed men’s minds appears from the circumstance that the Italian +Allies themselves, when in the course of their struggle they set up a +rival government, merely reproduced the general lines of the Roman +constitution, and did not create any representative council, excellently +as it might have served their purpose. So strong was the influence of +the idea of the city community in the ancient world, and (it may be +added) so little power of invention do mankind display in the sphere of +political institutions. + +When an expanding State absorbs by way of treaty other communities +already enjoying a government more or less constitutional, the process +now usually takes the form of creating a Federation, and a Federation +almost necessarily implies a Rigid Constitution. Cases where the +Flexible Constitution of one State is stretched to take in another (as +the Constitution of England was stretched to take in Scotland) are rare. +The ancient Romano-Germanic Empire had a Flexible Constitution, which, +already in an advanced stage of decay, was extinguished by Napoleon. +When it was desired to re-establish a German Empire out of a number of +practically independent States, this had to be done by the creation of a +federal system under a Rigid Constitution. No similar device was +required in the case of Italy, because the communities which united +themselves to the kingdom of Sardinia between 1859 and 1871 had not +theretofore enjoyed constitutional government, had just dismissed their +whilome sovereigns, were all eager for union, and in their eagerness for +union cared but little for the maintenance of any local rights. + + + IX. THE ORIGIN OF RIGID CONSTITUTIONS. + +We may now pass on to examine the other type of constitution, that for +which I have suggested the name Rigid, the specific character whereof +resides in the fact that every constitution belonging to it enjoys an +authority superior to the authority of the other laws of the State, and +can be changed only by a method different from that whereby those other +laws are enacted or repealed. This type is younger than the Flexible +type. The latter goes back to the very beginning of organized political +societies, being the first form which the organization of such societies +took. Rigid Constitutions, on the other hand, mark a comparatively +advanced stage in political development, when the idea of separating +fundamental laws from other laws has grown familiar, and when +considerable experience in the business of government and in political +affairs generally has been accumulated. Thus they have during the last +hundred years been far more in favour than constitutions of the Flexible +type. + +In Europe they exist in every constitutional country except the United +Kingdom, Hungary, and Italy. There are none in the Asiatic continent, +but Asia, the cradle of civilization, possesses no constitutional +self-governing State whatever, except Japan, the Constitution of which, +established in 1889, bears some resemblance to that of the German +Empire. America, as a new continent, is appropriately full of them. The +Republic of the United States has not only presented the most remarkable +instance of this type in the modern world, but has by its success become +a pattern which other republics have imitated, just as most modern +States in the Old World took England for their model when they +established, during the nineteenth century, governments more or less +free. The Constitutions of all the forty-five States of the Union are +Rigid, being not alterable by the legislatures of those States +respectively. This is also true of the Constitution of the Dominion of +Canada, which is alterable only by the Imperial Parliament. The +Constitutions of the seven Canadian Provinces might, so far as their +legislatures are concerned, be deemed Flexible, being (except as +respects the office of Lieutenant-Governor) alterable by ordinary +provincial statutes, but as all Provincial statutes are subject to a +Dominion veto, they are not within the sole power of the legislatures. +Mexico and the five republics of Central America, together with the nine +republics of South America, have all adopted Constitutions which their +legislatures have not received power to change. Africa is the most +backward of the continents, but she has in the Orange Free State a tiny +republic living under a Rigid Constitution. It has been contended that +the Constitution of the South African Republic (Transvaal) is referable +to the same category, but it is really _de iure_, and it has always been +treated _de facto_, as being a Flexible Constitution[73]. The +Constitutions of the Australasian colonies present legal questions of +some difficulty, owing to the way in which the imperial Acts creating or +confirming them have been drawn. So far as the method of changing these +Constitutions has been prescribed by statutes of the colonies in which +they exist, it would appear that each can also be changed by the +legislature of the colony. Where those methods, however, are prescribed +by the British Parliament, or by instruments issuing from the Crown, the +point is more doubtful, and would need a fuller discussion than it can +receive here. Questions, however, touching the relations of a legally +subordinate to a legally supreme legislature lie in a different plane, +so to speak, from that with which we are here concerned: and we may say +that if these colonial constitutions are regarded solely as respects the +legislatures of the colonies themselves, they are referable to the +Flexible type. As to the new Federal Constitution of Australia there is +no doubt at all. It is Rigid[74], for any alteration in it requires a +majority of the States and a majority of the direct popular vote. All +the acts of every British colony are subject to a power of disallowance +by the Governor or the Crown, but (although it is sometimes provided +that constitutional acts shall be ‘reserved’ for the pleasure of the +Crown) this power is not confined to acts changing the constitution, +conformably to the English habit of drawing little distinction between +constitutional and other enactments. + +----- + +Footnote 73: + + See Essay VII, p. 453. + +Footnote 74: + + See as to this Constitution Essay VIII, p. 523. As to the + Constitutions of the several Australian and other British colonies, + reference may be made to the book of the late Sir Henry Jenkyns, + entitled _British Rule and Jurisdiction beyond the Seas_, the + publication of which is announced for a very early date. + +----- + +All the above-mentioned constitutions are products of the last century +and a quarter, and it is doubtful whether there existed in A.D. 1776 any +independent State the constitution of which the ruling authority of that +State could not have changed in the same way in which it changed its +ordinary laws. The Swiss Confederation does not come into question, for +that Confederation was, until the French laid hands on it in the last +years of the eighteenth century, a League of States rather than a State, +and could not be said to have any constitution in the proper sense, not +to add that the republics of which the league consisted could alter the +terms of their league in the same way in which they had formed it. The +same remark applies to the confederation of the seven United Provinces +of the Netherlands. + +The beginnings of Rigid Constitutions may, however, be traced back to +the seventeenth century. The first settlers in the British colonies in +North America lived under governments created by royal charters which +the colonial legislatures could not alter, and thus the idea of an +instrument superior to the legislature and to the laws it passed became +familiar[75]. In one colony (Connecticut) the settlers drew up for +themselves in 1638 a set of rules for their government, called the +Fundamental Orders. These Orders, developed subsequently into a royal +charter, were really a rudimentary constitution. And almost +contemporaneously the conception appeared in England during the Civil +War. The Agreement of the People, presented to the Long Parliament in +1647, contains in outline a Frame of Government for England which was +meant to stand above Parliament and be not changeable by it. So Oliver +Cromwell sought by his Instrument of Government, promulgated in 1653, to +create a Rigid Constitution, some at least of whose provisions were to +be placed beyond the reach of Parliament, and indeed apparently to be +altogether unchangeable. But his own Parliament refused to recognize any +part of it as outside their right of interference[76]. + +----- + +Footnote 75: + + Observations on this topic may be found in the author’s _American + Commonwealth_, chap. xxxvii. + +Footnote 76: + + These documents are printed in Dr. S. R. Gardiner’s _Constitutional + Documents of the Puritan Revolution_. A concise account of the + Instrument may be found in Mr. Goldwin Smith’s _United Kingdom_, vol. + i. pp. 605-8. + +----- + +From this rapid geographical survey we may now return to examine the +circumstances under which constitutions of this type arise. Their +establishment is usually due to one or more of the four following +motives:— + +(1) The desire of the citizens, that is to say, of the part of the +population which enjoys political rights, to secure their own rights +when threatened, and to restrain the action of their ruler or rulers. + +(2) The desire of the citizens, or of a ruler who wishes to please the +citizens, to set out the form of the pre-existing system of government +in definite and positive terms precluding further controversy regarding +it. + +(3) The desire of those who are erecting a new political community to +embody the scheme of polity under which they propose to be governed, in +an instrument which shall secure its permanence and make it +comprehensible by the people. + +(4) The desire of separate communities, or of distinct groups or +sections within a large (and probably loosely united) community, to +settle and set forth the terms under which their respective rights and +interests are to be safe-guarded, and effective joint action in common +matters secured, through one government. + +Of these four cases, the two former arise where an existing State +changes its constitution. The two latter arise where a new State is +created by the gathering of individuals into a community, or by the +union of communities previously more or less separate into one larger +community, as for instance by the forming of a Federation. + +Note further that Rigid Constitutions arise in some one of four possible +ways. + +1. They may be given by a monarch to his subjects in order to pledge +himself and his successors to govern in a regular and constitutional +manner, avoiding former abuses. Several modern European constitutions +have thus come into being, of which that of the Kingdom of Prussia, +granted by King Frederick William the Fourth in 1850, is a familiar +example. The _Statuto_ or Fundamental Law of the Kingdom of Sardinia, +now expanded into the Kingdom of Italy, was at one time deemed another +instance. It is now, however, held to be a Flexible Constitution. Magna +Charta would have been a fragment of such a constitution had it been +legally placed out of the possibility of any change being made in it by +the Great Council, then the supreme legislature of England, but it was +enacted by the king in his Great Council, and has always been alterable +by the same authority. The _Charte Constitutionnelle_ for France issued +by Louis the Eighteenth in 1814, and renewed in an altered form on the +choice of Louis Philippe as king in 1830, and the Constitutions granted +by their respective kings to Spain and to Portugal, are similar +instances. + +2. They may be created by a nation for itself when it has thrown off (or +been released from) its old form of government, and desires to create +another entirely _de novo_. The various Constitutions of the various +French Republics from 1790 downwards are instances, as is the +Constitution of the Orange Free State[77] and the present (A.D. 1901) +Constitution of Brazil. To this category also belong the Constitutions +of the original thirteen States of the American Union. Two of these +States, however, were content to retain the substance of the +charter-constitutions under which they had lived as British Colonies, +merely turning them into State constitutions, with nothing but the +Confederation above them, that Confederation being then a mere League +and not a National Government. The Constitution of the Austrian part of +the Austro-Hungarian monarchy may also be referred to this category. It +consists of five Fundamental Laws, enacted in 1867, and alterable by the +legislature only in a specially prescribed manner. + +----- + +Footnote 77: + + See Essay VII, p. 432. + +----- + +3. They may be created by a new community, not theretofore a nation, +when it deliberately and formally enters upon organized political life +as a self-governing State, whether or no as also a member of any larger +political body. Such are the Constitutions of the States of the American +Union formed since 1790. Such was the original Constitution of Belgium, +a country which had been previously a part of the Kingdom of Holland. +Such is the Constitution of the Dominion of Canada, though it is a +peculiar feature of this instrument—and the same is true of the +Constitutions of all the self-governing British Colonies—that it has +been created not by the community which it regulates but by an external +authority, that of the Parliament of the United Kingdom, in a statute of +A.D. 1867. Being unchangeable by the Dominion Legislature, it is a Rigid +Constitution within the terms of our definition, although changeable, +like any other statute, by the British Parliament. The new Federal +Constitution of Australia belongs to the same class and had a like +origin[78]. + +----- + +Footnote 78: + + As to this Constitution see Essay VIII. Unlike the Constitution of + Canada, it can be amended by the people of Australia without the aid + of the Imperial Parliament. + +----- + +4. They may arise by the tightening of a looser tie which has +theretofore existed between various self-governing communities. When +external dangers or economic interests have led such communities to +desire a closer union than treaties or federative agreements have +previously created, such communities may unite themselves into one +nation, and give that new nation a government by means of an instrument +which is thereafter not only to hold them together but to provide for +their action as a single body. This process of turning a League of +States (_Staatenbund_) into a Federal State (_Bundesstaat_) is +practically certain to create a Rigid Constitution, for the component +communities which are so uniting will of course desire that the rights +of each shall be safeguarded by interposing obstacles and delays to any +action tending to change the terms of their union, and they will +therefore place the constitution out of the reach of amendment by the +ordinary legislature. Cases may, however, be imagined in which the +component communities might be willing to forgo this safeguard. The +Achaean League did so; and its constitution was therefore a flexible +one, but then the Achaean League can hardly be said to have been a +single State in the strict sense of the word. It was rather a league, +though a close league, of States, like the Swiss Confederation in the +eighteenth century. + +The most familiar instances of this fourth kind of origin are the United +States of North America, the Federation of Mexico (unless it be referred +to the second class), and the present Swiss Confederation. To this class +may also be referred the very peculiar case of the new German Empire, +which by two steps, in 1866 and in 1871, has created itself out of the +pre-existing Germanic Confederation of 1815, that Confederation having +been formed by the decay into fragments of the ancient East Frankish or +German kingdom, which had, throughout the Middle Ages, a Flexible +Constitution resembling that of the England or France or Castile of the +thirteenth century. + + + X. THE ENACTMENT AND AMENDMENT OF RIGID CONSTITUTIONS. + +Before proceeding to consider the methods by which these constitutions +may be enacted and changed, it is worth while to suggest an explanation +of their comparative recent appearance in history. Documentary +constitutions, _i.e._ those contained in one or several instruments +prepared for the purpose, are old. There were many of them in the Greek +cities; and efforts were sometimes made when they were enacted to secure +their permanence by declaring them to be unchangeable. But in the old +days when City States (and sometimes also small Rural States) were ruled +by Primary Assemblies, consisting of all free citizens, there was no +authority higher than the legislature that could be found to enact a +constitution, seeing that the legislature consisted of the whole body of +the citizens. In those days, accordingly, when it was decided to give +peculiar permanence to some political arrangement, so that no subsequent +assembly of the people should upset it, two expedients were resorted to. +One was to make all the leading men, perhaps the whole people, swear +solemnly to maintain it, and thereby to bring in the deities of the +States as co-enacting or at least protecting and guaranteeing parties. +Tradition attributed this expedient to Lycurgus at Sparta. The other was +to provide in the law intended to be Fundamental that no proposal to +repeal it should ever be entertained, or to declare a heavy penalty on +the audacious man who should make the proposal. The objection to both +these expedients was that they debarred any amendment, however +desirable, and however generally desired. Hence they were in practice +little regarded, though the exceptionally pious or superstitious +Spartans were deemed to be largely deterred from governmental changes by +the fear of divine disapproval. Moreover, the second of the above-named +devices or barriers could be easily turned by proposing to repeal, not +the Fundamental law itself, but the prohibition and the penalty. These +having been repealed—and of course the proposal would not be made unless +its success were pretty well assured—the Fundamental Law would then +itself be forthwith repealed. It must, however, be added that even if +the Greek cities had adopted what seems to us the obvious plan of +requiring a certain majority of votes (say two-thirds) for a change in +the Fundamental Law, or had required it to be passed by four Assemblies +in succession at intervals of three months, one may doubt whether such +provisions would have restrained a majority in communities which were +small, excitable, and seldom legally-minded. + +Those who have suggested that the United Kingdom ought to embody certain +parts of what we call the British Constitution in a Fundamental Statute +(or Statutes) and to declare such a statute unchangeable by Parliament, +or by Parliament acting under its ordinary forms, seem to forget that +the Act declaring the Fundamental Statute to be Fundamental and +unchangeable by Parliament would itself be an Act like any other Act, +and could be repealed by another ordinary statute in the ordinary way. +All that this contrivance would obtain would be to interpose an +additional stage in the process of abolition or amendment, and to call +the attention both of the people and the legislature in an emphatic way +to the fact that a very solemn decision was being reversed. Some may +think that such a security, if imperfect, would be worth having. The +restraint imposed would, however, be a moral not a legal one[79]. + +----- + +Footnote 79: + + Soon after the above lines were written, the point they deal with came + up in Parliament in a practical form. In the debate on the Irish Home + Rule Bill of 1886 the question emerged whether Parliament could in + constituting a legislature for Ireland and assigning to that + legislature a certain sphere of action legally debar itself from + recalling its grant or from legislating, upon matters falling within + that sphere, over the head of the Irish legislature. It was generally + agreed by lawyers that Parliament could not so limit its own powers, + and that no statute it might pass could be made unchangeable, or + indeed could in any way restrict the powers of future Parliaments. + + Upon the general question whether Parliament could so enact any new + Constitution for the United Kingdom as to debar itself from + subsequently repealing that Constitution, it may be suggested, for the + consideration of those who relish technicalities, that Parliament + could, if so disposed, divest itself of its present authority by a + sort of suicide, _i.e._ by repealing all the statutes under which it + is now summoned, and abolishing the common-law right of the Crown to + summon it, and thereupon causing itself to be forthwith dissolved, + having of course first provided means for summoning such an assembly, + or assemblies, as the new Constitution created. There would then be no + legal means of summoning another Parliament of the old kind, and the + new Constitution, whatever it was, would therefore not be liable to be + altered save in such manner as its own terms provided. + +----- + +A constitution placed out of the power of the legislature may or may not +be susceptible of alteration in a legal manner. Sometimes no provision +has been made, when it was first established, for any change whatever. +There are instances of this among constitutions granted by a monarch to +his subjects—such seems to be to-day the case in Spain—but in cases of +this kind it might possibly be held that the grantor implicitly reserved +the power to vary his grant, as there may not have been expressed in the +document, and need not be, any bilateral obligation. As already +observed, the Constitution of the present Kingdom of Italy was +originally granted to the Kingdom of Sardinia by King Charles Albert in +1848; and it was for a long time held that the power to change it +resided in the Crown only. It was extended by a succession of popular +votes (1859 to 1871) to the rest of Italy, and some conceive that this +sanction makes at least its fundamental parts unchangeable. But the view +that it is alterable by legislation has prevailed, and it has in fact +been so altered in some points. The _Charte Constitutionnelle_ granted +by Louis XVIII, under which the government of France was carried on for +many years, was intended to create a sort of parliamentary government, +in the first instance by way of gift from the sovereign, but afterwards, +under Louis Philippe, by way of a compact, or kind of covenant between +monarch and people. The fact that it contained no provisions for +alteration, having apparently been designed to last for ever, worked +against it; and the discontents of France may have ripened the faster +because no constitutional method had been provided for appeasing them by +changes in the machinery of government. Nothing human is immortal; and +constitution-makers do well to remember that the less they presume on +the long life of their work the longer it is likely to live. + +The Constitutions of Norway (created in 1814, but subsequently altered) +and of Greece (created in 1864) declare that amendments are to be +confined to matters not fundamental, but omit to specify the matters +falling under that description. + +The existing Constitution of France is so far legally unalterable that +no proposition for abolishing the republican form of government can be +entertained. If it be asked, What is a republican form? one may answer +that if ever the question has to be answered, it will be not so much by +the _via iuris_ as by the _via facti_. So also the Constitution of the +United States is in one respect virtually, if not technically, +unchangeable. No State can without its own consent be deprived of its +equal representation in the Senate. As no State is ever likely to +consent to such a change, the change may be deemed legally unattainable; +and that any State against which it was attempted to enforce a reduction +of its representation effected by constitutional amendments to which it +had refused assent would be legally justified in considering itself out +of the Union. In accordance with this American precedent, the new +Constitution of Australia declares that no State can have its +proportionate representation in the Parliament, or the minimum number of +its representatives in the House of Representatives, reduced without the +approval of a majority of its electors voting on a constitutional +amendment[80]. + +----- + +Footnote 80: + + See Essay VIII, p. 524. + +----- + +Among the methods by which constitutions of the Rigid type make, as they +now almost invariably do, provision for their own amendment, four +deserve to be enumerated. + +The first is to give the function to the Legislature, but under +conditions which oblige it to act in a special way, different from that +by which ordinary statutes are passed. There may, for instance, be +required a fixed quorum of members for the consideration of amendments. +Belgium fixes this quorum at two-thirds of each House, while also +requiring a two-thirds majority of each House for a change. Bavaria +requires a quorum of three-fourths of the members of each House; Rumania +one of two-thirds. Or again—and this is a very frequent provision, found +even when that last-mentioned is wanting—a specified minimum majority of +votes may be required to carry an amendment. Sometimes this majority is +three-fourths (as in Greece and Saxony, and in the German Empire for a +vote of the Federal Council): more frequently it is two-thirds, as in +the United States Congress, in the Mexican Chambers, in Norway, Belgium, +Rumania, Servia, Bulgaria. Another plan is to require a dissolution of +the Legislature, so that the amendments carried in one session may come +under the judgement of the electors at a general election, and be +thereafter passed, or rejected, by the newly chosen Legislature. This +arrangement, often combined with the two-thirds majority rule, prevails +in Holland, Norway, Rumania, Portugal, Iceland, Sweden (where the +amendment must have been passed in two ordinary successive sessions), +and several other States, including some of the republics of Spanish +America. It is in substance an appeal to the people as well as to their +representatives, and therefore adds a further guarantee against hasty +change. Finally, the two Houses of the Legislature may sit together as a +Constituent Assembly. Thus in France (Constitution of 1875) when each +Chamber has resolved that the Constitution shall be revised, the two are +for the moment fused, and proceed to debate and pass amendments. Haiti +(Constitution of 1899) has a similar plan, which, oddly enough, was not +borrowed from France, but is as old as 1843. Few will suspect France of +borrowing from Haiti. + +A second plan is to create a special body for the work of revision. In +the United States, where a vast deal of constitution making and revising +goes on in the several States, such a body is called a Convention, and +is usually elected when it is desired to re-draft the whole +constitution, the ultimate approval of the draft being, however, almost +always reserved for the people[81]. In Servia and Bulgaria, after +amendments have been twice passed by the ordinary Legislature, a sort of +Special Assembly, similarly elected, but twice as large, called the +Great Skuptschina (in Servia) or Great Sobranje (in Bulgaria), receives +and finally decides on the proposed amendments. + +----- + +Footnote 81: + + But the Constitution of Mississippi of 1890 was enacted by a + Convention only and never submitted to the people. See as to the + United States the author’s _American Commonwealth_, ch. xxxvii. + +----- + +The republics of Paraguay, Guatemala, Honduras, Nicaragua, and Salvador +also prescribe Conventions, preceded in each case by votes of the +Legislature, such votes usually requiring a two-thirds majority[82]. + +----- + +Footnote 82: + + On the whole subject of the modes of amending constitutions reference + may be made to the valuable book of my friend M. Charles Borgeaud, + Professor at Geneva, _Établissement et Revision des Constitutions_. + See also Dareste, _Les Constitutions Modernes_. I owe to these books, + and especially to the former, most of the facts here given regarding + the minor States. + +----- + +A third plan is to refer the new constitution, or the amendments +proposed (if the revision is partial), to a number of minor or local +authorities for approval. This course is an obviously suitable one in a +federation, and has accordingly been adopted by the United States, by +Mexico, by Colombia, by Switzerland, and by the new Australian +Commonwealth, in all of which the component States are consulted, the +United States requiring a three-fourths majority of States, Switzerland, +Australia, and Mexico a bare majority. (Switzerland and Australia also +require a majority of the citizens generally.) It is not, however, +invariable in federal countries, for the Argentine Confederation +entrusts amendment to a Convention, following on a three-fourths +majority vote of the Legislature, and Brazil (now a federal country) +leaves it to the Legislature alone, acting by a two-thirds majority in +three successive debates. Neither is such a plan necessarily confined to +a federation, for the existing Constitution of Massachusetts was (in +1780) submitted to the Towns (_i.e._ townships) of the State, acting as +communities, and enacted by the majority of them. + +The fourth plan is to refer amendments to the direct vote of the people. +Originating in the New England States of America, where democracy +earliest prevailed, this method has spread to Switzerland and to +Australia, both of which require for alterations in the Fundamental +Instrument a majority of the electors voting as well as a majority of +the States. It prevails now not only in these two federations, but also +in the several States of the United States (with very rare exceptions). +A bare majority of votes is sufficient, except in Rhode Island, where +three-fifths are required, and in Indiana and Oregon, which require a +majority of all the qualified voters. The popular vote is also in use in +the several Cantons of Switzerland. It was repeatedly employed in France +during the first Revolution, and again (under the name of _plébiscite_) +by Louis Napoleon under the Second Empire. + +These variations in the mode of amending are interesting enough to +deserve a few comments. + +Broadly speaking, two methods of amendment are most in use: that which +gives the function to the Legislature, usually requiring something more +than a bare majority, and that which gives it to the People, _i.e._ the +qualified voters. The former of these methods often directs a +dissolution of the Legislature to precede the final vote on amendments, +and in this way secures for the people a means of delivering their +judgement on the questions at issue. The latter method is, however, a +more distinct and emphatic, because a more direct, recognition of +Popular Sovereignty; and it has the advantage of making the constitution +appear to be the work of the Nation as a whole, apart from faction, +whereas in the Legislature it may have been by a party vote that the +amendments have been carried. Thus it supplies the broadest and firmest +basis on which a Frame of Government can rest. The Convention system is +intermediate between the two others, and has struck no deep roots in the +Old World, while in the United States it has been virtually superseded +(as respects enactment) by that of the direct Popular Vote. + +Geographically regarded, the method of revision by Legislature prevails +over Europe and over most of Spanish America (being in the latter region +sometimes combined with the Convention method). The Constitution which +has most influenced others in Europe and become a type for them in this +respect is that of Holland (1814), because it was the earliest one +established after the revolutionary period. On the other hand, the +United States (except the Federal Government) and the democratic +governments of the Swiss and Australian Federations are ruled by the +Popular method. The Constitution which has set the type of this method +is that of Massachusetts of 1780. + +As respects facility of change, it is interesting to note that the +Constitutions which are most quickly and easily altered are those of +Prussia, which prescribes no safeguard save that of two successive votes +separated by an interval of at least twenty-one days, and that of +France, which requires an absolute majority of each House for a proposal +to revise, and an absolute majority of the two Houses sitting together +for the carrying of any amendment. The omission of the French Chambers +in 1875 to submit to the people the constitution then framed, or to +provide for their sanction to any future amendments, was due to the +doubt which each party felt of the result of an appeal to the nation. +The Republicans, though able to prevent the establishment of a +monarchical constitution by the Legislature, were not quite sure that a +republican one would be carried if submitted to a popular vote. Thus it +has come about that France, which went further towards popular +sovereignty in 1793 than any great country has ever done, has lived +since 1875 under an instrument never ratified by the people, and which +was originally regarded as purely provisional. + +The Constitution which it is most difficult to change is that of the +United States. It has in fact never been amended since 1809, except +thrice between 1865 and 1870, immediately after and in consequence of +the Civil War, and then under conditions entirely abnormal, because some +States were under military duress. + +The tendency of recent years has been towards easier and swifter methods +than those which were in favour during the first half of the nineteenth +century: and in Germany lawyers and publicists are now disposed to +minimize the difference between constitutional changes and ordinary +statutes, partly perhaps because doctrines of popular sovereignty obtain +little sympathy from the school dominant in the new Empire. That Empire +itself presents quite peculiar phenomena. So far as the Reichstag or +Federal Assembly is concerned, the constitution can be altered by +ordinary legislation. But in the Federal Council a majority is required +large enough to enable either Prussia on the one hand or a combination +of the smaller States on the other to prevent any change. This is +because the component members of the Federation are not republics, as in +America, Switzerland, and Australia, but are (except the three Hanse +cities) monarchies, so that the Upper Federal House represents not the +people but the governments of the several German States. + +It is evident that the greater or less stability of any given +constitution will (other things being equal) be determined by the +comparative difficulty or ease of carrying changes in one or other of +the above methods. As one at least of them, that of committing the +function of revision to a Constitutional Convention not followed by a +popular vote, seems to interpose no more, and possibly even less, +difficulty or delay than does the ordinary process of law-making by a +two-chambered legislature, it may be asked why a constitution changeable +in such a way should be called Rigid at all. Because inasmuch as the +method of changing it is different from that of passing ordinary +statutes, the people are led to realize the importance of the occasion, +and may be deterred, by the trouble and formalities involved in creating +the special body, from too lightly or frequently tampering with their +fundamental laws. It seems a more momentous step to create this +convention _ad hoc_ than to carry a measure through a legislature which +already exists, and is daily employed on legislative work. Experience +has, moreover, shown in the United States, the country in which this +method has been largely used for redrafting, or preparing amendments to, +the Constitutions of the several States[83], that a set of men can be +found for the work of a Convention better than those who form the +ordinary legislature of the State, and that their proceedings when +assembled excite more attention and evoke more discussion than do those +of a State Legislature, a body which now receives little respect, though +perhaps as much as it deserves. Nowadays, however, a draft constitution +prepared by a Convention is in an American State almost always submitted +to the people for their approval. + +----- + +Footnote 83: + + No Constitutional Convention has ever been held for revising the + Federal Constitution of 1787-9, which was drafted by a Convention and + adopted by the thirteen States in succession. + +----- + +The French plan of using the two Houses sitting together as a +Constituent Convention has a certain interest for Englishmen, because +the suggestion has been made that disputes between their House of Lords +and House of Commons might be settled by a vote of both sitting +together, _i.e._ of the whole of the Great Council of the Nation[84] as +it sat in the thirteenth century before it had formed the habit of +debating and voting in two Houses. It still meets (but does not debate +or vote) as one body when the Sovereign, or a Commission representing +the Sovereign, is present, as happens at the beginning and at the end of +each session. + +----- + +Footnote 84: + + This plan would have more chance of being favourably entertained were + the Upper House now, as it was in 1760, less than two hundred strong. + As it is now nearly as large as the House of Commons, with a majority + of about fourteen to one belonging to one political party, the party + which is in a permanent minority might feel that the chances are not + equal. + +----- + +To examine the distinctive qualities of Rigid Constitutions, as I must +now do, is virtually to traverse again the same path which was followed +in investigating those of the Flexible type, for the points in which the +latter were found deficient are those in which Rigid Constitutions +excel, while the merits of the Flexible indicate the faults of the +Rigid. The inquiry may, therefore, be brief. + +The two distinctive merits claimed for these Constitutions are their +Definiteness and their Stability. + + + XI. THE DEFINITENESS OF RIGID CONSTITUTIONS. + +We have seen that the distinctive mark of these Rigid Constitutions is +their superiority to ordinary statutes. They are not the work of the +ordinary legislature, and therefore cannot be changed by it. They are +embodied in one written document, or possibly in a few documents, so +that their provisions are ascertainable without doubt by a reference to +the documentary terms. This feature is a legitimate consequence of the +importance which belongs to a law placed above all other laws. That +which is to be the sheet-anchor of the State, giving permanent shape to +its political scheme, cannot be left unwritten, and cannot be left to be +gathered from a comparison of a considerable number of documents which +may be confused or inconsistent. Whether it spring from the agreement of +the citizens or from the free gift of a monarch, it must be embodied if +possible in one, if not, at any rate in only a few solemn instruments. +That which is to be a fundamental law, limiting the power of the +legislature, must be set forth in specific and unmistakable terms—else +how shall it be known when the legislature is infringing upon or +violating it? A Flexible Constitution, which the legislature can modify +or destroy at its pleasure, though it might conceivably be embodied in +one document only, is in fact almost always to be collected from at +least several documents, and is often, like the Flexible Constitution of +England, scattered through a multitude of statutes and collections of +precedents. But the benefits expected from a Rigid Constitution would be +lost were its provisions left in similar confusion. + +It is not, however, to be supposed that the citizen of a country +controlled by a Rigid Constitution who desires to understand the full +scope and nature of his government will find all that he needs in the +document itself. No law ever was so written as to anticipate and cover +all the cases that can possibly arise under it[85]. There will always be +omissions, some left intentionally, because the points not specifically +covered were deemed fitter for the legislature to deal with +subsequently, some, again, because the framers of the constitution could +not agree, or knew that the enacting authority would not agree, +regarding them. Other omissions, unnoticed at the time, will be +disclosed by the course of events, for questions are sure to arise which +the imagination or foresight of those who prepared the constitution +never contemplated. There will also be expressions whose meaning is +obscure, and whose application to unforeseen cases will be found +doubtful when those cases have to be dealt with. Here let us distinguish +three classes of omissions or obscurities:— + +----- + +Footnote 85: + + ‘Neque leges neque senatus consulta ita scribi possunt, ut omnes casus + qui quandoque inciderint comprehendantur.’—Iulianus in _Digest_ i. 3, + 10. + +----- + +The first class includes matters, passed over in silence by the written +constitution, which cannot be deemed to have been left to be settled +either by the legislature or by any other organ of government, because +they are too large or grave, as for instance matters by dealing with +which the legislature would disturb the balance of the constitution and +encroach on the province of the Executive, or the Judiciary, or (in a +Federal Government) of the component States. Matters belonging to this +class can only be dealt with by an amendment of the constitution itself. + +The second class includes gaps or omissions relating to matters not +palpably outside the competence of the legislature as defined by the +constitution. Here the proper course will be for the legislature to +regulate such matters by statute, or else to leave them to be settled by +the action of the several organs of government each acting within its +own sphere. These organs may by such action create a body of usage +which, when well settled, will practically supplement the defects of the +constitution, as statutes will do in like manner, so far as they are +passed to cover the omitted cases. + +The third class consists not of omissions but of matters which are +referred to by the constitution, but in terms whose meaning is doubtful. +Here the question is what interpretation is to be given to its words by +the authority entitled to interpret, that authority being in some +countries the legislature, in others the judicial tribunals. To the +subject of Interpretation I shall presently return. Meantime, it must be +noted that both Legislation and Usage in filling up the vacant spaces in +the constitution, and Interpretation in explaining its application to a +series of new cases as they arise upon points not expressly covered by +its words, expand and develop a constitution, and may make it after a +long interval of time different from what it seemed to be to those who +watched its infancy. The statutes, usages, and explanations aforesaid +will in fact come to form a sort of fringe to the constitution cohering +with it, and possessing practically the same legal authority as its +express words have. And it thus may happen that (as in the United +States) a large mass of parasitic law grows up round the document or +documents which contain the Constitution. Nevertheless there will still +remain a distinction between this parasitic law and usage and the +provisions of the constitution itself. The latter stand unchangeable, +save by constitutional amendment. Statutes, on the other hand, can be +changed by the legislature; usage may take a new direction; the +decisions given interpreting the constitution may be recalled or varied +by the authority that pronounced them. All these are in fact Flexible +parasites growing upon a Rigid stem. Thus it will be seen that the +apparent definiteness and simplicity of Documentary Constitutions may in +any given case be largely qualified by the growth of a mass of +quasi-constitutional matter which has to be known before the practical +working of the constitution can be understood. + + + XII. THE STABILITY OF RIGID CONSTITUTIONS. + +The stability of a constitution is an object to be much desired both +because it inspires a sense of security in the minds of the citizens, +encouraging order, industry and thrift, and because it enables +experience to be accumulated whereby the practical working of the +constitution may be improved. Political institutions are under all +circumstances difficult to work, and when they are frequently changed, +the nation does not learn how to work them properly. Experiment is the +soul of progress, but experiments must be allowed a certain measure of +time. The plant will not grow if men frequently uncover the roots to see +how they are striking. Constitutions embodied in one legal document and +unchangeable by the legislature, are intended to be, and would seem +likely to be, peculiarly durable. Being definite, they do not give that +opening to small deviations and perversions likely to arise from the +vagueness of a Flexible or ‘unwritten’ Constitution, or from the +probable discrepancies between the different laws and traditions of +which it consists. They may be battered down, but they cannot easily +(save by a method to be presently examined) be undermined. When an +attack is made upon them, whether by executive acts violating their +provisions, or by the passing of statutes inconsistent with those +provisions, such an attack can hardly escape observation. It is a plain +notice to the defenders of the constitution to rally and to stir up the +people by showing the mischief of an insidious change. The principles on +which the government rests, being set forth in a broad and simple form, +obtain a hold upon the mind of the community, which, if it has been +accustomed to give those principles a general approval, will be +unwilling to see them tampered with. Moreover the process prescribed for +amendment interposes various delays and formalities before a change can +be carried through, pending which the people can reconsider the issues +involved, and recede, if they think fit, from projects that may have at +first attracted them. Both in Switzerland and in the States of the +American Union it has repeatedly happened that constitutional amendments +prepared and approved by the legislature have been rejected by the +people, not merely because the mass of the people are often more +conservative than their representatives, or are less amenable to the +pressure of particular ‘interests’ or sections of opinion, but because +fuller discussion revealed objections whose weight had not been +appreciated when the proposal first appeared. In these respects the +Rigid Constitution has real elements of stability. + +Nevertheless it may be really less stable than it appears, for there is +in its rigidity an element of danger. + +It has already been noted that a constitution of the Flexible type finds +safety in the elasticity which enables it to be stretched to meet some +passing emergency, and then to resume its prior shape, and that it may +disarm revolution by meeting revolution halfway. This is just what the +Rigid Constitution cannot do. It is constructed, if I may borrow a +metaphor from mechanics, like an iron railway-bridge, built solidly to +resist the greatest amount of pressure by wind or water that is likely +to impinge upon it. If the materials are sound and the workmanship good, +the bridge resists with apparent ease, and perhaps without showing signs +of strain or displacement, up to the highest degree of pressure provided +for. But when that degree has been passed, it may break suddenly and +utterly to pieces, as the old Tay Bridge did under the storm of +December, 1879. The fact that it is very strong and all knit tightly +into one fabric, while enabling it to stand firm under small +oscillations or disturbances, may aggravate great ones. For just as the +whole bridge collapses together, so the Rigid Constitution, which has +arrested various proposed changes, may be overthrown by a popular +tempest which has gathered strength from the very fact that such changes +were not and under the actual conditions of politics could not be made +by way of amendment. When a party grows up clamouring for some reforms +which can be effected only by changing the constitution, or when a +question arises for dealing with which the constitution provides no +means, then, if the constitution cannot be amended in the legal way, +because the legally prescribed majority cannot be obtained, the +discontent that was debarred from any legal outlet may find vent in a +revolution or a civil war. The history of the Slavery question in the +United States illustrates this danger on so grand a scale that no other +illustration is needed. The Constitution of 1787, while recognizing the +existence of slavery, left sundry questions, and in particular that of +the extension of slavery into new territories and States, unsettled. +Thirty years later these matters became a cause of strife, and after +another thirty years this strife became so acute as to threaten the +peace of the country. Both parties claimed that the Constitution was on +their side. Had there been no Constitution embodied in an instrument +difficult of change, or had it been practicable to amend the +Constitution, so that the majority in Congress could have had, at an +earlier stage, a free hand in dealing with the question, it is +possible—though no one can say that it is certain—that the War of +Secession might have been averted. So much may at any rate be noted that +the Constitution, which was intended to hold the whole nation together, +failed to do. There might no doubt in any case have been armed strife, +as there was in England under its Flexible Constitution in 1641. But it +is at least equally probable that the slave-holding party, which saw its +hold on the government slipping away, hardened its heart because it held +that it was the true exponent of the Constitution, and because the +Constitution made compromise more difficult than it need have been in a +country possessing a fully sovereign legislature. + +Two opposing tendencies are always at work in countries ruled by these +Constitutions, the one of which tends to strengthen, the other to weaken +them. The first is the growth of respect for the Constitution which +increasing age brings. The remark is often made that if husband and wife +do not positively dislike one another, and if their respective +characters do not change under ill-health or misfortune, every year +makes them like one another better. They may not have been warmly +attached at first, but the memories of past efforts and hardships, as +well as of past enjoyments, endear them more and more to one another, +and even if jars and bickerings should unhappily recur from time to +time, the strength of habit renders each necessary to the other, and +makes that final severance which, at moments of exasperation, they may +possibly have contemplated with equanimity, a severe blow when it +arrives. So a nation, though not contented with its Constitution, and +vexed by quarrels over parts of it, may grow fond of it simply because +it has lived with it, has obtained a measure of prosperity under it, has +perhaps been wont to flaunt its merits before other nations, and to +toast it at public festivities. The magic of self-love and +self-complacency turns even its meaner parts to gold, while imaginative +reverence for the past lends it a higher sanction. This is one way in +which Time may work. But Time also works against it, for Time, in +changing the social and material condition of a people, makes the old +political arrangements as they descend from one generation to another a +less adequate expression of their political needs. Nobody now discusses +the old problem of the Best Form of Government, because everybody now +admits that the chief merit of any form is to be found in its +suitability to the conditions and ideas of those among whom it prevails. +Now if the conditions of a country change, if the balance of power among +classes, the dominant ideas of reflective men, the distribution of +wealth, the sources whence wealth flows, the duties expected from the +administrative departments of government, all become different, while +the form and constitutionally-prescribed methods of government remain +unmodified, it is clear that flaws in the Constitution will be revealed +which were previously unseen, and problems will arise with which its +arrangements cannot cope. The remedy is of course to amend the +Constitution. But that is just what may be impossible, because the +requisite majority may be unattainable; and the opponents of amendment, +entrenched behind the ramparts of an elaborate procedure, may succeed in +averting changes which the safety of the community demands. The +provisions that were meant to give security may now be dangerous, +because they stand in the way of natural development. + +Even where no strong party interest is involved it may be hard to pass +the amendments needed. The history of the United States again supplies a +case in point. Two defects in its Constitution are admitted by most +political thinkers. One is the absence of power to establish a uniform +law of marriage and divorce over the whole Union. The other is the +method of conducting the election of a President, a method which in 1876 +brought the country to the verge of civil war, and may every four years +involve the gravest risks. Yet it has been found impossible to procure +any amendment on either point, because an enormous force of united +public opinion is needed to ensure the concurrence of two-thirds of both +Houses of Congress and three-fourths of the States. The first of these +two changes excites no sufficient interest among politicians to make +them care to deal with it. The second is neglected, because no one has a +clear view of what should be substituted, and neither party feels that +it has more to gain than has the other by grappling with the problem. + +A historical comparison of the two types as regards the smoothness of +their working, and the consequent tendency of one or other to secure a +quiet life to the State, yields few profitable results, because the +circumstances of different nations are too dissimilar to enable close +parallels to be drawn, and because much depends upon the skill with +which the provisions of each particular instrument have been drawn and +upon the greater or less particularity of those provisions. The present +Constitution of France, for instance, is contained in two very short and +simple documents, which determine only the general structure of the +government, and are in size not one-twentieth of the Federal +Constitution of Switzerland. Hence it follows that a far freer play is +left to the legislature and executive in France than in Switzerland; and +that these two authorities have in the former State more power of +meeting any change in the conditions of the country, and also more power +of doing harm by hasty and unwise action, than is permitted in the +latter. As Adaptability is the characteristic merit and insecurity the +characteristic defect of a Flexible Constitution, so the drawback which +corresponds to the Durability of the Rigid is its smaller capacity for +meeting the changes and chances of economic, social and political +conditions. A provision strictly defining the structure of the +government may prevent the evolution of a needed organ. A prohibition +debarring the legislature from passing certain kinds of measures may +prove unfortunate when a measure of that kind would be the proper +remedy. Every security has its corresponding disadvantage. + + + XIII. THE INTERPRETATION OF RIGID CONSTITUTIONS. + +A well-drawn Rigid Constitution will confine itself to essentials, and +leave many details to be filled in subsequently by ordinary legislation +and by usage. But (as already observed) even the best-drawn instrument +is sure to have omitted some things which ought to have been expressly +provided for, to have imposed restrictions which will prove inconvenient +in practice, to contain provisions which turn out to be susceptible of +different interpretations when cases occur raising a point to which the +words of those provisions do not seem to be directly addressed. When any +of these things happen, the authorities, legislative and executive, who +have to work the Constitution find themselves in a difficulty. Steps +seem called for which the Constitution either does not give power to do, +or forbids to be done, or leaves in such doubt as to raise scruples and +controversies. The authorities, or the nation itself, have then three +alternative courses open to them. The first is to submit to the +restrictions which the Constitution imposes, and abandon a contemplated +course of action, though the public interest demands it. This is +disagreeable, but if the case is not urgent, may be the best course, +though it tends to the disparagement of the Constitution itself. The +second course is to amend the Constitution: and it is obviously the +proper one, if it be possible. But it may be practically impossible, +because the procedure for passing an amendment may be too slow, the need +for action being urgent, or because the majority that can be secured for +amendment, even if large, may be smaller than the Constitution +prescribes. The only remaining expedient is that which is +euphemistically called Extensive Interpretation, but may really amount +to Evasion. Evasion, pernicious as it is, may give a slighter shock to +public confidence than open violation, as some have argued that +equivocation leaves a man’s conscience less impaired for future use than +does the telling of a downright falsehood. Cases occur in which the +Executive or the Legislature profess to be acting under the +Constitution, when in reality they are stretching it, or twisting it, +_i.e._ are putting a forced construction upon its terms, and affecting +to treat that as being lawful under its terms which the natural sense of +the terms does not justify. The question follows whether such an evasion +will be held legal, _i.e._ whether acts done in virtue of such a forced +construction as aforesaid will be deemed constitutional, and will bind +the citizens as being legally done. This will evidently depend on a +matter we have not yet considered, but one of profound importance, viz. +the authority in whom is lodged the right of interpreting a Rigid +Constitution. + +On this point there is a remarkable diversity of theory and practice +between countries which follow the English and countries which follow +the Roman law. The English attribute the right to the Judiciary. As a +constitutional instrument is a law, distinguished from other laws only +by its higher rank, principle suggests that it should, like other laws, +be interpreted by the legal tribunals, the last word resting, as in +other matters, with the final Court of Appeal. This principle of +referring to the Courts all questions of legal interpretation may be +said to be inherent in the English Common Law, and holds the field in +all countries whose systems are built upon the foundation of that Common +Law. In particular, it holds good in the United Kingdom and in the +United States. As the British Parliament can alter any part of the +British Constitution at pleasure, the principle is of secondary +political importance in England, for when any really grave question +arises on the construction of a constitutional law it is dealt with by +legislation. However, the action of the Courts in construing the +existing law is watched with the keenest interest when questions arise +which the Legislature refuses to deal with, such, for instance, as those +that affect the doctrine and discipline of the Established Church. So in +the seventeenth century, when constitutional questions were at issue +between the King and the House of Commons, which it was impossible to +settle by statute, because the king would have refused consent to bills +passed by the Commons, the power of the Judges to declare the rules of +the ancient Constitution was of great significance. In the United +States, where Congress cannot alter the Constitution, the function of +the Judiciary to interpret the will of the people as set forth in the +Constitution has attained its highest development. The framers of that +Constitution perhaps scarcely realized what the effect of their +arrangements would be. More than ten years passed before any case raised +the point; and when the Supreme Court declared that an Act of Congress +might be invalid because in excess of the power granted by the +Constitution, some surprise and more anger were expressed. The reasoning +on which the Court proceeded was, however, plainly sound, and the right +was therefore soon admitted. Canada and Australia have followed the +English doctrine, so the Bench has a weighty function under the +constitutions of both those Federations. + +On the European Continent a different view prevails, and the Legislature +is held to be the judge of its own powers under the Constitution, so +that no Court of law may question the authority of a statute passed in +due form. Such is the rule in Switzerland. There, as in most parts of +the European Continent, the separation of the Judiciary from the other +two powers has been less complete than in England, and the deference to +what Englishmen and Americans call the Rule of Law less profound. The +control over governmental action which the right of interpretation +implies seems to the Swiss too great, and too political in its nature, +to be fit for a legal tribunal. It is therefore vested in the National +Assembly, which when a question is raised as to the constitutionality of +a Federal Statute or Executive Act, or as to the transgression of the +Federal Constitution by a Cantonal Statute, is recognized as the +authority competent to decide. The same doctrine seems to prevail in the +German Empire, though the point is there not quite free from doubt, and +also in the Austrian Monarchy, in France, and in Belgium. In the Orange +Free State, living under Roman-Dutch law, the Bench, basing itself on +American precedents, claimed the right of authoritative interpretation, +but the Legislature hesitated to admit it. + +American lawyers conceive that the strength and value of a Rigid +Constitution are greatly reduced when the Legislature becomes the judge +of its own powers, entitled after passing a statute which really +transgresses the Constitution to declare that the Constitution has in +fact not been transgressed. The Swiss, however, deem the disadvantages +of the American method still more serious, for they hold that it gives +the last word to the judges, persons not chosen for or fitted for such a +function, and they declare that in point of fact public opinion and the +traditions of their government prevent the power vested in their +National Assembly from being abused. And it must be added that the +Americans have so far felt the difficulty which the Swiss dwell on, that +the Supreme Court has refused to pronounce upon the action of Congress +in ‘purely political cases,’ _i.e._ cases where the arguments used to +prove or disprove the conformity to the Constitution of the action taken +by Congress are of a political nature. + +Returning to the question of legislative action alleged to transgress +the Constitution, it is plain that if the Legislature be, as in +Switzerland, the arbiter of its own powers, so that the validity of its +acts cannot be questioned in a court of law, there is no further +difficulty. But where that validity can be challenged, as in the United +States, it might be supposed that every unconstitutional statute will be +held null, and that thus any such stretching or twisting of the +Constitution as has been referred to will be arrested. But experience +has shown that where public opinion sets strongly in favour of the line +of conduct which the Legislature has followed in stretching the +Constitution, the Courts are themselves affected by that opinion, and go +as far as their legal conscience and the general sense of the legal +profession permits—possibly sometimes even a little farther—in holding +valid what the Legislature has done. This occurs most frequently where +new problems of an administrative kind present themselves. The Courts +recognize, in fact, that ‘principle of development’ which is potent in +politics as well as in theology. Human affairs being what they are, +there must be a loophole for expansion or extension in some part of +every scheme of government; and if the Constitution is Rigid, +Flexibility must be supplied from the minds of the Judges. Instances of +this kind have occurred in the United States, as when some twenty years +ago the Supreme Court recognized a power in a State Legislature to deal +with railway companies not consistent with the opinions formerly +enounced by the Court, though they disclaimed the intention of +overruling those opinions[86]. + +----- + +Footnote 86: + + A still more remarkable instance has been furnished, while these pages + are passing through the press (June, 1901), by the decisions of the + Supreme Court of the United States in the group of cases which arose + out of questions relating to the applicability of the Federal + Constitution to the island of Puerto Rico, recently ceded by Spain to + the United States. The Court had to deal with a constitutional + question raising large issues of national policy regarding the + application of the Federal Constitution to territories acquired by + conquest and treaty: and its judgements in these cases (given in every + case by majorities only) have expanded the Constitution, _i.e._ have + declared it to have a meaning which may well be its true meaning, but + which was not previously ascertained, and certainly by many lawyers + not admitted, to be its true meaning. + +----- + +Does not a danger lurk in this? May not a majority in the Legislature, +if and when they have secured the concurrence, honest or dishonest, of +the Judiciary, practically disregard the Constitution? May not the +Executive conspire with them to manipulate places on the highest Court +of Appeal, so as to procure from it such declarations of the meaning of +the Constitution as the conspiring parties desire? May not the +Constitution thus be slowly nibbled away? Certainly. Such things may +happen. It is only public opinion and established tradition that will +avail to prevent them. But it is upon public opinion, moulded by +tradition, that all free governments must in the last resort rely. + + + XIV. DEMOCRACIES AND RIGID CONSTITUTIONS. + +The mention of traditions, that is to say of the mental and moral habits +of judgement which a nation has formed, and which guide its political +life, as the habits of each one of us guide his individual life, +suggests an inquiry as to the effect of Documentary Constitutions on the +ideas and habits of those who live under them. I will not venture on +broad generalizations, because it is hard to know how much should be +assigned to the racial tendencies of a nation, how much to the +circumstances of its history, how much to its institutions. But the +cases of Switzerland and the United States seem to show that the +tendency of these instruments is to foster a conservative temper. The +nation feels a sense of repose in the settled and permanent form which +it has given to its government. It is not alarmed by the struggles of +party in the legislature, because aware that that body cannot disturb +the fundamental institutions. Accordingly it will often, contracting a +dislike to change, negative the amendments which the legislature submits +to it. This happens in Switzerland, as already observed; and the people +of the United States, though liable to sudden and violent waves of +political opinion, show so little disposition to innovate that Congress +has not proposed any amendments to the State Legislatures since +1870[87]. I may be reminded that the Constitutions of the several States +of the Union are frequently recast or amended in detail. This is true, +but the cause lies not so much in a restless changefulness as in the low +opinion entertained of the State Legislatures. The distrust felt for +these bodies induces the people to take a large part of what is really +ordinary legislation out of their hands, and to enact themselves, in the +form of a Constitution, the laws they wish. State Constitutions now +contain many regulations on matters of detail, and have thus, in most +States, ceased to be considered fundamental instruments of government. +To revise or amend them has become merely a convenient method of direct +popular legislation, similar to the Swiss Popular Initiative and +Referendum. But the fundamental parts of these instruments are but +slightly changed. + +----- + +Footnote 87: + + Something must, however, be allowed for the provisions which require + large majorities for any amendment of the Constitution. + +----- + +In estimating the influence of Flexible Constitutions in forming the +political character of a nation, in stimulating its intelligence and +training its judgement, it was remarked that only the governing class, a +very small part of the nation even in democratic countries, are directly +affected. This is less true of a Rigid Constitution. While a Flexible +Constitution like the Roman or English requires much knowledge, tact and +courage to work it, and develops these qualities in those who bear a +part in the working of it, as legislators or officials or magistrates, a +Rigid Constitution tends rather to elicit ingenuity, subtlety and +logical acumen among the corresponding class of persons. It is apt to +give a legal cast to most questions, and sets a high, perhaps too high, +premium on legal knowledge and legal capacity. But it goes further. It +affects a much larger part of the community than the Flexible +Constitution does. Few even of the governing class can be expected to +understand the latter. The average Roman voter in the _comitia_ in the +days of Cicero, like the average English voter at the polls to-day, +probably knew but little about the legal structure of the government he +lived under. But the average Swiss voter, like the average native +American voter (for the recent immigrant is a different sort of +creature), understands his government, can explain it, and has received +a great deal of education from it. Talk to a Swiss peasant in Solothurn +or Glarus, and you will be astonished at his mastery of principles as +well as his knowledge of details. Very likely he has a copy of the +Federal Constitution at home. He has almost certainly learnt it at +school. It disciplines his mind much as the Shorter Catechism trained +the Presbyterian peasantry of Scotland. As there is no mystery about a +scheme of government so set forth, it may be thought that he will have +little reverence for that which he comprehends. It is, however, his own. +He feels himself a part of the Government, and seems to be usually +imbued with a respect even for the letter of the instrument, a wholesome +feeling, which helps to form that law-abiding spirit which a democracy +needs. + +A documentary Constitution appears to the people as the immediate +outcome of their power, the visible image of their sovereignty. It is +commended by a simplicity which contrasts favourably with the obscure +technicalities of an old common law Constitution. The taste of the +multitude, and especially of that class which outnumbers all other +classes, the thinly-educated persons whose book-knowledge is drawn from +dry manuals in mechanically-taught elementary schools, and who in after +life read nothing but newspapers, or penny weeklies, or cheap novels—the +taste of this class, and that not merely in Europe but perhaps even more +in the new countries, such as Western America and the British Colonies, +is a taste for ideas level with their comprehension, sentiments which +need no subtlety to be appreciated, propositions which can be expressed +in unmistakable positives and negatives. Thus the democratic man (as +Plato would call him) is pleased to read and know his Constitution for +himself. The more plain and straightforward it is the better, for so he +will not need to ask explanations from any one more skilled. And a good +reason for this love of plainness and directness may be found in the +fact that the twilight of the older Constitutions permitted abuses of +executive power against which the express enactments of a Rigid +Constitution protect the people. Magna Charta, the Bill of Rights, the +Twelve Tables, were all fragments, or rather instalments, of such a +Constitution, rightly dear to the commons, for they represented an +advance towards liberty and order[88]. + +----- + +Footnote 88: + + The ‘People’s Charter’ of 1848 was called for as another such onward + step. Its Six Points were to be the basis of a democratic + reconstruction of the government. + +----- + +The theory of democracy assumes that the multitude are both competent +and interested; competent to understand the structure of their +government and their own functions and duties as ultimately sovereign in +it, interested as valuing those functions, and alive to the +responsibility of those duties. A Constitution set out in black and +white, contained in a concise document which can be expounded and +remembered more easily than a Constitution growing out of a long series +of controversies and compromises, seems specially fitted for a country +where the multitude is called to rule. Only memory and common sense are +needed to master it. It can lay down general principles in a series of +broad, plain, authoritative propositions, while in the case of the +‘historical Constitution’ they have to be gathered from various sources, +and expressed, if they are to be expressed correctly, in a guarded and +qualified form. Now the average man, if intelligent enough to comprehend +politics at all, likes general principles. Even if, as some think, he +overvalues them, yet his capacity for absorbing them gives him a sort of +comprehension of his government and attachment to it which are solid +advantages in a large democracy. + +Constitutions of this type have usually arisen when the mass of the +people were anxious to secure their rights against the invasions of +power, and to construct a frame of government in which their voices +should be sure to prevail. They furnish a valuable protection for +minorities which, if not liable to be overborne by the tyranny of the +mass, are at any rate liable to be disheartened into silence by superior +numbers, and so need all the protection which legal safeguards can give +them. Thus they have generally been accounted as institutions +characteristic of democracy, though the cases of Germany and Japan show +that this is not necessarily true. + +A change of view has, however, become noticeable within the last few +years. In the new democracies of the United States and the British +self-governing Colonies—and the same thing is true of popularly governed +countries in Europe—the multitude no longer fears abuses of power by its +rulers. It is itself the ruler, accustomed to be coaxed and flattered. +It feels no need for the protection which Rigid Constitutions give. And +in the United States it chafes under those restrictions on legislative +power, embodied in the Federal Constitution or State Constitution (as +the case may be), which have surrounded the rights of property and the +obligation of subsisting contracts with safeguards obnoxious, not only +to the party called Socialist, but to reformers of other types. As these +safeguards are sometimes thought to prevent the application of needed +remedies and to secure impunity for abuses which have become entrenched +behind them, the aforesaid constitutional provisions have incurred +criticism and censure from various sections, and many attempts have been +made by State Legislatures, acting at the bidding of those who profess +to control the votes of working men, to disregard or evade the +restrictions. These attempts are usually defeated by the action of the +Courts, whence it happens that both the Federal Constitution and the +functions of the Judiciary are often attacked in the country which was +so extravagantly proud of both institutions half a century ago. This +strife between the Bench as the defender of old-fashioned doctrines +(embodied in the provisions of a Rigid Constitution (Federal or State)) +and a State Legislature acting at the bidding of a large section of the +voters is a remarkable feature of contemporary America. + +The significance of this change in the tendency of opinion is enhanced +when we find that a similar change has been operative in the opposite +camp. The very considerations which have made odious to some American +reformers those restrictions on popular power, behind which the great +corporations and the so-called ‘Trusts’ (and capitalistic interests +generally) have entrenched themselves, have led not a few in England to +applaud the same restrictions as invaluable safeguards to property. +Realizing, a little late in the day, that political power has in England +passed from the Few to the Many, fearing the use which the Many may make +of it, and alarmed by the precedents which land legislation in Ireland +has set, they are anxious to tie down the British Legislature, while yet +there is time, by provisions which shall prevent interference with a +man’s control over what he calls his own, shall restrict the taking of +private property for public uses, shall secure complete liberty of +contracting, and forbid interference with contracts already made. Others +in England, in their desire to save political institutions which they +think in danger, propose to arrest any sudden popular action by placing +those institutions in a class by themselves, out of the reach of the +regular action of Parliament. In other words, the establishment in +Britain of a species of Rigid Constitution has begun to be advocated, +and advocated by the persons least inclined to trust democracy. ‘Imagine +a country’—so they argue—‘with immense accumulated wealth, and a great +inequality of fortunes, a country which rules a vast and distant Empire, +a country which depends for her prosperity upon manufactures liable to +be injured by bad legislation, and upon a commerce liable to be +imperilled by unskilful diplomacy, and suppose that such a country +should admit to power a great mass of new and untrained voters, to whose +cupidity demagogues will appeal, and upon whose ignorance charlatans +will practise. Will not such a country need something better for her +security than a complicated and delicately-poised Constitution resting +largely on mere tradition, a Constitution which can at any moment be +fundamentally altered by a majority, acting in a revolutionary transient +spirit, yet in a perfectly legal way? Ought not such a country to place +at least the foundations of her system and the vital principles of her +government out of the reach of an irresponsible parliamentary majority, +making the procedure for altering them so slow and so difficult that +there will be time for the conservative forces to rally to their defence +before any fatal changes can be carried through?’ + +I refer to these arguments, which were frequently heard in England +during some years after the extension of the suffrage in 1884[89], with +no intention of discussing their soundness, for that belongs to +politics, but solely for the sake of illustrating how different are the +aspects which the same institution may come to wear. A century ago +revolutionists were the apostles, conservatives the enemies, of Rigid +Constitutions. Even forty years ago it was the Flexibility of the +historical British Constitution that was its glory in the eyes of +admirers of the British system, its Rigidity that was the glory of the +American Constitution in the eyes of fervent democrats. + +----- + +Footnote 89: + + They are much less heard now (1900), partly because the public mind is + occupied with matters of a different order, partly because the + political party which professes to be opposed to innovation has + latterly commanded a large majority in the British Legislature. + +----- + + + XV. THE FUTURE OF THE FLEXIBLE AND RIGID TYPES. + +A few concluding reflections may be devoted to the probable future of +the two types that have been occupying our minds. Are both likely to +survive? or if not, which of the two will prevail and outlast the other? + +Two reasons suggest themselves for predicting the prevalence of the +Rigid type. One is that no new Flexible Constitutions have been born +into the world for many years past, unless we refer to this class those +of some of the British self-governing Colonies[90]. The other is that no +country now possessing a Rigid Constitution seems likely to change it +for a Flexible one. The footsteps are all the other way. Flexible +Constitutions have been turned into Rigid ones. No Rigid one has become +Flexible[91]. Even those who complain of the undue conservatism of the +American Constitution do not propose to abolish that Constitution +altogether, nor to place it at the mercy of Congress, but merely to +expunge parts of it, though no doubt parts which (such as the powers of +the Judiciary) have been vital to its working. + +----- + +Footnote 90: + + The British self-governing Colonies (except the two great federations, + see ante, pp. 198-9) have constitutions which may be changed in all or + nearly all points by their respective legislatures, but they are not + independent States, and the power of the legislatures to alter the + constitutions is therefore not complete. + +Footnote 91: + + The Constitution of Italy, already referred to, is scarcely an + exception. + +----- + +Against these two arguments may be set the fact that popular power has +in most countries made great advances, and does not need the protection +of an instrument controlling the legislature and the executive, which +are already only too eager to bend to every breeze of popular opinion. +If we lived in a time of small States, as the ancients did, the people +would themselves legislate in primary assemblies. Why then, it may be +asked, should they care to limit the powers of legislatures which are +completely at their bidding? The old reasons for holding legislatures +and executives in check have disappeared. Why should the people, safe +and self-confident, impose a check on themselves? In this there may be +some truth. But it must be remembered that since modern States are +larger than those of former times, and tend to grow larger by the +absorption of the small ones, legislatures are necessary, for business +could not be carried on by primary popular assemblies, even with the aid +of ‘plébiscites.’ Now legislatures are nowhere rising in the respect and +confidence of the people, and it is therefore improbable that any nation +which has a documentary Constitution, holding its legislature in +subjection, will abolish it for the benefit of the legislature, although +it may wish to do more and more of its legislation by the direct action +of the people, as it does in Switzerland and in some of the States of +the American Union. On the whole, therefore, it seems probable that +Rigid Constitutions will survive in countries where they already exist. + +Two other questions remain. Will existing Flexible Constitutions remain? +Are such new States as may arise likely to adopt Constitutions of the +Rigid or of the Flexible type? + +An inquiry whether countries which, like Hungary and Britain, now live +under ancient Flexible Constitutions will exchange them for new +documentary ones would resolve itself into a general study of the +political prospects of those countries. All that can be said, apart from +such a study, is that our age shows no such general tendency to change +in this respect as did the revolutionary and post-revolutionary era of +the first sixty years of the nineteenth century. Still, a few lines may +be given to considering whether any such alteration of form is likely to +pass on the Constitution which has long had the unquestioned +pre-eminence in age and honour, that, namely, of the United Kingdom, +which is really the ancient Constitution of England so expanded as to +include Scotland and Ireland. + +So far as internal causes and forces are concerned, this seems +improbable. The people are not likely, despite the alarms felt and the +advice tendered by the uneasy persons to whom reference has already been +made, to part with the free play and elastic power of their historical +Cabinet and Parliamentary system. England has never yet made any +constitutional change either on grounds of theory or from a fear of +evils that might arise in the future. All the modifications of the frame +of government have been gradual, and induced by actually urgent needs. + +But there is another set of causes and forces at work which may, as some +think, affect the question. It has already been noted that Rigid +Constitutions have arisen where States originally independent or +semi-independent have formed Confederations. These States, finding the +kind of connexion which treaties had created insufficient for their +needs, have united themselves into one Federal State, and expressed +their new and closer relation in the form of a documentary Constitution. +Such a Constitution has invariably been raised above the legislature it +was creating, because the States which were uniting wished to guard +jealously such autonomy as they respectively retained, and would not +leave those rights at the mercy of the legislature. This happened in the +United States in 1787-9, in Switzerland after the fall of Napoleon, in +Germany when the North German Confederation and German Empire were +created in 1866 and 1870-71. It has happened also in Canada and in +Australia. + +Two proposals of a federalizing nature have recently been made regarding +the United Kingdom, one to split it up into a Federation of four States, +the other to make it a member of a large Federation. Neither seems +likely to be carried out at present, but both are worth mentioning, +because they illustrate the occasions on which, and methods by which, +constitutions may be transformed. The United Kingdom stands to its +self-governing Colonies in what is practically a permanent alliance as +regards all foreign relations, these relations being managed by the +mother country, with complete local legislative and administrative +autonomy both for each Colony and for the mother country[92]. Many think +that this alliance is not a satisfactory, and cannot well be a +permanent, form of connexion, because at present almost the whole +burden—and it is a heavy one—of naval and military defence falls upon +Britain, while the Colonies have no share in the control of foreign +relations, and may find themselves engaged in a war, or bound by a +treaty, regarding which they have not been consulted. Thus the idea has +grown up that some sort of confederation ought to be established, in +which there would be a Federal Assembly, containing representatives of +the (at present seven) component States[93], and controlling those +matters, such as foreign relations and a system of military and naval +armaments, which would be common to the whole body. If this idea were +ever to take practical shape, it would probably be carried out by a +statute establishing a new Constitution for the desired Confederation, +and creating the Federal Assembly. Such a statute would be passed by the +Parliament of the United Kingdom, and (being expressed to be operative +over the whole Empire) would have full legal effect for the Colonies as +well as for the mother country. Now if such a statute assigned to the +Federal Assembly certain specified matters, as for instance the control +of imperial defence and expenditure or (let us say) legislation +regarding merchant shipping and copyright, taking them away from the +present and future British Parliament as well as from the parliaments of +the several Colonies, and therewith debarring the British Parliament +from recalling or varying the grant except by the consent of the several +Colonies (or perhaps of the Federal Assembly itself), it is clear that +the now unlimited powers of the British Parliament would have been +reduced. A part of the future British Constitution would have been +placed beyond its control: and to that extent the British Constitution +would have ceased to be a Flexible one within the terms of the +definition already given[94]. Parliament would not be fully sovereign; +and if either the British or a Colonial Parliament passed laws +inconsistent with statutes passed by the Federal Assembly in matters +assigned to the latter, the Courts would have to hold the transgressing +laws invalid. + +----- + +Footnote 92: + + This autonomy is, however, not legally complete as regards the + Colonies, for the mother country may, though she rarely does, disallow + colonial legislation. In Canada the Dominion Legislature cannot affect + the rights of the several Provinces, the power to do so remaining with + the Imperial Parliament which passed the Confederation Act of 1867. So + too under the Constitution of the Australian Commonwealth the rights + of each colony are protected by the instrument of federation. + +Footnote 93: + + Viz. the United Kingdom, the two great Colonial Federations (Canada + and Australia), and four comparatively small self-governing Colonies, + viz. New Zealand, Cape Colony, Natal, and Newfoundland. + +Footnote 94: + + It may of course be observed (see p. 207, ante) that the British + Parliament, while it continues to be elected as now, may be unable to + divest itself of its general power of legislating for the whole + Empire, and might therefore repeal the Act by which it had resigned + certain matters to the Federal Assembly and resume them for itself. + This is one of those _apices iuris_ of which the Romans say _non sunt + iura_; and in point of fact no Parliament can be supposed capable of + the breach of faith which such a repeal would involve. The supposed + legal difficulty might, however, be avoided by some such expedient as + that previously suggested. + +----- + +Doubtless, if such a Federal Constitution were established, a Supreme +Court of Appeal on which some colonial judges should sit would be +thought essential to it, and questions arising under the Federation Act +(as to the extent of the powers of the Federal Assembly and otherwise) +would go before it, sometimes in the first instance, sometimes by way of +appeal from inferior Courts. + +The other proposal is to turn the United Kingdom itself into a +Federation by erecting England, Scotland, Ireland, and Wales into four +States, each with a local legislature and ministry controlling local +affairs, while retaining the Imperial Parliament as a Central or Federal +Legislature for such common affairs as belong in the United States to +Congress, and in Canada to the Dominion Parliament, and in Australia to +the Commonwealth Parliament. If such a scheme provided, as it probably +would provide, for an exclusive assignment to the local legislatures of +local affairs, so as to debar the Imperial Parliament from interfering +therewith, it would destroy the present Flexible British Constitution +and substitute a Rigid one for it. Care would have to be taken to use +proper legal means of extinguishing the general sovereign authority of +the present Parliament, as for instance by directing the elections for +the new Federal Legislature to be held in such a way as to effect a +breach of continuity between it and the old Imperial Parliament, so that +the latter should absolutely cease and determine when the new +Constitution came into force. Upon this scheme also it would be for the +Courts of Law to determine whether in any given case either the Federal +or one of the Local Legislatures had exceeded its powers. + +Some persons have proposed to combine both these proposals so as to make +the four parts of the United Kingdom each return members, along with the +Colonies, to a Pan-Britannic Federal Legislature, and to place the local +legislatures of Scotland, for instance, or Wales, in a line with those +of the Australian Commonwealth or New Zealand. On this plan also—a +highly inconvenient one—the British Constitution would become Rigid. + +The difficulties, both legal and practical, with which these proposals, +taken either separately or in conjunction, are surrounded, are greater +than those who advocate them have as yet generally perceived. + + + XVI. ARE NEW CONSTITUTIONS LIKELY TO ARISE? + +The remaining question, also somewhat speculative, relates to the +prospects the future holds out to us of seeing new States with new +Constitutions arise. + +New States may arise in one of two ways, either by their establishment +in new countries where settled and civilized government has been +hitherto unknown, or by the breaking up of existing States into smaller +ones, fragments of the old. + +The opportunities for the former process have now been sadly curtailed +through the recent appropriation by a few great civilized States of some +two-thirds of the surface of the globe outside Europe. North America is +in the hands of three such States. Central and South America, though the +States are all weak and most of them small in population, are so far +occupied that no space is left. The last chance disappeared when the +Argentine Republic asserted a claim to Patagonia, where it would have +been better that some North European race should have developed a new +colony, as the Welsh settlers were doing on a small scale. Australia is +occupied. Asia, excluding China and Japan in the East, and the two dying +Musulman powers in the West, is virtually partitioned between Britain +and Russia, with France holding a bit of the south-east corner. So +Africa has now been (with trifling exceptions) divided between five +European Powers (Portugal, England, France, Germany, Italy). Thus there +is hardly a spot of earth left on which a new independent community can +establish itself, as the Greeks founded a multitude of new commonwealths +in the eighth and seventh centuries B.C., and as the Teutonic invaders +founded kingdoms during the dissolution of the Roman Empire. + +If we turn to the possibilities of new States arising from the ruins of +existing ones, whether by revolt or by peaceful separation, the prospect +is not much more encouraging. There is indeed Turkey. Five out of the +six new States that have arisen in Europe during this century have been +carved out of the territories she claimed—viz. Greece, Rumania, Servia, +Bulgaria, Montenegro: and there is material for one or two more in +Europe and possibly for one or two in Asia, though it is more probable +that both the Asiatic and European dominions of the Sultan will be +partitioned among existing States than that new ones will spring out of +them. The ill-compacted fabric of the Austro-Hungarian monarchy may fall +to pieces. Parts of the Asiatic dominions of Russia may possibly (though +in a comparatively distant future) become independent of the old +Muscovite motherland, and the less civilized among the republics of +Central and South America may be broken into parts or combined into new +States, though the saying ‘plus cela change, plus c’est la même chose’ +is even more true of those countries than of that to which it was +originally applied, and gives little hope of interesting novelties. But +on the whole the tendency of modern times is rather towards the +aggregation of small States than towards the division of large ones. +Commerce and improved facilities of communication are factors of +constantly increasing importance which work in this direction, and this +general tendency for the larger States to absorb the smaller forbids us +to expect the rise, within the next few generations, of more than a few +new Constitutions which will provide matter for study to the historian +or lawyer of the future. + +What type of Constitution will these new States, whatever they be and +whenever they come, be disposed to prefer? Upon this point it is +relevant to observe that all the new States that have appeared since +1850 have adopted Rigid Constitutions, with the solitary exception of +Montenegro, which has no Constitution at all, but lives under the +paternal autocracy of the temporal ruler who has succeeded the ancient +ecclesiastical Vladika[95]. Each of them, on beginning its independent +life, has felt the need of setting out the lines of its government in a +formal instrument which it has consecrated as fundamental by placing it +above ordinary legislation. Similar conditions are likely to surround +the birth of any new States, similar motives to influence those who tend +their infancy. The only cases in which a Flexible Constitution is likely +to arise would be the division of a country having such a Constitution +into two or more fragments, each of which should cleave to the +accustomed system; or the revolt of a people or community among whom, as +they grow into a State, usages of government that had naturally sprung +up might, when independence had been established, continue to be +observed and so ripen into a Constitution. The chance that either of +these cases will present itself is not very great. New States will more +probably adopt documentary Constitutions, as did the insurgent colonies +of England after 1776 and of Spain after 1811, and as the Christians of +South-Eastern Europe did when they had rid themselves of the Turk. Upon +the whole, therefore, it would seem that the future is rather with Rigid +Constitutions than with those of the Flexible type. + +----- + +Footnote 95: + + As to Italy, however, see above, pp. 202 and 208. + +----- + +It is hardly necessary to close these speculations by adding the warning +that all prophecies in politics must be highly conjectural. +Circumstances change, opinion changes; knowledge increases, though the +power of using it wisely may not increase[96]. + +The subtlety of nature, and especially the intricacy of the relations +she develops between things that originally seemed to lie wide apart, +far surpasses the calculating or predicting wit of man. Accordingly many +things, both in the political arrangements of the world and in the +beliefs of mankind, which now seem permanent may prove transitory. +Democracy itself, though most people treat it as a thing likely to grow +stronger and advance further, may suffer an eclipse. Human nature no +doubt remains. But human nature has clothed itself in the vesture of +every sort of institution, and may change its fashions as freely in the +future as it has done in the past. + +----- + +Footnote 96: + + Ἅπανθ’ ὁ μακρὸς κἀναρίθμητος χρόνος + φύει τ’ ἄδηλα καὶ φανέντα κρύπτεται. + Soph. _Ajax_, 646. + +----- + + + NOTE TO ESSAY III + + +CONSTITUTIONAL AND OTHER GOVERNMENTS + + The races and nations of the world may, as respects the forms of + Government under which they live, be distributed into four classes:— + + I. Nations which have created and maintain permanent political + institutions, allotting special functions to each organ of Government, + and assigning to the citizens some measure of participation in the + business of Government. + + In these nations we discover Constitutions in the proper sense of the + term. To this class belong all the States of Europe except Russia and + Montenegro, and, outside Europe, the British self-governing Colonies, + the United States and Mexico, the two republics of South Africa, Japan + and Chili, possibly also the Argentine Republic. + + II. Nations in which the institutions aforesaid exist in theory, but + are seldom in normal action, because they are in a state of chronic + political disturbance and mostly ruled, with little regard to law, by + military adventurers. This class includes the republics of Central and + South America, with the exception of Chili, and possibly of Argentina, + whose condition has latterly been tolerably stable. + + III. Nations in which, although the upper class is educated, the bulk + of the population, being backward, has not begun to desire such + institutions as aforesaid. Such Nations therefore remain under + autocratic monarchies. To this class belong Russia and Montenegro. + Japan has lately emerged from it: and two or three of the newest + European States might, but for the interposition of other nations, + have remained in it. + + IV. Nations which are, for one reason or another, below the level of + intellectual life and outside the sphere of ideas which the permanent + political institutions aforesaid presuppose and need for their proper + working. This class includes all the remaining peoples of the world, + from intelligent races like the Chinese, Siamese, and Persians, down + to the barbarous tribes of Africa. + + Constitutions, in the sense in which the term is used in the preceding + Essay, belong only to the first class, and in a qualified sense to the + second. In the modern world they are confined to Europe and her + Colonies, adding Japan, which has imitated Europe. In the ancient + world they were confined to three races, Greeks, Italians, and + Phoenicians, to whom one may perhaps add such races as the Lycians, + who had learnt from the Greeks. Their range is somewhat narrower than + that of law, that is to say, there are peoples which, like the + Musulmans of Turkey, Egypt, and Persia, have law, but have no + Constitutions. + + No race that has ever lived under a regular constitutional Government + has permanently lost it, except those parts of the Roman Empire which + now form part of the Turkish Empire; and the Roman Empire, though its + Government never ceased to be in a certain sense constitutional, + ultimately extinguished the habit of self-government among its + subjects. + + + + + IV + + THE ACTION OF CENTRIPETAL + AND CENTRIFUGAL FORCES ON + POLITICAL CONSTITUTIONS[97] + + +As every government and every constitution is the result of certain +forces and tendencies which bring men together in an organized +community, so every government and every constitution tends when formed +to hold men together thenceforth, training them to direct their efforts +to a common end and to sacrifice for that purpose a certain measure of +the exercise of their individual wills. So strong is the aggregative +tendency, that each community naturally goes on by a sort of law of +nature to expand and draw in others, whether persons or groups, who have +not previously belonged to it: nor is physical force the prime agent, +for the great majority of mankind prefer some kind of political society, +even one in whose management they have little or no share, to mere +isolation. As this process of expansion and aggregation continues, the +different political groups which it has called into being come +necessarily in contact with one another. The weaker ones are overcome or +peacefully absorbed by the stronger ones, and thus the number of groups +is continually lessened. Where two communities of nearly equal strength +encounter each other, each may for a time succeed in resisting the +attraction of the other. But in this changeful world it almost always +happens that sooner or later one becomes so much stronger that the other +yields to it: and thus in course of time the number of detached +communities, _i.e._ of groups each with its own centre of attraction, +becomes very small, because the weak have been swallowed up by the +strong. This is the general, though, as we shall see, not the universal +course of events. There is also another force at work, which has at some +moments in history developed great strength. + +----- + +Footnote 97: + + This Essay was composed in the early part of 1885. It has been revised + throughout, but the substance remains the same. + +----- + + + I. HOW THE TENDENCIES TO AGGREGATION AND TO DISJUNCTION RESPECTIVELY + AFFECT CONSTITUTIONS. + +Of the many analogies that have been remarked between Law in the +Physical and Law in the Moral World, none is more familiar than that +derived from the Newtonian astronomy, which shows us two forces always +operative in our solar system. One force draws the planets towards the +sun as the centre of the system, the other disposes them to fly off from +it into space. So in politics, we may call the tendency which draws men +or groups of men together into one organized community and keeps them +there a Centripetal force, and that which makes men, or groups, break +away and disperse, a Centrifugal. A political Constitution or frame of +government, as the complex totality of laws embodying the principles and +rules whereby the community is organized, governed, and held together, +is exposed to the action of both these forces. The centripetal force +strengthens it, by inducing men (or groups of men) to maintain, and even +to tighten, the bonds by which the members of the community are gathered +into one organized body. The centrifugal assails it, by dragging men (or +groups) apart, so that the bonds of connexion are strained, and possibly +at last loosened or broken. That no community can be exempt from the +former force is obvious. But neither can any wholly escape the latter. +For every community has been built out of smaller groups, and the +members of such groups have seldom quite lost the attraction which each +had to its own particular centre, such attraction being of course +dissociative as regards the other groups and their members[98]. Moreover +in no large community can there ever be a complete identity of views and +wishes, of interests and feelings, between all the members. Many must +have something to complain of, something which sets them against the +rest and makes them desire to be, for some purposes, differently +treated, or (in extreme cases) to be entirely separated. The existence +of such a grievance constitutes a centre round which a group is formed, +and this group is in so far an element of disjunction. Accordingly the +history of every community and every constitution may be regarded as a +struggle between the action of these two forces, that which draws +together and that which pushes apart, that which unites and that which +dissevers. + +----- + +Footnote 98: + + In the pages that follow the word Group is used to denote the section + of persons within a larger community who maybe held together by some + tie, whether of interest or sentiment or race or local habitation, + which makes them a sort of minor community inside the larger one. + +----- + +This subject, it may be thought, belongs either to History, in so far as +history attempts to draw general conclusions from the facts she records, +or to that branch of political science which may be called Political +Dynamics, and is one with which the constitutional lawyer is not +directly concerned. The constitutional lawyer, however, must always, if +he is to comprehend his subject and treat it fruitfully, be a historian +as well as a lawyer. His legal institutions and formulae do not belong +to a sphere of abstract theory but to a concrete world of fact. Their +soundness is not merely a logical but also a practical soundness, that +is to say, institutions and rules must represent and be suited to the +particular phenomena they have to deal with in a particular country. It +is through history that these phenomena are known. History explains how +they have come to be what they are. History shows whether they are the +result of tendencies still increasing or of tendencies already beginning +to decline. History explains them by parallel phenomena in other times +and places. Thus the lawyer who has to consider and advise on any +constitutional problem, and still more the lawyer who has to contrive a +constitutional scheme for grappling with a political difficulty, must +study the matter as a historian, otherwise he will himself err and +mislead those whom he advises. Great lawyers often have so erred, and +with lamentable results. A lawyer who shall deal with a constitutional +problem as he would deal with a technical point in the law of real +property will be as much astray as an advocate who should prosecute or +defend a political prisoner with a sole regard to the law of treason or +sedition which he may find in his books, heedless of the temper and +opinion of those from among whom the jury will be drawn. + +An obvious illustration may be found in the fact that when any +particular community is studied from the constitutional point of view, +and the inquiry is raised whether it ought to have a Flexible or a Rigid +Constitution, the question of the comparative actual strength of these +two forces becomes a vital one. Where the centripetal force is palpably +the stronger, either sort of constitution will do to hold the community +together: and the choice between the two sorts may be made on other +grounds. But where the centrifugal force is potent, and especially where +there are reasons to apprehend its further development, the +establishment of a Rigid Constitution may become desirable, and yet may +be a matter of much delicacy and difficulty. If the constitution be +framed in the interests of a centralizing policy, there is a danger that +it may assume and require for its maintenance a greater strength in the +centripetal forces than really exists, and that for the want of such +strength the constitution may be exposed to a strain it cannot resist. +Amid the constant change of phenomena, a Rigid Constitution necessarily +represents the past, not the present; and if the tendencies actually +operative are towards the dissociation of the component groups of the +community, a frame of government which fails to provide scope for these +tendencies will soon become out of date and unfit for its work. Where, +on the other hand, the existence of distinct groups, each desiring some +control of its own affairs, is fully perceived and duly admitted as a +factor in the condition of the community, and where it is desired to +give legal recognition to the fact, and to protect the other local +groups or sub-communities from being overridden by the largest among the +groups, or by the community as a whole, the creation of a Rigid +Constitution offers a valuable means of securing these objects. For such +a constitution may be so drawn as to place the local groups under the +protection of a fixed body of law, making their privileges an integral +part of the frame of government, so that the whole Constitution must +stand or fall with the maintenance of the rights enjoyed by the +groups[99]. The familiar instance of such a form of Rigid Constitution +is a Federal Constitution. It is specially adapted to the case of a +country where the centrifugal forces are so strong that it is clear that +the groups will not consent to be wholly merged and lost in one +community, as under a Flexible Constitution might befall them, yet where +they are sufficiently sensible of the advantages of combination to be +willing to enter into a qualified and restricted union. And in these +cases it has sometimes proved to be an efficient engine for further +centralization. That is to say, the best way of strengthening in the +long run the centripetal tendencies has been to give so much recognition +and play to the centrifugal as may disarm them, and may allow the causes +which make for unity to operate quietly without exciting antagonism. + +----- + +Footnote 99: + + Subject of course to any provisions for amending the Constitution + which may have been inserted. See Essay III, p. 207 sqq. + +----- + +It appears accordingly that the historian who studies constitutions, and +still more the draftsman who frames them, must have his eye constantly +fixed on these two forces. They are the matter to which the legislator +has to give form. They create the state of things which a Constitution +has to deal with, so laying down principles and framing rules as on the +one hand to recognize the forces, and on the other hand to provide +safeguards against their too violent action. Their action will preserve +or destroy the Constitution,—preserve it, if it has given them due +recognition and scope, destroy it, if its provisions turn out to be +opposed to the sweep of irresistible currents. The forces that move +society are to the constructive jurist or legislator what the forces of +nature are (in the famous Baconian phrase) to man. He is their servant +and interpreter. They can be overcome only by obeying them. If he defies +or misunderstands them, they overthrow his work. If he knows how to use +them, they preserve it. But his difficulty is greater than that of the +physicist, because these social forces are more complex than those of +inanimate nature, and vary in their working from generation to +generation. + + +II. TENDENCIES WHICH MAY OPERATE EITHER AS CENTRIPETAL OR AS CENTRIFUGAL + FORCES. + +Now let us see what are the chief among the tendencies which in +political society are capable of playing the part either of centripetal +or of centrifugal forces. + +So far as individual men are concerned, all the tendencies that work on +them may be said to be associative tendencies, that is to say, +everything tends to knit individual men together into a band or group, +and to make them act together. The repulsion of man from man is so rare +that we may ignore it. Even the keenest individualist desires to convert +other men to his individualism, and forms a league for the purpose with +others who are like-minded. + +As regards political societies, the subject wherewith we are here +concerned, the tendencies I am going to enumerate may be either +associative or dissociative. Whether in the case of any given State they +act as agglutinative and consolidating forces or as splitting and +rending forces depends upon whether they are at the moment giving their +support to, or are enlisted in the service of, the State as a whole, or +are strengthening the group or groups inside the State which are seeking +to assert either their rights within the State or their independence of +it. Even obedience, the readiness to submit and follow, which might seem +primarily a centripetal force, may be centrifugal as against the State +if it leads the partisans of a particular recalcitrant group to +surrender their wills to the leaders of that group. Even the love of +independence, the desire to let each man’s individuality have full +scope, may act as a centripetal force if it disposes men to revolt +against the tyranny of a faction and maintain the rights and interests +of the whole people against the attempts of that faction to have its own +way. There are always two centres of attraction and two groupings to be +considered, the larger, which we call the State, and the smaller, which +may be either a subordinate community, such as a province, district or +dependency, or only a party or faction. And the centripetal force which +draws men to the smaller centre is a centrifugal force as regards the +larger. + +These two tendencies, which I have referred to as Obedience and +Individualism, are so familiar, and the former is a disposition of human +nature so generally pervasive, as to need no further discussion. The +other tendencies which may operate either centrifugally or centripetally +may be classed under the two heads of Interest and Sympathy. Under the +head of Interest there fall all those influences which belong to the +sphere of Property, including of course Industry and Commerce as means +of acquiring property. These influences usually make for consolidation +and assimilation. It is a gain to the trader or the producer that the +area of consumers which he supplies without the hindrance of an +interposed customs tariff should be as wide as possible. It is a gain +that communications by sea and land should be safe, easy, swift, and +cheap, and these objects are better secured in a large country under a +strong government. It is a gain that coinage, weights, and measures +should be uniform over the largest possible area and that the standard +of the currency should be upheld. It is a gain that the same laws and +the same system of courts should prevail in every part of a State—and +the larger the State the better, so far as these matters are +concerned—and that the law should be steadily enforced and complete +public order secured. All these things make not only for the growth of +industry and the spread of trade, but also for the value of all kinds of +property. And all these influences, derived from the consideration of +such gains, which play upon the citizen’s mind, are usually aggregative +influences, disposing him to desire the extension of the State and the +strength of its central authority. Considerations of Interest, +therefore, usually operate as a centripetal force. It was through +commercial interests that the States of Germany were, after the fall of +the old Romano-Germanic Empire, drawn into that Zollverein which became +a stage towards, and ultimately the basis of, the present German Empire. +It was the increase of trade, after the union of Scotland and England, +that by degrees reconciled the Scotch to a measure which was at first +most unpopular among them as threatening to extinguish their national +existence. It is the absence of any strong commercial motives for +political union that has hampered the efforts of those who have striven, +so far successfully, to keep Norway and Sweden united. + +In exceptional cases, however, the influences of Interest may be +centrifugal. A particular group of traders or landowners, for instance, +living in a particular district, may think they will gain more by having +the power to enact special laws for the conduct of their own affairs or +for the exclusion of competing persons than they will by entering or by +remaining under the uniform system of a large State[100]. Trade +considerations counted for something in making the planters of the Slave +States of America desire to sever themselves from a government in which +the protectionist party was generally dominant. It is partly on economic +grounds that the various provinces of the Cis-Leithanian part of the +Austro-Hungarian Monarchy have been allowed, and desire to maintain, +each its autonomy. It was largely a divergence of economic views and +interests that so long deterred the free trade colony of New South Wales +from linking its fortunes in a federation with the protectionist +colonies; nor were there wanting industrial grounds which made the +adhesion of Queensland long doubtful. + +----- + +Footnote 100: + + The case of Ireland shows the same forces of industrial or commercial + interest, real or supposed, operating partly as centripetal, partly as + centrifugal. The Nationalist party conceive that economic benefits + would result from a local legislature, which could aid local + industries. The mercantile class, especially in the north-eastern part + of the island, fear commercial loss from anything which could hamper + their trade intercourse with Scotland and England, or which might be + deemed prejudicial to commercial credit. With the soundness of either + view I am not concerned; it is sufficient to note the facts. + +----- + +To the head of Sympathy we must refer all the influences which flow not +from calculation and the desire of gain, but from emotion or sentiment. +The sense of community, whether of belief, or of intellectual +conviction, or of taste, or of feeling (be it affection or aversion +towards given persons or things), engenders sympathy, and draws men +together. To the same class belong the recognition of a common ancestry, +the use of a common speech, the enjoyment of a common literature. The +importance of these factors has often been exaggerated. Some of the +keenest Irish revolutionaries have been English by blood and Protestants +by faith. The Borderers of Northumberland and those of Berwickshire did +not hate one another less because they were of the same stock and spoke +the same tongue. The Celts of Inverness-shire and the Teutons of Lothian +are now equally enthusiastic Scotchmen, though they disliked and +despised one another almost down to the days of Walter Scott[101]. Mere +identity of origin does not count for much, as witness the ardent +Hungarian patriotism of most of the Germans and Jews settled in Hungary, +with perhaps no drop of Magyar blood in their veins. Community of +language does not any more than a common ancestry necessarily make for +love, and indeed may increase hatred, because in an age of newspapers +each of two disputant parties can read the injurious things said of it +by the other. Civil wars are, like family quarrels, proverbially +embittered. Tocqueville wrote, in 1833, that he could imagine no more +venomous hatred than the Americans then felt for England. So it may be +said that though the want of these elements of community is usually an +obstacle to unity, their presence is no guarantee for its existence. +Somewhat greater value belongs to identity of traditions and historical +recollections, and to the possession of the materials for a common pride +in past achievements. Most men find a personal satisfaction and take a +personal pride in recalling the feats and the struggles of the nation, +or the tribe, or the party, or the sect, to which they belong, so the +recollection of exploits or sufferings becomes an effective rallying +point for a group. We all know how powerful a force such memories have +been at various times in stimulating national feeling in Italy, in +Germany, in Hungary, in Scotland, in Portugal, in Ireland. + +----- + +Footnote 101: + + A curious survival of the dislike of the Lowlander to the Highlander + may be found in Carlyle’s comments upon the Highland wife of his + friend Thomas Campbell the poet. + +----- + +Still less necessary is it to dwell upon the influence of Religion, +which, as it touches the deepest chords of man’s nature, is capable of +educing the maximum of harmony or discord. No force has been more +efficient in knitting factions and States together, or in breaking them +up and setting the parts of a State in fierce antagonism to one another. +Religion held together the Eastern Empire, originally a congeries of +diverse races, in the midst of dangers threatening it from every side +for eight hundred years. Religion now holds together the Turkish Empire +in spite of the hopeless incompetence of its government. Religion split +up the Romano-Germanic Empire after the time of Charles the Fifth. The +instances of the Jews and the Armenians are even more familiar. + +There remains a large and rather miscellaneous category of sources of +sympathy which we may call by the general name of Elements of +Compatibility. Traits of character, ideas, social customs, similarity of +intellectual culture, of tastes, and even of the trivial usages of daily +life, all contribute to link men together, and to assimilate them +further to one another, as the absence of these things tends to +differentiation and dissimilation, because it supplies points in which +the members of one group, racial or local or social, feel themselves out +of touch with the members of another, and possibly inclined to show +contempt, or to think themselves contemned, on the ground of the +divergence. The natural repulsion which the Germans usually feel for the +Slavs, and the Slavs for the Germans, seems to have its root in a +difference of character and temperament which makes it hard for either +race to do full justice to the other. That repulsion is powerfully +operative to-day in the Austrian Empire. In the ancient world the +obstinate and passionate Egyptians seem to have displayed, and provoked, +a similar antagonism in their contact with other races, and particularly +with the arrogant Persians. + +These influences of Sympathy, like those of Interest, may figure either +as centripetal or centrifugal forces, according as the centre round +which they group and towards which they draw men is the main centre of +that larger circle represented by the State or the centre of the smaller +circle represented by the tribe, the district, the province, the faith, +the sect, the faction. The same feeling may play the one part or the +other according to the accident of individual view, or taste, or +environment. Thus in a University consisting of a number of autonomous +colleges, one man may be a centralizer, and seek to bring the colleges +into subordination, pecuniary and administrative, to the University, +while another man may desire to maintain their independence, and yet +both may set a high value on corporate spirit, and be filled with it +themselves. In one man this spirit clings to the college, in another it +glorifies the University. The patriotism which makes a Magyar desire +that Hungary should absorb Croatia, and that which makes a Croat desire +to sever his country from Hungary, are essentially the same sentiment, +though, as regards the monarchy of the Hungarian Crown, the sentiment +operates with the Magyar as an attractive, with the Croat as a repulsive +force. This statement is generally true of that complex feeling, based +upon affinities of race, of speech, of literature, of historic memories, +of ideas, which we call the Sentiment of Nationality, a sentiment +comparatively weak in the ancient world and in the Middle Ages, and +which did not really become a factor of the first moment in politics +till the religious passions of the sixteenth and seventeenth centuries +had almost wholly subsided, and the gospel of political freedom preached +in the American and French Revolutions had begun to fire men’s minds. As +regards the historical States of Europe, it is a sentiment which is both +aggregative and segregative. It has contributed to create the German +Empire: yet it is also a sentiment which makes Bavaria unwilling to +merge in that Empire her individual existence. In Bavaria, and still +more in the case of Scotland, which had a long and brilliant national +history, the sentiment of local has been found compatible with a +sentiment of imperial patriotism. + +It is a remarkable feature of recent times that the tendency of a common +interest to draw groups together and make them prize the unity of the +State is often accompanied by the parallel development of an opposite +tendency, based on sentiment, to intensify the life of the smaller group +and in so far to draw it apart, and thereby weaken the unity of the +State. This arises from the fact that the march of civilization is +material on the one hand, intellectual and moral on the other. So far as +it is material, it generally makes for unity. On its intellectual and +social or moral side it works in two ways. It tends to break down local +prejudices and to create a uniform type of habits and character over a +wide area. But it also heightens the influence of historical memories. +It is apt to rekindle resentment at old injuries. Filling men’s minds +with the notion of social and political equality, it disposes them to +feel more keenly any social or political inferiority to which they may +be subjected. Raising the estimate they set upon themselves as +individuals and as a race, it makes them more bold in organizing +themselves and claiming what they deem their rights. And so one notes +the singular phenomenon that men are stirred to disaffection, or +impelled towards separation, by grievances less acute than those which +their ancestors, sunk in ignorance and despondency, bore almost without +a murmur. The Roman Catholic Irish since 1782 and the Transylvanian +Rumans since 1848 are instances in point. + +All these tendencies, pulling this way and that, are among the facts +which a given Constitution has to deal with, are forces which it must +use in order to secure its own strength and permanence. Where, in a free +country, the system of government has grown up naturally, and can be +readily modified by the normal action of the normal sovereign authority, +_i.e._ where the Constitution is a Flexible one, the presumption is that +the rules and usages of the Constitution conform to and represent the +actual forces, and draw strength therefrom. Yet even in countries +governed on this system there is a risk that the Constitution which the +will of a majority has established may leave a minority discontented and +unrestful, and that such discontent and unrest may impede the working of +the machinery and create an element of instability. In such countries, +it may be the part of wisdom for the majority to yield something to the +minority, modifying the Constitution, so far as it can safely be +modified, in order to remove the obstacles to harmony. A centrifugal +force which is not strong enough to disrupt the State, because the +centripetal forces are on the whole more powerful, may nevertheless be +able to cause a harmful friction, and may even, if the State be exposed +to external attacks, become a source of peril. Everybody can now see +that Rome ought to have admitted the Italian allies to the franchise +long before the Social War, that Catholic Emancipation ought to have +been enacted by the Irish Parliament in 1796 or by the British +Parliament immediately after the Union of 1800, that Denmark ought not +to have waited till 1874 before she conceded a qualified autonomy to +Iceland, that the same country might probably have retained +Schleswig-Holstein if she had yielded long before the war of 1864 some +of the demands made by the German inhabitants of those duchies. And, if +we may apply the same principle to despotically governed countries, most +people will agree that Austria ought to have retired from Lombardy +before 1859, and that the Turks gained nothing by clinging to Bulgaria, +and may be gaining nothing now by clinging to Macedonia. + + + III. HOW CONSTITUTIONS MAY USE THE CENTRIPETAL FORCES TO PROMOTE + NATIONAL UNITY. + +As we are here dealing with constitutions considered in their relation +to the forces and tendencies that rule in politics (_i.e._ as a part of +political dynamics), we may now inquire what it is that Constitutions +can accomplish in the way of regulating or controlling these forces. + +Every political Constitution has three main objects. + +One is to establish and maintain a frame of government under which the +work of the State can be efficiently carried on, the aims of such a +frame of government being on the one hand to associate the people with +the government, and, on the other hand, to preserve public order, to +avoid hasty decisions and to maintain a tolerable continuity of policy. + +Another is to provide due security for the rights of the individual +citizen as respects person, property, and opinion, so that he shall have +nothing to fear from the executive or from the tyranny of an excited +majority. This object has fallen into the background since these rights +came to be fully recognized. But in earlier times it was the chief +purpose of constitutional provisions from Magna Charta down to the Bill +of Rights and the Declaration of Independence. The safeguard for these +rights which the Constitution of England provided, was the thing which, +more perhaps than anything else, moved the admiration of foreign +observers who studied that constitution during the eighteenth century. + +The third object is to hold the State together, not only to prevent its +disruption by the revolt or secession of a part of the nation, but to +strengthen the cohesiveness of the country by creating good machinery +for connecting the outlying parts with the centre, and by appealing to +every motive of interest and sentiment that can lead all sections of the +inhabitants to desire to remain united under one government. + +In pursuing these objects, a constitution seeks to achieve by means of +legal provisions that which in ruder times it was often necessary to +accomplish by physical force. No doubt at all times the natural +disposition to obey (the sources of which I have analysed +elsewhere[102]) was an agent more constant and effective than physical +force. Nevertheless, the latter was needed, sometimes from the side of +the government to maintain order and compel subjects to bear their share +of the public burdens, sometimes from the side of the subjects to abate +the abuses into which the possession of power tempts rulers. Troops to +keep order and quell revolts, and men handy with their weapons and ready +to rise in insurrection to dethrone bad monarchs or expel bad ministers, +were a necessary part of the equipment of political societies in the +ruder ages. + +----- + +Footnote 102: + + See Essay IX, vol. ii. p. 6 sqq. + +----- + +A good constitution relieves the government from the necessity of +frequently resorting to military force by securing that those who govern +shall be persons approved by the bulk of the citizens, as well as by +providing for the purposes of coercion machinery so promptly and +effectively applicable, that the elements of disturbance either do not +break forth or are quickly suppressed. Similarly it relieves the +subjects from the need of rising in rebellion by providing machinery +whereby the complaints of those who think themselves aggrieved shall be +fully made known, and shall, if well founded, have due effect on the +rulers by warning them to remove the grievances, or by displacing them +if they fail to do so. + +How constitutional machinery should be framed and worked for the +attainment of the two former objects enumerated above, viz. the +establishment of a proper frame of government and the safeguarding of +private rights, is a matter which does not fall within the scope of our +present inquiry. The third object does, so we have to ask how a +constitution should be framed in order to enable it to maintain and +strengthen the unity of a State. + +It may do this in two ways. One is by setting various centripetal forces +to work. The other is by preventing all or some of the centrifugal +forces from working. + +I have already enumerated the tendencies or influences which operate to +draw men together and bind them into a community, be it greater or +smaller, and have pointed out that these tendencies may in any given +case operate in favour either of the State as a whole, in which case +they preserve it, or in favour of some group or section within it, in +which case they sap its unity. Let us now consider how the +constitutional arrangements of a State may be so devised as to draw +together all its members and all the minor groups within it. + +The most generally available of these centripetal tendencies is trade, +that interchange of commodities which benefits all the producers, by +giving them a market, all the consumers by giving them the means of +getting what they want, all the middlemen by supplying them with +occupation. A Constitution can render no greater service to the unity as +well as to the material progress of a nation than by enabling the freest +interchange of products to go on within its limits. Nothing did more to +keep the districts of each of the great European countries divided +during the Middle Ages than the levying of tolls along the rivers and +highways by petty potentates, or than the insecurity of those rivers and +highways, as well as the want of good roads, for thus the market for the +producers of the cheaper articles was narrowed to the small area +immediately around them, and men were prevented from realizing, or +benefiting by, the greatness of the country they belonged to. England, +with an exceptionally strong and centralized government, suffered less +from these tolls and this insecurity than did the large States of the +Continent, and England arrived at unity sooner than they did. And so, +conversely, nothing has done more to unify the vast territories of the +United States than the provisions of the Federal Constitution which +secure perfect freedom of trade within its limits, and empower the +National Government to regulate the means of communication between the +several States of the Union. So the Customs Union of the Germanic +States, formed under the auspices of Prussia in A.D. 1829, did a great +work in stimulating industry, while it showed the people the benefits of +united action, and prepared the way for the formation of the new German +Empire. + +Another influence of moment is the establishment of a common law and a +common system of courts. It is not an influence which can be reckoned on +so invariably or confidently as can the influence of commerce, for any +hasty attempt to change the law (whether customary or statutory) to +which men are accustomed may provoke resistance and retard the growth of +unity. Great Britain has wisely forborne to impose her own law on the +dominions she has acquired by conquest or purchase. Roman-Dutch law +remains in South Africa, in Ceylon, and in Guiana; Roman-French law in +Lower Canada. So the French Code was left in force not only in +Alsace-Lorraine which Germany took in 1871 but also in the German +country all along the left bank of the Lower Rhine, when that region was +reunited to Germany in 1814. So Roman law has remained in Louisiana, +which was once French. But where one legal system can, without exciting +resentment, be extended over the whole of a country, it becomes a +valuable unifying force. As respects the substance of law, this happens +by the formation of certain habits of thought and action, certain ideas +of justice and utility. As respects the administration of law, it +happens by giving to the central executive an engine for making its +power felt, and usually felt for good. In the Middle Ages, the +jurisdiction of the king’s courts was found the most effective means +both in England, from Henry II onward, and (somewhat later) in France, +of extending the power of the central government and accustoming the +people to rally round the Crown as the representative of national unity +as well as of justice. A somewhat similar process has been in progress +during the last thirty years among those petty principalities which we +call the Laos States, and which lie to the north of the kingdom of Siam. +The princes of these States were practically independent, living in a +country of forests and hills, and recognizing only a vague titular +suzerainty as vested in the Siamese king at Bangkok. But when foresters +from British Burma had come among them, desiring to cut down and export +the teak trees in those forests which make their only wealth, and when +disputes had arisen between the Laos chiefs and these timber traders, +the Government of India found it needful to make treaties with the king +of Siam, under which a Court presided over by Siamese officials was set +up in Chiengmai, the principal State. By means of this Court the Siamese +Government has been able gradually to obtain complete control of the +forest administration and the revenues thence arising, and incidentally +to strengthen its general authority over these Laos States. + +Similarly, the jurisdiction of the British Privy Council as a Supreme +Court of Appeal from the Colonies and India, and the action of the +Supreme Court of the United States as the final Court of Appeal for the +whole Union (in certain classes of cases), have done something to make +the members of these vast political aggregates realize the bond that +links them together. In the case of the United States, respect for the +Federal Courts and the keen interest with which their development of the +law by judicial interpretation is followed by a large and powerful +profession has been an important factor in strengthening the sense of +national unity. + +After law, religion, not as less potent, for it is more potent, but as +more uncertain, because it has been as often a dissevering as a unifying +influence. There is, however, a marked distinction between the earlier +and the later forms of religion as regards the energy of the force they +exert. In the earlier stages of civilization, when tradition and ritual +counted for much, and abstract theology had not yet come into being, the +worship of the gods of the nation or city was a part, a necessary and +sometimes the most deep-rooted part, of the political constitution and +the national life. In Egypt the rise or fall of a great deity is often +the sign of the rise or fall of a dynasty. Moab, Edom, and Ammon, are +each the people of a peculiar God. After the Captivity, when the minor +Semitic peoples decline or vanish, Israel continues to be held together +by the name of Jehovah, and by the Law He has given. Every Greek and +every Italian city has its own distinctive public State worship. A race +sometimes pays special honour to one out of its various deities, and the +devotion of the Dorians to Apollo, of the Athenians to the Virgin +Goddess, finds a mediaeval parallel in that of the Swedes to Odin, of +the Norwegians to Thor. As the Roman Empire included so many races and +cities that no one deity or group of deities could be worshipped by all, +altars were erected to the Goddess Rome, and the Guardian Spirit or +Genius of the reigning Emperor became a common object of devotion for +the whole mass of his subjects. In modern times the strong religions are +(except Hinduism) World Religions, and therefore not national or local +as were those of antiquity. But they exert an even greater political +power. For monotheistic religions, however they may develop into +elaborate rites and forms of ceremonial observance, are primarily +philosophical religions, in which abstract ideas and beliefs take not +only a firm but an exclusive grasp of the mind and heart of whosoever +holds them. Hence they form a closer tie than did the worships of the +ancient Italo-Hellenic world. Christianity created a new cohesion when +the provinces of the Roman Empire were beginning to fall asunder. Islam +formed a prodigious dominion out of many diverse peoples. The mutually +hostile forms of a World Religion, such as the Sunnite and Shiite sects +in Islam, act as consolidating or dissevering influences just as the +religion itself did before schisms had arisen. When a faith grounded in +peculiar dogmas or observances is held by one section of a people and +hated by another section, it becomes a formidably centrifugal force. +When the great mass of a people have embraced such a faith, their +political cohesion is strengthened, and they may attract from other +communities persons or groups who share their beliefs. The same +principle applies to beliefs which cannot be called religious, but which +exert a similar power over men’s emotions. Even where no question of the +supernatural is involved, the holding in common of certain ideas deemed +supremely valuable whether for the individual or for society, may +operate as a centrifugal or centripetal force. + +A nation with a national religion which all or nearly all citizens +cherish possesses a bond of unity which grows the more powerful the more +its traditions become entwined with the national life. It is chiefly the +influence of the Orthodox Church that has made a people so low in the +scale of civilization as Russia was three centuries ago, to-day so +united, so strong through its union, and so submissive to its sovereign, +for it is not less as Head of the Church than as a secular prince that +the Czar commands the reverence of his subjects[103]. Accordingly +whenever a State Church can be set up which embraces practically the +whole of the people, and when it can be associated with the government +and the movements of public life, the cohesion of the nation and the +power of the government which controls the church will be increased. Of +the possibly pernicious influence of such arrangements on such a church +and on religion I do not speak; that is quite another matter. I am only +pointing out that a Constitution will gain strength, and a nation unity, +if the ecclesiastical arrangements can be linked to those of the secular +government, assuming the people to be all attached to the same form of +faith and worship. + +----- + +Footnote 103: + + There are of course dissenting sects in Russia, some of them counting + many adherents, but they have seldom, and in no large measure, + affected the political unity of the nation. + +----- + +Similarly, in so far as those who frame a Constitution can make it +provide a system of education which will give the people common ideas +and common aspirations, in so far as they can persuade the inhabitants +to use a common language, if the country is one where more than one +tongue has been spoken, or even to enjoy and meet for the enjoyment of +common festivities and games, they will be availing themselves of +influences not to be despised. The Prussian Government founded the +University of Bonn immediately after the recovery of the left bank of +the Rhine from France in 1814, and the University of Strassburg +immediately after the recovery of Alsace in 1871, in both cases with the +view of benefiting these territories and of drawing them closer to the +rest of the country by the afflux of students from other parts of it, an +aim which was realized. Indeed the non-local character of the German +Universities, each serving the whole of the lands wherein the German +tongue was spoken, powerfully contributed to intensify the sentiment of +a common German nationality throughout the two centuries (1648 to 1870) +during which Germany had virtually ceased to be a State. The Olympian, +Pythian, Isthmian, and Nemean games had no contemptible effect in +fostering the sentiment of a common national unity, as against the +barbarians, among the Greeks, who had never enjoyed and did not desire +political union. The admission of the Macedonian king to strive at the +Olympian games was a political event of high significance, for it +enabled his descendants Philip and Alexander the Great to claim to +belong to the Hellenic race. + +Some of these various engines for promoting the cohesion of a nation may +seem to lie rather in the sphere of governmental action than in that of +a Constitution. Commercial freedom, however, as well as religious +compulsion on the one hand, or religious freedom on the other hand, have +been provided for by some Rigid Constitutions. So too has been the use +of certain languages. Where the Constitution is a Flexible one, the +question whether the laws regulating such matters are to be deemed a +part of the Constitution depends entirely on the practical importance +ascribed to them, since in such a Constitution there is no distinction +of form between fundamental and other provisions. + + + IV. HOW CONSTITUTIONS MAY REDUCE OR REGULATE THE CENTRIFUGAL FORCES. + +Now let us see what Constitutions may effect in the other of the two +above specified ways, viz. what they may do to meet and grapple with, +and if possible disarm, the tendencies which make for disruption, _i.e._ +the forces which, while drawing men together in minor groups within the +State, are as regards the State itself centrifugal forces. + +What are these tendencies? History tells us that the chief among them +are race feeling, resentment for past injuries, grievances in respect of +real or supposed ill-treatment in matters of industry, or of trade, or +of education, or of language, or of religion, where these grievances or +any of them press on a part only of the population. If they press on the +whole population, or on the humbler classes as a whole, they are +perturbing, but not necessarily nor even probably disruptive, _i.e._ +they threaten disaffection or a general revolt against the government, +rather than the severance of a particular province or the secession of a +particular section of the people. It is only with grievances which +affect one section or district, and make it desire an independence to be +obtained by separation, that we have here to deal. There must be in +every such case either a sentiment of dislike on the part of the +disaffected section towards the rest of the nation, or else a belief +that great material advantages will be obtained by separation; and the +latter of these causes is almost sure to produce the former. When two or +more of these tendencies combine in any given case, so much the stronger +does the desire for separation become. + +A few illustrations will explain better than a long abstract statement +what I desire to convey. In the ancient world the thing which we call +National Sentiment was seldom a powerful factor, perhaps because the +more advanced peoples were divided into small city communities, while +the backward peoples, living under large empires like the Persian or +that of the Seleucid kings, were allowed to retain their own customs and +religion, and often their native princes, feeling the weight of +subjection only in having to pay tribute and send a contingent in war. +The only nations that gave much trouble to the Achaemenid kings of +Persia were the Egyptians, a race very peculiar and very conceited, and +the Greeks of Asia Minor. Under the Roman Empire there were wonderfully +few national revolts, probably because the imperial government pressed +equally upon all, conceded rights of citizenship pretty freely, and gave +the subjects in exchange for their own national sentiment the higher +pride of belonging to the majestic World State which had engulfed them. +The chief source of disruptive attempts lay in the monotheistic +religions. The Jews made more than one obviously hopeless rebellion. +When Christianity became the religion of the Empire, schisms and +heresies gave trouble. Africa was convulsed by the Donatist movement. +Egypt was disaffected owing to Monophysitism, and no doubt gave herself +the more readily to the Arab conquerors in respect of this disaffection. +The persecuted Montanist sectaries of Phrygia revolted in the sixth +century. It was the religious persecution of the Fire-worshipping +Sassanid kings that provoked their Armenian vassals to rebellion[104]. +So in the fifteenth and sixteenth centuries, the sentiment of +nationality having not yet reached its full strength, it was chiefly by +religious divisions that the unity of States was threatened. This was +what lost the Dutch Netherlands to Spain. This was what split up the +Romano-Germanic Empire, and made it, after the Thirty Years’ War, the +mere shadow of a State. It contributed to keep the Highlanders distinct +from the Lowland population of Scotland after the Reformation (though +other causes also were at work), and it was of course a still more +potent force in Ireland. In our own time it nearly rent Switzerland in +two in the war of the Sonderbund. Conversely, any one who notices how +little the unity of the nation has been threatened in Spain, a country +where the populations and dialects of the different provinces still +present striking contrasts, and are accompanied by diversities of +character, will be disposed to attribute this fact not merely to the +absence of natural boundaries between the provinces, but also to the +remarkable religious unity which the nation has always preserved. + +----- + +Footnote 104: + + The dualistic Zoroastrianism of Persia seems to have taken many of the + characteristics of a monotheistic religion. + +----- + +In our own time, while religion is a less energetic factor, what is +called national sentiment has begun to threaten loosely compacted +States. It compelled the transformation in 1868 of the so-called +Austrian Empire into the present Dual Monarchy. It shakes the Austrian +half of that monarchy now, so sharp is the antagonism between the Czechs +of Bohemia and the other Slavic populations of Cis-Leithania and the +Germans of the Western and South-Western Crown Lands. Iceland differs +from Denmark, with which she has been politically united since 1380 (or +1397), in language, in character, and in habits, and she has therefore +struggled for autonomy, a large measure of which she obtained in 1874. +She has had some economic grievances, but sentiment has been an even +stronger element in her discontent, which, however, stopped short of a +wish to separate, as she feels herself too small to stand alone. A +strong party in Norway has desired to be divorced from Sweden, to which +she was unnaturally yoked in 1814 by the Congress of Vienna, not merely +in respect of specific complaints regarding the Foreign Office and the +consular service, but also because her people, though Lutherans like the +Swedes, are far more democratic in ideas and temper than the latter, and +because their high national pride makes them unwilling to appear to be +in any way subordinate to the sister kingdom. The case of Poland is a +simple one, because she has the memory of an independent kingdom +destroyed by force and fraud, and is different in religion, as well as +in speech, from the Russians who have annexed her. Had the peasant +population of the country shared the patriotism of the upper and middle +classes, Poland might possibly have succeeded in shaking off the yoke. +Even now her disaffection is a source of weakness to Russia. In Ireland +several currents of discontent have joined to produce the passion and +prolong the struggle for autonomy, or, in a very few of the more ardent +minds, for independence. There is the diversity of faith, which remains, +though that of language has almost vanished, a diversity embittered by +recollections of persecution. There are economic grievances, the memory +of the destruction of an industry in the last century, the more urgent +resentment at the exactions of landlords, and the peasants’ desire to +have a grip of the soil. There is an incompatibility of character and +temperament, due partly to historical conditions, partly to the old +antagonism of Celt and Teuton. All these have gone to create a passion +among the people to be recognized as a nation controlling its own +affairs, a passion which is the same in essence among those who would be +content with the possession of a subordinate legislature, and those, now +fewer than formerly, who would like to go further. + +If the sources of the centrifugal force in Ireland are easily +explicable, and indeed so strong that had this force acted upon the +whole nation instead of only upon a majority which consists mainly of +the poorer and weaker part of the population, it would have before now +prevailed, those which induced the secession of the Southern States of +America are much less evident. Here there was no religious factor, nor +any revengeful feeling, nor any sense of an unjust or oppressive +control. The South had obtained more than its fair share of power and +influence in the councils of the Union. But the planters had persuaded +themselves that property in slaves and the whole slave-holding system +were threatened by the growing strength in the Northern and Western +States of an aversion to slavery, with a determination to check its +extension; and the irritation of feeling which a long struggle had +engendered, coupled with a growing dissimilarity of habits and ideas, +enabled the hot-headed oligarchy which controlled the Southern +population to drive it into separation. Possibly these causes would not +have been strong enough to provoke an armed conflict in a unified +country. It was the existence of State Governments, and the conviction +that the rights of the States, supposed to be guaranteed by the +Constitution, furnished a legal basis for secession, that spurred the +South into its desperate venture. + +What then can the framing, or the manipulation in working, of a +Constitution do to reduce the power of such disruptive tendencies as we +have been considering? + +They may of course be resisted by the employment of physical force. If a +government is sufficiently strong and resolute, and is supported by the +great majority of the nation, it may crush down the discontent of a +province or a section. It is however an axiom in free governments, and +ought to be an axiom in all governments, that physical force should +never be used when peaceful means will suffice. Coercion usually seems +easier, and naturally commends itself to the dull, the impatient, and +the violent, to imperious princes, arrogant ministers, and excited +majorities. But coercion, besides being a fatal expedient if it fails, +is often a bad expedient when it appears to succeed, for it leaves +smouldering discontent behind among the vanquished, and it is apt to +inflict a moral injury upon the victors, perhaps to warp for the future +their frame of government and to lower their political traditions. +Accordingly whenever a Constitution can be so drawn and worked as to +give the disjunctive tendencies just so much recognition as may disarm +their violence, and bring all sections of the nation and all parts of +the country to acquiesce in unity under one government, this course is +to be preferred. It may sometimes fail. Every expedient may fail. But it +has generally more promise of ultimate success than force has, for in a +free country force is not a remedy, but a confession of past failures +and a postponement of dangers likely to recur. + +Among the methods which a Constitution may employ for the purpose +indicated, the following find a place. + +It may enact certain securities against oppression, whether by the +executive or by the legislature, giving to such securities a specially +solemn sanction, and thus reassuring the minds of the citizens. This was +done by Magna Charta, by the Petition of Right, and again by the +American Federal and State Constitutions, and by the French Declaration +of the Rights of Man of 1789. It is usually done for the protection of +all subjects or citizens alike, but of course the benefit of such a +protection enures with special value for any section of the population, +or any province or group of provinces, likely to be specially exposed at +any given time to the abuses of power, because they are a minority whom +the Government, or the majority, may view with disfavour. + +A Constitution may provide means for varying the general institutions or +laws of the State in such a way as to exempt particular parts of the +State from any legislation that might be opposed to their special +interests or feelings. The retention of Scotland as a distinct kingdom +after the union of the crowns in 1603, and as a distinct part of the +United Kingdom after the Treaty and Act of Union in 1707, has had most +beneficial effects in enabling Scotland to be treated separately where +it is fitting she should be. Her faith, her laws and judicature, her +system of local government, have remained almost intact, to the +satisfaction of her people, and with no injury to the cohesion of the +united monarchy[105]. Similarly the maintenance of Finland as a separate +Grand Duchy, with her own tongue, religion, laws and privileges, +guaranteed by the coronation oath of the Czar, has made the Finns loyal +and contented subjects, and has in no wise detracted from the strength +of Russia[106]. The cases of Hungary as towards the Austrian Monarchy, +and of Croatia as towards Hungary, are also in point. + +----- + +Footnote 105: + + Though it must be admitted that the passing of legislation disapproved + by the majority of Scotch representatives, or the omission to pass + legislation which they demand, often elicits murmurs. + +Footnote 106: + + This wise policy seems unfortunately to be now (1900) on the point of + being abandoned, with results which every lover of freedom and + progress must regret. + +----- + +It may provide for relegating certain classes of affairs to local +legislatures, such as those of Croatia or Finland, areas which are not +only, like Scotland, political divisions retaining their old laws, but +also, unlike Scotland since the Union, communities enjoying local +autonomy. All Federations are managed on this system; and one can see in +the case of Canada the advantages it secures, for the Roman Catholics of +Quebec are able to have legislation diverse from that which the +Protestant majority desires in the other provinces of the Dominion. + +It may assign certain administrative and, within limits, certain +legislative functions also to the inhabitants of minor local areas, such +as counties, empowering them to regulate their local affairs in their +own way. Provisions of this nature are not usually embodied in European +constitutional instruments. They are, however, to be found in the State +Constitutions of the American States. And they are really, in substance, +parts of any well-framed Constitution, for nothing contributes more to +the smooth working of a central government and to the satisfaction of +the people under it, than the habit of leaving to comparatively small +local communities the settlement of as many questions as possible. The +practice of local self-government and the love for it are not a +centrifugal force, but rather tend to ease off any friction that may +exist by giving harmless scope for independent action, and thus +producing local contentment. It is only where there exist grievances +fostering disruptive sentiments that the existence of local bodies with +a pretty large sphere of activity need excite disquiet. + +It may exclude certain matters altogether from the competence of the +central government, and thereby keep them out of the range of +controversy. This principle has been wisely followed in the American and +Canadian and Swiss Federal Constitutions as regards religion in its +relations to the State. In some federations it has been similarly found +desirable to disable the several legislatures from dealing with topics +likely to produce dissensions among the members of the federation, or +otherwise to affect the cohesion of the nation. Thus in the United +States no State legislature can impose any duties on goods brought from +one State to another, nor in any wise interfere with commerce between +the States. + +By these means a Constitution may prevent the disruptive forces in a +country from threatening the stability of the central government or the +unity of the State. To remove part of the material on which they might +work is to weaken their working, and to divert into safe channels the +political activity they would evoke. Although a Flexible Constitution +may accomplish this, if those who work it respect certain fundamental +principles and treat their querulous minorities in a conciliatory +spirit, the work is best done, and usually has been done, by a Rigid +Constitution, because this latter provides a guarantee to minorities, or +to subdivisions of the country, stronger than they can have under an +omnipotent legislature. In fact the existence of the grounds of +contention and possibilities of disruption we have been considering is +among the chief causes which have called Federal Governments and Rigid +Constitutions into being. + +One further observation should be made before quitting this part of the +subject. Racial differences and animosities, which have played a large +part in threatening the unity of States, are usually dangerous only when +the unfriendly races occupy different parts of the country. If they live +intermixed, in tolerably equal numbers, and if in addition they are not +of different religions, and speak the same tongue, the antagonism will +disappear in a generation or two by social intercourse and especially by +intermarriage. When the right of full legal intermarriage had been +established, the fusion of the patricians and the plebs at Rome began. +So the Northmen in the tenth and eleventh centuries, so the +Norman-French in the eleventh and twelfth centuries, became blent with +the English. The Magyars and Saxons, though generally occupying +different parts of the country, and to some extent retaining each their +own speech, have in Transylvania now begun to melt into one. It is the +fact that they not only speak a different tongue but also profess a +different faith that keeps the Rumans of that province apart from both +Saxons and Magyars; and even these differences might in time cease to +operate did not these Rumans look across the mountains to a large Ruman +State into which they would gladly be absorbed. But in one set of cases +no fusion is possible; and this set of cases forms the despair of the +statesman. It presents a problem which no Constitution has solved. It is +the juxtaposition on the same soil of races of different colour. + +This is a recent phenomenon in history. In the ancient world, almost all +the barbarous tribes whom Rome subdued and brought into her Empire were +sufficiently near the Italians and Hellenized Asiatics in physical +characteristics for intermarriage to go on freely. The Carthaginians, +who to be sure were not numerous, seem to have soon lost their +distinctive nationality: and that the Jews remained distinct was their +own doing, not that of the conquerors[107]. Even as towards Egyptians +and Numidians, who were certainly dark, one hears of little repulsion. +Besides, both races were intelligent, and the former in their way highly +civilized. With the African slave trade a new and a dolorous chapter in +history opens. In our own time it is the settlement of Europeans in +countries where the native holds his ground against the settler, as the +Kafir does in South Africa, and the aboriginal Peruvians and Araucanians +do in Western South America, or it is the influx of coloured immigrants, +like that of the Chinese in Western America and the Hawaiian Isles, that +raises, or threatens to raise in the future, this problem in an acute +form. A community in which there exist two or more race-elements +physically contrasted and socially unsusceptible of amalgamation cannot +grow into a really united State. If the coloured people are excluded +from political rights, there is created a source of weakness, possibly +of danger. If they are admitted, there is admitted a class who cannot +fully share the political life of the more civilized and probably +smaller element, who will not be consoled by political equality for +social disparagement, and who may lower the standard of politics by +their incompetence or by their liability to corruption. If the people of +colour are dispersed over the country among the Europeans, instead of +dwelling in masses by themselves, they may not act as a centrifugal +force, threatening secession, but they are a serious hindrance to the +working of any form of popular government that has been hitherto +devised, for they divide the population, they complicate political +issues, they prevent the growth of a genuinely national opinion. + +----- + +Footnote 107: + + In two respects the Jews under the early Empire would seem to have + been above the average level of the civilized subjects of Rome. There + was apparently very little slavery among them; and there must have + been an exceptionally large proportion of persons able to read. + +----- + +The most noteworthy attempts that Constitutions have made to deal with +these cases have been made in the United States, where the latest +amendments to the Federal Constitution provide protection for the +negroes and forbid the States to exclude any person from the electoral +suffrage in respect of race or colour, and where several recent State +Constitutions have devised ingenious schemes for disfranchising the vast +mass of those whom these very amendments have sought to protect. So far +as political rights are concerned, the problem is very far from having +been solved in the United States. But as regards private civil rights, +it has certainly been an advantage to the negroes that the Federal +Constitution guarantees such rights to all citizens: and probably in any +country where marked differences, with possible antagonisms, of race +exist, it will be prudent to place the private civil rights of every +class of persons under the equal protection of the laws, and to make the +rights themselves practically identical. It would lead me too far from +the main subject to describe the ways in which similar problems have +been dealt with in Algeria, in South Africa, and in some of the other +colonies of European nations. Nowhere has any quite satisfactory +solution been found[108]. But the case of New Zealand deserves to be +mentioned as one in which the experiment has been tried of giving +parliamentary representation to the natives, who mostly live apart on +their own reserved lands. So far, the results have been good. The +conditions are favourable, for the Maoris are a brave and intelligent +race, and they are now too few in number to excite disquiet. + +----- + +Footnote 108: + + In Algeria the electoral suffrage is limited; but in some of the + French tropical colonies it seems to have been granted irrespective of + colour. + +----- + +It was the good fortune of the Roman Empire that the vast majority of +the races whom it conquered and absorbed had no conspicuous physical +differences from the Italians which prevented intermarriage and fusion. +Race and birthplace were no great obstacle to a man of force. Two or +three of the Emperors were of African or Arab extraction. Moreover, the +peoples of Southern Europe seem to have less repulsion of sentiment +towards the dark-skinned races than the Teutons have. The Spanish and +Portuguese intermarry not only with the native Indians of Central and +Southern America, but also with the negroes. The French of Canada +intermarried more freely with the Indians of North America than the +English have done. + +Summing up, we may say that the aim of a well-framed Constitution will +presumably be to give the maximum of scope to the centripetal and the +minimum to the centrifugal forces. But this presumption is subject to +two countervailing considerations. One is that the energy of civic life +may be better secured by giving ample range and sphere of play to local +self-government, which will stimulate and train the political interest +of the members of the State, and relieve the central authority of some +onerous duties. The other is that the centrifugal forces may, if too +closely pent up, like heated water in the heart of the earth, produce at +untoward moments explosions like those of a volcano. Hence it is well to +provide, in the Constitution, such means of escape for the steam as can +be made compatible with the general safety of the State. Where a +Constitution, and especially a Rigid Constitution, has been framed with +due regard to these considerations, and turns to account the methods +already discussed, it may itself become a new centripetal force, a +factor making for the unity and coherence of the community which lives +under it. The Rigid Constitution has in this respect one advantage over +the Flexible one, that it is more easily understood by the mass of the +people, and more capable of coming to form a part of their political +consciousness. When such a Constitution is so contrived and worked as to +satisfy the bulk of the nation—and it will do so all the more if no +single section dislikes it—it attracts the affection and pride of the +people, their pride because it is their work, their affection because +they enjoy good government under it. Time, if it does not weaken these +feelings, strengthens them, because reverence comes with age. By +providing a convenient channel or medium through or in which the +centripetal forces may act, the Constitution increases the effective +strength of those forces. It is a reservoir of energy, an accumulator, +if the comparison be permissible, which has been charged by a dynamo, +and will go on for some time discharging the energy stored up in it. +But, like an accumulator, its energy becomes exhausted if there is not +behind it an engine generating fresh power, that is to say, if the real +social and political forces which called it into being have become +feebler, and those which oppose it have become stronger. + + + V. ILLUSTRATIONS FROM MODERN HISTORY OF THE ACTION OF CONSTITUTIONS. + +The best instance of the capacity of a Constitution to reinforce and +confirm existing centripetal tendencies is supplied by the history of +the Rigid Constitution of the United States. That instrument was at +first received with so little favour by the people that its ratification +was, in many States, obtained with the greatest possible difficulty, and +the original document secured acceptance only on the understanding, +which was loyally carried out, that it should forthwith receive a number +of amendments. Within fifteen years the party which had advocated it was +overthrown in the country, and ultimately broke up and vanished. A +generation passed away before it began to be generally popular. But +after a time it secured so widespread a respect that even during the +fierce and protracted struggle which ushered in the Civil War few +attacked the Constitution itself, nearly all the combatants on one side +or the other claiming that its provisions were really in their favour. +It was not round the merits, but round the true construction, of the +instrument that controversy raged. Since the Civil War, and the +amendments which embodied the results of the Civil War, it has been +glorified and extolled in all quarters[109], and has unquestionably been +a most potent influence in consolidating the nation, as well as in +extending the range and the activity of the central government. + +----- + +Footnote 109: + + Only since 1890 have complaints begun to be made: see Essay III, p. + 239, _ante_. + +----- + +To what is this success due? Regarded as a Frame of Government, _i.e._ +as a piece of mechanism for distributing powers between the Executive, +the Legislature and the Judiciary, the American system has probably been +praised beyond its deserts. Both the mode of electing the President and +the working of Congress leave much to be desired. But the Constitution +has had two conspicuous merits. It so judiciously estimated the +centripetal and centrifugal forces as they actually stood at the time +when it was framed, frankly recognizing the latter and leaving free play +for them, and while throwing its own weight into the scale of the +centripetal, doing this only so far as not to provoke a disjunctive +reaction, that it succeeded in winning respect from the advocates both +of States’ Rights and of National Unity[110]. Thus it was able to add +more strength to the centripetal tendency than it could have done had it +been originally drawn on more distinctly centripetal lines. For—and here +comes in the second merit—its provisions defining the functions of the +central Government were expressed in such wide and elastic terms as to +be susceptible of interpretation either in a more restricted or in a +more liberal way, _i.e._ so as to allow either a less wide or a more +wide scope of action for the Central Government. During the earlier +years, when State sentiment was still stronger than National sentiment, +the scope remained limited, because both the executive and the +legislature wished to keep it so, and such extensions as there were came +from judicial construction. But latterly, and especially since the +prodigious development of internal communications has stimulated +commerce, and since the death blow given to States’ Rights doctrines by +the Civil War, the scope has been widened, and has widened quite +naturally and gradually, with no violence to the words of the +Constitution, but according to that expansive interpretation of them +which changing conditions and a corresponding change in national +sentiment prescribed[111]. + +----- + +Footnote 110: + + It has been accused of having caused a civil war by omitting to deal + with the questions out of which the Civil War arose, and by failing to + negative the right of secession. But to this it may be answered that + an attempt to deal with those questions or to negative that right + might possibly have prevented it from having ever been accepted. + +Footnote 111: + + This interpretation has sometimes been at variance with the views of + the older interpreters, but no instance occurs to me in which an + impartial jurist could have pronounced it inadmissible. + +----- + +Nowadays one hears in the United States less about the Constitution than +about the Flag[112]. But that is partly because the Constitution has +done its work, and made the Flag the popular badge of a Unity which it +took nearly a century to endear to the nation. + +----- + +Footnote 112: + + This is still more so to-day (1900) than it was when this Essay was + first composed. + +----- + +One might go on to illustrate the efficiency of a Constitution in +consolidating a people composed of disparate elements from the parallel +case of Switzerland, where communities speaking three (it might almost +be said four) different languages have been brought much closer together +by the Constitutions of 1848 and 1874 than they were before, or could +have been without some such arrangement. Switzerland, however, is a more +complicated case, because much has turned on the external pressure +towards unity exerted by the fear felt for several great bordering +Powers. The formidable neighbours of the Confederation have, so to +speak, squeezed together into a Swiss people the originally dissimilar +Alemannic, Celto-Burgundian, Italian, and Romansch communities. + +The two instances of the United States and Switzerland[113], compared +with those of unitary countries living under Rigid Constitutions, such +as France, Belgium, Holland and Denmark, suggest the observation that +the service which Rigid Constitutions may render in strengthening the +centripetal tendency can best be rendered where a Federation is to be +constructed. For in these cases what is needed is an arrangement by +which the several rights of the component communities which are to form +the State may be so protected that they need not fear to give their +allegiance to the State and cordially support its Central Government. +The existence of such communities is an expression of forces actually +operative which are centrifugal as towards the State as a whole, and +therefore need to be studied. By giving a carefully limited scope to +these forces, and thereby diminishing their possibilities of danger, the +Constitution subserves the cohesion of the States. In a truly unitary +country this service is not needed. But there are cases in which States +endeavouring to become unitary would have done better had they sought to +apply the federal principle, placing it under the protection of a Rigid +Constitution. I have already referred to Denmark. Holland might probably +have saved Belgium by a concession of some such kind. Whether a similar +contrivance might not have been profitably employed within the British +Isles in A.D. 1782, or in A.D. 1800, or again later, is a question which +will already have presented itself to one who has followed the argument +thus far. + +----- + +Footnote 113: + + One would like to refer to the cases of the numerous so-called + republics, most of them federal, of Spanish America. But apart from + the difficulty of ascertaining their constitutional history, little of + which has been written, some of these republics seem to pay so little + regard to their constitutions, living generally in a state of + revolution, whether subsiding, or actually raging, or apprehended, + like the Atlantic during a series of cyclones following one another + along the same track from the Bermudas to the Fastnet, that it is hard + to draw any conclusions of value from them. They are in fact republics + only in name: and it is surprising that Sir H. Maine in his _Popular + Government_ condescended to go to them for arguments to discredit + democracy. They are military tyrannies, the product of peculiar + historical, territorial and racial conditions. + +----- + +In dwelling upon the services which Constitutions may render, by +fostering the centripetal forces, or by restraining the violence and +softening the action of the centrifugal forces, we must not forget that +no scheme of government can hope permanently to resist the action of +either tendency if either develops much greater strength than it +possessed when the Constitution was framed. If the centripetal forces +grow, the Constitution whose provisions have recognized and given scope +to the centrifugal will be practically, in some of those provisions, +superseded. If the centrifugal grow, it may be overthrown. It is where +the forces are nearly balanced, that the weight of the Constitution may +turn the scale, and avert conflicts which would have rent the community, +or caused a violent subjection of one part of it to the other. And in +any case the Constitution ought, where dissimilative and disruptive +forces are feared, to be so drawn as to enlist all available motives of +interest, to shelter the law behind popular sentiment where possible, to +oppose it to sentiment as little as possible, and to avoid challenging +at the same time the hostility of several kinds of sentiment. + + + VI. THE PROBABLE ACTION OF THE AGGREGATIVE AND THE DISJUNCTIVE + TENDENCIES IN THE FUTURE. + +Whether in the long run it is the centripetal or the centrifugal force +that will prevail in politics, or, in other words, whether large States +or small States are more likely to commend themselves to mankind, is a +question which belongs rather to history than to the doctrine of +constitutions, and which could be adequately discussed only after a long +investigation. History shows us first one force dominant, then the +other, though no doubt the centrifugal is usually more powerful in rude +times and in hilly or mountainous countries, the centripetal in +countries comparatively advanced in civilization, and in level and +fertile regions where wealth is more easily acquired and stored, and +where military operations are easier. When the mists of antiquity begin +to rise sufficiently to show us the Mediterranean and south-west Asiatic +world, we discover both a few great States and a multitude of small +ones. The former have a low, the latter a high and intense political +vitality. From the time of Menes down to that of Attila the tendency is +generally towards aggregation: and the history of the ancient nations +shows us, not only an enormous number of petty monarchies and republics +swallowed up in the Empire of Rome, but that empire itself far more +highly centralized than any preceding one had been. When the Roman +dominion began to break up the process was reversed, and for seven +hundred years or more the centrifugal forces had it their own way. +Europe and Western Asia were divided up among innumerable petty +potentates, and even the large monarchies, such as the two Khalifates, +the Romano-Germanic Empire, the kingdoms of France and Hungary, +possessed so feeble a royal authority that the real organs of government +and centres of attraction were to be sought rather in the vassals than +in the nominal sovereign. From the thirteenth century onwards the tide +begins to set the other way. One great State indeed—the Empire—first +decays and then disappears under the action of centrifugal forces, but +all the other chief States expand, absorbing their smaller neighbours, +and giving themselves a compact and well-knit organization which makes +the central power effective through the whole sphere of its action. This +process culminates in the despotic monarchies of the eighteenth century, +when the strength of feudal localism has been completely broken, though +the picturesque relics of it still cumber the ground, and when at the +same time the foundations are laid in the West of a gigantic State which +proceeds to cover the temperate area of North America between the two +oceans, and, in the East, of the dominion of a European nation which has +absorbed the numerous and populous principalities of India. Immediately +afterwards the doctrine of popular self-government and the doctrine of +nationalities come upon the scene, threatening a disruption of some +existing political aggregates. In point of fact, however, these new +principles have done as much to unite as to sever, for though five +States—Greece, Rumania, Servia, Montenegro and Bulgaria—have been cut +off from an effete monarchy, and sixteen republics have been carved out +of the American dominions of Spain and Portugal, the doctrine of +nationality has substituted two new great States, more important than +all the last-mentioned twenty-one put together, for the multitude of +kingdoms and principalities which so late as 1859 filled Italy and +Germany. + +Thus neither Democracy nor the principle of Nationalities has, on the +balance of cases, operated to check the general movement towards +aggregation which marks the last six centuries. + +It may, however, be said—and this question should be faced before we +proceed to inquire whether the aggregative movement is likely to +continue—that in all this inquiry we have been ignoring two potent +factors. One is Conquest—that is to say, military power. We have been +examining the forces of Interest and Sympathy, which cover a number of +influences social or economic, racial or sentimental. But after all it +is Conquest, _i.e._ the might of the strongest, which has created most +States as we find them. Is Conquest one of the centripetal forces? and +if so, is it not the greatest of them? + +The other factor is Family Succession, which both during the Middle Ages +and since has done a great deal to consolidate principalities and +kingdoms. The United Kingdom owes much to this agency, Austria and +France even more. + +Conquest and Dynastic Succession are hardly fit to be classed among the +centripetal forces, because they are not susceptible of scientific +treatment like the other influences. The disposition of the stronger to +subdue and annex the weaker neighbour is of course a permanent fact in +human nature, and therefore in history. But in each particular instance +the success of one or other combatant depends on what may be called +historical accidents—on the numbers or the discipline of troops, on the +possession of a commander of military genius, on alliances with other +States, on the internal dissensions of one State as compared with the +unity of another. Physical force belongs to a different sphere from that +in which political constitutions work. Constitutions may result from a +conquest or may be maintained for a time by arms; but if they are +obliged to rely on and have constant recourse to physical force in order +to prevent their overthrow, they are, considered as Constitutions, +failures; because the very nature and object of a constitutional Frame +of Government is so to express and so to adjust to existing conditions +the wishes and aims of the citizens as to make the majority, and if +possible the vast majority, of the people desire to support it. +According to the proverb, you can do anything with bayonets except sit +down on them. Physical force is of course needed to punish occasional +infractions of the Constitution or to quell revolts against it. But the +system of government which _ex hypothesi_ corresponds to the permanently +strongest among the moral forces, else it has no right to prevail in a +free country, ought not to be surrounded by cannon. + +Similarly, the devolution of princedoms or kingdoms by marriage and +inheritance, much as it has done to bring States originally independent +under one government, lies outside political science in the proper sense +of the term. Like conquest, it brings about a new state of things by an +event with which the ordinary political and constitutional phenomena of +national life have nothing to do, coming into these phenomena as an +incommensurable and (so to speak) irrational factor[114]. + +----- + +Footnote 114: + + The fact that the custom of a country permits or forbids succession + through females makes a great difference in the importance of + succession. The union of Castile with Aragon, like the union of + England with Scotland, would not have occurred under a different rule + of succession. So it may make a difference whether the throne of the + larger country passes to the dynasty of the smaller, or vice versa. + Had a king of England inherited the throne of Scotland, Scotland might + have been more hostile to England. Had a king of Portugal inherited + the throne of Spain, the two countries might have remained united. + +----- + +So soon as either conquest or a union due to hereditary succession has +taken place, the normal centripetal and centrifugal tendencies resume +their action. Where the territory of one people has been forcibly +acquired by another, as Lombardy was acquired by Austria in 1815, or has +been occupied in virtue of a title based on succession, as Portugal was +claimed by Spain in 1580, such centripetal forces as may exist have the +advantage of physical force behind them. But this advantage may be +unavailing against the stronger forces which sentiment sends forth to +dissever the connexion. Austria lost Lombardy after forty-four years; +Spain lost Portugal after sixty. In both cases there was fighting, but +it was not so much the balance of military strength as the settled +hostility of the subjected people which in both caused the severance. So +the acquisition by the English kings of Aquitaine and the subsequent +conquest of large part of France, the conquest by the Turks of +Transylvania, the union of Holstein with Denmark, the union of Belgium +with Holland, the union of Alsace with France, all effected without +regard to the will of the people, were all in time brought to an end. +The last-mentioned case is a peculiar one. It was not because the +Alsatians wished to be reunited to Germany, but because the Germans +wished to be reunited to Alsace that a connexion which had lasted nearly +two centuries was dissolved in 1871. Military motives, decisive as +regards the annexed part of Lorraine, had something to do with the +taking of Alsace also; but if Alsace had not been German in language and +habits, though not in sentiment, the popular voice of Germany would not +have insisted on recovering it against the will of its inhabitants. + +Speaking broadly, one may say that Conquest and Inheritance give an +opportunity, better in the latter than in the former case, for +centripetal forces to work. If the peoples on which they operate are +backward, with no pronounced national feeling, that chance may be a good +one, and the influences of free commerce, joint government (especially +if it is good government), together with the kind of pride which common +service in war often produces, may operate to weld two peoples together +into a united State. Much depends on language, much on geographical +position, much on external pressure from powerful neighbours. But if one +of the peoples (or both) has already developed a strong sentiment of +nationality, the prospect of fusion is but slender. + +The Roman Empire is the capital instance of a vast dominion established +by conquest. But there it was the weakness of the centrifugal forces +that secured the cohesion of the Empire. The conquered countries were +either, like Gaul, Spain and Britain, occupied by tribes between whom +there existed so weak a bond that no general national feeling or +combined national action was possible, or had been, as in the Eastern +Mediterranean World, ruled by dynasties, most of them sprung from +military adventurers[115], so that the sentiment of national life had +not centred in the monarchy. The centrifugal forces of interest—the +desire for peace, good government, facilities for commerce, and so +forth—obtained free play under the imperial administration, and to these +was added after a time the sense of pride in Roman citizenship, and in +the greatness of a State which included all the highest civilization of +the world. So too during the Middle Ages not a few conquests ended in an +assimilation of the vanquished, which enlarged without weakening the +conquering nation. But during the last three centuries the experience of +military powers has been that the acquisition of masses of subjects who, +being already civilized, are likely to resist absorption and to remain +disaffected, is a doubtful gain and may become a danger to the +conquering State. The last conspicuous instance is Poland, partitioned +between three Powers, to all of whom her provinces have brought trouble. +Conquests continue to be made, but they are now mostly of barbarous or +semi-civilized races, so inferior to the conquerors in force and in +national spirit that the centrifugal forces are, or at least seem to be, +practically negligible. + +----- + +Footnote 115: + + There were of course also a certain number of city republics, or + leagues of republics, but these were too small to have developed + national feeling in the modern sense; and the Roman system left most + of them a certain measure of self-government which modified their + regret for an independence the delight in which had been (in many + cases) reduced by domestic disorders. + +----- + +Is it possible, then, to arrive at any conclusion regarding the +respective strength which these two sets of forces are likely to display +in the coming centuries? Will the tendency to aggregation continue, and +does the future belong to great States? Or may new forces appear which +will reverse the process, as it was reversed, though through causes most +unlikely to reappear, at the fall of the Roman Empire? + +At first sight the probabilities seem to point to further aggregation. +Although none of the five great national States—Russia, Germany, France, +Italy, Britain—is in the least likely to be absorbed by any of the +others, there is reason to think that within the next century some of +the smaller states will have disappeared from the map of Europe. In one +or two other parts of the world—as for instance in South and in Central +America—the process by which the great States are expanding is not yet +complete. The influences of swifter and cheaper communications by land +and sea, of increasing commerce, and of the closer intercourse which +commerce brings, of the power exerted by the printing press in +extinguishing the languages which prevail over a small area and +diffusing those spoken by vast masses of men—all these things make for +unity within each of the great States and add to the attractive power +which the greater have for the smaller. These influences, moreover, all +promise to be permanent. + +Against them we must set the fact that Conquest, so far as civilized +peoples are concerned, seems likely to play a smaller rôle in the future +than in the past, because it begins to be perceived how tenacious is the +sentiment of nationality in a vanquished people, and how much the +maintenance of that sentiment may endanger the victor State. As was +observed in an earlier page, the progress of a community in civilization +often tends to intensify both its capacity for political discontent and +its peculiar national sentiment, thus counterworking the influences of +trade and wealth. A people, or a nationality included in a large State, +while feeling the centripetal forces of material interest, may +nevertheless feel the repellent instinct of an unquenched attachment to +its national traditions and cling to the hope of reviving its old +national life. + +The problem is, however, a far more complex one than any comparison of +the influences of material interest on the one side and national +sentiment on the other would suggest. Many phenomena may be imagined +which would affect it as the world moves on. One is a change in the +conditions under which war is waged. Another is a removal of some of the +causes which induce war, or a means, better than now exists, of averting +its outbreak. Another is the growth of what is called Collectivism and a +disposition to apply its principles in small rather than in large areas, +seeing that there are obviously some things which can be better managed +in the former. We are far from having exhausted the possibilities of the +influence of scientific discovery upon economic life, and through it +upon social and political life. Both the relations of Nations and States +to one another and the relations of the groups or communities within +each State to each other may be affected in ways as yet scarcely dreamt +of. Neither can we foresee the modes in which the scientific way of +looking at all questions may come ultimately to tinge and modify men’s +habits of thought even in social and political matters. No institution +was at one time more generally prevalent over the world, or seemed more +deeply rooted, than Slavery; and slavery, which has now vanished from +civilized communities, will soon have vanished from all countries. There +is indeed hardly any institution for which permanence can be predicted +except—and some will not admit even this exception—the Family. + +Imagine a world in which all the hitherto unappropriated territories had +been allotted to one or other of the few strongest States. Imagine +tariffs abolished and the principle of equality of trade-facilities +among States established. Imagine a system of international arbitration +created under which the risks of war were so greatly reduced that the +prospect of war did not occupy men’s minds and give a military and +aggressive tinge to their patriotism. The present relations of +centripetal and centrifugal forces would under such conditions be +greatly altered, as respects both the wide theatre of the world and the +internal conditions of each particular State. + +Imagine also a great advance in the desire to use governmental agencies +for the benefit of the citizens, and a general conviction that such +agencies could best be used by comparatively small communities rather +than by the State as a whole. A new centrifugal force, centrifugal at +least in respect of each State, would thereby have been called into +action. No one will venture to foretell any of these things. But none of +them is impossible; and it is plain that they might produce a set of +conditions, and a play of forces, unlike the present, and unlike any +period in the past. We must not therefore assume that the large States +and the present structure and organization of States will be permanent. + +Of the more remote future, History can venture to say little more than +this—that it will never bring back the past. She recognizes that, as +Heraclitus says, one cannot step twice into the same river. Even when +she is able to declare that certain forces will assuredly be present, +she cannot forecast their relative strength at any given moment, nor say +what hitherto unobserved forces they may not, in their action upon one +another, call into activity. All she can do for the lawyer, the +statesman and the legislator, when they have to study and use the forces +operative in their own time, is to indicate to them the nature and the +character, the significant elements of strength and weakness, that +belong to each and every force that has been heretofore conspicuous, so +as to direct and guide them in observing and reflecting on the present. +This is much less than has sometimes been claimed for history. +Nevertheless it is a real service, for nothing is more difficult than to +observe exactly, and the ripest fruit of historical study is that +detachment of mind, created by the habit of scientific thinking, which +prevents observation from being coloured by prejudice or passion. + + + + + V + + PRIMITIVE ICELAND + + +Iceland is known to most men as a land of volcanoes, geysers and +glaciers. But it ought to be no less interesting to the student of +history as the birthplace of a brilliant literature in poetry and prose, +and as the home of a people who have maintained for many centuries a +high level of intellectual cultivation. It is an almost unique instance +of a community whose culture and creative power flourished independently +of any favouring material conditions, and indeed under conditions in the +highest degree unfavourable. Nor ought it to be less interesting to the +student of politics and laws as having produced a Constitution unlike +any other whereof records remain, and a body of law so elaborate and +complex that it is hard to believe that it existed among men whose chief +occupation was to kill one another. + +With the exception of Madeira and the Azores, Iceland is the only part +of what we call the Old World[116] which was never occupied by a +prehistoric race, and in which, therefore, the racial origin of the +population is historically known to us. + +----- + +Footnote 116: + + Though geographically Iceland belongs rather to North America than to + Europe, geologically its affinities are with the Cape Verde Islands, + the Canaries, Madeira, and possibly the Azores to the South, with Jan + Mayen to the North, as it seems to owe its origin to a line of + volcanic action stretching from the Cape Verde Islands to far beyond + the Arctic Circle. + +----- + +None of those rude tribes who dwell scattered over the north of Asia, +Europe and America—Lapps, Samoyedes or Esquimaux—ever set foot in it. +Adamnan, Abbot of Iona from A.D. 679 to 704, reports in his famous _Life +of St. Columba_[117], a prophecy of the saint regarding a holy man named +Kormak, who, in Columba’s days (A.D. 521-597), made three long voyages +from Ireland in search of the ‘Desert in the Ocean’ (_eremum in +Oceano_), a term so happily descriptive of Iceland that one is tempted +to believe it to be the region referred to. A little later the Venerable +Bede (A.D. 673-735) speaks of contemporaries of his own who, coming from +the isle of Thule, declared that in it the sun could be seen at midnight +for a few days[118]. Still later the Irish monk Dicuil (writing about +A.D. 825) tells[119] of an isle lying far to the North-West where monks +known to him had spent the summer some thirty years before. And our +earliest Icelandic authority, the famous _Landnámabók_ (Book of the +Land-takings), mentions that when the first Norwegian settlers arrived +they found a few hermits of Irish race already established there, who +soon vanished from the presence of the stronger heathen, leaving behind +books, bells and staves (probably croziers). The Norse settlers called +them Papas (_i.e._ priests), or Westmen, a term used to describe the +Scots of Ireland. No doubt, then, the earliest discoverers of the isle +were these Celtic hermits, who had crossed the wide and stormy sea in +their light coracles of wood and leather, consecrating themselves to +prayer and fasting in this inclement wilderness. But they contributed no +element to the population of the island, and can hardly be said to have +a place in its history, which begins with the great Norwegian +immigration. + +----- + +Footnote 117: + + _Vita S. Columbae_, cap. vi. + +Footnote 118: + + Comment. on 2 Kings xx. 9. The extreme northernmost point of Iceland + just touches the Arctic Circle. + +Footnote 119: + + In his book _De Mensura Orbis Terrae_, cap. 7, he identifies the isle + with Thule; and the reports of the monks point rather to Iceland than + to the Faeroe Isles, a group which Dicuil mentions elsewhere, and + which therefore he cannot mean by his Thule. The name Thule has of + course been applied by different writers to different lands. When + Tacitus says that it was seen in the distance by the fleet of + Agricola, he probably means either Shetland or the Fair Isle between + the Shetlands and the Orkneys. + +----- + +The first Teuton to reach Iceland was a Norse Viking named Naddođ, who +was driven to the isle by a storm in the latter half of the ninth +century. He called it Snæland, or Snowland. A second visitor, a Swede +named Gardar, sailed round it; a third (Flóki, a Norseman) landed, and +gave it the name it still bears. But though the news of the discovery +soon spread far and wide through the whole Northland, the isle might +possibly have lain unoccupied but for the events that were passing in +Norway. King Harald the Fairhaired was then in the full career of his +conquests. The great battle of Hafrsfjord had established his power in +Central and Southern Norway, and he was traversing the fjords with his +fleet, compelling the petty chieftains who stood at the head of the +numerous small independent communities that filled the country to +acknowledge his supremacy, and imposing a tax upon the land-holding +freemen. + +The proud spirit of the warriors who for more than a century had been +ravaging the coasts of all Western Europe could not brook subjection, +and, being unable to offer a united opposition, the boldest and bravest +among them resolved to find freedom in exile. Some sought the Orkneys, +Shetlands and Faeroe isles, already settled by Northmen. Some joined the +Norwegian settlers in Ireland, and drove the Celtic population out of +some districts on its eastern coast. Others, again, followed Hrolf +Ganger (Göngu Hrolfr) (‘the Walker’), or Rollo as our books call him, a +Viking who, having incurred the wrath of Harald, sailed forth from his +home on the fjords near Bergen to found in Northern Gaul a dynasty of +Norsemen whence came the long line of Norman dukes and English kings, +_Albanique patres atque altae moenia Romae_. And yet others, hearing the +praises of the lately-discovered isle far off in the ocean, turned their +prows to the west and landed on the solitary shores of Iceland. They +embarked without any concert or common plan; each chieftain, or head of +a household, taking his own family, and perhaps a group of friends or +dependents; and they settled in the new land where they pleased, +sometimes throwing overboard as they neared the shore the wooden +columns, adorned with figures of Thor and Oðin, of the high-seat in +their old Norwegian hall, and disembarking at the point to which these +were driven by the winds and currents. At first each took for himself as +much land as he desired, but those who came later, when the better +pastures had been already occupied, were obliged to buy land or to fight +for it; and a curious custom grew up by which the extent of territory to +which a settler was entitled was fixed. A man could claim no more than +what he could carry fire round in a single day; a woman, than that round +which she could lead a two-year-old heifer. So rapid was the +immigration, many colonists from Norwegian Ireland and the Scottish +isles, Orkneys, Shetlands and Hebrides (the two former groups being then +Scandinavian) joining those who came direct from Norway, that in sixty +years the population had risen (so far as our data enable it to be +estimated) to about 50,000, a number which seems not to have been +exceeded down to the census of A.D. 1823. With those who came from +Ireland and the Hebrides there came some small infusion of Celtic blood, +which we note in such names as Njál, Kjartan, and Kormak, given to men +descended from the daughters of Irish chieftains. + +Planting themselves in this irregular way, and in a country where the +good land lay in scattered patches, and where deserts, glaciers and +morasses, as well as torrents, passable only with difficulty or even +danger, cut off one settlement from another, the first settlers did not +create, and indeed felt little need of, any political or social +organization. But after a time a sort of polity began to shape itself, +and the process of its growth is one of the most interesting phenomena +of mediaeval history. The elements out of which it sprang were of course +those two which the settlers had brought with them from Norway, and both +of which were part of the common heritage of the Teutonic race—the habit +of joint worship at a temple, and the habit of holding an assembly of +all freemen to discuss and dispatch matters of common interest, and more +especially lawsuits[120]. This assembly resembled the Old English Folk +Mot, and was called the Thing, a name which survives in our English word +Hustings (Husting or House Thing), the platform from whence candidates +spoke at parliamentary elections, which disappeared in A.D. 1872 when +written nominations were prescribed by the statute which introduced vote +by ballot. The Þing[121] was held at the temple, usually dedicated to +Thor, the favourite deity of the Norsemen as Oðin was of the Swedes; +since the place of worship was the natural centre of the neighbourhood, +and the Þing was presided over by the local magnate or chief, who was +usually also the owner or guardian of the local temple, there being +among the Scandinavian peoples no special sacerdotal caste. + +----- + +Footnote 120: + + Not but what the habit of holding such an assembly has existed among + peoples of very diverse race in many parts of the world. It existed + among the Greeks. It exists among the Kafirs of South Africa. + +Footnote 121: + + I use the Icelandic and Anglo-Saxon letter þ in this word to + distinguish it from the common English word. + +----- + +Now when a Norse chief settled himself in Iceland, one of his first acts +was to erect a temple, often with the sacred pillars which he had +brought from the ancestral temple in the old country. The temple soon +became a place of resort, not only for his own immediate dependents, but +also for those other settlers of the district who might not be rich +enough to build and maintain a shrine of their own. Of this temple the +chieftain and his descendants were the priests; and as the meetings of +the local Þing were held at it, he was the natural person to preside +over such meetings, both because he was usually (though not invariably) +eminent by his wealth and power, and also because he offered the +sacrifices and kept the sacred temple-ring on which judicial oaths were +taken, as at Rome men swore at the Ara Maxima of Hercules. Thus the +priest acquired, if he had not already enjoyed it, the position of a +sort of local chieftain or magnate, not unlike those kings of heroic +Greece whom we read of in Homer, or those German tribe-princes whom +Tacitus describes. Although his title was that of Goði[122] (originally +Guði) or priest, a word derived from the name of the Deity, he lost in +becoming the depositary of a certain measure of political power most of +such religious character as his office had possessed. Nor did any +sanctity attach to his person. In that age at least religion had come to +sit rather lightly upon the Norsemen. Either from inner decay, or from +the influence of the Christian peoples with whom they came in contact +beyond the seas, the old faith was beginning to disintegrate. Worship +was often cold or careless, and we read of men who regarded neither Þor +nor Oðin, but trusted in their own might and main. + +----- + +Footnote 122: + + The term goði does not seem to have been used in Norway, but Ulfila, + in his translation of the Bible into Gothic (in the fourth century + A.D.), renders ἱερεύς by _gudja_. The ð is pronounced like th in + ‘then.’ + +----- + +The Goði was therefore much more of a secular than of an ecclesiastical +person, a chieftain rather than a priest in our sense of the word[123]. +His powers as a chieftain were very indefinite, as indeed had been those +of the local chieftains of Norway. He was only the first among a number +of free and warlike landowners, some of them equal or superior to him in +lineage, with an official dignity which was little more than formal in +the hands of a weak man, but might be turned to great account by a +person of vigour and ability. As he presided in the Þing, so he was the +appropriate person to see to the regularity of its judicial proceedings, +to preserve order, and to provide for the carrying out of any measures +of common concern on which it might determine. When any unforeseen +danger or difficulty arose, he was looked to to advise or take the lead +in action; the members of his Þing expected aid and protection from him, +while he, like a thegn among the Teutons of contemporary England, +expected support and deference from them. But he had no legal powers of +coercion. Any one might oppose him in the Þing or out of it. Any +Þing-man might withdraw at pleasure, join himself to some other Goði, +and become a member of some other Þing[124]. There was, it must be +noted, no territorial circumscription corresponding to the Þing. Land +had nothing to do with the position held by the Goði to the Þingmen, and +herein, as well as in the absence of the relation of commendation and +homage, we see a capital difference between this system and feudality. +Nor was the post of Goði a place whence much emolument could be drawn. +The Þingmen were indeed required to pay a sort of tax called the temple +toll (_hoftollr_), but this did no more than meet the expenses to which +the Goði was put in keeping up the temple, and feasting those who came +to the sacrifices; it gave him no revenue which he could use to extend +his authority. Accordingly, the Goðorð was regarded as implying power +rather than property, and was not (after the introduction of +Christianity) liable to the payment of tithe. A curious feature of the +office was its alienability. Probably because it had arisen out of the +ownership of the temple, it was regarded as a piece of private property +which could be transferred by way of sale or gift, and could be vested +in several persons jointly. And similarly a number of Goðorðs might by +inheritance or purchase become vested in the same person. + +----- + +Footnote 123: + + It is true that as the Sagas whence we draw our knowledge of the Goði + were all written down at a time when heathenism had vanished, it is + possible that they may not fully represent the original character of + the office. + +Footnote 124: + + The illustrious Konrad Maurer, to whose learned researches and sound + judgement every one who writes about the constitutional antiquities of + Iceland must feel infinitely indebted, thinks that the name of Goði + was used in Norway before the emigration to Iceland, though probably + the priest was there a less important person than he became in + Iceland, where his custody of the temple put him to some extent in the + position held in the Norwegian motherland by the hereditary chieftain, + who was in Norway the natural president of the local Thing. + + Those who desire to study the early history of Iceland may be referred + to the writings of Dr. Maurer, and especially to his _Island bis zum + Untergange des Freistaats_ (Munich, 1874), and his _Beiträge zur + Rechtsgeschichte des Germanischen Nordens_ (Munich, 1852). + +----- + +Thus in the years immediately following the immigration there sprang up +round the coasts of Iceland a great number of petty, unconnected and +loosely aggregated groups of settlers. We must not venture to call them +states, scarcely even communities, not principalities, such as those +which were beginning to spring up in Western Europe, not in a strict +sense republics, yet nearer to republics than to principalities, +organized, so far as they were organized at all, chiefly for the +purposes of justice, and particularly for the exaction of fines for +homicide, but with no settled plan of government, no written laws—if +indeed writing was yet in use at all—no defined territory, and a +comparatively weak cohesion among their own members, the Thingmen. The +really effective tie was, in those ages, the tie of kindred; and the +Þingmen of the same Goði were not kinsfolk, were not a clan or sept, +like the Celtic communities of Scotland and Ireland. That tie was strong +enough to involve a whole district in the blood-feud of a single man. +For when any member of a family was killed, it was the duty of his +nearest relatives to avenge his death, either by obtaining a full +compensation in money, for which, if the offender refused to pay it, a +lawsuit was brought in the Þing, or else by slaying the murderer or some +member of his family. Thus a feud, like a _Vendetta_ in Corsica or in +Eastern Kentucky, might go on from generation to generation, each act of +revenge drawing others in its train, and tending to draw more and more +families into the feud, because when fights took place, the friends of +each party often joined, and if some were killed, their relatives had a +new blood-claim to prosecute. + +Between the different communities that had thus sprung up there was no +political tie whatever. There did not as yet exist any Icelandic nation, +much less any common Icelandic State of which all the communities felt +themselves members. Each was an independent body; and if a dispute arose +between the members of two different Þings, there was no means of +adjusting it except by voluntary submission to the award of some other +Þing or else by open war. Seeing that slayings and plunderings and +burnings were everyday occurrences in this fierce race, where Vikingry +(_i.e._ piracy) was the most honoured pursuit, such cases were very +frequent, especially as to take revenge for a kinsman’s death was deemed +a sacred duty. + +Even when the offender belonged to the same Þing as the injured, it +often happened that the influence of his kindred, or the favour of the +Goði of the place, or some technical error in bringing the suit for +compensation, prevented justice from being done. Accordingly the need +for some remedy, for some further political, or rather judicial, +organization of the island began to be generally felt, for however fond +men may be of killing one another, the Norsemen were always also fond of +money, and would often prefer a blood-fine to the satisfaction of +killing their enemy, could the blood-fine be secured. Thus it came to +pass that, about fifty years after the first colonization, a chief named +Úlfljót, venerable from his age and abilities, came forward to propose a +scheme. He urged the creation of one general Þing for the whole country, +where all matters of common interest might be discussed, and all suits +which could not be dispatched, or had not been fairly dealt with in the +local Þings, might be decided. Travelling round the island, he brought +over to his views the most influential Goðis and other leading men; and +at their request, sailed to Norway to inquire into the laws prevailing +there, and to draw up regulations for this new general Þing; somewhat as +envoys were, according to the Roman story, sent from Rome to the Greek +cities to bring back materials and suggestions for the legislation of +the Decemvirs. At the same time Úlfljót’s foster-brother, Grím Geitskór +(‘Goat’s Shoe’), the fleetest man and nimblest rock-climber in Iceland, +was commissioned to traverse the island in search of a place suitable +for the meeting of the proposed assembly. After long wanderings, Goat’s +Shoe hit upon a spot to which the name of Þing Vellir[125], ‘the plains +of the Þing,’ has ever since belonged, in the south-west of the island, +about eight hours’ riding from where Reykjavík the present capital now +stands, and within the district of the first temple that had been +founded by Ingolf, the earliest Norwegian settler. This circumstance +gave the place a sort of sacredness. There was plenty of water and +pasture, and the lake which washed the plain of meeting abounded (as it +does to this day) with trout and wild fowl. (It abounds also with most +pernicious small black flies, whereon the trout grow fat, but which make +fishing not always a pleasure.) Here, accordingly, Úlfljót having in the +meantime returned from Norway with his materials for legislation, the +first Alþing, or General Assembly of all Iceland, met in A.D. 930, and +here it continued to meet, year after year, for a fortnight in the +latter half of June, till the year 1800[126], one of the oldest national +assemblies in the civilized world, and one of the very few which did +not, like the English Parliament and the Diet of the Romano-Germanic +Empire, grow up imperceptibly and, so to speak, naturally, from small +beginnings, but was formally and of set purpose established, by what +would have been called, had paper existed, a paper constitution, that is +to say by the deliberate agreement of independent groups of men, seeking +to attain the common ends of order and justice. + +----- + +Footnote 125: + + Thing Vellir is the nominative plural, Thing Valla—the form in which + the word has become more familiar to Englishmen, and which remains in + Thingwall (near Liverpool), Tynwald (in the Isle of Man), and Dingwall + (in Rosshire)—is the genitive plural. + +Footnote 126: + + Since this lecture was delivered the Alþing which since 1843 had led a + feeble life at Reykjavík as a sort of advisory council, has been + re-established as a representative governing assembly under a new + constitution granted to Iceland in 1874. It now meets every second + year at Reykjavík. + +----- + +There was thus created, before the middle of the tenth century, when +Athelstan the Victorious[127] was reigning in England and defeating +Scots and Northumbrians at Brunanburh by the help of the Icelandic +warriors Thorolf and Egil, sons of Skallagrim[128], when the Saxon king +Henry the Fowler was repelling the Magyar hosts and laying the +foundations of the German Kingdom, and when the power of the last +Carolingians was beginning to pale in Gaul before the rising star of the +Capetian line, a sort of republic embracing the whole isle of Iceland, a +republic remarkable not only from its peculiar political structure, but +also, as will presently appear, from the extremely limited range of its +governmental activity. About thirty years later its constitution was +amended in some important points, and forty years after that time, about +the year 1004, further alterations were made, the details of which are +too much disputed as well as too intricate to be explained here. Its +general outline, in its completed shape, was the following. The total +number of regular Þings, and priest-chieftaincies or Goðorðs, was fixed +at thirty-nine, nine for each of the four Quarters into which the island +was divided, except the North Quarter, which, in order to allay certain +local susceptibilities, was allowed twelve. Each of these thirty-nine +local Þings was presided over by its Goði. Then, for certain purposes, +three of these Þings were united to form a larger Þing-district +(Þingsokn), of which there were therefore thirteen in all, viz. four for +the North Quarter, and three for each of the other Quarters. There was +also one still larger Þing for each Quarter, called the Fjórðungsþing. +It seems to have grown up before the institution of the Alþing, and to +have represented the first stage in the organization of a larger +community out of the small local Þings. But it tended in course of time +to lose its importance. + +----- + +Footnote 127: + + The Saga of Egil calls him Aðalsteinn hinn Sigrsæli (_lit._ ‘blessed + with victory’). It is curious that this title should have been + preserved in Iceland and apparently have been forgotten in England. + +Footnote 128: + + See _Egils Saga Skallagrimssonar_, chap. 54. + +----- + +Ordinary lawsuits and questions of local interest were determined in +these minor Þings, while graver suits, or those in which the parties +belonged to different Þings, or where it was sought to reverse the +decision of a local Þing, as well as all proposals for alterations of +the general law, were brought before the Alþing, at its annual meeting +in June. It seems to have been therefore partly a court of first +instance and partly a court of appeal. Now the Alþing was open, like +other primary Teutonic and Hellenic assemblies, to all freemen who chose +to attend; but its powers were practically exercised by a limited number +of persons, viz. the Goðis and certain members nominated by them. + +For judicial purposes, the Alþing acted through four Courts, one for +each Quarter. Each Quarter Court (fjorðungsdómr) consisted, according to +one view, of thirty-six members, viz. the Goðis of the Quarter with +twenty-four nominees, and, according to another view, of nine persons +nominated by the Goðis of the Quarter. There was also a fifth Court +(called the fimtardómr), instituted later than the others (A.D. 1004), +on the suggestion of the famous jurist Njál, son of Thorgeir. This +Court, which exercised jurisdiction in cases where one of the other +Courts had failed, was composed in a somewhat different way, acted under +a more stringent oath, and gave its decisions by a majority, whereas in +other Courts unanimity was required. It seems to have been intended not +only to avert armed strife by providing a better method for settling +disputes, but also to organize the country as a whole and give it +something approaching to a central authority. This result, however, was +not attained, the social and physical obstacles proving insuperable. + +In these judicial committees of the Alþing lawsuits were brought and +argued with an elaborate formality and a minute adherence to technical +rules far more strict than is now practised anywhere in Europe, a fact +which will appear the more extraordinary when we remember that in those +days both the law and all the appropriate forms of words which the +parties were obliged to employ were not written, but preserved solely by +the memory of individual men. + +For legislative purposes the Alþing acted through another committee of +144 persons, only one-third (forty-eight) of whom, being the thirty-nine +Goðis and nine nominees, had the right of voting. The nine nominees were +persons chosen by the Goðis of the East, South, and West Quarters, three +by each Quarter, in order to give each of these Quarters the same +strength in the Committee as the North Quarter had with its twelve +Goðis. Each of the forty-eight appointed two assessors who advised him, +sitting one behind him and the other in front of him, so that he could +readily seek their counsel, and thus the 144 were made up, the +forty-eight being described as the Middle Bench. This Committee was +called the Lögrétta (_lit._ ‘Law Amending’), and by it all changes in +the law were made, and all matters of common interest discussed. It was +essentially an aristocratic body, as indeed the whole Constitution bore +an aristocratic colour, though there was no such thing as a formal +distinction of rank[129], much less any titled nobility. After the +introduction of Christianity in A.D. 1000, the two bishops were added to +the Lögrétta, while at the head of all, making up the number of members +to 147, stood an elected officer, called the Speaker of the Law. + +----- + +Footnote 129: + + Although the penalty for killing a man of high lineage was heavier + than that for an ordinary freeman; and one perceives from the Sagas + how carefully genealogies were preserved and what great respect was + paid to long descent. + +----- + +This last-named personage, the solitary official of the republic, is one +of the most curious parts of the system. He was called the Lögsögumaðr, +literally ‘Law-say-man,’ or, as we may render it, Speaker, or Declarer, +of the Law, and was the depositary and organ of the unwritten common law +of the country. It was his duty to recite aloud, in the hearing of the +greater number of those present at the Þing, the whole law of Iceland, +going through it in the three years during which he held office; and to +recite once in every year the formulas of actions, this being the part +of the law which was of most practical importance. Besides this, he +presided in the Lögrétta, giving a casting vote where the votes were +equal; and he was bound to answer every one who asked him what the +provisions of the law actually were, although not required to advise +applicants as to the course they ought to follow in a given case. When +in any suit a question of what was the legal rule arose, reference was +made to him, and his decision was accepted as final. For these labours +he received a yearly salary of two hundred ells of Vaðmál (the blue +woollen cloth which then served as currency, and which continued to do +so, for some purposes, down to our own time), besides one-half of the +fines imposed at the Alþing. He was of course selected from the most +accomplished lawyers of the time. His declarations of the law were +conclusive, at least during his three years’ term of office, in all +causes and over all persons. Thus he exercised a kind of quasi-judicial +or quasi-legislative power, and has been fancifully compared to the +Roman Praetor, also an officer elected for a term, also by his edicts +the declarer of the law he had to administer[130]. But the Law-Speaker +was in reality neither judge nor magistrate, nor, indeed, a legislator, +except in so far as the right to enounce and interpret borders on +legislation. He delivered no judgements, he had no power of enforcing a +decision or of punishing an offender. He did not even open the Alþing +and take the responsibility for keeping order at it, for these functions +belonged to the Goði of the district, called, because the Alþing met +within his jurisdiction, the Allsherjargoði (priest of the whole host). +The Lögsögumaðr was in fact nothing but the living voice of the law, +enunciating those customary rules which had come down from the foretime, +rules which all accepted, though they were not preserved in any written +form, and though they must have been practically unknown to the great +majority of the citizens. + +----- + +Footnote 130: + + _Viva vox iuris civilis_ was the description which the Romans used to + give of their Praetor, as to whom see Essay XIV, vol. ii. p. 274. + +----- + +The office, although more important in Iceland from the absence of a +king or local prince, was one of which we find traces among other +Scandinavian peoples, or at least among the Norsemen. It appears in +Norway, in the Orkneys, and in the Hebrides (though there the name is +Lögman, which in Iceland means merely one learned in the law). + +Thingvellir, where the Alþing met from the year 930 down to a time +within the memory of living men, is a spot not less remarkable +physically than memorable for the stirring events of which it was the +witness. It is a slightly undulating plain, some five miles long by +three wide, washed on the south by a broad island-studded lake, and +girdled in at its northern end by lofty mountains, their black volcanic +rocks streaked here and there with snow-beds. The surface is all of +lava, sometimes bare and rugged, sometimes covered with thin brushwood, +dwarf birches and willows, sometimes smoothing itself out into sweeps of +emerald pasture, but everywhere intersected by profound chasms, formed +when the whole was a molten mass. East and west it is hemmed in by two +lines of precipices, whose rugged sides seem to show that the plain +between them has, at some remote period, perhaps when the lava-flood was +cooling, sunk suddenly down, leaving these walls to be the edges of the +plateau which stretches away backwards to the east and west. Under the +western of these two walls, on the margin of the lake, just where it +receives the stream which has flung itself in a sparkling cascade over +the precipice, the place of meeting was fixed. The chieftains, who came +from every corner of the island with a following of armed companions and +dependents, because broils were frequent, and armed strife might +interrupt the progress of a lawsuit, built their booths—erections of +stone and turf roofed for the time with cloth or canvas—along the banks +of the Öxará river, and turned out their horses to pasture by the lake. +Places were appointed for the holding of the several courts, while the +Lögrétta or legislative committee sat on a spot which nature seemed to +have herself designed for the purpose. Two of the extraordinary chasms +by which the plain is seamed, each some eighty feet deep, and filled for +the lower fifty feet by bright green water, enclose a narrow strip of +lava some two hundred yards long, cutting it off, except at one point +where there is a narrow entrance which three men might hold, from the +surrounding land. The surface is nearly level, covered by short grass +now browsed by a few sheep; and there is nothing to tell that in this +space, in the full sight of the assembled multitude, the heroes of +ancient Iceland spoke and voted their laws, and gave their verdicts; +while from an eminence in the midst of the enclosure, still called the +Lögberg, or Hill of Laws, the Law-Speaker recited the law of the nation +in the sight and hearing of the multitude that stood on the further side +of the chasms[131]. Not only so: there is all round nothing whatever to +show that the place has ever been different from what it is now. Between +the Lögberg and the lake stands the little wooden church and its humble +parsonage. No other house is near, nor any sign of human life. Only the +islet is still pointed out in the river where the solemn duels which the +laws of Iceland recognized were fought, and the deep green swirling pool +into which women condemned for witchcraft were hurled from the brink of +the precipice. In most of the spots to which the traveller is drawn, by +memories of constitutional freedom or of political struggles, his +imagination is aided by the remains of the buildings where assemblies +met or monarchs sat enthroned. Here man has left nothing to speak of his +presence, and it is hard to realize, when one looks on this silent and +desolate scene, that it was once filled by so much strenuous life, and +so often resounded to the clash of arms. + +----- + +Footnote 131: + + Since this was written, some eminent antiquaries, including my + lamented friend Dr. Guðbrand Vigfússon, have argued that the true + Lögberg is to be sought not in this spot which tradition indicates, + but on the edge of the great lava rift called the Almannagjá to the + west of the river. See _The Saga Steads of Iceland_, by W. G. + Collingwood and Jón Stefánsson, 1899, pp. 14-17. + +----- + +For the Alþing was not merely an assembly for the dispatch of business: +it was the great annual gathering of the whole nation, a gathering all +the more needed in a land where there are no towns, and most men live +miles away from their nearest neighbours. To it chieftains rode with +their wives and daughters and a band of armed retainers from the +furthest corners of the country, taking perhaps, as those must have done +who came from the East fjords along the northern edge of the great +central desert, a fortnight or more on the way. Shipmasters from Norway +or Ireland brought their wares for sale. Artisans plied their trades. We +are told that even jugglers’ sheds and drinking-booths were set up, and +games of all kinds carried on. It was a great opportunity not only for +the renewing of friendships between those who lived in distant parts of +the country, but for the arranging of adoptions and marriages; and the +Sagas mention numerous instances in which proposals were made or +betrothals entered into at a meeting of the Alþing, in most of which +instances the will of the maiden seems to have prevailed over that of +her parents. It was midsummer, when there is in those latitudes no +night, but the glare of day subsides for a few hours into an exquisitely +rich and tender twilight, clothing the sky with colours never seen in +our duller air. And we can fancy how those who followed their fathers to +the Alþing found compensation for all the loneliness and gloom of the +long winter in this one fortnight of vivid mirth and excitement. + +The meeting of the Alþing was not only the centre of the political life +of the Republic. It was, so to speak, the Republic itself, for it was +only then that the Republic became visible before men’s eyes or acted as +a collective whole. During the rest of the year lawsuits and everything +else of public concern were left to the Quarter Þings and local Þings, +and to the local Goðis. The few laws or resolutions of general concern +which the Alþing passed—they were few, because its legislative activity +was chiefly occupied in regulating its own judicial proceedings—were +probably meant to be accepted and observed over the whole island, but +the Alþing did not attempt to enforce them, and indeed had no machinery +by which it could do so. Each Goði was, in a loose way, a sort of +executive magistrate over his own Þingmen; but he did not derive his +authority from the Central or Federal Alþing, and he was not responsible +to the Alþing for its exercise. The Republic, if we may so call it, had +no Executive whatever. Its sole official was the Law-Speaker (of whom +more anon), but his function was only to declare the law, and was +exercised only while the Alþing was sitting. At other times the +constituent Þings and Goðis were virtually quite independent, and might +and often did carry on war with one another, subject to no penalty or +liability for so doing, save in so far as an action for compensation +might be brought against any one who had killed another. There was no +police, no militia, no fleet, no army, nor any means, like those +provided in the feudal kingdoms of contemporary Europe, of raising an +army. The isle lay so far away from all other countries except +Greenland, on which an Icelandic colony had been planted, that it +happily did not need to have a foreign policy. There was neither public +revenue nor public expenditure, neither exchequer nor budget. No taxes +were levied by the Republic, as indeed no expenses were incurred on its +behalf. + +The Icelandic Republic was in fact a government developed only upon its +judicial and (to a much smaller extent) upon its legislative side, +omitting altogether the executive and international sides, which were in +the Greek and Roman world, and have again in the modern world, become so +important. For a community to exist with such an absence of +administrative organization was obviously possible only in a region like +Iceland, severed by a wide and stormy sea from the rest of the world, +and with a very thin and scattered population; possible too only in a +simple state of society where man’s needs are few and every one fends +for himself. + +The system whose outlines I have sought to draw is full of interest and +suggestion, as well to the student of legal theory as to the +constitutional historian. Some modern theorists derive law from the +State, and cannot think of law as existing without a State. A few among +them have in England gone so far as to deny that Customary Law is law at +all, and to define all Law as a Command issued by the State power. But +here in Iceland we find Law, and indeed (as will appear presently) a +complex and highly developed legal system, existing without the +institutions which make a State; for a community such as has been +described, though for convenience it may perhaps be called a Republic, +is clearly not a State in the usual sense of the word. Of Iceland, +indeed, one may say that so far from the State creating the Law, the Law +created the State—that is to say, such State organization as existed +came into being for the sake of deciding lawsuits. There it ended. When +the decision had been given, the action of the Republic stopped. To +carry it out was left to a successful plaintiff; and the only effect a +decision had, so far as the Courts were concerned, was to expose the +person resisting it to the penalties of outlawry—that is to say, any one +might slay him, like Cain, without incurring in respect of his death any +liability on the footing of which his relatives could sue the slayer. +Law in fact existed without any public responsibility for enforcing it, +the sanction, on which modern jurists so often dwell as being vital to +the conception of law, being found partly in public opinion, partly in +the greater insecurity which attached to the life of the person who +disregarded a judgement. Yet law was by no means ineffective. Doubtless +it was often defied, and sometimes successfully defied. That happened +everywhere in the earlier Middle Ages, and happens to-day in +semi-civilized peoples. But the facts that the Alþing maintained so +active a judicial life, that the field of law was cultivated so +assiduously, and the details of procedure worked out with so much pains +and art, that lawsuits were contested so keenly and skilfully—all these +facts seem to prove that law must have in the main had its course and +prevailed, for it is hard to suppose that all this time and pains would +have been during two centuries or more devoted to a pursuit which had no +practical result. The contemporary kingdoms and principalities of the +earlier Middle Ages lived by the vigour of the executive. There was in +them very little of a State administration, and the law was in most or +all of them older than the State—that is to say, it had existed in the +form of customs recognized and obeyed before efficient means were +provided for enforcing it. So far they resembled Iceland; and the same +may be said of the city republics of Italy and Germany. But Iceland is +unique as the example of a community which had a great deal of law and +no central Executive, a great many Courts and no authority to carry out +their judgements. + +The process by which the law of Iceland grew, though less exceptional +than was its political constitution, illustrates very happily the origin +of Customary Law and the first beginnings of legislation. Law springs +out of usage. The gathering of the neighbours develops into the Þing or +local assembly of Norway and the Folk Mot of early England. It treats of +all matters of common concern; and as it is the body before whom +complaints of wrong are laid, it adopts by degrees regular set forms of +words for the statements of a grievance, and for the replies to those +statements. The usages become recognized customs, prescribing the cases +in which redress may be claimed and the defences by which the claims may +be repelled. The forms of words grow more elaborate and come to be +considered so essential that a variation from them vitiates the claim. +The body of rules thus formed becomes so large that only a few men, +devoting themselves to the subject, are able to carry the whole in their +memory. These men, proud of their knowledge, elaborate the rules, and +particularly the set forms of words, still further, and in their +enjoyment of technicalities attach more and more importance to formal +accuracy. Thus Custom, which was loose and vague while held in solution +in the minds of the mass, becomes crystallized into precision by the +labour of the few whose special knowledge gives them a sort of +pre-eminence, and even a measure of power. Then it is found that there +are diversities of opinion among the experts in the law, or instances +arise which show that some custom generally accepted is inconvenient. By +this time Custom has acquired so much authority that the assembly, which +has been also, and perhaps primarily, a law court, does not venture to +transgress it, the men of legal learning being of course specially +opposed to such a course. It therefore becomes necessary formally to +change the Custom by a resolution of the body which is at once the +Assembly and the Court. As this body consists of those who use, and +whose progenitors have created, the custom, and as it continues to +settle other matters of common concern affecting the district, it is the +proper and only body to make the change. This, then, is legislation in +its early stage. The law produced, which we may call Statute Law, is for +many generations extremely small in proportion to the mass of law which +rests upon Custom only. But the Statute Law is important because it is +explicit, because it is sure to be remembered, because it deals with +points comparatively large, since it would not be worth while to submit +small ones to the assembly. Nevertheless legislation is among all +peoples the smallest part of the work of primitive assemblies, be they +Þings or Folk Mots or Agorai or Comitia. And the growth of the law of +Iceland by custom, preserved and elaborated by a succession of +law-sages, occasionally (though rarely) altered or added to by the vote +of the Alþing, presents a lively picture of what must have been the +similar process of the construction of early Roman law by the jurists +(_prudentes_) and assembly (_comitia_). + +Iceland, however, provided a means for the ascertainment and publicity +of her law which Rome lacked. The Lögsögumaðr is an elegant (using the +word in its strict Roman sense) complement to a system of Customary Law. +His function was well designed to meet and cure the two chief defects in +such a system, the uncertainty which existed as to what the rules +accepted as law were and the difficulty which an individual desiring to +take or defend legal proceedings found in discovering what the rule +applicable to his case really was. The solemn recitation of the whole +law fixed it in the recollections of those who busied themselves with +such matters, and gave everybody an opportunity of knowing what it +covered. The right to interrogate the living depositary of the law as to +any special point whereanent the querist desired to be informed was a +great boon to private persons, who, since they might often have to +suffer from the extreme technicality of procedure, needed all the more +to be warned beforehand where the pitfalls lay. In these respects the +Icelandic system contrasts favourably with those of early Rome and early +England. Till the Twelve Tables were enacted the private citizen of Rome +had no means of ascertaining the law except by asking some sage, who +need not answer unless he pleased, and whose view had no authority +beyond that which his personal reputation implied. Even after the Twelve +Tables had reduced much of the ancient Customary Law to shape, and made +it accessible to the citizens at large, many of the forms of procedure, +and the rules as to the days on which legal proceedings could be taken, +were kept concealed by the patrician men of law till divulged (at the +end of the fourth century B.C.) by Cn. Flavius. In England there was +indeed no similar effort to keep legal knowledge within the hands of a +few. But the customs were numerous, and many of them were uncertain. +There was no way of ascertaining them except by the judgement of a +Court, a tedious and expensive process, which after all decided only the +particular point that arose in the case that occasioned the judgement. +That means of determining a custom to be valid and binding which the +Icelanders had already secured through their official in the last half +of the tenth century did not begin to be created by the action of the +English Courts till the end of the twelfth, and centuries were needed to +complete the process. + +One of the things that most awakens our surprise in the Icelandic +Constitution is its extreme complexity. In one sense simple and even +rude, since it omits so much we should have expected to find in a +constitution, it is in another sense intricate, and puzzles us by the +artificial character of the arrangements made for the composition of the +various courts and of the legislative body, while the multiplicity of +Þings, and the distribution of powers among them, has given rise to many +controversies among historians, some still unsettled. This phenomenon, +however, finds a parallel in some of the constitutions of the Greek +republics, not to speak of the elaborate systems of such cities as +Florence and Venice in the fourteenth century. In Iceland the strong +sense of independence which distinguished the Norsemen, and the jealousy +the chiefs had of one another, made it necessary to devise means for +securing equality and for preventing the influence of any group or +district from attaining predominance. Herein the spirit of the Icelandic +Constitution is singularly unlike that of the Roman. There, the intense +realization of the unity of the city and the need for giving its +government the maximum of concentration against neighbouring enemies +caused vast powers to be entrusted first to the King and then to the +Consuls or to a dictator. In Iceland, where no such need of defence +existed, where there was no foreign enemy, and men lived scattered in +tiny groups round the edges of a vast interior desert, no executive +powers were given to anybody, and elaborate precautions were taken to +secure the rights of the smaller communities which composed the Republic +and of the priest-chieftains who represented them. + +A like intricate character recurs in the system of legal procedure, but +the cause is different and not peculiar to Iceland. The excessive +technicality of Icelandic process, and the stress laid upon exact +compliance with its rules, belong to that stage of the human mind in +which form and matter have not yet been separated, and in which the +respect for usage and tradition outweighs the sense of substantial +justice. Simplicity in legal matters, instead of characterizing the +state of nature, is the latest legal achievement of a civilized age. In +accounting for the strictness of adherence to the letter, we must allow +something for the dread, natural enough in such an age, that if +deviations from the letter of the law were overlooked, if what we should +call a power of amendment on matters of form were entrusted to the +Court, such discretion would be abused and confidence in the Courts +destroyed. But the reason is chiefly to be found, as in the parallel +case of those older forms of Roman procedure which continued terribly +technical till the time of Cicero, and as in the case of our own older +law, to the conservative spirit of the lawyers, attached to the forms +they had received and studied, and taking a professional pride in +working out their methods, a pride all the greater the more technical +those methods were, because the more intricate the technicalities the +higher the importance of the few who had mastered them. Substantial +justice is all the layman cares for. With the lawyer it is otherwise. An +eminent English judge used to remark that of the questions argued before +him, counsel showed most interest in points of practice, costs came +next, while the merits of the case were last. The late Baron Parke (Lord +Wensleydale) was a type of the kind of mind which flourished in Iceland +in the eleventh century; and it was a type useful in its way, a type +which ought always to be represented in the legal profession, for +reverence for tradition and an acute interest in the exactitude of form +are hardly less necessary than a philosophic spirit and a zeal for +progress. + +How keen was the taste for legal subtleties and intricacies is shown, +not only by the existence of schools of law in Iceland—young men +gathering round sages like Njál or Skapti Thoroddsson, just as the +well-born youth of Rome frequented the house of Tib. Coruncanius or Q. +Mucius Scaevola—but also by the evident enjoyment which the authors of +the Sagas show, and which their public must evidently have taken, in the +steps in a lawsuit, or in the telling of some incident which raises a +nice point of procedure. In no other literature is fiction or history, +by whichever name we describe the Sagas, so permeated by legal lore. + +Our knowledge of the substance of early Icelandic law is derived partly +from references or allusions in the Sagas, partly from some ancient +law-books, the oldest of which belongs to the period of the Republic, +and was compiled, probably about the middle of the twelfth century, out +of materials some of them much older, and reaching back into the +eleventh and even the tenth. Statutes had been passed during the course +of the tenth century, and the Úlfljótslög of A.D. 930 is spoken of as a +body of law prepared by Úlfljót after his journey to Norway and accepted +by the Alþing, though it was probably a redaction of existing Norse +customs, and does not seem to have been reduced to writing, as indeed it +is improbable that any laws were written before the beginning of the +twelfth century. The next effort at what has been called a codification +of the law was made nearly two centuries after Úlfljót (about A.D. +1117), when a small commission was appointed which examined the customs, +rejected some, approved or amended others, and created what is described +as a sort of systematic collection. This is usually known as the +Hafliðaskrá, from a prominent Goði and lawyer Hafliði Mársson, who was a +member of the commission. This law is stated to have been accepted by +the Alþing, and was no doubt preserved in writing, as the name Skrá +(scroll) conveys. + +The later book which used to be described as a Code survives in two +MSS., differing a good deal from one another, and is commonly known as +Grágás (‘Grey-Goose’)[132]. It is, however, really not a Code at all, +and not even a single law-book, but a mass of matter of different dates +and origins never reduced to any sort of unity. There are ordinances of +the Alþing, decisions and declarations delivered by Law-Speakers, +ecclesiastical regulations, formulas of legal procedure or legal +transactions, memoranda of customs which seemed to those who recorded +them to have obtained recognition and validity. It is full of +instruction as a picture of primitive Teutonic institutions and life; +and it throws a good deal of light both on the law of early +England—English and Anglo-Norman—and upon some of the most curious +features of early Roman law. Sometimes the references to the +deliverances of a Law-Speaker as originating a rule make us think of the +Roman Praetor, sometimes the concisely phrased records of what was +settled by the Lögrétta remind us of our English reports of the +judgements of the King’s Courts in their early forms; while in one point +the collection as a whole has a character which belongs to the earlier +law-books as well of Rome as of England. Though the statutes of the +Alþing are the most distinctly authoritative rules it contains, much +whose authority would seem doubtful to a modern is set down in a way +which clearly implies that it did possess authority. The line between +absolutely binding law and all other law is not sharply drawn; indeed no +such line exists. That which is recorded may be only a single instance +of the observance of an alleged custom. It may be only the expression of +the individual opinion of some learned lögmaðr (Lawman = jurist). +Nevertheless it is a record which has come down from the past, and by +which therefore the men of the present may seek to be guided. + +----- + +Footnote 132: + + The name Grágás (probably drawn from the binding in which a copy of it + was preserved) seems to have originally belonged to a MS. of the + Frostaþingslög, the law which prevailed round Throndhjem in Norway, + and to have been applied by mistake in the seventeenth century to this + Icelandic collection of customs, first published by the Arnamagnaean + foundation in 1829. + +----- + +In the law of Iceland, as it is presented in this ancient collection, we +have, as in the Constitution of the island and the system of the Courts, +a striking contrast between the rudeness of an extremely archaic +society, in which private war is constantly going on, piracy is an +honourable occupation, slavery exists, and there is no State +administration and very little use of writing, and the refined intricacy +of a system of law which makes elaborate provision for the definition of +legal rights and their investigation and determination by legal process. +The time of day is fixed by guessing at the height of the sun above the +horizon. The wife is purchased. A father may deliver his child into +slavery, no doubt (as in early Rome), a qualified slavery, for the +payment of his debts, and the insolvent debtor may be made a slave. But, +on the other hand, there are rules, not unlike those of our modern +Courts of Equity, regulating the guardianship of the property of a +minor, and permitting a portion of it to be applied to the support of +his indigent father, brother or sister[133]. There are careful +distinctions as to who may sue for the penalty for homicide. If the +slain man is an Icelander, the action goes first to the son, then to the +nearest blood relation, then to the local Goði, then to any member of +the same Quarter, then to any citizen (a sort of _actio popularis_). If +the slain man was not an Icelander, but one who used the ‘Danish (or +northern) tongue,’ _i.e._ if he was either a Norseman or a Dane or a +Swede, then any relative may sue; if a stranger of any other +nationality, only a father, son or brother may sue. But for the +protection of persons coming in a ship, the comrade or partner[134] of +the deceased, whom failing, the skipper who has the largest share in the +ship, is a proper plaintiff. + +----- + +Footnote 133: + + This rule is ascribed to Guðmund Thorgeirsson, who was Law-Speaker + from 1123 to 1135 A.D. + +Footnote 134: + + Partner is félagi (English ‘fellow’). Many further rules on this point + are contained in the passage, Grágás, chap. xxxvii (vol. ii. pp. 71-73 + of the Arnamagnaean edition). + +----- + +It is curious to note that, although homicide and murder were common, +the punishment of death is never prescribed, even as in two or three of +the Southern States of America the death penalty is seldom inflicted, +while ‘shootings at sight’ and lynchings abound. And an interesting +resemblance to early Roman law may be found in the extreme severity of +the law of slander and libel. The truth of a defamatory statement is no +defence. To affix a nickname to a man is punishable by banishment. No +verses are to be made on a man, even in his praise, without his leave +first obtained; and one who teaches or repeats the verses made by +another incurs an equal penalty, the remedy extending even to verses +made against the memory of the dead. A love poem addressed to a woman is +actionable, the action being brought by her guardian if she is under +twenty years of age[135]. + +----- + +Footnote 135: + + See Grágás, chaps. civ-cviii, pp. 143-156 of vol. ii. in the + Arnamagnaean edition. + +----- + +Of the ramifications of the system of procedure into all sorts of +Courts, besides the regular Þings, I have no space to speak; but one +singular illustration of the faith which the Icelanders had in the +efficacy of legal remedies deserves to be given, because in it these +remedies reach beyond the present life. It comes from the Eyrbyggja +Saga, one of the most striking of the old tales. + +A chief named Thorodd, living at Fróðá in Breiðifjörð, on the west side +of Iceland, had just before Yule-tide been wrecked and drowned with his +boat-companions in the fjord. The boat was washed ashore, but the bodies +were not recovered. Thereupon his wife Thurið and his eldest son Kjartan +bade the neighbours to the funeral feast; but on the first night of the +feast, as soon as the fire was lighted in the hall, Thorodd and his +companions entered, dripping wet, and took their seats round it. The +guests welcomed them: it was held that those would fare well with Rán +(the goddess of the deep sea) who attended their own funeral banquet. +The ghosts, however, refused to acknowledge any greetings, and remained +seated in silence till the fire had burnt out, when they rose and left. +Next night they returned at the same time and behaved in the same way, +and did so, not only every night while the feast lasted, but even +afterwards. The servants at last refused to enter the fire-hall, and no +cooking could be done, for when a fire was lit in another room, Thorodd +and his companions went there instead. At last Kjartan had a second fire +lit in the hall, leaving the big one to the ghosts, so the cooking could +now be done. But men died in the house, and Thurið herself fell ill, so +Kjartan sought counsel of his uncle Snorri, an eminent lawyer and the +leading Goði of Western Iceland. By Snorri’s advice Kjartan and seven +others with him went to the hall door and formally summoned Thorodd and +his companions for trespassing within the house and causing men’s +deaths. Then they named a Door-Court (Dyradómr) and set forth the suits, +following all the regular procedure as at a Þing-Court. Verdicts were +delivered, the cases summed up and judgement given; and when the +judgement word was given on each ghost, each rose and quitted the hall, +and was never seen thereafter. + +Ghosts have given much trouble in many countries, but it is only the +Icelanders who have dealt with them by an action of ejectment. + +Although it is a remarkable evidence of the political genius of the +Norsemen that they should have been able to work at all a legal system +such as has been described, it need hardly be said that it did not work +smoothly. The Icelanders were a people of warriors, little accustomed to +restrain their passions, and holding revenge for a sacred duty. The +maintenance of order at the Alþing was entrusted to the Goði of the +spot, and it was strictly forbidden to wear arms while the meeting +lasted. The closing of the Alþing was called Vápnatak (weapon-taking, +wapentake), because the arms that had been laid aside were taken when +men started to ride home from the Þing. But the arms were after all only +left in the booth, and more than once it happened that the party which +found itself unsuccessful in a lawsuit seized sword and spear and fought +out the issue in a bloody battle, from which sprang again new +blood-feuds and new lawsuits. It is not very often that the Sagas give +us a glimpse of the conduct of business at the Alþing; but one such +lawsuit, followed by a combat, which arose when the suit broke down on a +technical point, is described with wonderful force and spirit in the +famous Saga of Njál Thorgeirsson, a masterpiece of literature in the +freshness and brilliance of its narrative. + +We hear occasionally of the passing of particular laws at an Alþing. In +A.D. 994, for instance, it was enacted that the suit for compensation +for homicide which was brought, according to the general practice of the +northern nations, by and for the benefit of the nearest relatives of the +slain, a right which has survived in the law of Scotland under the name +of Assythment, and has been partially introduced into the law of England +by the Act 9 & 10 Vict. c. 93 (commonly called Lord Campbell’s Act), +should in future not be brought by a woman or by a child under sixteen +years of age, but by the nearest male relative. This provision was +suggested by a case that had occurred just before, when inadequate +compensation had been recovered for the slaughter of a chieftain named +Arnkel, owing to the mismanagement of the suit by his widow. Again, in +A.D. 1006 we are told of the abolition of the judicial combat on the +occasion of an indecisive duel between the poet and Viking Gunnlaug +Ormstunga (Snake’s tongue[136]) and another poet named Hrafn, the +details of which are recorded in one of the most beautiful and touching +of the early Sagas. Gunnlaug had been betrothed to Helga the Fair, one +of the most famous heroines of Icelandic story, but having been detained +in England by King Ethelred II, whose guest he had previously been in +London[137] and whose praises he had been celebrating in verse, had +failed to return at the appointed time, and found Helga, who had yielded +to the importunities of her relatives, already married to Hrafn. +According to the custom of the North, which then allowed any man to +require another either to give up his wife and all his property or +defend her and it by arms, Gunnlaug came to the Alþing and formally +challenged Hrafn, and they fought, each with his second, a solemn duel +on the island in the Öxará which was set apart for that purpose. A +dispute arose after the first encounter, and the combatants were +separated. Gunnlaug wished to resume the combat, but the law already +referred to, prohibiting formal duels in future, was passed next day by +the Lögrétta; and he unwillingly obeyed, for a breach of it would have +exposed him to the penalties of outlawry. Helga, however, refused to +live any longer with her husband Hrafn, and next year the two rivals +sailed by agreement to Norway, just as, fifty years ago, persons fearing +to fight a duel in England used to cross to Calais for the purpose. +Years passed before they met in the wild country east of Throndhjem. +There they fought out their quarrel. Gunnlaug smote off his enemy’s +foot, and then proposed to stop the combat. Hrafn however, supporting +himself against a tree, wished to fight on, but as he was tortured by +thirst, he besought his opponent to fetch him a draught of water from a +brook hard by, promising not to deceive him. The chivalric Gunnlaug +brought the water in his helmet, whereupon Hrafn, taking the water with +his left hand, suddenly raised his sword and, with all his remaining +strength, smote Gunnlaug on his bared head. ‘Thou hast done ill and +deceived me,’ said Gunnlaug, ‘seeing that I trusted you.’ ‘So is that,’ +answered Hrafn, ‘but I grudged thee the love of Helga the Fair.’ Then +they fought on. Hrafn was slain, and in a few hours Gunnlaug died of his +wounds[138]. The news was brought to Iceland, and after a time Helga, +thinking ever of Gunnlaug, and often spreading out upon her knees a +garment which Gunnlaug had given to her, pined away and died likewise. + +----- + +Footnote 136: + + So called from his satirical powers. + +Footnote 137: + + The Saga says (_Gunnlaugs Saga Ormstungu_, chap. vii) that in the days + of Ethelred son of Edgar (Aðalráðr Játgeirsson) the same tongue was + spoken in England and Denmark as in Norway, and that this continued in + England till William the Bastard won England, after whom Welsh (Valsk + = French) was spoken. + +Footnote 138: + + The Saga adds that very shortly after the combat, and long before the + news of it could have reached Iceland, the ghosts both of Gunnlaug and + of Hrafn appeared in dreams to their respective fathers in Iceland, + and recited poems describing their deaths. Illugi the Black, + Gunnlaug’s father, remembered the poem he heard and repeated it aloud + next day. The Saga gives both poems. This is one of the earliest + Teutonic instances of a death-apparition. + +----- + +Another striking scene at the Alþing has been preserved to us in the +Saga which relates the introduction of Christianity. King Olaf +Tryggvason, the most brilliant of all the Norwegian sovereigns, who, +having been himself converted some ten years before, was hard at work +converting the stubborn Norwegians by burning their houses and torturing +themselves, had sent two missionaries to Iceland, one of whom, the +priest Thangbrand, had been obliged to leave Norway on account of his +violent life, and who signalized himself in Iceland by committing two +murders in the course of his five months’ stay, which was then summarily +shortened. The unworthiness of the minister, however, does not seem to +have injured the cause he championed. Several men of note embraced the +new faith, which was of course well known to the Icelanders from their +intercourse with Ireland and Britain, and had the promise of the future +to recommend it. These men, and also some heathen chieftains who thought +that acceptance was the best way of avoiding civil war, supported the +envoys of Olaf, when, at the Alþing of the year 1000, they urged upon +the assembly to decree the abolition of paganism. A story goes that, +while the debate was at its height, a messenger arrived to tell that a +volcano had broken out thirty miles to the south, and was pouring a +flood of lava over the pastures. The heathen party accepted the news as +an omen, and exclaimed, ‘This is the wrath of the gods at these new +rites; see what you have to expect from their anger!’ ‘With whom, then,’ +said Snorri, a leading Goði who had not yet declared himself, ‘with whom +were the gods angry when this rock was molten on which we stand?’ +(pointing to the deep lava rifts that lay around the Lögberg). By the +interposition of the Law-Speaker Thorgeir, that which he described as a +compromise, but which was in reality a surrender by the heathen party, +was at the same Alþing accepted. The people were to be baptized and +declare themselves Christians, and the temples and images of the old +gods were to be destroyed; but those who liked to sacrifice at home +might continue to do so; and two heathen customs, the exposure of +new-born infants and the eating of horse-flesh, were to be permitted. +Some difficulty arose over the reluctance of those who came from the +North and East Quarters of the island to submit to immersion in cold +water; but this difficulty was happily overcome by the use of the hot +springs at Reykir for the rite. + +The century and a half that followed the introduction of Christianity +was the most brilliant period in the history of the island. It was not +indeed a time of peace, for the old passions and the old superstitions +were but little altered. Slayings and burnings of houses with their +inmates went on pretty much as before. But there was now added to the +stimulus which their free republican life and their piratical +expeditions gave to the national spirit the influence of the learning +and ideas which came in the train of the new faith. The use of writing +soon spread, and the magnificent Sagas, which are among the noblest +monuments of Northern genius, were nearly all of them produced in this +age, though some were not committed to parchment before the end of the +twelfth century. + +For many years the Constitution of the Republic seems to have +undergone no great alteration. The establishment of Christianity did +indeed throw considerable power into the hands of the two bishops, and +eventually produced a strife between the Church and the temporal +magnates resembling that which distracted both the Romano-Germanic +Empire and England. This scarcely affected the position of the Goði, +whose authority had now lost so much as it originally possessed of a +religious character. Snorri, whose appeal to geology is said to have +decided the Alþing against paganism, was himself the priest of the +most famous heathen sanctuary of the island. But in the beginning of +the thirteenth century the delicately-framed fabric of the Republican +Constitution began to break up. The tendency of a federation usually +is to become less of a federation and more of a single united state. +But in Iceland the federal bond, if one can use this name, was always +weak, and when a powerful member became disobedient, there were no +legal means of reducing him to submission. By degrees the number of +priest-chieftainships diminished, the Goðorðs, which passed not only +by inheritance but also by gift or sale, coming to be accumulated in +the hands of a few great families, who thus acquired a predominant +influence at the Alþing, were virtually masters of large districts of +the country, and marched about like feudal lords attended by petty +armies. Thus the old blood-feuds assumed more and more the aspect of +civil wars. Piracy was now less practised, because the countries which +had formerly been ravaged were better prepared for defence, so the +energy that used to spend itself upon the coasts of Scotland and +Ireland, of North Germany and Gaul, was now turned inward, and with +fatal results. + +I am not writing the history of Iceland, though indeed I wish I were +doing so, for the theme is a fascinating one. But before closing these +scattered observations, intended to stimulate rather than to satisfy +curiosity, I will add three remarks suggested by the sketch that has +been given. + +The first remark is that Iceland presents one of the few instances in +history of a breach in the continuity of institutional development. The +settlers were all of Norse stock; and Norway had in its petty +communities a rudimentary system of institutions not unlike that +described by Tacitus in his account of Germany, or that which the +conquering Angles and Saxons brought to Britain. Each community was an +independent Fylki (folk). In each Fylki there was a number of nobles, +one of whom stood foremost as hereditary chieftain, and a body of +warlike freemen, as well as a certain number of slaves. In each there +was a popular assembly, the Þing, corresponding to our Saxon Folk Mot. +Now owing to the way in which the settlers had planted themselves along +the coasts of Iceland, and to the fact that they were less closely +aggregated there than men had been in Norway, this organization did not +reappear in the new land. There was indeed everywhere a Þing, for the +habit of meeting to deal with lawsuits and other matters of common +interest was cherished as the very foundation of society. But an +Icelandic community was not a Fylki. It was not an old natural growth, +but rather a group of families whose tie was at first only that of local +proximity and thereafter that also of worship at a common temple. The +Goði, though he became the centre of this group, was not a chieftain +with a hereditary claim to leadership, and was not necessarily of any +higher lineage than some of his þingmen. Such eminent and high-born men +as Njál for instance and Egil Skallagrimsson were not Goðis. The Goðorð +was really a new institution, due to the special circumstances of +Iceland, and apparently without precedent among the Teutonic races. +Still more plainly was the organization of the Republic with its scheme +of Courts and its Lögrétta a new creation, due to the wisdom and public +spirit of the leading men of the nation, and not a purely natural +growth. + +Secondly, as the Icelandic Republic is a new form of political society, +so the Alþing, in which the unity of the Republic found visible +expression, is a unique body, which cannot be referred to any one of the +familiar types of assembly. It is not a Primary Assembly, for though all +freemen are present, only a limited number of persons are entitled to +exercise either judicial or legislative functions. Neither is it a +Representative Assembly, for no one was elected to sit in it as a +delegate from others. The Goðis sat each by his own right, and the other +members as nominees of the Goðis. Neither again is it a sort of King’s +Council, like the Curia Regis of mediaeval England, consisting of +magnates and official advisers summoned by a monarch. If parallels to it +are to be sought, they are to be sought rather in bodies such as the +Roman Senate may have been in its earlier form, a sort of council of the +heads of organized communities; yet the differences between the Roman +_gentes_ and the Icelandic Þingmen, and the absence of an executive +magistrate like the Roman king, make the parallel anything but close. +Still more remote is the resemblance which the Alþing might be deemed to +bear to the council of a league, such as was the Swiss Confederation +before 1799, or such as the Diet of the Romano-Germanic Empire in its +later days. + +The comparison of Iceland to a federation suggests a third question. Why +did not the Republic develop into a united State, whether republican or +monarchical, as did most of the nations of mediaeval Europe? + +Out of several reasons that might be assigned I will mention three only, +two of them political, the third physical. + +In Iceland there was no single great family with any hereditary claim to +stand above the others, while all the leading families were animated by +a high sense of pride and a pervading sentiment of equality. This love +of equality remains among the sons of the old Norsemen both in Iceland +and in Norway, and is indeed stronger there than anywhere else in +Europe. + +Iceland had not, and could not have, any foreign wars. There was +therefore no external strife to consolidate her people, no opportunity +for any leader to win glory against an enemy, or to create an army on +which to base his power. All the wars were civil wars, and tended to +disunion. + +The third reason is to be found in the nature of the country. The +island, larger than Ireland, has practically no land fit for tillage, +and very little fit even for pasture. Neither has it any internal trade. +The interior is occupied by snow mountains and glaciers and lava-fields +and wastes of black volcanic sand or pebbles. Iceland is really one huge +desert with some habitable spots scattered along its coasts. It was the +Desert that most of all destroyed the chances of political unity under a +republic by dividing the people into numerous small groups, far removed +from one another, and in many places severed by rugged and barren +wastes, or by torrents difficult to cross. + +Nevertheless, although the Republic was evidently destined to perish, it +is possible that had Iceland been left to herself the rivalry of the two +or three great factions which divided it, and were usually in arms +against one another, would have ended in the triumph of one of them, and +in the establishment of a monarchy, or (less probably) of several +independent rival principalities. But a new and more formidable figure +now appeared on the scene. The successors of King Harald the Fairhaired +had always held that the Icelanders, since their ancestors had come from +Norway, ought to own their supremacy[139], and they argued that as +monarchical government was divinely appointed, and prevailed everywhere +in Continental Europe, no republic had a right to exist. King Hákon +Hákonsson (Hákon IV), one of the greatest among the kings of Norway, now +found in the distracted state of the island a better opportunity of +carrying out the plans which his predecessors Olaf Tryggvason and Olaf +the Saint had been obliged, by the watchfulness of the Alþing, to +abandon. By bribes and by threats, by drawing the leading Icelanders to +his Court, and sending his own emissaries through the island, he +succeeded in gaining over the few chiefs who now practically controlled +the Alþing, and at the meeting of midsummer, A.D. 1262 (one year before +the battle of Largs, which saved Scotland from the invasion of this very +Hákon), the Southern, Western and Northern Quarters accepted the King of +Norway as their sovereign, while in 1264 (the year of the summoning of +the first representative Parliament of England by Earl Simon de +Montfort) the remaining districts which had not yet recognized the +Norwegian Crown, now held by Magnus son of Hákon, made a like +submission. Thenceforward Iceland has followed the fortunes first of +Norway and then of Denmark. In 1814, when Norway was severed from the +Danish and transferred to the Swedish Crown, Iceland ought to have gone +with Norway. But nobody at the Congress of Vienna knew or cared about +the matter[140]: and so Iceland remains attached to Denmark, for which +she has little love. + +----- + +Footnote 139: + + This claim of a Crown to the allegiance of emigrants who had passed + into new lands reminds one of that made by the British Government, + down to 1852 and 1854, as respects the Dutch farmers who had gone + forth into the wilderness of South Africa in 1836. + +Footnote 140: + + The preliminaries to the Treaty of Kiel by which Norway was severed + from the Danish Crown to be attached to the Swedish refer to Iceland, + the Faeroe Isles, and Greenland as having ‘never belonged to Norway.’ + +----- + +With the free republic the literature which had given it lustre withered +up and disappeared. Only one work of high merit, the religious poem +called _The Lily_, was produced in the centuries that succeeded down to +the Reformation, when the spirit of the people was again stirred, and a +succession of eminent writers began which has never failed down to our +own day. But in the darkest times, in the ignorance and gloom of the +fifteenth century, in the pestilences and famine caused by the terrible +volcanic eruptions of the eighteenth, which are said to have destroyed +one-fifth of the population, the Icelanders never ceased to cherish and +enjoy their ancient Sagas. No farmhouse wanted its tiny store of +manuscripts, which were and still are read aloud in the long nights of +winter, while the women spin and the men make nets and harness. And it +is beyond doubt chiefly owing to the profusion and the literary +splendour of these works of a remote antiquity—works produced in an age +when England and Germany, Italy and France had nothing better than dull +monkish annalists or the reciters of such a tedious ballad epic as the +_Song of the Nibelungs_—that the Icelandic language has preserved its +ancient strength and purity, and that the Icelandic nation, a handful of +people scattered round the edge of a vast and dreary wilderness, has +maintained itself, in face of the overwhelming forces of nature, at so +high a level of culture, virtue and intelligence. + + + + + VI + + THE + UNITED STATES CONSTITUTION + AS SEEN IN THE PAST + + THE PREDICTIONS OF HAMILTON AND TOCQUEVILLE + + +He who desires to discover what have been the main tendencies ruling and +guiding the development of American institutions, will find it +profitable to examine what were the views held and predictions +delivered, at different epochs in the growth of the Republic, by acute +and well-informed observers. There is a sort of dramatic interest in +this method of inquiry, and it is calculated to temper our +self-confidence in judging the phenomena of to-day. Besides, it helps us +to realize, better than we can do merely by following the course of +events, what aspect the political landscape wore from time to time. When +we read a narrative, we read into the events our knowledge of all that +actually flowed from them. When we read what the contemporary observer +expected from them as he saw them happening we reach a truer +comprehension of the time. + +To collect and set forth a representative anthology of political +prophecies made at critical epochs in the history of the United States, +would be a laborious undertaking, for one would have to search through a +large number of writings, some of them fugitive writings, in order to +present adequate materials for determining the theories and beliefs +prevalent at any given period. I attempt nothing so ambitious. I desire +merely to indicate, by a comparatively simple example, how such a method +may be profitably followed, disclaiming any pretensions to dig deep into +even the obvious and familiar materials which students of American +history possess. + +For this purpose, then, I will take two famous books—the one written at +the very birth of the Union by those who watched its cradle, and +recording incidentally, and therefore all the more faithfully, the +impressions and anticipations of the friends and enemies of the infant +Constitution; the other a careful study of its provisions and practical +working by a singularly fair and penetrating European philosopher. I +choose these books not only because both are specially representative +and of rare literary merit, but because they are easily accessible to +European as well as American readers, who may, by referring to their +pages, supply the omissions which want of space will compel me to make, +and may thereby obtain a more full and graphic transcript of +contemporary opinion. One of these books is _The Federalist_[141]—a +series of letters recommending the proposed Constitution for adoption to +the people of New York, written in 1788 by Alexander Hamilton, +afterwards Secretary of the Treasury, James Madison, afterwards +President from 1809 to 1817, and John Jay, afterwards Chief Justice from +1789 to 1795. They were all signed _Publius_. The other, which falls not +quite halfway between 1788 and our own time, is the _Democracy in +America_ of Alexis de Tocqueville. + +----- + +Footnote 141: + + There are several good editions of _The Federalist_. The latest and + one of the best known to me is that edited by Mr. Paul Leicester Ford + (New York, 1898). + +----- + + + I. THE UNITED STATES AT THE ADOPTION OF THE CONSTITUTION. + +I begin by briefly summarizing the record which _The Federalist_ +preserves for us of the beliefs of the opponents and advocates of the +Draft Constitution of 1787 regarding the forces then at work in American +politics and the probable future of the nation. + +To understand those beliefs, however, we must bear in mind what the +people of the United States then were, and for that purpose I will +recall the reader’s attention to some of the more salient aspects of the +Republic at the epoch when its national life began. + +In 1783 the last British soldier quitted New York, the last stronghold +that was held for King George. In 1787 the present Constitution of the +United States was framed by the Convention at Philadelphia, and in 1788 +accepted by the requisite number of States (nine). In 1789 George +Washington entered on his Presidency, the first Congress met and the +machine began to work. It was a memorable year for Europe as well as for +America—a year which, even after the lapse of more than a century, we +are scarcely yet ripe for judging, so many sorrows as well as blessings, +πολλὰ μὲν ἐσθλlὰ μεμιγμένα, πολλὰ δὲ λυγρά, were destined to come upon +mankind from those elections of the States-General which were proceeding +in France while Washington was being installed at Philadelphia. + +All of the thirteen United States lay along the Atlantic coast. Their +area was 827,844 square miles, their population 3,929,214, little more +than half the population of New York State in 1900. Settlers had already +begun to cut the woods and build villages beyond the Alleghanies; but +when Kentucky was received as a State into the Union in 1792, she had a +population of only 80,000. The population was wholly of English (or +Anglo-Scottish) stock, save that a few Dutch were left in New York, a +few persons of Swedish blood in Delaware, and some isolated German +settlements in Pennsylvania. But in spite of this homogeneity the +cohesion of the States was weak. Communication was slow, difficult and +costly. The jealousies and suspicions which had almost proved fatal to +Washington’s efforts during the War of Independence were still rife. +There was some real conflict, and a far greater imagined conflict, of +interests between the trading and the purely agricultural States, even +more than between the slave States and those in which slavery had +practically died out. Many competent observers doubted whether the new +Federal Union, accepted only because the Confederation had proved a +failure and the attitude of foreign powers was threatening, could +maintain itself in the face of the strong sentiment of local +independence animating the several colonies, each of which, after +throwing off the yoke of Britain, was little inclined to brook any +control but that of its own legislature. The new Constitution was an +experiment, or rather a bundle of experiments, whose working there were +few data for predicting. It was a compromise, and its own authors feared +for it the common fate of compromises—to satisfy neither party and to +leave open rents which time would widen. In particular, it seemed most +doubtful whether the two branches of the Legislature, drawn from so wide +an area and elected on different plans, would work harmoniously, and +whether general obedience would be yielded to an executive President who +must necessarily belong to and seem to represent one particular State +and section of the country. Parties did not yet exist, for there was as +yet hardly a nation; but within a decade they grew to maturity and +ferocity. One of them claimed to defend local self-government, the +rights of the people, democratic equality; the other, the principle of +national unity and the authority of the Federal power. One sympathized +with France, the other was accused of leaning to an English alliance. +They were, or soon came to be, divided not merely on burning questions +of foreign policy and home policy, but also—and this was an issue which +mixed itself up with everything else—as to the extent of the powers to +be allowed to the central Government and its relations to the +States—questions which the curt though apparently clear language of the +Constitution had by no means exhausted. + +Slavery was not yet a burning question—indeed it existed to some slight +extent in the Middle as well as in the Southern States, but the +opposition of North and South was already visible. The Puritanism of New +England, its industries and its maritime commerce, gave it different +sentiments as well as different interests from those which dominated the +inhabitants of the South, a population wholly agricultural, among whom +the influence of Jefferson was strong, and theories of extreme democracy +had made progress. + +There was great diversity of opinion and feeling on all political +questions in the America of those days, and the utmost freedom in +expressing it. Over against the extreme democrats stood an illustrious +group whose leader was currently believed to be a monarchist at heart, +and who never concealed his contempt for the ignorance and folly of the +crowd. Among these men, and to a less extent among the Jeffersonians +also, there existed no small culture and literary power, and though the +masses were all orthodox Christians and, except in Maryland, orthodox +Protestants, there was no lack of scepticism in the highest circles. One +may speak of highest circles, for social equality, though rapidly +advancing and gladly welcomed, was as yet rather a doctrine than a fact: +and the respect for every kind of authority was great. There were +neither large fortunes nor abject poverty: but the labouring class, then +far less organized than it is now, deferred to the middle class, and the +middle class to its intellectual chiefs. The clergy were powerful in New +England: the great colonial families enjoyed high consideration in New +York, in Pennsylvania, and above all in Virginia, whose landowners +seemed to reproduce the later semi-feudal society of England. Although +all the States were republics of a hue already democratic, every State +constitution required a property qualification for the holding of office +or a seat in the Legislature, and, in most States, a similar condition +was imposed even on the exercise of the suffrage. Literary men (other +than journalists) were rare, the universities few and old-fashioned in +their methods, science scarcely pursued, philosophy absorbed in theology +and theology dryly dogmatic. But public life was adorned by many +striking figures. Five men at least of that generation, Washington, +Franklin, Hamilton, Jefferson and Marshall, belong to the history of the +world; and a second rank which included John Adams, Madison, Jay, +Patrick Henry, Gouverneur Morris, Roger Sherman, James Wilson, Albert +Gallatin, and several other gifted figures less familiar to Europe, must +be mentioned with respect. + +Everybody professed the principles of the Declaration of Independence, +and therefore held a republican form of government to be the only +proper, or at any rate the only possible form for the central authority +as well as for the States. But of the actual working of republican +governments there was very little experience, and of the working of +democracies, in our present sense of the word, there was really none at +all beyond that of the several States since 1776, when they broke loose +from the British Crown. Englishmen are more likely than other Europeans +to forget that in 1788 there was in the Old World only one free and no +democratic nation[142]. In Europe there now remain but two strong +monarchies, those of Russia and Prussia, while the Western hemisphere, +scarcely excepting Dutch and British Guiana and Canada, is entirely (at +least in name) republican. But the world of 1788 was a world full of +monarchs—despotic monarchs—a world which had to go back for its notions +of popular government to the commonwealths of classical antiquity. Hence +the speculations of those times about the dangers, and merits, and +tendencies characteristic of free governments, were and must needs be +vague and fantastic, because the materials for a sound induction were +wanting. Wise men, when forced to speculate, recurred to the general +principles of human nature. Ordinary men went off into the air and +talked at large, painting a sovereign people as reckless, violent, +capricious on the one hand, or virtuous and pacific on the other, +according to their own predilections, whether selfish or emotional, for +authority or for liberty. Though no one has yet written the natural +history of the masses as rulers, the hundred years since 1788 have given +us materials for such a natural history surpassing those which Hamilton +possessed almost as much as the materials at the disposal of Darwin +exceeded those of Buffon. Hence in examining the views of the +_Federalist_ writers[143] and their antagonists, we must expect +sometimes to find the diagnosis inexact and the prognosis fanciful. + +----- + +Footnote 142: + + The Swiss Confederation was hardly yet a nation, and few of the + cantons were governed democratically. + +Footnote 143: + + Of these writers Hamilton must be deemed the leading spirit, not + merely because he wrote by far the larger number of letters, but + because his mind was more penetrating and commanding than either + Madison’s or Jay’s. Madison rendered admirable service in the + Philadelphia Convention of 1787, but afterwards yielded to the + influence of Jefferson, a character with less balance but more force + and more intellectual fertility. + +----- + + + II. PREDICTIONS OF THE OPPONENTS AND ADVOCATES OF THE CONSTITUTION. + +Those who opposed the Draft Constitution of 1787, a party both numerous +and influential in nearly every State, were the men specially democratic +and also specially conservative. They disliked all strengthening of +government, and especially the erection of a central authority. They +were satisfied with the system of sovereign and practically independent +States. Hence they predicted the following as the consequences to be +expected from the creation of an effective Federal executive and +legislature[144]. + +1. The destruction of the States as commonwealths. The central +government, it was said, would gradually encroach upon their powers; +would use the federal army to overcome their resistance; would supplant +them in the respect of their citizens; would at last swallow them up. +The phrase ‘consolidation of the Union,’ which had been used by the +Convention of 1787 to recommend its draft, was laid hold of as a term of +reproach. ‘Consolidation,’ the absorption of the States by or into one +centralized government, became the popular cry, and carried away the +unthinking. + +2. The creation of a despot in the person of the President. His legal +authority would be so large as not only to tempt him, but to enable him, +to extend it further, at the expense of the liberties both of States and +of people. ‘Monarchy,’ it was argued, ‘thrown off after such efforts, +will in substance return with this copy of King George III, whose +command of the federal army, power over appointments, and opportunities +for intriguing with foreign powers on the one hand and corrupting the +legislature on the other[145], will render the new tyrant more dangerous +than the old one. Or if he be more open to avarice than to ambition, he +will be the tool of foreign sovereigns and the means whereby they will +control or enslave America[146].’ + +----- + +Footnote 144: + + I take no account of those objections to the Constitution which may be + deemed to have been removed by the first eleven amendments. + +Footnote 145: + + See _The Federalist_, No. LIV. + +Footnote 146: + + _The Federalist_, No. LXVI, p. 667. ‘Calculating upon the aversion of + the people to monarchy, the writers against the Constitution have + endeavoured to enlist all their jealousies and apprehensions in + opposition to the intended President of the United States, not merely + as the embryo but as the full-grown progeny of that detested parent. + They have to establish the pretended affinity, not scrupled to draw + resources even from the regions of fiction. The authority of a + magistrate in few instances greater, in some instances less, than + those of a Governor of New York, have been magnified into more than + royal prerogatives. He has been decorated with attributes superior in + dignity and splendour to those of a King of Great Britain. He has been + shown to us with the diadem sparkling on his brow and the imperial + purple flowing in his train. He has been seated on a throne surrounded + with minions and mistresses, giving audience to the envoys of foreign + potentates in all the supercilious pomp of majesty. The images of + Asiatic despotism and voluptuousness have scarcely been wanting to + crown the exaggerated scene. We have been taught to tremble at the + terrific visages of murdering janizaries, and to blush at the unveiled + mysteries of a future seraglio.’ + + These were the days when Johnson and Gibbon ruled English style. + +----- + +3. The Senate will become an oligarchy. Sitting for six years, and not +directly elected by the people, it ‘must gradually acquire a dangerous +pre-eminence in the government, and finally transform it into a +tyrannical aristocracy[147].’ + +----- + +Footnote 147: + + _The Federalist_, No. LXII. + +----- + +4. The House of Representatives will also, like every other legislature, +aim at supremacy. Elected only once in two years, it will forget its +duty to the people. It will consist of ‘the wealthy and well-born,’ and +will try to secure the election of such persons only as its +members[148]. + +----- + +Footnote 148: + + _The Federalist_, Nos. LVI and LIX. + +----- + +5. The larger States will use the greater weight in the government which +the Federal constitution gives them to overbear the smaller States. + +6. The existence of a strong central government is not only likely, by +multiplying the occasions of diplomatic intercourse with foreign powers, +to give openings for intrigues by them dangerous to American +independence, but likely also to provoke foreign wars, in which the +republic will perish if defeated, or if victorious maintain herself only +by vast expenditure, with the additional evil of having created in an +army a standing menace to freedom. + +That some of these anticipations were inconsistent with others of them +was no reason why even the same persons should not resort to both in +argument. Any one who wishes to add to the number, for I have quoted but +a few, being those which turn upon the main outlines of the Philadelphia +draft, may do so by referring to the record, known as Elliott’s Debates, +of the discussions in the several State Conventions which deliberated on +the new Constitution. It is an eminently instructive record. + +I pass from the opponents of the Constitution to its advocates. Hamilton +and its friends sought in it a remedy against what they deemed the +characteristic dangers of popular government. It is by dwelling on these +dangers that they recommend it. We can perceive, however, that, while +lauding its remedial power, they are aware how deep-seated such dangers +are, and how likely to recur even after the adoption of the +Constitution. The language which Hamilton held in private proves that he +desired a more centralized government, which would have approached +nearer to that British Constitution which he regarded as being, with all +its defects (and partly owing to its corruptions!), the best model for +free nations[149]. He feared anarchy, and thought that only a strong +national government could avert it. And in a remarkable letter written +in February, 1802, under the influence of disappointment with the course +events were then taking, he describes, in his somewhat sweeping way, the +Constitution he was ‘still labouring to prop’ as a ‘frail and worthless +fabric.’ + +----- + +Footnote 149: + + Though he, like other observers of that time, had not realized, and + might not have relished, the supremacy, now become omnipotence, which + the House of Commons had already won. + +----- + +We may therefore legitimately treat his list of evils to be provided +against by the new Federal Government as indicating the permanently +mischievous tendencies which he foresaw. Some of them, he is obliged to +admit, cannot be wholly averted by any constitutional devices, but only +by the watchful intelligence and educated virtue of the people. + +The evils chiefly feared are the following:— + +1. The spirit and power of faction, which is so clearly the natural and +necessary offspring of tendencies always present in mankind, that +wherever liberty exists it must be looked for[150]. + +----- + +Footnote 150: + + _The Federalist_, No. X (written by Madison), and in other letters. + +----- + +Its causes are irremovable; all you can do is to control its effects, +and the best prospect of overcoming them is afforded by the +representative system and the wide area of the United States with the +diversities among its population. + +2. Sudden impulses, carrying the people away and inducing hasty and +violent measures[151]. + +----- + +Footnote 151: + + _The Federalist_, No. LXII. + +----- + +3. Instability in foreign policy, due to changes in the executive and in +public sentiment, and rendering necessary the participation of a +comparatively small council or Senate in the management of this +department. + +4. Ill-considered legislation. ‘Facility and excess of law-making[152],’ +and ‘inconstancy and mutability in the laws[153],’ form the ‘greatest +blemish in the character and genius of our governments.’ + +----- + +Footnote 152: + + _The Federalist_, No. LXI. + +Footnote 153: + + _The Federalist_, No. LXXII. + +----- + +5. The Legislature is usually the strongest power in free governments. +It will seek, as the example of the English Parliament shows, to +encroach upon the other departments; and this is especially to be feared +from the House of Representatives as holding the power of the +purse[154]. + +----- + +Footnote 154: + + ‘The Legislative Department is everywhere (_i.e._ in all the States) + extending the sphere of its activity and drawing all power into its + impetuous vortex.... It is against the enterprising ambition of this + department that the People ought to indulge all their jealousy and + exhaust all their precautions’ (_The Federalist_, No. XLVII). The + people have now begun to resort to precautions; but it is not the + ambition of State legislatures that is feared, it is their + subserviency to private interests or the party machine. + +----- + +6. The States, and especially the larger States, may overbear the +Federal Government. They have closer and more constant relations with +the citizen, because they make and administer the ordinary laws he lives +under. His allegiance has hitherto belonged to them, and may not be +readily given to the central authority. In a struggle, should a struggle +come, State power is likely to prevail against Federal power. + +7. There is in republics a danger that the majority may oppress the +minority. Already conspicuous in some of the State governments, as for +instance in Rhode Island, this danger may be diminished by the +application of the federal system to the great area of the Union, where +‘society will be broken into so many parts, interests, and classes of +citizens, that the rights of individuals or of the minority will be in +little danger from interested combinations of the majority[155].’ + +----- + +Footnote 155: + + _The Federalist_, No. L. + +----- + +8. Another source of trouble is disclosed by the rash and foolish +experiments which some States have tried in passing laws which threaten +the validity of contracts and the security of property. There are also +signs of weakness in the difficulty which State Governments have found +in raising revenue by direct taxation[156]. Citizens whose poverty does +not excuse their want of public spirit refuse to pay; and the +administration fears to coerce them. + +----- + +Footnote 156: + + _The Federalist_, No. XII. + +----- + +Not less instructive than the fears of _The Federalist_ writers are +their hopes. Some of the perils which have since been disclosed are not +divined. Some institutions which have conspicuously failed are relied on +as full of promise. + +The method of choosing the President is recommended with a confidence +the more remarkable because it was the point on which the Convention had +been most divided and had been latest in reaching an agreement. + +‘If the manner of the appointment of the Chief Magistrate be not +perfect, it is at least excellent. It unites in an eminent degree all +the advantages the union of which was to be wished for.... The process +of election affords a moral certainty that the office of President will +never fall to the lot of any one who is not in an eminent degree endowed +with the requisite qualifications. Talents for low intrigue, and the +little arts of popularity, may alone suffice to elevate a man to the +first honours in a single State, but it will require other talents and a +different kind of merit to establish him in the confidence and esteem of +the whole Union, or of so considerable a portion of it as would be +necessary to make him a successful candidate for the distinguished +office of President of the United States. It will not be too strong to +say that there will be a constant probability of seeing the station +filled by characters pre-eminent for ability and virtue[157].’ + +----- + +Footnote 157: + + _The Federalist_, No. LXVII. In A.D. 1800, twelve years after Hamilton + wrote this passage, the contest for the Presidency lay between + Jefferson and Aaron Burr, and Hamilton was compelled by his sense of + Burr’s demerits to urge his party to vote (when the choice came before + the House of Representatives) for Jefferson, his own bitter enemy. + What he thought of Burr, who, but for his intervention, would + certainly have obtained the chief magistracy of the nation (and by + whose hand he ultimately died), may be inferred from the fact that he + preferred as President the man of whom he thus writes: ‘I admit that + his (Jefferson’s) politics are tinctured with fanaticism; that he is + too much in earnest in his democracy; that he has been a mischievous + enemy to the principal measures of our past administration; that he is + crafty and persevering in his objects; that he is not scrupulous about + the means of success, nor very mindful of truth; and that he is a + contemptible hypocrite. But, &c.’ (Letter to James A. Bayard, Jan. 16, + 1801.) + + After this it is superfluous, as it would be invidious, to dwell on + the deficiencies of some recent Presidents or Presidential candidates. + +----- + +It is assumed that America will continue an agricultural and (to a less +extent) a commercial country, but that she will not develop +manufactures; and also that the fortunes of her citizens will continue +to be small[158]. No serious apprehensions regarding the influence of +wealth in elections or in politics generally are expressed. + +----- + +Footnote 158: + + ‘The private fortunes of the President and Senators, as they must all + be American citizens, cannot possibly be sources of danger’ (_The + Federalist_, No. LIV). + +----- + +The contingency of a division of the States into two antagonistic groups +is not contemplated. When the possibility of State combinations is +touched on, it is chiefly with reference to the action of small and of +large States respectively. In particular no hint is dropped as to the +likelihood of the institution of slavery becoming a bond to unite the +Southern States and a cause of quarrel between them and the Northern. +Yet slavery had given trouble in the Philadelphia Convention, and an +opposition of North and South grounded upon it soon emerged. + +Although the mischiefs of faction are dwelt on, nothing indicates that +its embodiment in highly developed party systems, whose organizations +might overshadow the legal government, had occurred to any one’s mind. +Still less, of course, is there any anticipation of the influence to be +exerted on politics by the distribution of offices. Not till long +afterwards were they treated as ‘spoils of war.’ + + + III. CRITICISM OF THE PREDICTIONS OF 1788. + +Let us now see which of these views and forecasts have been verified by +the event. + +Of those put forth by the opponents of the Constitution not one has +proved true. The States are still strong, the President is not a despot, +though for a time during the Civil War he came near being one, nor has +he ever fallen under the influence of any European power. The House does +not consist of the ‘wealthy and well-born.’ The larger States do not +combine against nor press hardly on the smaller. No great country has +had so few wars or indeed so few foreign complications of any kind[159]. +The Senate is still often called ‘an oligarchy,’ but this means only +that it consists of comparatively few persons, most of them wealthy, and +that it has a strong corporate feeling in favour of the personal +interests of each of its members. It is really as dependent on public +opinion as the House, perhaps even more afraid of public opinion, and as +directly the creature of party machinery, though less directly of +popular election. + +----- + +Footnote 159: + + Three wars since 1789: that of 1812, that of 1845, and that of 1898. + Every one of these might no doubt have been avoided with honour, and + two of them savoured of aggression, but the same may be said of nearly + all the wars of European States. + +----- + +One is surprised to find that of the many arrows of accusation levelled +at the Constitution, all should have flown wide of the mark. + +The deeper insight and more exact thinking of Hamilton and Madison +fastened upon most of the real and permanent weaknesses in popular +government. Yet even they could not foresee the particular forms which +those weaknesses would assume in the new nation. To examine in detail +the eight points specified above would involve an examination of +American history for a century. I shall therefore simply indicate in a +word or two the extent to which, in each case, the alarms or predictions +of _The Federalist_ may be deemed well grounded. + +1. The spirit of faction has certainly, as Madison expected, proved less +intense over the large area of the Union than it did in the Greek +republics of antiquity or in the several States from 1776 to 1789. On +the other hand, the bonds of sympathy created by the Federal system have +at times enabled one State to infect another with its own vehemence. But +for South Carolina, there would have been no secession in 1861. Since +1880 the ‘demon of faction’ has been less powerful in the parties than +at any previous date since the so-called ‘Era of Good Feeling’ in 1820. + +2. Sudden popular impulses there have been. But finding a ready and +constitutional expression in elections, they do not induce a resort to +arms, while the elaborate system of checks on legislation seldom allows +them to result in the passing of dangerous measures by Congress. In some +States the risk of bad laws is serious, but it is lessened by the +provisions of the Federal Constitution as well as by the veto power of +the State Governor and the restrictions of recent State Constitutions. + +3. The early history of the Union furnishes illustrations of feebleness +and inconstancy in foreign policy, yet not greater than those which mark +most monarchies. Royal caprice, or the influence of successive +favourites, has proved more pernicious in absolute kingdoms or +principalities than popular fickleness in republics. That the foreign +policy of the United States was singularly consistent down till 1898, +when it suddenly took an entirely ‘new departure’ was not due to the +Senate. It must be credited partly to the good sense of the people, +partly to the fact that the position and interests of the nation +prescribed certain broad and simple lines. + +4. Whatever may be thought of its handling of private bills, Congress +was seldom prone to haste or reckless expenditure in legislation on +public matters, until it passed the amazing Pensions Act of 1890. Nor +has it given the country too many laws. It has been on the whole more +blameable for what it neglects or postpones than for what it enacts. The +censure is more true of the States, especially the newer Western States. + +5. The House of Representatives has doubtless sought to extend its sway +at the expense of other departments. Whether it has succeeded is a +question on which competent observers in America itself differ; but the +fact of their differing proves that the encroachments have not been +considerable. Whenever the President is weak or unpopular, Congress +seems to be gaining on the Executive Chief. When the latter is or seems +strong, he can keep the Legislature at bay. + +6. In the struggle which never quite ceases, though it is often scarcely +noticed, between the States and the Federal Government, the States have +on the whole lost ground. Nor are the larger States practically more +formidable than the small ones. The largest is small compared with the +immense Union. No State would now venture to brave the Federal Judiciary +as Georgia did, and for a time did successfully (1832), in one of the +painful cases regarding the Cherokee Indians. + +7. The so-called Tyranny of the Majority, a subject too large to be +fully examined here[160], has not hitherto proved a serious evil in +America. This, however, is due rather to the character and habits of the +people and their institutions generally than to the mere extent and +population of the Union, on which the _Federalist_ writers relied. + +----- + +Footnote 160: + + The subject is discussed in the author’s _American Commonwealth_, + chaps. lxxxiv and lxxxv. + +----- + +8. There has been some unwise Congressional legislation, especially in +currency matters, and, of course, much more of unwise State legislation. +But property is secure, and the sense of civic duty seems, on the whole, +to be improving. + +It will appear from this examination, and from the fact (noted a few +pages back) that some remarkable developments which political life has +taken never crossed the minds of the authors of _The Federalist_, that +these wisest men of their time did not foresee what strike us to-day as +the specially characteristic virtues and faults of American democracy. +Neither the spoils system nor the system of party nominations by +wire-pullers crossed their minds. They did not foresee the inordinate +multiplication of elections, nor the evils of confining eligibility for +a seat in the legislature to a person resident in the electing district, +nor the disposition to ‘play down’ to the masses by seductive proposals. +That the power which money might come to exert lay quite out of their +view is not to be wondered at, for no large fortunes then existed. No +student of history will deem that these omissions detract from their +greatness, for history teaches nothing more plainly than the vanity of +predictions in the realm of what we call the moral and political +sciences, in religion, in ethics, in sociology, in government and +politics. Deep thinkers help us when they unfold those permanent truths +of human nature which come everywhere into play. Historians help us +when, by interpreting the past, they demonstrate what are the tendencies +that have gone to create the present. Observers keen enough to interpret +the underlying phenomena of their own time may help us by showing which +of the tendencies now at work are likely to become ruling factors in the +near future. But beyond the near future—that is to say, beyond the +lifetime of the generation which already holds power—no true philosopher +will venture. He may indulge his fancy in picturing the details of the +remoter landscape; but he knows that it is a region fit for fancy, not +for science. In the works of great thinkers there are to be found some +happy guesses about times to come; but these are few indeed, compared +with the prophecies whose worthlessness was so soon revealed that men +forgot they had ever been made, or the dreams which, like those of +Dante, idealized an impossible future from an irrevocable past. + +As regards the views of Hamilton and Madison, who, be it remembered, do +not present themselves as prophets, but as the censors of present evils +which they are seeking to remedy, it may be added that the Constitution +which they framed and carried checked some of these very evils (_e.g._ +the unjust law-making and reckless currency experiments of the State +legislatures); and that it was obviously impossible till the Federal +government had begun to work to say how the existing forces could adapt +themselves to it. Hamilton remarks in one of his letters that he holds +with Montesquieu that a nation’s form of government ought to be fitted +to it as a suit of clothes is fitted to its wearer[161]. He would +doubtless have added that one cannot make sure of the fit until the suit +has been tried on. + +----- + +Footnote 161: + + ‘I hold with Montesquieu that a government must be fitted to a nation + as much as a coat to the individual; and consequently that what may be + good at Philadelphia may be bad at Paris and ridiculous at + Petersburgh.’ To Lafayette, Jan. 6, 1799. + +----- + +We must remember, moreover, that the causes which have affected the +political growth of America are largely causes which were in 1788 +altogether beyond human ken. The cotton gin, Napoleon’s willingness to +sell Louisiana, steam communications by water and land, Irish and German +immigration, have swayed the course of that history; but even the first +of these factors had not risen over the horizon in that year, and the +last did not become potent till halfway through the nineteenth +century[162]. + +----- + +Footnote 162: + + The first cargo of cotton was sent from America to Europe in 1791, and + the cotton gin invented in 1793. + +----- + +What the sages of the Convention do show us are certain tendencies they +discern in their contemporaries, viz.:— + +Recklessness and unwisdom in the masses, producing bad laws. + +Unwillingness to submit to or support a strong government. + +Abuse by the majority of its legal power over the minority. + +Indifference to national as compared with local and sectional interests, +and consequent preference of State loyalty to national loyalty. + +That each of these tendencies then existed, and might have been expected +to work for evil, admits of no doubt. But if we ask American history +what it has to say about their subsequent course, the answer will be +that the second and third tendencies have declined, and do not at +present menace the public welfare, while the first, though never absent +and always liable to marked recrudescence, as the annals of the several +States prove, has done comparatively little harm in the sphere of +national government. As to the fourth, which Hamilton seems to have +chiefly feared, it ultimately took the form, not of a general +centrifugal force, impelling each State to fly off from the system, but +of a scheme for the separation of the Southern or slave-holding States +into a separate Confederacy, and in this form it received, in 1865, a +crushing and apparently final defeat[163]. + +----- + +Footnote 163: + + When we come to Tocqueville, we shall find him touching but lightly on + the two first of the above tendencies (partly, perhaps, because he + attends too little to the State governments), but emphasizing the + third and fearing from the fourth the dissolution of the Union. + +----- + + + IV. TOCQUEVILLE AND HIS BOOK. + +Fifty-one years after the recognition of the independence of the United +States, sixty-seven years before the beginning of the twentieth century, +Alexis de Tocqueville published his _Democracy in America_, one of the +few treatises on the philosophy of politics which has risen to the rank +of a classic. His book, therefore, stands rather further than halfway +back between our own days and those first days of the Republic which we +know from the writings of the Fathers, of Washington, Jefferson, Adams, +Hamilton, Madison. It offers a means of measuring the changes that had +passed on the country during the half-century from the birth of the +Union to the visit of its most famous European critic, and again from +the days of that critic to our own. + +It is a classic, and because it is a classic, one may venture to canvas +it freely without the fear of seeming to detract from the fame of its +author. The more one reads Tocqueville, the more admiration does one +feel for the acuteness of his observation, for the delicacy of his +analysis, for the elegant precision of his reasonings, for the limpid +purity of his style; above all, for his love of truth and the elevation +of his character. He is not only urbane, but judicial; not only noble, +but edifying. There is perhaps no book of the generation to which he +belonged which contains more solid wisdom in a more attractive dress. + +We have here, however, to regard the treatise, not as a model of art and +a storehouse of ethical maxims, but as a picture and criticism of the +government and people of the United States. And before using it as +evidence of their condition seventy years ago, we must appraise the +reliance to be placed upon it[164]. + +----- + +Footnote 164: + + Some interesting remarks upon Tocqueville’s tour in America and upon + his views of American affairs may be found in President Gilman’s + Introduction to a recent edition (1898) of the English translation of + Tocqueville’s book. + +----- + +First let it be observed that not only are Tocqueville’s descriptions of +democracy as displayed in America no longer true in many points, but +that in certain points they never were true. That is to say, some were +true of America, but not of democracy in general, while others were true +of democracy in general, but not true of America. It is worth while to +attempt to indicate the causes of such errors as may be discovered in +his picture, because they are errors which every one who approaches a +similar task has to guard against. Tocqueville is not widely read in the +United States, where the scientific, historical, and philosophical study +of the institutions of the country, apart from the legal study of the +Constitution, is of comparatively recent growth. He is less read than +formerly in England and even in France. But his views of the American +government and people have so passed into the texture of our thoughts +that we cannot shake off his influence, and, in order to profit by it, +are bound to submit his conclusions and predictions to a searching +though always respectful examination. + +The defects of the book are due to three causes. He had a strong and +penetrating intellect, but it moved by preference in the _a priori_ or +deductive path, and his power of observation, quick and active as it +was, did not lead but followed the march of his reasonings. It will be +found, when his method is closely scrutinized, that the facts he cites +are rather the illustrations than the sources of his conclusions. He had +studied America carefully and thoroughly. But he wanted the necessary +preparation for that study. His knowledge of England, while remarkable +in a native of continental Europe, was not sufficient to show him how +much in American institutions is really English, and explainable only +from English sources. + +He wrote about America, and meant to describe it fully and faithfully. +But his heart was in France, and the thought of France, never absent +from him, unconsciously coloured every picture he drew. It made him +think things abnormal which are merely un-French; it made him attach +undue importance to phenomena which seemed to explain French events or +supply a warning against French dangers. + +He reveals his method in the introduction to his book. He draws a fancy +sketch of a democratic people, based on a few general principles, passes +to the condition of France, and then proceeds to tell us that in America +he went to seek the type of democracy—democracy pure and simple—in its +normal shape. + +‘J’avoue que dans l’Amérique, j’ai vu plus que l’Amérique; j’y ai +cherché une image de la démocratie elle-même, de ses penchants, de son +caractère, de ses préjugés, de ses passions.’ + +Like Plato in the _Republic_, he begins by imagining that there exists +somewhere a type or pattern of democracy, and as the American Republic +comes nearest to this pattern, he selects it for examination. He is +aware, of course, that there must be in every country and people many +features special to the country which reappear in its government, and +repeatedly observes that this or that is peculiar to America, and must +not be taken as necessarily or generally true of other democracies. But +in practice he underrates the purely local and special features of +America, and often, forgetting his own scientific cautions, treats it as +a norm for democracy in general. Nor does he, after finding his norm, +proceed simply to examine the facts and draw inferences from them. In +many chapters he begins by laying down one or two large principles, he +develops conclusions from them, and then he points out that the +phenomena of America conform to these conclusions. Instead of drawing +the character of democracy from the aspects it presents in America, he +arrives at its character by a sort of intuitive method, and uses those +aspects only to point and enforce propositions he has already reached. +It is not democracy in America he describes, but his own theoretic view +of democracy illustrated from America. He is admirably honest, never +concealing or consciously evading a fact which he perceives to tell +against his theories. But being already prepossessed by certain abstract +principles, facts do not fall on his mind like seeds on virgin soil. He +is struck by those which accord with, he is apt to ignore those which +diverge from, his preconceptions. Like all deductive reasoners, he is +peculiarly exposed to the danger of pressing a principle too far, of +seeking to explain a phenomenon by one principle only when it is perhaps +the result of an accidental concurrence of several minor causes. The +scholasticism we observe in him is due partly to this deductive habit, +partly to his want of familiarity with the actualities of politics. An +instance of it appears in his tendency to over-estimate the value of +constitutional powers and devices, and to forget how often they are +modified, almost reversed, in practice by the habits of those who use +them. Though no one has more judiciously warned us to look to the actual +working of institutions and the ideas of the men who work them rather +than to their letter, he has himself failed to observe that the American +Constitution tends to vary in working from its legal theory, and the +name Legislature has prevented him, like so many other foreign +observers, from seeing in the English Parliament an executive as well as +a law-making body. + +In saying that he did not know England, I fully admit that his knowledge +of that country and its free government was far beyond the knowledge of +most cultivated foreigners. He had studied its history, and had gathered +from his reading the sentiments of its aristocracy and of its literary +men. But he did not know the ideas and habits of the English middle +class, with whom the Americans of his time might better have been +compared, and he was not familiar—as how could a stranger be?—with the +details of English politics and the working of the English judicial +system. Hence he has failed to grasp the substantial identity of the +American people with the English. He perceives that there are many and +close resemblances, and traces much that is American to an English +source. He has seen and described with perfect justness and clearness +the mental habits of the English and American lawyer as contrasted with +those of the French lawyer. But he has not grasped, as perhaps no one +but an Englishman or an American can grasp, the truth that the American +people of 1830 was a branch of the English people, modified in some +directions by the circumstances of its colonial life and its more +popular government, but in essentials the same. Hence much that was +merely English appeared to Tocqueville to be American or democratic. The +functions of the judges, for instance, in expounding the Constitution +(whether of the Federation or of a State) and disregarding a statute +which conflicts therewith, the responsibility of an official to the +ordinary courts of the land, the co-existence of laws of a higher and +lower degree of authority, seem to him to be novel and brilliant +inventions instead of mere instances of general doctrines of English +law, adapted to the circumstances of a colony dependent on a home +Government, or of a State partially subordinated to a Federal +Government. The absence of what the French call ‘Administration,’ and +the disposition to leave people to themselves, which strike him, would +not surprise an Englishman accustomed to the like freedom. Much that he +remarks in the mental habits of the ordinary American, his latent +conservatism for instance, his indifference to amusement as compared +with material comfort, his commercial eagerness and tendency to take a +commercial view of all things, might have been just as well remarked of +the ordinary middle-class Englishman, and had nothing to do with a +democratic government. Other features, which he ascribes to this +last-named cause, such as habits of easy social intercourse, the +disposition to prize certain particular virtues, the readiness to give +mutual help, are equally attributable to the conditions of life that +existed among settlers in a wild country where few persons were raised +by birth or wealth above their fellows, and every one had need of the +aid of others—conditions whose results remained in the temper of the +people even when the community had passed into another phase, a phase in +which inequalities of wealth were already marked, and temptations had +begun to appear which did not beset the Puritans of the seventeenth +century. + +It is no reproach to this great author that France formed to him the +background of every picture whose foreground was the New World. He tells +us frankly in the Introduction that the phenomena of social equality, as +they existed in France, and the political consequences to be expected +from them, filled his mind when he examined the institutions of America; +he hoped to find there lessons by which France might profit: ‘J’ai voulu +y trouver des enseignements dont nous puissions profiter.’ But with this +purpose before him, he could hardly avoid laying too much stress on +points which seemed to have instruction for his own countrymen, and from +fancying those things to be abnormal, or at least specially noteworthy, +which stood contrasted with the circumstances of France. Tocqueville is, +among eminent French writers, one of the least prone to assume the ways +and ideas of his own country to be the rule, and those of another +country the exception; yet even in him the tendency lurks. There is more +than a trace of it in his surprise at the American habit of using +without abusing political associations, and at the disposition of +Legislatures to try experiments in legislation, a disposition which +struck him chiefly by its contrast with the immutability which the Code +of the First Empire seemed to have stamped upon the private law of +France. + +His constant reference to France goes deeper than the method of the +book. It determines his scope and aim. The _Democracy in America_ is not +so much a political study as a work of edification. It is a warning to +France of the need to adjust her political institutions to her social +condition, and above all to improve the tone of her politics, to create +a moral and religious basis for her national life, to erect a new fabric +of social doctrine, in the place of that which, already crumbling, the +Revolution had overthrown. We must not, therefore, expect to find in him +a complete description and criticism, such as a German would have given, +of the government of America in all its details and aspects. To note +this is not to complain of the book. What Tocqueville has produced is +more artistic, and possibly more impressive than such a description +would have been, as a landscape gives a juster notion of scenery than a +map. His book is permanently valuable, because its reflections and +exhortations are applicable not merely to the Frenchmen of sixty-five +years ago, but to mankind generally, since they touch upon failings and +dangers permanently inherent in political society. Let it only be +remembered that, in spite of its scientific form, it is really a work of +art quite as much as a work of science, and a work suffused with strong, +though carefully repressed, emotion. + +The best illustration I can give of these tendencies in our author will +be found in a comparison of the first part of the book, published in +1834, and now included in the first and second volumes of recent +editions, with the second part published in 1840, and now forming the +third volume. In the first part the author keeps near his facts. Even +when he has set out on the _a priori_ road he presently brings his +theory into relation with American phenomena: they give substance to, +and (so to speak) steady the theory, while the theory connects and +illumines them. But in the second part (third volume) he soars far from +the ground, and is often lost in the clouds of his own sombre +meditation. When this part was written, the direct impressions of his +transatlantic visit had begun to fade from his mind. With all his +finesse and fertility, he had neither sufficient profundity of thought, +nor a sufficient ample store of facts gathered from history at large, to +enable him to give body and substance to his reflections on the obscure +problems wherewith he attempts to deal[165]. Hence, this part of the +book is not so much a study of American democracy as a series of +ingenious and finespun abstract speculations on the features of equality +and its results on modern society and thought, speculations which, +though they have been singled out for admiration by some high judges, +such as Ampère and Laboulaye, will appear to most readers overfanciful, +overconfident in their effort to construct a general theory applicable +to the infinitely diversified facts of human society, and occasionally +monotonous in their repetition of distinctions without differences and +generalities too vague, perhaps too hollow, for practical use. + +----- + +Footnote 165: + + Sainte-Beuve remarks of him, ‘Il a commencé à penser avant d’avoir + rien appris: ce qui fait qu’il a quelquefois pensé creux.’ Thiers once + said, in the Chamber, ‘Quand je considère intuitivement, comme dirait + M. de Tocqueville.’ + +----- + +How far do these defects of Tocqueville’s work affect its value for our +present purpose, that of discovering from it what was the condition, +political, social, intellectual, of the United States in 1833, and what +the forces that were then at work in determining the march of the nation +and the development of its institutions? + +It is but slightly that they impair its worth as a record of facts. +Tocqueville is so careful and so unprejudiced an observer that I doubt +if there be a single remark of his which can be dismissed as either +erroneous or superficial. There is always some basis for every statement +he makes. But the basis is occasionally too small for the superstructure +of inference, speculation, and prediction which he rears upon it. To +borrow an illustration from chemistry, his analysis is always right so +far as it is qualitative, sometimes wrong where it attempts to be +quantitative. The fact is there, but it is perhaps a smaller fact than +he thinks, or a transient fact, or a fact whose importance is, or +shortly will be, diminished by other facts which he has not adequately +recognized. + +When we pass from description to argument he is a less safe guide. By +the light of subsequent experience we can perceive that he mistook +transitory for permanent causes. Many of the phenomena which he ascribes +to democracy were due only to the fact that large fortunes had not yet +grown up in America, others to the absence, in most parts of the +country, of that higher education and culture which comes with wealth, +leisure, and the settlement of society. I have already observed that he +sometimes supposes features of American politics to be novel and +democratic which are really old and English; that he does not allow +sufficiently for the imprint which colonial life had left on the habits +and ideas of the people, an imprint which, though it tends to wear off +with time, is yet also modified into something which, while you may call +it democratic, remains different from the democracy of an old European +country, and is not an index to the character of democracy in general. + +It need hardly be said that the worth of a book like his is not to be +measured by the number of flaws which can be discovered under the +critic’s microscope. Even a sovereign genius like Aristotle cannot be +expected to foresee which of the influences he discerns will retain +their potency: it is enough if his view is more piercing and more +comprehensive than that of his greatest contemporaries, if his record +shows the high-water mark of the learning and philosophy of the time. +Had history falsified far more of Tocqueville’s predictions than she has +done, his work would still remain eminently suggestive and stimulating. +And it is edificatory not merely because it contains precepts instinct +with the loftiest morality. It is a model of that spirit of fairness and +justice, that love of pure truth which is conspicuously necessary, and +not less conspicuously difficult, in the discussion, even the abstract +discussion, of the problems of political philosophy. Few books inspire a +higher respect for their writer. + + + V. TOCQUEVILLE’S VIEW OF THE UNITED STATES. + +Before we examine the picture of the social and political phenomena of +America which Tocqueville has drawn, let us see what were the chief +changes that had passed on the territory of the Union, on its material +resources, on the habits and ideas of the people, during the forty-six +years that elapsed from the publication of the _Federalist_ to that of +the _Démocratie en Amérique_. + +The territory of the United States had been extended to include the +whole valley of the Mississippi, while to the north-west it stretched +across the Rocky Mountains as far as the Pacific. All beyond the +Missouri was still wilderness, much of it wholly unexplored, but to the +east of the Mississippi there were now twenty-four States with an area +of 2,059,043 square miles and a population of fourteen millions. The new +Western States, though rapidly increasing, were still so raw as to +exercise comparatively little influence on the balance of national +power, which vibrated between the free Northern and the Southern Slave +States. Slavery was not an immediately menacing question, for the first +wound it made had been skinned over, so to speak, by the Missouri +Compromise of 1820; but it was evidently pregnant with future trouble, +for the number of slaves was rapidly increasing, and the slaveholders +were already resolved to retain their political influence by the +creation of new slave States. The great Federalist party had vanished, +and the Republican-Democratic party, which had triumphed over it, had +just been split up into several bitterly hostile factions. Questions of +foreign policy were no longer urgent, for Europe had ceased to menace +America, who had now no neighbours on her own continent except the +British Crown on the north and the Mexican Republic on the south and +west. The protective tariff and the existence of the United States Bank +were the questions most agitated, but the main dividing party lines were +still those which connected themselves with the stricter or looser +interpretation of the Federal Constitution—that is to say, they were +questions as to the extent of Federal power on the one hand, as to the +rights of the States on the other. New England was still Puritan and +commercial, with a bias towards protective tariffs, the South still +agricultural, and in favour of free trade. The rule of the masses had +made its greatest strides in New York, the first, among the older +States, which introduced the new methods of party organization and which +thoroughly democratized her Constitution[166]. Everywhere property +qualifications for office or the electoral franchise were being +abolished, and even the judges formerly nominated by the State Governor +or chosen by the State Legislature were beginning to be elected by +manhood suffrage and for terms of years. In fact a great democratic wave +was passing over the country, sweeping away the old landmarks, +destroying the respect for authority, casting office and power more and +more into the hands of the humbler classes, and causing the withdrawal +from public life of men of education and refinement. State feeling was +still strong, especially in the South, and perhaps stronger than +national feeling, but the activity of commerce and the westward movement +of population were breaking down the old local exclusiveness, and those +who saw steamboats plying on the Hudson and heard that locomotive +engines were beginning to be run in England, might have foreseen that +the creation of more easy, cheap, and rapid communications would bind +the sections of the country together with a new and irresistible power. +The time was one of great commercial activity and great apparent +prosperity; but large fortunes were still few, while in the general +pursuit of material objects science, learning, and literature had fallen +into the background. Emerson was still a young Unitarian minister, known +only to the circle of his own friends. Channing was just rising into +note; Longfellow and Hawthorne, Prescott and Ticknor had not begun to +write. Washington Irving was one of the few authors whose names had +reached Europe. How disagreeable the manners of ordinary people (for one +must of course except the cultivated circles of Boston and Philadelphia) +seemed to the European visitor may be gathered from the diaries of +Richard Cobden and Sir Charles Lyell, who travelled in America a year or +two after Tocqueville. There was a good deal of ability among the ruling +generation of statesmen—the generation of 1787 was just dying out with +Madison—but only three names can be said to have survived in the world’s +memory, the names of three party leaders who were also great orators, +Clay, Calhoun, and Webster[167]. + +----- + +Footnote 166: + + The process of democratization was completed by the Constitution of + 1846. + +Footnote 167: + + To none of whom, oddly enough, does Tocqueville refer. He is + singularly sparing in his references to individuals, mentioning no one + except President Jackson for blame and Livingston (author of the + Louisiana Code and Secretary of State, 1831-3) for praise. + +----- + +In those days America was a month from Europe and comparatively little +affected by Europe. Her people walked in a vain conceit of their own +greatness and freedom, and scorned instruction from the effete +monarchies of the Old World, which in turn repaid them with contemptuous +indifference. Neither continent had realized how closely its fortunes +were to be interwoven with those of the other by trade and the movements +of population. No wheat, no cattle were sent across the Atlantic, nor +had the flow of immigration from Ireland, much less from Central Europe, +as yet begun. + +The United States of 1834 had made enormous advances in material +prosperity. Already a great nation, it could become a great power as +soon as it cared to spend money on fleets and armies. The Federal +government had stood the test of time and of not a few storms. Its +component parts knew their respective functions, and worked with less +friction than might have been expected. The sense of national unity, +powerfully stimulated by the war of 1812, was still growing. But the +level of public life had not risen. It was now rather below than above +that of average private society. Even in the realm of morality there +were strange contrasts. A puritan strictness in some departments of +conduct and a universal recognition of the sanctions of religion +co-existed in the North with some commercial laxity, while the +semi-civilized South, not less religious and valuing itself on its high +code of honour, was disgraced by the tolerance accorded to duels and +acts of murderous violence, not to speak of the darker evils which +slavery brought in its train. As respects the government of States and +cities, democratic doctrines had triumphed all along the line. The +masses of the people had now realized their power, and entered into the +full fruition of it. They had unlimited confidence in their wisdom and +virtue, and had not yet discovered the dangers incidental to the rule of +numbers. The wise elders, or the philosophic minds who looked on with +distrust, were either afraid to speak out, or deemed it hopeless to try +to stem the flowing tide. They stood aside (as Plato says) under the +wall out of the storm. The party organizations had just begun to spread +their tough yet flexible network over the whole country; and the class +of professional politicians, at once the creator and the creature of +such organizations, was already formed. The offices had, three years +before, been proclaimed to belong to the victors as spoils of war, but +few saw to what consequences this doctrine was to lead. I will not say +that it was a period of transition, for that is true of every period in +America, so fast do events move even in the quietest times; but it was a +period when that which had been democratic theory was passing swiftly +into democratic practice, when the seeds sown long ago by Jefferson had +ripened into a waving crop, when the forces which in every society react +against extreme democracy were unusually weak, some not yet developed, +some afraid to resist the stream. + + + VI. TOCQUEVILLE’S IMPRESSIONS AND PROPHECIES. + +Let us see what were the impressions which the America of 1832 made on +the mind of Tocqueville. I do not pretend to summarize his account, +which every student ought to read for himself, but shall be content with +presenting the more salient points that ought to be noted in comparing +1832 with 1788 on the one hand, and 1900 on the other. + +He is struck by the thoroughness with which the principle of the +sovereignty of the people is carried out. Seventy years ago this +principle was far from having obtained its present ascendency in Western +Europe. In America, however, it was not merely recognized in theory, but +consistently applied through every branch of local, State, and National +government. + +He is impressed by the greater importance to ordinary citizens of State +government than of Federal government, and their warmer attachment to +the former than to the latter. The Federal government seems +comparatively weak, and in case of a conflict between the two powers, +the loyalty of the people would be given rather to the State[168]. + +----- + +Footnote 168: + + His insistence on this point makes it all the more strange that he + does not give any description of a State as a commonwealth, nor + characterize the general features of its government. + +----- + +He finds the basis of all American government in the ‘commune,’ _i.e._ +in local government, the ultimate unit of which is in New England the +township, in the Southern and Middle States the county. It is here that +the bulk of the work of administration is done, here that the citizens +learn how to use and love freedom, here that the wonderful activity they +display in public affairs finds its chief sphere and its constant +stimulus. + +The absence of what a European calls ‘the administration’ is remarkable. +Public work is divided up between a multitude of petty and unrelated +local officials: there is no ‘hierarchy,’ no organized civil service +with a subordination of ranks. The means employed to keep officials to +their work and punish offences are two—frequent popular election and the +power of invoking the ordinary courts of justice to obtain damages for +negligence or unwarranted action. But along with the extreme +‘administrative decentralization’ there exists a no less extreme +‘governmental centralization,’ that is to say, all the powers of +government are collected into one hand, that of the people, the majority +of the voters. This majority is omnipotent; and thus authority is +strong, capable of great efforts, capable also of tyranny. Hence the +value of local self-government, which prevents the abuse of power by a +central authority: hence the necessity for this administrative +decentralization, which atones for its want of skill in details by the +wholesome influence it exerts on the character of the people. + +The judges enjoy along with the dignity of their European brethren the +singular but most salutary power of ‘declaring laws to be +unconstitutional,’ and thus they serve to restrain excesses of +legislative as well as of executive authority. + +The President appears to our author to be a comparatively weak official. +No person, no group, no party, has much to hope from the success of a +particular candidate at a Presidential election, because he has not much +to give away[!]. The elective system unduly weakens executive authority, +because a President who approaches the end of his four years’ term feels +himself feeble, and dares not take any bold step: while the coming in of +a new President may cause a complete change of policy. His +re-eligibility further weakens and abases him, for he must purchase +re-election by intrigue and an unworthy pandering to the desires of his +party. It intensifies the characteristic fault of democratic government, +the predominance of a temporary majority. + +The Federal Supreme Court is the noblest product of the wisdom of those +who framed the Federal Constitution. It keeps the whole machine in +working order, protecting the Union against the States, and each part of +the Federal government against the aggressions of the others. The +strength of the Federation, naturally a weak form of government, lies in +the direct authority which the Federal courts have over the individual +citizen: while the action of these Courts, even against a State, gives +less offence than might be expected because they do not directly attack +its statutes, but merely, at the instance of an individual plaintiff or +defendant, secure to him rights which those statutes may have +incidentally infringed. + +The Federal Constitution is much superior to the State Constitutions; +the Federal Legislature, Executive and Judiciary, are all of them more +independent of the popular majority, and freer in their action than the +corresponding authorities in the several States. Similarly the Federal +government is better than those of the States, wiser, more skilful, more +consistent, more firm. + +The day of great parties is past: there is now a feverish agitation of +small parties and a constant effort to create parties, to grasp at some +principle or watchword under which men may group themselves, probably +for selfish ends. Self-interest is at the bottom of the parties, yet +aristocratic or democratic sentiment attaches itself to each of them, +that is to say, when a practical issue arises, the old antithesis of +faith in the masses and distrust of the masses reappears in the view +which men and parties take of it. The rich mix little in politics. +Secretly disgusted at the predominance of the crowd, they treat their +shoemaker as an equal when they meet him on the street, but in their +luxurious homes lament the vulgarity of public life and predict a bad +end for democracy. + +Next to the people, the greatest power in the country is the press: yet +it is less powerful than in France, because the number of journals is so +prodigious, because they are so poorly written, because there is no +centre like Paris. Advertisements and general news occupy far more of +their space than does political argument, and in the midst of a din of +opposing voices the ordinary citizen retains his dull fixity of opinion, +the prejudices of his sect or party. + +A European is surprised, not only at the number of voluntary +associations aiming at public objects, but at the tolerance which the +law accords to them. They are immensely active and powerful, and do not +threaten public security as they would in France, because they admit +themselves, by the very fact of their existence, to represent a minority +of voters, and seek to prevail by force of argument and not of arms. + +Universal suffrage, while it gives admirable stability to the +government, does not, as people in Europe expect that it will, bring the +best men to the top. On the contrary, the governors are inferior to the +governed[169]. The best men do not seek either office or a seat in the +House of Representatives, and the people, without positively hating the +‘upper classes,’ do not like them; and carefully keep them out of power. +‘Il ne craint point les grands talents, mais il les goûte peu.’ + +----- + +Footnote 169: + + This is a common remark of visitors to America, but it arises from + their mistaking the people they see in society for ‘the governed’ in + general. They go carrying introductions to rich or educated people: if + they mixed with the masses they would form a different notion of ‘the + governed,’ as Tocqueville rather oddly calls the ordinary citizens. + +----- + +The striking inferiority of the House to the Senate is due to the fact +that the latter is a product of double election, and it is to double +election that democracies must come if they will avoid the evils +inseparable from placing political functions in the hands of every class +of the people[170]. + +----- + +Footnote 170: + + It is surprising that Tocqueville should have supposed this to be the + cause of the excellence he ascribes to the Senate, considering that + the more obvious, as well as the true, explanation is to be found in + the fact that the wider powers and longer term of the Senate made the + ablest men seek entrance to it. + +----- + +American magistrates are allowed a wider arbitrary discretion than is +common in Europe, because they are more constantly watched by the +sovereign people, and are more absolutely at their mercy[171]. + +----- + +Footnote 171: + + The only instance given of this is in the discretion allowed to the + officers of the New England townships, whose functions are, however, + unimportant. The statement cannot have been generally true. + +----- + +Every office is, in America, a salaried office; nor can anything be more +conformable to the spirit of a democracy. The minor offices are, +relatively to Europe, well paid, the higher ones ill paid. Nobody wears +any dress or displays any insignia of office[172]. + +----- + +Footnote 172: + + This remained true till very recent years as regards public officials, + save and except the Judges of the Supreme Court when sitting at + Washington. But lately the Supreme Court Judges of some States have + begun to wear gowns. + +----- + +Administration has both an unstable and an unscientific character. Few +records are kept of the acts of departments: little information is +accumulated: even original documents are neglected. Tocqueville was +sometimes given such documents in answer to his queries, and told that +he might keep them. The conduct of public business is a hand to mouth, +rule of thumb sort of affair[173]. + +----- + +Footnote 173: + + This has ceased to be true in Federal administration, and in that of + the more advanced States. + +----- + +Not less instability reigns in the field of legislation. Laws are being +constantly changed; nothing remains fixed or certain[174]. + +----- + +Footnote 174: + + Tocqueville does not say whether he intends this remark to apply to + State legislation only or to Federal legislation also. He quotes dicta + of Hamilton, Madison, and Jefferson to the same effect, but these + testimonies, or most of them, refer to a time anterior to the creation + of the Federal Constitution. If it is true that State laws were being + constantly changed in 1832, this can have been true only of + administrative statutes, not of private law generally. One is tempted + to believe that Tocqueville was unconsciously comparing America with + France, where the Code has arrested legislation to an extent + surprising to an English observer. + +----- + +It is a mistake to suppose that democratic governments are specially +economical. They are parsimonious in salaries, at least to the higher +officials, but they spend freely on objects beneficial to the mass of +the people, such as education, while the want of financial skill +involves a good deal of waste. You must not expect economy where those +who pay the bulk of the taxes are a mere fraction of those who direct +their expenditure. If ever America finds herself among dangers, her +taxation will be as heavy as that of European monarchies. + +There is little bribery of voters, but many charges against the +integrity of politicians. Now the corruption of the ‘governors’ is worse +than that of the ‘governed,’ for it lowers the tone of public morals by +presenting the spectacle of prosperous turpitude. + +The American democracy is self-indulgent and self-complacent, slow to +recognize, still more slow to correct, its faults. But it has the +unequalled good fortune of being able to commit reparable errors (_la +faculté de faire des fautes réparables_). It can sin with impunity. + +It is eminently ill-fitted to conduct foreign policy. Fortunately it has +none. + +The benefits which American society derives from its democratic +government are summed up as follows:— + +As the majority make the laws, their general tendency, in spite of many +errors in detail, is to benefit the majority, because though the means +may sometimes be ill chosen, the end is always the same. Hence the +country prospers. + +Every one is interested in the welfare of the country, because his own +welfare is bound up with it. This patriotism may be only an enlarged +egotism, but it is powerful nevertheless, for it is a permanent +sentiment, independent of transient enthusiasms. Its character appears +in the childish intolerance of criticism which the people display. They +will not permit you to find fault with any one of their institutions or +habits, not even if you praise all the rest[175]. + +----- + +Footnote 175: + + Every one knows how frequently European visitors used to comment upon + this American trait. It is now much less noticeable than formerly. I + can even say from experience that it has sensibly diminished since + 1870. + +----- + +There is a profound respect for every political right, and therefore for +every magistrate, and for the authority of the law, which is the work of +the people themselves. If there be exceptions to this respect, they are +to be found among the rich, who fear that the law may be made or used to +their detriment. + +The infinite and incessant activity of public life, the responsibilities +it casts on the citizen, the sense of his importance which it gives him, +have stimulated his whole nature, and made him enterprising in all +private affairs also. Hence, in great measure, the industrial prosperity +of the country. Democracy effects more for the material progress of a +nation than in the way of rendering it great in the arts, or in poetry, +or in manners, or in elevation of character, or in the capacity for +acting on other nations and leaving a great name in history. + +We now come to the darker side of the picture. In democracies, the +majority is omnipotent, and in America the evils hence flowing are +aggravated by the shortness of the term for which a legislature is +chosen, by the weakness of the Executive, by the incipient disposition +to choose even the judges by popular vote, by the notion universally +accepted that the majority must be right. The majority in a legislature +being unchecked, laws are hastily made and altered, administration has +no permanence, officials are allowed a dangerously wide range of +arbitrary authority. There is no escape from the tyranny of the +majority. It dominates even thought, forbidding, not indeed by law, but +through social penalties no less effective than legal ones, the +expression of any opinion displeasing to the ordinary citizen. In +theology, even in philosophy, one must beware of any divergence from +orthodoxy. No one dare tell an unwelcome truth to the people, for it +will receive nothing but incense. Such repression sufficiently explains +the absence of great writers and of great characters in public life. It +is not therefore of weakness that free government in America will ever +perish, but through excess of strength, the majority driving the +minority to despair and to arms. + +There are, however, influences which temper the despotism of the +majority. One is the existence of a strong system of local +self-government, whereby nearly all administration is decentralized. +Another is the power of the lawyers, a class everywhere disposed to +maintain authority and to defend that which exists, and specially so +disposed in England and America because the law which they study and +practise is founded on precedents and despises abstract reason. A third +exists in the jury, and particularly the jury in its action in civil +causes, for it teaches the people not only the regular methods of law +and justice, but respect for law and for the judges who administer it. + +Next we come to an enumeration of the causes which maintain republican +government. They are, over and above the constitutional safeguards +already discussed, the following:— + +The absence of neighbouring States, and the consequent absence of great +wars, of financial crises[176], of invasions or conquests. How dangerous +to republics is the passion for military glory is shown by the two +elections of General Jackson to be President, a man of violent temper +and limited capacity, recommended by nothing but the memory of his +victory at New Orleans twenty years before[177]. + +----- + +Footnote 176: + + This observation seems strange indeed to any one who remembers the + commercial history of the United States since the great crisis of + 1838. + +Footnote 177: + + Jackson’s popularity began with his military exploit: but his hold on + the people was due to other causes also. His election coincided with + the rise of the great democratic wave already referred to. + +----- + +The absence of a great capital. + +The material prosperity of the country, due to its immense extent and +natural resources, which open a boundless field in which the desire of +gain and the love of independence may gratify themselves and render the +vices of man almost as useful to society as his virtues. The passions +which really agitate America are commercial, not political. + +The influence of religion. American Protestantism is republican and +democratic; American Catholicism no less so; for Catholicism itself +tends to an equality of conditions, since it treats all men alike. The +Catholic clergy are as hearty republicans as any others. + +The indirect influence of religion on manners and morality. Nowhere is +marriage so much respected and the relations of the sexes so well +ordered. The universal acceptance of Christianity, an acceptance which +imposes silence even on the few sceptics who may be supposed to exist +there as everywhere, steadies and restrains men’s minds. ‘No one +ventures to proclaim that everything is permissible in the interests of +society. Impious maxim, which seems to have been invented in an age of +liberty in order to give legitimacy to all tyrants to come.’ The +Americans themselves cannot imagine liberty without Christianity. And +the chief cause why religion is so powerful among them is because it is +entirely separated from the State[178]. + +----- + +Footnote 178: + + I do not profess to summarize in these few lines all that Tocqueville + says of the character and influence of Christianity in the United + States, for he devotes many pages to it, and they are among the wisest + and most permanently true that he has written. + +----- + +The intelligence of the people, and their education, but especially +their practical experience in working their local politics. However, +though everybody has some education, letters and culture do not +flourish. The Americans regard literature properly so called with +disfavour: they are averse to general ideas. They have no great +historian, not a single poet, legal commentators but no publicists, good +artisans but very few inventors[!]. + +Of all these causes, the most important are those which belong to the +character and habits of the people. These are infinitely more important +sources of well-being than the laws, as the laws are in turn more +important than the physical conditions[179]. + +----- + +Footnote 179: + + Like most of his contemporaries, Tocqueville failed to appreciate the + enormous influence of physical environment, which has, however, + doubtless increased, so far as America is concerned, through the + scientific discoveries made since the date of his journey. + +----- + +Whether democracy will succeed in other parts of the world is a question +which a study of America does not enable the observer confidently to +answer. Her institutions, however suitable to her position in a world of +her own, could not be transferred bodily to Europe. But the peace and +prosperity which the Union enjoys under its democratic government do +raise a strong presumption in favour of democracy even in Europe. For +the passions and vices which attack free government are the same in +America as in Europe, and as the legislator has overcome many of them +there, combating envy by the idea of rights, and the presumptuous +ignorance of the crowd by the practice of local government, he may +overcome them here in Europe likewise. + +One may imagine institutions for a democracy other than those the +Americans have adopted, and some of them better ones. Since it seems +probable that the peoples of Europe will have to choose between +democracy and despotism, they ought at least to try the former, and may +be encouraged by the example of America. + +A concluding chapter is devoted to speculations on the future of the +three races which inhabit the territories of the United States. I need +not transcribe what he says of the unhappy Indian tribes. Their fate was +then already certain: the process which he saw passing in Alabama and +Michigan afterwards repeated itself in California and Oregon. + +The presence of the blacks is the greatest evil that threatens the +United States. They increase, in the Gulf States, faster than do the +whites. They cannot be kept for ever in slavery, since the tendencies of +the modern world run strongly the other way. They cannot be absorbed +into the white population, for the whites will not intermarry with them, +not even in the North where they have been free for two generations. +Once freed, they would be more dangerous than now, because they would +not long submit to be debarred from political rights. A terrible +struggle would ensue. Hence the Southern Americans, even those who +regret slavery, are forced to maintain it, and have enacted a harsh code +which keeps the slave as near as possible to a beast of burden, +forbidding him to be taught and making it difficult for him to be +manumitted. No one in America seems to see any solution. The North +discusses the problem with noisy inquietude. The South maintains an +ominous silence. Slavery is evidently economically mischievous, for the +free States are far more prosperous: but the South holds to slavery as a +necessity. + +As to the Federal Union, it shows many signs of weakness. The States +have most of the important powers of government in their hands; they +have the attachment of the people; they act with vigour and promptitude, +while the Federal authority hesitates and argues. In every struggle that +has heretofore arisen the Federal Government has given way, and it +possesses neither the material force to coerce a rebellious State nor a +clear legal right to retain a member wishing to dissolve the Federal +tie. But although the Union has no national patriotism to support it +(for the professions of such patriotism one hears in America are but +lip-deep), it is maintained by certain interests—those material +interests which each part of the country has in remaining politically +united with the rest. Against these one finds no strong interests making +for material severance, but one does find diversities, not indeed of +opinion—for opinions and ideas are wonderfully similar over the whole +country—but of character, particularly between Northern and Southern +men, which increase the chances of discord. And in the rapid growth of +the Union there lies a real source of danger. Its population doubles +every twenty-two years. Before a century has passed its territory will +be covered by more than a hundred millions of people and divided into +forty States[180]. Now all partnerships are more difficult to keep +together the more the number of partners increases[181]. Even admitting, +therefore, that this hundred millions of people have similar interests +and are benefited by remaining united, still the mere fact that they +will then form forty nations, distinct and unequally powerful, will make +the maintenance of the Federal Government only a happy accident. ‘I +cannot believe in the duration of a government whose task is to hold +together forty different peoples spread over a surface equal to the half +of Europe, to avoid rivalries, ambitions, and struggles among them, and +to unite the action of their independent wills for the accomplishment of +the same plans[182].’ + +----- + +Footnote 180: + + There are now forty-five, with a population of nearly eighty millions. + +Footnote 181: + + No proof is given of this proposition, which is by no means + self-evident, and which has indeed all the air of a premiss laid down + by a schoolman of the thirteenth century. + +Footnote 182: + + He has, however, nowhere attempted to prove that the States deserve to + be called ‘nations’ or ‘peoples.’ + +----- + +The greatest danger, however, which the Union incurs as it grows is the +transference of forces which goes on within its own body. The Northern +States increase more rapidly than the Southern, those of the Mississippi +Valley more rapidly still. Washington, which when founded was in the +centre of the Union, is now at one end of it. The disproportionate +growth of some States menaces the independence of others. Hence the +South has become suspicious, jealous, irritable. It fancies itself +oppressed because outstripped in the race of prosperity and no longer +dominant. It threatens to retire from a partnership whose charges it +bears, but whose profits it does not share[183]. + +----- + +Footnote 183: + + The protective tariff was felt as a grievance by the South, being + imposed in the interest of the Northern and Middle States. No doubt, + the North got more pecuniary gain out of the Union than the South did. + +----- + +Besides the danger that some States may withdraw from the Union (in +which case there would probably be formed several federations, for it is +highly unlikely that the original condition of State isolation would +reappear), there is the danger that the central Federal authority may +continue to decline till it has become no less feeble than was the old +Confederation. Although Americans fear, or pretend to fear, the growth +of centralization and the accumulation of powers in the hands of the +Federal Government, there can be little doubt that the central authority +has been growing steadily weaker, and is less and less able to face the +resistance of a refractory State. The concessions of public territory +made to the States, the hostility to the United States Bank, the +(virtual) success of South Carolina in the Nullification struggle, are +all proofs of this truth. General Jackson, now (1832) President, is at +this moment strong, but only because he flatters the majority and lends +himself to its passions. His personal power may increase, but that of +the President declines. ‘Unless I am strangely mistaken, the Federal +Government of the United States tends to become daily weaker; it draws +back from one kind of business after another, it more and more restricts +the sphere of its action. Naturally feeble, it abandons even the +appearance of force. On the other side, I think I perceive that in the +United States the sentiment of independence becomes more and more lively +in the States, and the love of provincial government more and more +pronounced. People wish to keep the Union, but to keep it reduced to a +shadow: they would like to have it strong for some purposes and weak for +the rest—strong in war and almost non-existent in peace—forgetting that +such alternations of strength and weakness are impossible.’ + +Nevertheless the time when the Federal power will be extinguished is +still distant, for the continuance of the Union is desired, and when the +weakness of the Government is seen to threaten the life of the Union, +there may be a reaction in its favour. + +Whatever may be the future of the Federation, that of republicanism is +well assured. It is deeply rooted not only in the laws, but in the +habits, the ideas, the sentiments, even the religion of the people. It +is indeed just possible that the extreme instability of legislation and +administration may some day disgust the Americans with their present +government, and in that case they will pass rapidly from republicanism +to despotism, not stopping by the way in the stage of limited monarchy. +An aristocracy, however, such as that of the old countries of Europe, +can never grow up. Democratic equality will survive, whatever be the +form which government may take. + +This brief summary, which conveys no impression of the elegance and +refinement of Tocqueville’s reasonings, need not be pursued to include +his remarks on the commercial and maritime greatness of the United +States, nor his speculations on the future of the Anglo-American race. +Still less shall I enter on the second part of the book, for (as has +been observed already) it deals with the ideas of democracy and equality +in a very abstract and sometimes unfruitful way, and it would need a +separate critical study. + +But before passing on to consider how far the United States now differs +from the republic which the French philosopher described, we must pause +to ask ourselves whether his description was complete. + +It is a salutary warning to those who think it easy to get to the bottom +of the political and social phenomena of a nation, to find that so keen +and so industrious an observer as Tocqueville, who seized with +unrivalled acuteness and described with consummate art many of the minor +features of American politics, omitted to notice several which had +already begun to show their heads in his day, and have since become of +the first importance. Among these are— + +The system of party organization. It was full grown in some States (New +York for instance), and spreading quickly through the rest. + +The influence of commercial growth and closer commercial relations in +binding together different States of the Union and breaking down the +power of State sentiment. He does in one passage refer to this +influence, but is far from appreciating the enormous force it was +destined to exercise, and must have exercised even without railways. + +The results of the principle proclaimed definitely just before his +visit, and already operative in some places, that public office was to +be bestowed as a reward for political service, and held only so long as +the party which bestowed it remained in power. + +The assertion by President Monroe of the intention of the United States +to regard as unfriendly (_i.e._ to do their best to resist) any +extension of the ‘European system’ to the American Continent, and any +further colonization thereof or intrusion by European powers thereon. + +The rise of the Abolitionists (they had begun to organize themselves +before 1830, and formed a National Anti-Slavery Society in 1833) and the +intense hostility they aroused in the South. + +The growth of the literary spirit, and the beginnings of literary +production. The society which produced Washington Irving, Fenimore +Cooper, Channing, Hawthorne, Emerson, Longfellow, Thoreau, Prescott, +Ticknor, Margaret Fuller, Holmes, Lowell, Parkman—not to add some almost +equally famous later names—deserved mention as a soil whence remarkable +fruits might be expected which would affect the whole nation. Yet it is +not once referred to, although one can perceive that Tocqueville had +spent some time in Boston, for many of his views are evidently due to +the conversations he held with the leading Whigs of that day there. + +The influence of money on politics. It might surely have been foretold +that in a country with such resources, and among a people whose restless +commercial activity would be able to act on a vast scale, great piles of +wealth would soon be accumulated, that this wealth would perceive +objects which it might accomplish by legislative aid, would seek to +influence governments, and would find ample opportunities for doing so. +But of the dangers that must thence arise we do not hear a word. + + + VII. EXAMINATION OF TOCQUEVILLE’S VIEWS. + +Such was the aspect of the United States in 1832, such the predictions +which an unusually penetrating and philosophic mind formed of its +future. I will not attempt to inquire how far the details of the picture +are accurate, because it would be unprofitable to contest statements +without assigning one’s own reasons, while to assign them would lead me +into a historical disquisition. A shorter and simpler course will be to +inquire in what respects things have changed since his time, for thus we +shall be in a position to discern which of the tendencies he noted have +proved permanent, what new tendencies have come into being, what are the +main tendencies which are now controlling the destinies of the Republic. + +I have noted at the end of last section the phenomena which, already +existing in Tocqueville’s day, he omitted to notice or to appraise at +their due value. Let us see what time has brought forward since his day +to alter the conditions of the problem as he saw it. + +The great events that have befallen since 1834 are these:— + +The annexation of Texas in 1845. + +The war with Mexico in 1846, leading to the enlargement of the United +States by the vast territories which are now California, Nevada, Utah, +Idaho, Arizona, and New Mexico. + +The making of railways over the whole country, culminating with the +completion of four or five great Trans-Continental roads (the first in +1869). + +The establishment of lines of swift ocean steamers between America and +Europe. + +The immigration from Ireland (immensely increased after the famine of +1846), and from Germany (beginning somewhat later), and from +Scandinavia, Austria-Hungary, and Russia (later still). + +The War of Secession, 1861-65; together with the extinction of Slavery. + +The laying of submarine cables to Europe, and the extension of +telegraphic communication over the whole Union. + +The settlement of the Alabama claims, an event scarcely less important +in American history than in English, because it greatly diminished the +likelihood of a war between the two countries. In Tocqueville’s time the +hatred of Americans to England was rancorous. + +The growth of great cities. In 1830, only two had a population exceeding +100,000. There are now (census of 1900) thirty-eight which exceed that +population[184]. + +----- + +Footnote 184: + + In 1790 there were only six cities with populations of at least 8,000. + There are now 545. The percentage of urban to rural population (taking + urban as that of a city of 8,000) was then 3·4 and is now 33·1. + +----- + +The growth of great fortunes, and of wealthy and powerful trading +corporations; the extension of mining, especially silver and gold +mining; the stupendous development of speculation, not to say gambling, +in stocks and produce. + +The growth of the universities and of many kindred literary and +scientific institutions. + +The war with Spain in 1898, and consequent annexation of Hawaii (which +might probably not have been taken but for naval needs supposed to have +been disclosed by the war), of Puerto Rico, and of the Philippine Isles. + +These are events which have told directly or indirectly upon politics. I +go on to enumerate the political changes themselves of the same +sixty-seven years. + +Democratization of State Constitutions, total abolition of property +qualifications, choice of judges (in most States) by popular vote and +for terms of years, restrictions on the power of State Legislatures, +more frequent use of the popular vote or so-called Referendum[185]. + +----- + +Footnote 185: + + Especially in the form of the amendment of particular provisions of + State Constitutions. + +----- + +Development of the Spoils System, consequent degradation of the +increasingly large and important civil service, both Federal, State, and +Municipal. + +Perfection and hierarchical consolidation, on nominally representative +but really oligarchic lines, of party organizations; consequent growth +of Rings and Bosses, and demoralization of city government. + +Enfranchisement of the negroes through amendments to the Constitution. + +Intensification of National (as opposed to State) sentiment consequent +on the War of Secession; passion for the national flag; rejection of the +dogmas of State sovereignty and right of nullification. + +Increased importance of currency and other financial problems: emergence +of industrial questions as bases for party organization: efforts to +found a Labour Party and a ‘People’s Party.’ + +To these I add, as powerfully affecting politics, the development not +only of literary, scientific and historical studies, but in particular +of a new school of publicists, who discuss constitutional and economic +questions in a philosophic spirit; closer intellectual relations with +Europe, and particularly with England and Germany; resort of American +students to German Universities; increased interest of the best class of +citizens in politics; improved literary quality of the newspapers and of +periodicals (political and semi-political) generally; growth of a +critical and sceptical spirit in matters of religion and philosophy; +diminished political influence of the clergy. + +We may now ask which of Tocqueville’s observations have ceased to be +true, which of his predictions falsified. I follow the order in which +they were presented in the last section. + +Although the powers of the several States remain in point of law +precisely what they were (except as regards the Constitutional +amendments presently to be noticed) and the citizen depends as much now +as then upon the State in all that relates to person and property, to +the conduct of family and commercial relations, the National or Federal +Government has become more important to him than it was then. He watches +its proceedings more closely, and, of course, thanks to the telegraph, +knows them sooner and more fully. His patriotism is far more national, +and in case of a conflict between one or more States and the Federal +power, the sympathies of the other States would probably be with the +latter. + +Local government has been maintained in its completeness, but it seems +to excite less interest among the people. In the larger cities it has +fallen into the hands of professional politicians, who have perverted it +into a grasping and sordid oligarchy. + +There is still, as compared with Continental Europe, little +‘administration,’ though more than in Tocqueville’s time. But the +influence of Federal legislation on the business of the country is far +greater than it was, for the tariff and the currency, matters of +increased consequence ever since the war, are in its hands. + +The dignity of the judicial bench has in most States suffered seriously +from the system of popular election for comparatively short terms. In +those States where nomination by the Executive has been retained, and in +the case of the Federal Judges (nominated by the President), the +position is perhaps the highest permanent one open to a citizen. + +The President’s authority received a portentous enlargement during the +War of Secession, and although it has now returned to its normal +condition, the sense of its importance has survived. His election is +contested with increasing excitement, for his immense patronage and the +magnitude of the issues he may influence by his veto power give +individuals and parties the strongest grounds for hope and fear. +Experience has, on the whole, confirmed the view that the re-eligibility +of an acting President (_i.e._ the power of electing him for an +immediately succeeding term) might well be dispensed with. + +The credit of the Supreme Court suffered somewhat from its pro-slavery +decisions just before the war, and may possibly have suffered slightly +since in respect of its treatment of the Legal Tender question. +Nevertheless it remains respected and influential. + +The State Constitutions, nearly all of which have been re-enacted or +largely amended since 1834, remain inferior to the Federal Constitution, +and the State legislatures are, of course (possibly with a very few +exceptions in the New England States), still more inferior to Congress. + +Two great parties reappeared immediately after Tocqueville wrote, and +except for a brief interval before the Civil War when the Whig party had +practically expired before its successor and representative the +Republican party had come to maturity, they have continued to divide the +country, making minor parties of slight consequence. Now and then an +attempt is made to start a new party as a national organization, but it +rarely becomes strong enough to maintain itself. The rich and educated +renewed their interest in politics under the impulse of the Slavery and +Secession struggle. After a subsequent interval of apathy they seem to +be again returning to public life. The secret murmurs against democracy, +whereof Tocqueville speaks, are confined to a handful of fashionable +exquisites less self-complacent now than they were in the days when they +learnt luxury and contempt for the people in the Paris of Louis +Napoleon. + +Although newspapers are better written than formerly and those of the +great cities travel further over the country, the multitude of +discordant voices still prevents the people from being enslaved by the +press, which however shows an alarming capacity for exciting them. The +habit of association by voluntary societies maintains itself. + +The defects of the professional politicians, a term which now more +precisely describes those whom Tocqueville calls by the inappropriate +European name of ‘the governors,’ continue at least as marked as in his +time. + +So, too, the House of Representatives continues less influential than +the Senate, but for other reasons than those which Tocqueville assigns, +and to a less degree than he describes. The Senate has not, since 1880, +maintained the character he gives it; and the fact that it is still +chosen in the way which he commended shows that the merits he ascribed +to it were not due to its mode of choice. Indeed in the judgement of +most thoughtful men, popular election in the States would give a better +Senate than election by the State Legislatures now does. + +American magistrates never did in general enjoy the arbitrary power +Tocqueville ascribes to them. They assuredly do not enjoy it now, but in +municipalities there is a growing tendency to concentrate power, +especially the appointing power, in the hands of one or a few officers +in order that the people may have some one person on whom responsibility +can be fixed. Such power is sometimes very wide, but it cannot be called +arbitrary. A few minor offices are unsalaried; the salaries of the +greater ones have been raised, particularly in the older States. + +The methods of administration, especially of Federal administration, +have been much improved, but are still behind those of the most advanced +European countries, one or two departments excepted. + +Government is far from economical. The war of the Rebellion was +conducted in the most lavish way: the high protective tariff raises a +vast revenue, and direct local taxation takes more from the citizen than +in most European countries. An enormous sum is spent upon pensions to +persons who purport to have served in the Northern armies during the +Civil War[186]. + +----- + +Footnote 186: + + In 1892 the expenditure on this head was $155,000,000: in 1901 it was + estimated at $142,000,000. + +----- + +Congress does not pass many public statutes, nor do they greatly alter +ordinary law within the sphere open to federal legislation. Many +legislative experiments are tried in the newer States, but the ordinary +private law is in no such condition of mutability as Tocqueville +describes. The law of England suffered more changes between 1868 and +1885 than either the common or statute law of the older States of the +Union. + +The respect for the rights of others, for the regular course of legal +process, for the civil magistrate, remains strong; nor have the rich +(although of late years more threatened) seriously begun to apprehend +any attacks on them, otherwise than as stockholders in great railway and +other corporations. + +The tyranny of the majority is not a serious evil in the America of +to-day, though people still sometimes profess alarm at it. It cannot act +through a State legislature so much as it may have done in Tocqueville’s +days, for the wings of these bodies have been effectively clipped by the +newer State constitutions. Faint are the traces which remain of that +intolerance of heterodoxy in politics, religion or social views whereon +he dilates[187]. Politicians on the stump still flatter the crowd, but +many home truths are told to it nevertheless in other ways and places, +and the man who ventures to tell them need no longer fear social +proscription (at least in time of peace) in the Northern or Western +States, perhaps not even in the Southern. + +----- + +Footnote 187: + + Competent American observers in Tocqueville’s own time thought he + greatly exaggerated this danger. See a letter from Jared Sparks + printed in Professor Herbert B. Adams’ interesting monograph _Jared + Sparks and Alexis de Tocqueville_, in Johns Hopkins University + Studies, 1898. + +----- + +The Republic came scatheless out of a terrible civil war, and although +the laurels of the general who concluded that war twice secured for him +the Presidency, they did not make his influence dangerous to freedom. +There is indeed no great capital, but there are cities greater than most +European capitals, and the Republic has not been imperilled by their +growth. The influence of the clergy on public affairs has declined: +whether or no that of religion has also been weakened it is more +difficult to say. But all Americans are still agreed that religion gains +by its entire detachment from the State. + +The negro problem remains, but it has passed into a new and for the +moment less threatening phase. Neither Tocqueville nor any one else then +living could have foreseen that manumission would come as a war measure, +and be followed by the grant of political rights. It is no impeachment +of his judgement that he omitted to contemplate a state of things in +which the blacks have been made politically the equals of the whites, +while inferior in most other respects, and destined, apparently, to +remain wholly separate from them. He was right in perceiving that fusion +was not possible, and that liberation would not solve the problem, +because it would not make the liberated fit for citizenship. Fit—that is +to say, as fit as a considerable part of the white population—they will +probably in the long run become, but even then the social problem will +remain. His remark that the repulsion between the races in the South +would probably be greater under freedom than under slavery has so far +been strikingly verified by the result. + +All the forces that made for the maintenance of the Federal Union are +now stronger than they were then, while the chief force that opposed it, +viz. the difference of character and habits between North and South, +largely produced by the existence of slavery, tends to vanish. Nor does +the growth of the Union make the retention of its parts in one body more +difficult. On the contrary, the United States is a smaller country now +when it stretches from the Bay of Fundy to the Gulf of California, with +its seventy-six millions of people, than it was then with its thirteen +millions, just as the civilized world was larger in the time of +Herodotus than it is now, for it took twice as many months to travel +from Persepolis or the Caspian Sea to the Pillars of Hercules as it does +now to circumnavigate the globe, one was obliged to use a greater number +of languages, and the journey was incomparably more dangerous. Before +steamboats plied on rivers, and trains ran on railways, three or four +weeks at least were consumed in reaching Missouri from Maine. Now one +goes in six days of easy travelling right across the continent. + +Nor has the increased number of States bred more dissensions. The +forty-five States of to-day are not as Tocqueville assumes, and this is +the error which vitiates his reasonings, forty-five nations. The +differences in their size and wealth have become greater, but they work +more harmoniously together than ever heretofore, because neither the +lines which divide parties nor the substantial issues which affect men’s +minds coincide with State boundaries. The Western States are now, so far +as population goes, the dominant section of the Union, and become daily +more so. But their interests link them more closely than ever to the +North Atlantic States, through which their products pass to Europe, and +the notion once entertained of moving the capital from Washington to the +Mississippi valley has been quietly dropped. + + + VIII. CONCLUDING SUMMARY. + +Before bidding farewell to our philosopher, let us summarize his +conclusions. + +He sees in the United States by far the most successful and durable form +of democratic government that has yet appeared in the world. + +Its merits are the unequalled measure of freedom, freedom of action, but +not of thought, which it secures to the ordinary citizen, the material +and social benefits it confers on him, the stimulus it gives to all his +practical faculties. + +These benefits are likely to be permanent, for they rest upon the +assured permanence of + +Social equality; + +Local self-government; + +Republican institutions; + +Widely diffused education. + +It is true that these benefits would not have been attained so quickly +nor in such ample measure but for the extraordinary natural advantages +of the New World. Nevertheless, these natural advantages are but +subsidiary causes. The character of the people, trained to freedom by +experience and by religion, is the chief cause, their institutions the +second, their material conditions only the third; for what have the +Spaniards made of like conditions in Central and South America[188]? + +----- + +Footnote 188: + + The conditions of most parts of the tropical regions of South and + Central America are in reality quite different from those of the + American Union taken as a whole. + +----- + +Nevertheless, the horizon is not free from clouds. + +What are these clouds? + +Besides slavery and the existence of a vast negro population they are— + +The conceit and ignorance of the masses, perpetually flattered by their +leaders, and therefore slow to correct their faults. + +The withdrawal from politics of the rich, and inferior tone of ‘the +governors,’ _i.e._ the politicians. + +The tyranny of the majority, which enslaves not only the legislatures, +but individual thought and speech, checking literary progress, and +preventing the emergence of great men. + +The concentration of power in the legislatures (Federal and State), +which weakens the Executive, and makes all laws unstable. + +The probable dissolution of the Federal Union, either by the secession +of recalcitrant States or by the slow decline of Federal authority. + +There is therefore warning for France in the example of America. But +there is also encouragement—and the encouragement is greater than the +warning. + +Of the clouds which Tocqueville saw, one rose till it covered the whole +sky, broke in a thunderstorm, and disappeared. Others have silently +melted into the blue. Some still hang on the horizon, darkening parts of +the landscape. + +Let us cast one glance back at the course which events have actually +taken as compared with that which Hamilton first, and Tocqueville +afterwards, expected. + +The Republic fared far otherwise than as Hamilton and his friends either +hoped or feared. In this there is nothing to impeach their wisdom. They +saw the dangers of their own time, and like wise and patriotic men +provided the best remedies which existing conditions permitted. Some +dangers they overcame so completely, particularly the financial +misdoings of State legislatures, that these have now passed out of +memory. They could not foresee what the power of money would become, +because there was then little money in the country. They could not +foresee the astonishing development of party machinery, because it is a +perfectly new thing in the history of the world: and human imagination +never does more, at any rate in the field of politics and sociology, +than body forth things a little bigger than, or in some other wise a +little varying from, what they have been before. It cannot create +something out of nothing. Least of all could they divine what the +results would be of the coexistence of the money power and the party +machine. Nor did even Tocqueville, writing half a century later, when +wealth had already appeared and the party machine was in places +beginning to work, perceive what both had in store. + +How would Tocqueville amend his criticisms were he surveying the +phenomena of to-day? + +He would add to his praise of the United States that its people +re-established their government on firm foundations after a frightful +civil war, that their army went back to its peaceful occupations, that +they paid off their debt, that they have continued to secure a free +field for an unparalleled industrial development and to maintain a +hitherto unattained standard of comfort, that the level of knowledge and +intellectual culture has risen enormously. He would admit that he had +overrated the dangers to be feared from a tyrannical majority and had +underrated the strength of the Union. But he would stand aghast, as +indeed all the best citizens in the United States do now, at the +mismanagement and corruption of city governments. He would perceive that +the party organizations have now become the controlling force in the +country, more important than the Legislature or the Executive. He would +recognize the evils incident to the habit of regarding public office as +a means of private advantage to its holder and the bestowal of it as a +reward for party services. And he would, while gladly owning that the +older forms of faction had ceased to be alarming, note a new development +which the spirit of faction has taken in the tendency to look at and +deal with both legislation and foreign affairs from the point of view of +party advantage. Want of foresight or insight in those who direct the +affairs of a mighty nation is at all times a misfortune: but when +foresight and insight are set aside for the sake of some transitory +party gain, the results may be even more serious. + +This, however, is a tendency inherent in all schemes of government by +party. It is familiar and formidable in European countries also. + + + + + VII + + TWO SOUTH AFRICAN CONSTITUTIONS[189] + + + I. THE CONDITIONS UNDER WHICH THESE CONSTITUTIONS AROSE. + +The old Greek saying, ‘Africa is always bringing something new[190],’ +finds an unexpected application in the fact that there exist in South +Africa two Dutch republics possessing constitutions diverse in type from +any of those which we find subsisting in other modern States. The system +established by these two South African instruments resembles neither the +English, or so-called ‘Cabinet,’ system of government,—which has been +more or less imitated by the other free countries of Europe, and has +been reproduced in the self-governing British colonies,—nor the +American, or so-called ‘Presidential,’ system, as it exists in the +United States and the several States of the American Union. And although +it bears some resemblance to the constitution of the Swiss Confederation +and to the constitutions of the cantons of Switzerland, this resemblance +is not a close one, and is evidently not due to conscious imitation, but +to a certain similarity of phenomena suggesting similar devices. The +constitutions of these two Dutch republics are the product, the pure and +original product, of African conditions, having drawn comparatively +little from the experience of older countries, or from the models their +schemes of government afford. Moreover, these South African +constitutions grew up upon a perfectly virgin soil. There was no +pre-existing political organization, such as the old feudal polities +supplied in some countries of Europe, out of which these Republics could +develop themselves. There were no charters of guilds or companies, such +as those which gave their earliest form to the governments of several of +the older American States. Nor was there any home pattern to be copied, +as the British colonies have, by the aid of statutes of the Imperial +Parliament, copied the constitution of the United Kingdom. + +----- + +Footnote 189: + + This Essay was composed early in 1896, and describes the Constitutions + of the Orange Free State and South African Republic as they stood in + December 1895, the month when the fatal invasion of the latter + Republic by the police of the British S. Africa Company took place. I + have left it, for obvious reasons, substantially unchanged, save that + here and there I have corrected what seemed to be errors, have added + one or two references to recent events, and have explained some + constitutional points with more fullness. In its original form, the + Essay appeared in the _Forum_ in April 1896. + +Footnote 190: + + Λέγεταί τις παροιμία ὅτι ἀεὶ φέρει Λιβύη τι καινόν. Arist. _Hist. + Anim._ viii. 28. + +----- + +This is one of the most interesting features of these Constitutions. +They are not specifically Dutch. Neither are they English. Nothing is +more uncommon in history than an institution starting _de novo_, instead +of being naturally evolved out of some earlier form. The simple farmers +who drafted the documents which I propose to describe, knew little about +the systems either of Europe or of America. Few possessed any +historical, still fewer any legal, knowledge. Many were uneducated men, +though with plenty of rough sense and mother wit. They would have liked +to get on without any government, and were resolved to have as little as +possible. Circumstances, however, compelled them to form some sort of +organization; and in setting to work to form one, with little except +their recollections of the local arrangements of Cape Colony to guide or +to assist them, they came as near as any set of men ever have come to +the situation which philosophers have so often imagined, but which has +so rarely in fact occurred—that of free and independent persons uniting +in an absolutely new social compact for mutual help and defence, and +thereby creating a government whose authority has had, and can have had, +no origin save in the consent of the governed. + +A few preliminary words are needed to explain the circumstances under +which the constitutions of the Orange Free State and of the South +African Republic (commonly called the Transvaal) were drawn up. + +As early as 1820 a certain number of farmers, mostly of Dutch origin, +living in the north-eastern part of Cape Colony, were in the habit of +driving their flocks and herds into the wilderness north of the Orange +River, where they found good fresh pasture during and after the summer +rains. About 1828 a few of these farmers established themselves +permanently there, still of course remaining subjects of the British +Crown, which had acquired Cape Colony first by conquest and then by +purchase in 1806 and 1814. In 1835-6, however, a much greater number of +farmers migrated from the colony; some in larger, some in smaller +bodies. They had various grievances against the British Government, some +dating back as far as 1815: and they desired to live by themselves in +their own way, untroubled by the Governors whom it sent to rule the +country[191]. Between 1835 and 1838 a considerable number of these +emigrants moved into the country beyond the Orange River, some remaining +there, others pushing still further to the north-east into the hitherto +unknown regions beyond the Vaal River, while a third body, perhaps the +largest, moved down into what was then a thinly peopled Kafir land, and +is now the British colony of Natal. This is not the place in which to +relate the striking story of their battles with the Zulu king and of +their struggle with the British Government for the possession of Natal. +It is enough to say that this third body ultimately quitted Natal to +join the other emigrants north of the mountains; and that, after many +conflicts between those emigrants and the native tribes, and some +serious difficulties with successive Governors of Cape Colony, the +British Government finally, by a Convention signed at Sand River in +1852, recognized the independence of the settlers beyond the Vaal River, +while, by a later Convention signed at Bloemfontein in 1854, it +renounced the sovereignty it had claimed over the country between the +Orange River and the Vaal River, leaving the inhabitants of both these +territories free to settle their own future form of government for +themselves. + +----- + +Footnote 191: + + A concise account of these grievances and a sketch of the subsequent + history of the emigrants may be found in Dr. Theal’s _Story of South + Africa_ (published by Messrs. Putnam), and in my _Impressions of South + Africa_, chaps. xi and xii. See also Dr. Theal’s larger _History of + the Boers in South Africa_. + +----- + +These two Conventions are the legal and formal starting-points of the +two republics in South Africa, and from them the history of those +republics, as self-governing states, recognized in the community of +nations by international law, takes its beginning. The emigrant farmers +had, however, already been driven by the force of circumstances to +establish some sort of government among themselves. As early as 1836 an +assembly of one of the largest emigrant groups then dwelling in the +Orange River Territory, elected seven persons to constitute a body with +legislative and judicial power. In 1838 the Natal emigrants established +a Volksraad (council of the people) which consisted of twenty-four +members, elected annually, who met every three months and had the +general direction of the affairs of the community, acting during the +intervals between the meetings by a small committee called the Commissie +Raad. All important measures were, however, submitted to a general +meeting called the Publiek, in which every burgher was entitled to speak +and vote. It was a primary assembly, like the Old English Folk Mot, or +the Landesgemeinde of the older Swiss Cantons. A somewhat similar system +prevailed among the farmers settled in the country beyond the Vaal +River. They too had a Volksraad, or sometimes—for they were from time to +time divided into separate and practically independent republican +communities—several Volksraads; and each district or petty republic had +a commandant-general. Their organization was really more military than +civil, and the commandant-general with his Krygsraad (council of war), +consisting of the commandants and field cornets within the district, +formed the nearest approach to a regular executive. I have unfortunately +been unable to obtain proper materials for the internal political +history, if such a term can be used, of these communities before they +proceeded to enact the constitutions to be presently described, and fear +that such materials as do exist are very scanty. But, speaking broadly, +it may be said that, in all the communities of the emigrant farmers, +supreme power was deemed to be vested in an assembly of the whole male +citizens, usually acting through a council of delegates, and that the +permanent officials were generally a magistrate, called a landrost, in +each village, a field cornet in each ward, and a commandant in each +district. All these officials were chosen by the people[192]. In these +primitive arrangements consisted the materials out of which a +constitutional government had to be built up. + +----- + +Footnote 192: + + I am indebted for most of these facts regarding the early organization + of the emigrants to Dr. G. M. Theal’s _History of the Boers in South + Africa_, a book of considerable merit and interest, which, however, + carries its narrative down only to 1854. + +----- + +From this point the history of the Orange River Territory, which by the +Convention of 1854 was recognized as the Orange Free State, and that of +the Transvaal Territory begin to diverge. In describing the +constitutions of the republics, I take first that of the Orange Free +State, because it dates from 1854, while the existing constitution of +the Transvaal is four years younger, having been adopted in 1858. The +former is also by far the simpler and shorter document. + +When the British Government in 1854 voluntarily divested itself of its +rights over the Orange River Territory, greatly against the will of some +of its subjects there, the inhabitants of that Territory were estimated +at 15,000 Europeans, most of them of Dutch, the rest of British origin. +(The number of native Kafirs was much larger, but cannot now be +estimated.) The great majority were farmers, pasturing their sheep and +cattle on large farms, but five small villages already existed, one of +which, Bloemfontein, has grown to be a town of 5,800 people, and is now +the capital. The Volksraad, or assembly of delegates of the people, +framed, and on April 10, 1854, enacted, a constitution for the new +republic. This constitution was revised and amended in 1866, and again +in 1879, but the main features of the original instrument remain. I +proceed to deal with it as it now stands. + + + II. CONSTITUTION OF THE ORANGE FREE STATE. + +This Constitution, which is in the Dutch language, and is called _De +Constitutie_, is a terse and straightforward document of sixty-two +articles, most of which are only a few lines in length[193]. It begins +by defining the qualifications for citizenship and the exercise of the +suffrage (articles 1 to 4), and incidentally imposes the obligation of +military service on all citizens between the ages of sixteen and sixty. +Only whites can be citizens. Newcomers may obtain citizenship if they +have resided one year in the state and have real property to the value +of at least £150 sterling ($750), or if they have resided three +successive years and have made a written promise of allegiance. + +----- + +Footnote 193: + + My thanks are due to the distinguished Chief Justice of the Free State + (Mr. Melius de Villiers) for much information kindly furnished to me + regarding this Constitution. + +----- + +Articles 5 to 27 deal with the composition and functions of the +Volksraad, or ruling assembly, which is declared to possess the supreme +legislative authority. It consists of representatives (at present +fifty-eight in number), one from each of the wards or Field Cornetcies, +and one from the chief town or village of each of the (at present +nineteen) districts. They are elected for four years, one-half retiring +every two years. Twelve constitute a quorum. Every citizen is eligible +who has not been convicted of crime by a jury or been declared a +bankrupt or insolvent, who has attained the age of twenty-five years, +and who possesses fixed (_i.e._ real) unmortgaged property of the value +of £500 at least. + +The Volksraad is to meet annually in May, and may be summoned to an +extra session by its chairman, as also by the President (§ 34), or by +the President and the Executive Council (§ 45). + +The Volksraad has power to depose the President if insolvent or +convicted of crime, and may also itself try him on a charge of treason, +bribery, or other grave offence; but the whole Volksraad must be present +or have been duly summoned, and a majority of three to one is required +for conviction. The sentence shall in these cases extend only to +deposition from office and disqualification for public service in +future, a President so deposed being liable to further criminal +proceedings before the regular courts. + +The votes of members of the Volksraad shall be recorded on a demand by +one-fifth of those present. The sittings are to be public, save where a +special cause for a secret sitting exists. + +The Volksraad shall make no law restricting the right of public meeting +and petition. + +It shall concern itself with the promotion of religion and education. + +It shall promote and support the Dutch Reformed Church. + +It may alter the constitution, but only by a majority of three-fifths of +the votes in two consecutive annual sessions. + +It has power to regulate the administration and finances, levy taxes, +borrow money, and provide for the public defence. + +Articles 28 to 41 deal with the choice and functions of the President of +the state. + +He is to be elected by the whole body of citizens, the Volksraad, +however, recommending one or more persons to the citizens[194]. + +----- + +Footnote 194: + + In practice, the recommendation of the majority of the Volksraad is + looked upon as likely to ensure the election of the person so + recommended. + +----- + +He is chosen for five years and is re-eligible. + +He is the head of the executive, charged with the supervision and +regulation of the administrative departments and public service +generally, and is responsible to the Volksraad, his acts being subject +to an appeal to that body. He is to report annually to the Volksraad, to +assist its deliberations by his advice, but without the right of voting, +and, if necessary, to propose bills. He makes appointments to public +offices, and may fill vacancies that occur when the Volksraad is not +sitting, but his appointments require its confirmation. (Such +confirmation has been hardly ever, if ever, refused.) He may also +suspend public functionaries, but dismissal appears to require the +consent of the Volksraad. + +Articles 42 to 46 deal with the Executive Council. It consists of five +members, besides the State President, who is _ex-officio_ chairman, with +a deciding or overriding vote (_bestissende stem_). Of these five, one +is the landrost (magistrate) of Bloemfontein, another the State +Secretary, both these officials being appointed by the President and +confirmed by the Volksraad; the remaining three are elected by the +Volksraad. This Council advises the President, but does not control his +action in matters which the Constitution entrusts to him, reports its +proceedings annually to the Volksraad, and has the rights, in +conjunction with the President, of pardoning offenders and of declaring +martial law. + +Regarding the judicial power only two provisions require mention. +Article 48 declares this power to be exclusively exercisable by the +courts of law established by law. Article 49 secures trial by jury in +all criminal causes in the superior courts. + +Local government and military organization, subjects intimately +connected in Dutch South Africa, occupy articles 50 to 56 inclusive. + +A field cornet is elected by the citizens of each ward, a field +commandant by those of each district, in both cases from among +themselves[195]. In case of war, all the commandants and cornets taken +together elect a Commandant-General, who thereupon receives his +instructions from the President. Those who elected him may, with the +consent of the President, dismiss him and choose another. Every field +cornet and commandant must have landed property, the latter to the value +of £200 at least. + +----- + +Footnote 195: + + In the earlier days of Rome the army elected its subordinate officers. + +----- + +Article 57 declares Roman-Dutch law to be the common law of the +state[196]. + +----- + +Footnote 196: + + Roman-Dutch law is the common law all over South Africa, even in the + almost purely English colony of Natal (though of course not in + Portuguese or German territory). It has been largely affected, + especially in the British colonies, by recent legislation. + +----- + +Articles 58 and 59 declare that the law shall be administered without +respect of persons and that every resident shall be held bound to obey +it, while articles 60, 61, and 62 guarantee the rights of property, of +personal liberty, and of press freedom. + +It will be convenient to defer general criticisms upon the frame of +government established by this Constitution till we have examined that +of the sister republic of the Transvaal, which agrees with it in many +respects. But we may here briefly note, before passing further, a few +remarkable features of the present instrument. + +1. It is a Rigid constitution, _i.e._ one which cannot be changed in the +same way and by the same authority as that whereby the ordinary law is +changed, but which must be changed in some specially prescribed form—in +this case, by a three-fourths majority of the Volksraad in two +successive sessions[197]. + +----- + +Footnote 197: + + As to Rigid Constitutions, see Essay III. + +----- + +2. The body of the people do not come in as a voting power, save for the +election of the President and Commandant-General. All other powers, even +that of amending the constitution, belong to the Volksraad. + +3. There is only one legislative chamber. + +4. The President has no veto on the acts of the legislature. + +5. The President has the right of sitting in and addressing the +legislature. + +6. The President’s Council is not of his own choosing, but is given him +by the legislature. + +7. The heads of the executive departments sit neither in the Council nor +in the legislature. + +8. The legislature may apparently reverse any and every act of the +President, save those (pardon of offences and declaration of martial +law) specially given to him and the Executive Council. + +American readers will have noted for themselves some few points in this +Constitution which have been drawn from that of the United States. +Others are said to have been suggested by the Constitution framed for +the French Republic in 1848. Comparatively few controversies upon the +construction of the Constitution have been debated with any warmth. One, +which gave rise to a difference of opinion between the Volksraad and the +Supreme Court of the state, arose upon the question whether the +Volksraad has power to punish a citizen for contempt by committing him +to prison for a long term, and to direct the State Attorney to prosecute +him. The judges disapproved what they deemed an unconstitutional +stretching of authority by the legislature. Using the opportunities of +influencing public opinion which the delivery of charges to juries gave +them, they ultimately so affected the mind of the people that the +Volksraad tacitly retired from its position, leaving the question of +right undetermined. + + + III. CONSTITUTION OF THE SOUTH AFRICAN REPUBLIC. + +The South African Republic, or Transvaal State as it is popularly +called, is ruled by a much longer, much less clear, and much less +systematically arranged document than that established by its sister +commonwealth[198]. A considerable part of the contents of this +constitution is indeed unfit, as too minute, for a fundamental +instrument of government; and, whatever the intention of its framers may +have been, it has not in fact been treated as a fundamental instrument. +Whether it is really such, in strict contemplation of law, is a question +often discussed in professional circles in Pretoria and Johannesburg. I +shall summarize the more important of its provisions—they occupy two +hundred and thirty-two articles—and endeavour therewith to present an +outline of the frame of government which they establish. + +----- + +Footnote 198: + + I have to thank my friend Mr. J. G. Kotzé, late Chief Justice of the + South African Republic, for information kindly supplied to me + regarding certain points in this Constitution. + +----- + +The Grondwet (Ground-law) or Constitution was drafted by a committee of +an assembly of delegates and approved by the assembly itself in +February, 1858. It is in Dutch, but has been translated into English +more than once. + +Article 6 declares the territory of the republic open to every stranger +who submits himself to the laws—a provision noteworthy in view of recent +events—and declares all persons within the territory equally entitled to +the protection of person and property. + +Article 8 states, _inter alia_, that the people ‘permit the spread of +the Gospel among the heathen, subject to prescribed provisions against +the practice of fraud and deception’; a provision upon whose intention +light is thrown by the suspicions felt by the Boers of the English +missionaries. + +Article 9 declares that ‘the people will not tolerate equality between +coloured and white inhabitants either in church or in state[199].’ + +----- + +Footnote 199: + + The Boers are a genuinely religious people, and read their Bibles. But + they have shown little regard to 1 Corinthians xii. 13; Galatians iii. + 28; and Colossians iii. 11. The same may be said of the people of the + Southern States of America; and is indeed also true of the less + religious English both in South Africa and in the West Indies. + +----- + +Article 10 forbids slavery or dealing in slaves. + +Article 19 grants the liberty of the press. + +Articles 20 to 23 formerly declared that the people would maintain the +principles of the doctrine of the Dutch Reformed Church, as fixed by the +Synod of Dort in 1618 and 1619, that the Dutch Reformed Church shall be +the Church of the State, that no persons shall be elected to the +Volksraad who are not members of that Church, that no ecclesiastical +authority shall be acknowledged save that of the consistories of that +Church, and that no Roman Catholic Churches, nor any Protestant Churches +save those which teach the doctrine of the Heidelberg Catechism, shall +be permitted within the republic. But these archaic provisions were in +the revised Grondwet of 1889 reduced to a declaration that only members +of a Protestant Church should be elected to the Volksraad[200]. + +----- + +Footnote 200: + + I am informed that even this restriction was abolished subsequently to + 1895. + +----- + +After these general provisions we come to the frame of government. +Legislation is committed to a Volksraad, ‘the highest authority of the +state.’ It is to consist of at least twelve members (the number is at +present twenty-four) who must be over thirty years of age and possess +landed property. Each district returns an equal number of members. +Residence within the district is not required of a candidate. The +members were formerly elected for two years, and one-half retired +annually. Their term was afterwards extended to four years. Every +citizen who has reached the age of twenty-one enjoys the suffrage[201] +(persons of colour are of course incapable of voting or of being +elected). The unworkable provision of the old Grondwet that ‘any matter +discussed shall be decided by three-fourths of the votes’ was +subsequently repealed. + +----- + +Footnote 201: + + The suffrage was by subsequent enactments restricted as respects + immigrants and the sons of immigrants; and in 1895 a person coming + into the country could not obtain full electoral rights till after a + period of twelve years. In July 1899, three months before the war + which broke out in that year, the period was shortened to seven years + owing to pressure by the British Government. + +----- + +Three months are to be given to the people for intimating to the +Volksraad their opinion on any proposed law, ‘except laws which admit of +no delay’ (§ 12), but laws may be discussed whether published three +months before their introduction or introduced during the session of the +Volksraad (§ 43). The sittings are to open and close with prayer, and +are to be public, unless the chairman or the President of the Executive +Council deems secrecy necessary. + +If the high court of justice declares the President, or any member of +the Executive Council, or the Commandant-General, unfit to fill his +office, the Volksraad shall remove from office the person so declared +unfit and shall provide for filling the vacant office. + +The administration, as well as the proposal, of laws was by the old +Grondwet given to an Executive Council (§ 13). The revised instrument +vests it in the State President. The President is elected for five years +by the citizens voting all over the country. He must have attained the +age of thirty and be a member of a Protestant (formerly of the Dutch +Reformed) Church (§ 56). He is the highest officer of the state, and +appoints all officials. All public servants, except those who administer +justice, are subordinate to him and under his supervision. In case of +his death, dismissal, or inability to act, his functions devolve on the +oldest member of the Executive Council till a new appointment is made. +The Volksraad shall dismiss him on conviction of any serious offence. He +is to propose laws to the Volksraad—‘whether emanating from himself or +sent in to him by the people’—and support them in that body either +personally or through a member of the Executive Council. He has, +however, no right to vote in the Volksraad. He recommends to the +Volksraad persons for appointment to public posts; and may suspend +public servants, saving his responsibility to the Volksraad. He submits +an estimate of revenue and expenditure, reports on his own action during +the past year and on the condition of the republic, visits annually all +towns and villages where any public office exists to give due +opportunity to the inhabitants of stating their wishes. + +The Executive Council consists of four official members besides the +President, namely, the State Secretary, the Commandant-General, the +Superintendent of Native Affairs, and the Keeper of Minutes +(_Notulenhouder_), and of two other members. All except the +Commandant-General are elected by the Volksraad; the Secretary for four +years, the two other members for three years. The Commandant-General is +elected by the burghers of the whole republic for ten years. All, +including the President, are entitled to sit, but not to vote, in the +Volksraad, The President and Council carry on correspondence with +foreign powers, and may commute or remit a penal sentence. A sentence of +death requires the unanimous confirmation of the Council. The President +may, with the unanimous consent of the Council, proclaim war and publish +a war ordinance summoning all persons to serve (§§ 23, 66, 84). + +The provisions relating to the military organization (§§ 93-114) are +interesting chiefly as indicating the highly militant character of the +republic. Express provision is made not only for foreign war and for the +maintenance of order at home, but also for the cases of native +insurrection and of disaffection or civil war among the whites. The +officers are all elected by the burghers, the Commandant-General by the +whole body of burghers for ten years, the commandants in each district +for five years, the field cornets and assistant field cornets in the +wards for three years. + +The judiciary (§§ 115-135) consists of landrosts (magistrates who also +discharge administrative duties), heemraden (local councillors or +assessors), and jurors. The provisions regarding the exercise of +judicial power are minute and curious in their way, but have no great +interest for constitutional purposes. Two landrosts are proposed to the +people of the judicial district by the Executive Council, and the people +vote between these two. Minute provisions regarding the oaths to be +taken by these officials and by jurymen, and regarding the penalties +they may inflict, fill the remaining articles. A guarantee for the +independence of the courts is to be found in the general statement in +article 15 that ‘the judicial power is vested in landrosts, heemraden, +and jurors,’ and in the declaration (§ 57) that the judicial officers +are ‘left altogether free and independent in the exercise of their +judicial power.’ A High Court and a Circuit Court, not provided for in +the old Grondwet, appear in that of 1889, and are appointed for life. +The High Court consists of a chief justice and four puisne judges. + +The old Grondwet also contained some curious details relating to civil +administration (which was primarily entrusted to the judicial officers, +supported by the commandants and field cornets), and the revenue of the +State, which was intended to be drawn chiefly from fees and licences, +the people having little disposition to be directly taxed. The farm tax +was not to exceed forty dollars, and the poll-tax, payable by persons +without or with only one farm, was fixed at five dollars annually. Five +dollars was the payment allowed to each member of the Volksraad for each +day’s attendance. Most of these provisions have disappeared from the +instrument of 1889. The salary of the President of the Council, which +had been fixed at 5,333 dollars, 2 schellings, and 4 stuivers, to be +increased as the revenue increased, now amounts to £7,000 sterling +($35,000) per annum, besides allowances. + +The most considerable change made since 1889 was the establishment, in +1890, of a chamber called the Second Volksraad, which is elected on a +more liberal basis than the First Volksraad, persons who have resided in +the country for two years, have taken an oath of allegiance and have +complied with divers other requirements, being admissible as voters. +This assembly, however, enjoys little real power, for its competency is +confined to some specified matters, and to such others as the First +Volksraad may refer to it; and its acts may be overruled by the First +Raad, whereas the Second Raad has no power of passing upon the +resolutions or laws enacted by the First Raad. The Second Volksraad is, +therefore, not a second chamber in the ordinary sense of the term, such +as the Senate in American States or the House of Lords in England, but +an appendage to the old popular House. It was never intended to exercise +much power, and was, in fact, nothing more than a concession, more +apparent than real, to the demands of the Uitlanders, or recent +immigrants excluded from citizenship. + +A few general observations may be made on this Constitution before we +proceed to examine its legal character and effect. + +It was in its older form a crude, untechnical document, showing little +trace on the part of those who drafted it either of legal skill or of a +knowledge of other constitutions. The language was often vague, and many +of the provisions went into details ill-fitted for a fundamental law. + +Although enacted by and for a pure democracy, it was based on +inequality—inequality of whites and blacks, inequality of religious +creeds. Not only was the Dutch Reformed Church declared to be +established and endowed by the State, but Roman Catholic churches were +forbidden to exist, and no Roman Catholic nor Jew nor Protestant of any +other than the Dutch Reformed Church was eligible to the presidency, or +to membership of the legislature or executive council. In its improved +shape (1889) some of these faults have been corrected, and in particular +the religious restrictions were reduced to a requirement that the +President, the Secretary of State, the Landrosts and the members of the +Volksraad should belong to a Protestant Church. The door, however, +remained barred against persons of colour. + +It contained and still contains little in the nature of a Bill of +Rights, partly perhaps from an oversight on the part of its draftsmen, +but partly also owing to the assumption—which the early history of the +republic amply verified—that the government would be a weak one, unable +to encroach upon the rights of private citizens. + +The first legal question which arises upon an examination of this +Constitution relates to its stability and permanence. Is it a Rigid or a +Flexible Constitution? That is to say, can it, like the constitution of +the Orange Free State and that of the United States, be altered only in +some specially prescribed fashion? Or may it be altered by the ordinary +legislature in the ordinary way, like any other part of the law? + +In favour of the former alternative, that the constitution is a Rigid +one, appeal has been made not only to the name Grondwet (Ground-law), +but, which is of more consequence, to some of its language. The general +declarations of the power of the people, the form in which they entrust +power to the legislature, to the Executive Council, and to the judiciary +respectively (as well as to the military authority), look as if meant to +constitute a triad of authorities, similar to that created by the +constitutions of American States, no one of which authorities may +trespass on the province of the others. Some things seem intended to be +secured against any alteration by the legislature, _e.g._, article 9 +declares that ‘the people will not allow of any equality between +coloured and white inhabitants’; article 11 declares that ‘the people +reserve to themselves the exclusive right of protecting and defending +the independence and inviolability of Church and State, according to the +laws.’ + +On the other hand, it is argued that the constitution must be deemed to +be a Flexible one, because it did not in its original form, and does not +now, contain any provision whereby it may be altered, otherwise than by +the regular legislature of the country acting according to its ordinary +legislative methods. One cannot suppose that no change was intended ever +to be made in the Grondwet. That supposition would be absurd in view of +the very minute provisions on some trivial subjects which it contains. +No distinction is drawn, by the terms of the instrument, between these +minutiae and the provisions of a more general and apparently permanent +nature. _Ergo_, all must be alterable, and alterable by the only +legislative authority, that is to say, the Volksraad. This view, +moreover, is the view which the legislature has in fact taken, and in +which the people have certainly acquiesced. Some changes have been +made—such as the admission to the electoral franchise of persons not +belonging to the Dutch Reformed Church, the creation of a new supreme +court, and the establishment of a Second Volksraad—which are not +consistent with the Grondwet, but whose validity has not been contested. + +The difficulty which arises from the fact that, whereas the framers of +the Grondwet appear to have desired to make parts of their work +fundamental and unchangeable, they have nevertheless drawn no +distinction between those parts and the rest, and have provided no +specific security against the heedless change of the weightiest parts, +may be explained by noting that they were not skilled jurists or +politicians, alive to the delicacy of the task they had undertaken. They +expected that the Volksraad would continue to be of the same mind as +they were then, and would respect what they considered fundamental; they +relied on the general opinion of the nation. They had, moreover, +provided a method whereby the nation should always have an opportunity +of expressing its opinion upon legislation, namely, the provision (§ 12) +that the people should have a period of three months within which to +‘intimate to the Volksraad their views on any proposed law,’ it being +assumed that the Volksraad would obey any such intimation, although no +means is provided for securing that it will do so. + +This provision has given rise to a curious question. It excepts ‘those +laws which admit of no delay.’ Now the Volksraad has in fact neglected +the general provision, and, instead of allowing the three months’ +period, has frequently hastily passed enactments upon which the people +have had no opportunity of expressing their opinion. Such enactments, +which have in some instances purported to alter parts of the Grondwet +itself, are called ‘resolutions’ (_besluite_) as opposed to laws; and +when objection has been taken to this mode of legislation, these +resolutions seem to have been usually justified on the ground of +urgency, although in fact many of them, if important, could hardly be +called urgent. They have been treated as equally binding with laws +passed in accordance with the provisions of the Grondwet (for up to 1895 +article 12 seems not to have been formally altered); and it is only +recently that their validity has been seriously questioned in the +courts. Those who support their validity argue that in passing such +resolutions as laws, the Volksraad must be taken to have implicitly, but +decisively, repealed the provision of article 12; or that, if this be +not so, still the Volksraad is under article 12 the sole judge of +urgency, and can legally treat things as urgent which are, in fact, not +so; a view affirmed by the Chief Justice in a case (_State_ v. _Hess_) +which arose in 1895. They add that even apart from both these arguments +the unbroken usage of the Volksraad during a number of years, tacitly +approved by the people, must be deemed to have established the true +construction of the Constitution, especially as according to Roman-Dutch +law, usage, whether affirmative or negative, can alter written +enactments and could thus annul the directions of article 12. So it is +written in the Digest of Justinian (I. 3. 32): ‘Inveterata consuetudo +pro lege custoditur ... nam quid interest suffragio populus voluntatem +suam declaret an rebus ipsis et factis? Quare rectissime etiam illud +receptum est ut leges non solum suffragio legis latoris, sed etiam +tacito consensu omnium per desuetudinem abrogentur.’ To this, however, +it is answered that the principle of obsolescence by contrary practice +cannot fitly be applied where a statute is recent and express. + +Until 1897, the High Court of the Transvaal had held that the +resolutions as well as the laws passed by the Volksraad were fully +valid, whether or no they had been submitted to the people for the +period of three months, nor had the question of their being really +urgent been raised. It had thus declared the Grondwet to be alterable by +the Legislature, and so not a Rigid Constitution. In that year, however, +in the case of _Brown_ v. _Leyds_, the Court held, by a majority, that a +law which had been passed without having been submitted to the people +during the period prescribed by the Grondwet was unconstitutional and +therefore void, thus appearing to assert (for the language of the +judgement is not very clear) the view that the Grondwet was a Rigid +Constitution, not alterable by the Legislature. This action was warmly +resented by the Executive and Legislature: and the latter passed a +resolution directing the President to require from every judge on pain +of dismissal a declaration that he would in future recognize as valid +every law passed by the Volksraad, and not again assert the so-called +‘testing power’ of inquiring whether a law conformed to the provisions +of the Grondwet. The Chief Justice refused to make this declaration, and +was accordingly dismissed, much to the regret of those who remembered +his past services to the State. + +On a review of the whole matter, apart from the political passion which +has been brought into it, the true view would appear to be the +following, though I state it with the diffidence becoming a stranger who +is also imperfectly informed as to the constitutional history of the +republic. + +The Grondwet of the South African Republic, though possibly intended by +its framers to be treated, in respect of its most important provisions, +as a fundamental law not to be altered by the Volksraad in the exercise +of its ordinary powers, is not really a Rigid constitution but a +Flexible one. We have to look not so much at what the framers may have +wished as at what the language employed actually conveys and imports; +and the absence of any provision, such as that contained in the +Constitution of the Orange Free State, for a special and peculiar method +of change, is decisive upon this point. An American lawyer, accustomed +to construe strictly documents which contain or modify powers, might be +inclined to argue that the validity of laws (not dealing with matters +which ‘admit of no delay’) which had been passed as mere resolutions, +ignoring article 12, may have been doubtful until the Volksraad modified +that article by legislation. But the Transvaal High Court had held that +the question of urgency was a question for the discretion of the +Volksraad; and it must be added that persons accustomed to other legal +systems do not necessarily proceed upon American principles. The Swiss, +for instance, make their legislature the interpreter of the Constitution +for the purpose of determining the extent of legislative power[202]. +Allowing for this, and remembering that both the law courts and the +whole people had until 1897 treated the Volksraad as an absolutely +sovereign body, the action it took in asserting its sovereignty need +excite no surprise. It was claiming nothing more than the powers +actually enjoyed by the British Parliament. However, although the +Volksraad was merely enforcing the rights which it reasonably (and I +think correctly) conceived itself to possess, and could not have +permitted the majority of the High Court to assert a power previously +unknown, a wiser course would have been to amend the Constitution in +some way which would have given to the judiciary a more assured position +than that which had been secured to them by a confessedly crude and +imperfect instrument. It was through the confused language of the +Grondwet that the whole difficulty arose, and while formally declaring +that the Grondwet was not—as it certainly was not—a Rigid Constitution, +the Volksraad ought to have endeavoured to render it more suited to the +needs of a society which had grown to be different from that for which +it had been originally enacted. + +----- + +Footnote 202: + + See Essay III, p. 231. + +----- + + + IV. OBSERVATIONS ON THE CHARACTER AND WORKING + OF BOTH CONSTITUTIONS. + +The principles of these Constitutions are highly democratic. They were +intended so to be. Among the whites settled in these wide territories +there prevailed a perfect social equality, a passionate love of +independence, and a strong sense of personal dignity. They were as +little influenced by political theories as it was possible for any +civilized men in this century to be. Their wish for a government purely +popular, and indeed for very little of any government at all, was due to +their personal experience and to the conditions under which they found +themselves in the wilderness; and one may doubt whether they would have +established a regular government but for the dangers which threatened +them from the warlike native tribes. Such sentiments as I have described +would have disposed them, had they lived in a city, or in a small area +like the cantons of Uri or Appenzell in Switzerland, to have kept +legislation and the determination of all grave affairs in the hands of a +general meeting of the citizens. But they lived scattered over a vast +wilderness, with no means of communication save ox-wagons which travel +only some twelve miles a day. In the Orange River Territory when it +became a state there were probably less than three thousand citizens, +though its area was nearly that of England. Hence primary assemblies +were impossible, and power had to be entrusted to a representative body. + +The predominance of the legislature is the most conspicuous feature of +both these constitutions. The Transvaal Volksraad originally made all +the appointments to the civil service, for the President had only the +right of proposing, and even in the revised Grondwet of 1889 the Raad +retains the right of approving or disapproving the President’s +appointments. In both republics the Volksraad appoints a majority of the +Executive Council which surrounds the President, to advise, but also to +watch and check him. It has complete control of revenue and expenditure. +It may change the constitution, though, in the Orange Free State, only +by a prescribed majority. The President has no veto on its acts; nor is +it, as in most modern free countries, divided into two chambers likely +to differ from and embarrass one another. Its vote, which may, if it +pleases, be a single vote, given under no restrictions but those of its +own making, is decisive. + +The comparative feebleness of the other branches of government +corresponds to the overwhelming strength of the legislature. The +authority of the judiciary received from the first a somewhat vague +recognition, and its independence was at one time, in the South African +Republic, seriously threatened by the executive and legislature, and +saved only by the exertions of the bench and bar, which aroused public +opinion on its behalf. The later controversy between the Volksraad and +the Chief Justice has been already discussed. In the Free State the +Court’s claim to be the proper and authoritative interpreter of the +constitution, which would be clear upon English or American principles, +was never formally admitted. And though the judges are in both republics +appointed for life, their salaries are at the mercy of the legislature. + +The executive head of the government has no doubt the advantage, as in +an American State, of being directly chosen by the people, and not, as +in France, by the legislature. But he has no veto on acts of the +legislature, while his acts can be overruled by it, at least in the +Orange Free State, for in the Transvaal this may be more doubtful. Its +approval is required to any appointments he may suggest. He is hampered +by an Executive Council which he has not himself selected, resembling in +this respect an American State governor rather than the President of the +Union. It may, in the Free State, try him and depose him if convicted. +He has no military authority, such as that enjoyed by the British Crown +and its ministers, or by the American President, for that belongs to the +Commandant-General (though in the Orange Free State the Commandant +‘receives instructions’ from the President). + +Against all these sources of weakness there are only two things to set. +The President can speak in the Volksraad, and he is re-eligible any +number of times. + +The Executive Council, as already observed, seems intended to restrain +the President, while purporting to aid and advise him. It may be +compared to the Privy Council of mediaeval England, with the important +difference that it is appointed, not by the executive, but partly by the +legislature, partly by the people. As we shall see presently, it has +proved to be an unimportant part of the machinery of government. + +In all these points the two constitutions present a close likeness. They +are also similar in the recognition which they originally gave, and have +not wholly ceased to give, to a state church—an institution opposed to +democratic ideas in America and in the British Colonies—as well as in +their exclusion of persons of colour from every kind of political right. +It would appear that upon this point there has never been any +substantial difference of opinion in the two republics. Neither indeed +is there much difference of opinion in the British parts of South +Africa, for although the influence of English ideas has been so far felt +that in Cape Colony persons of colour are permitted to vote, still the +combination of a property qualification with an educational +qualification greatly restricts their number. A republican form of +government, therefore, does not necessarily appear to make for ‘human +rights’ in the American sense of that term, any more than it did in the +United States in 1788. + +Speaking generally, these two Constitutions carry the principle of the +omnipotence of the representative chamber to a maximum. This will be +more clearly seen if we compare the system they create, first with the +cabinet system of Britain and her self-governing colonies, and secondly +with the presidential system of the United States. + +The main differences between the South African scheme of government and +the British may be briefly summarized. + +The head of the executive is, in the South African republics, chosen +directly by the people, whereas in Britain and her colonies the +executive ministry is virtually chosen by the legislature[203], though +nominally by the Crown or its local representative. + +----- + +Footnote 203: + + Using the expression which Bagehot has made familiar, though of course + Parliament is far from determining the entire composition of a + ministry, which may occasionally contain persons it would not have + selected. + +----- + +In these republics the executive cannot, as can ministers under the +British system, be dismissed by a vote of the legislature, nor on the +other hand has the executive the power of dissolving the legislature. + +In these republics the nominal is also the real and acting executive +head, whereas in the British system a responsible ministry is interposed +between the nominal head and the legislature. + +In all the above-mentioned points the South African system bears a close +resemblance to the American. + +In these republics the President’s Council need not consist of persons +in agreement with his views of policy. It may even be hostile to him, as +part of Warren Hastings’s council at Calcutta was in permanent +opposition to that governor. Nor does the Executive Council consist, +like the (normal) British cabinet and United States Federal cabinet, of +the heads of the great administrative departments, though several +officials sit in it. + +On the other hand, the South African system agrees with the British in +permitting the head of the working executive to speak in the +legislature, a permission which has proved to be of the highest +importance, and which in America is given by usage neither to the +Federal President[204] nor to a State governor. + +----- + +Footnote 204: + + Although there is nothing in the federal constitution to prevent a + President from addressing either House of Congress. + +----- + +The chief differences between the South African and the American system +are the following:— + +The President has, in the South African republics, far less independence +than belongs in the United States to either a Federal President or to +the Governor of a State. He has no veto on acts of the legislature, and +less indirect power through the patronage at his disposal. Moreover, the +one-chambered legislature is much stronger as against him than are the +two-chambered legislatures of America, which may, and frequently do, +differ in opinion, so that the President or Governor can play off one +against the other. Further, as already observed, an American Federal +President has a cabinet of advisers whom he has himself selected, and an +American State governor has usually officials around him who, being +elected by a party vote at the same election, are probably his political +allies; whereas a South African President might possibly have an +Executive Council of opponents forced on him by the Volksraad. And even +in negotiations with foreign states, he cannot act apart from this +Executive Council. + +The distinctive note of both these South African Constitutions is the +kind of relation they create between the Executive and the Legislature. +These powers are not disjoined, as in the United States, because a South +African President habitually addresses and may even lead the Volksraad. +Neither are they united, as in Britain and her colonies, where the +Executive is at the same time dependent on the legislature, and also the +leader of the legislature, for the South African President is elected by +the people for a fixed term, and cannot be displaced by the Volksraad. +He combines the independence of an American President with the +opportunities of influencing the legislature enjoyed by a British, or +British colonial, Ministry. For nearly all practical purposes he is at +the mercy of the legislature, because he has neither a veto, like the +American President, nor a power of dissolution, like the British +Ministry. The Volksraad could take all real power from him, should it be +so minded. But he is strong by the possession of the two advantages just +mentioned. He can persuade his Volksraad, which has not, by forming +itself into organized parties, become inaccessible to persuasion. He can +influence the opinion of his people, because he is their choice, and a +single man in a high place fixes the attention and leads the minds of a +people more than does an assembly. + +It must, however, be remembered that the features—perhaps one may say +the merits—which I have noted as shown in the working of the South +African system, belong rather to small than to large communities. The +Free State had in 1895 only some seventeen thousand voting citizens, the +Transvaal not many more. Athens in the days of Themistocles had about +thirty thousand. In large countries, with large Legislatures, whose size +would engender political parties, things would work out differently. +Furthermore, in a large State, the administrative departments would be +numerous and their work heavy. The President could not discuss +departmental affairs with the Raad, and could not easily be made +personally responsible for all that his administrative officers did. And +the less knowledge he had of affairs and of persons, the less influence +he exerted over the Raad, the more would his Executive Council tend to +check him. Its members would probably intrigue with the leaders of +parties in the Volksraad, and make themselves a more important factor in +the government than they have been while overshadowed by his +personality. + +Any one who, knowing little or nothing about the social conditions and +the history of these two republics, should try to predict the working of +their governments from a perusal of their constitutions, would expect to +find them producing a supremacy, perhaps a tyranny, of the +representative assembly; for few checks upon its power are to be found +within the four corners of either instrument. He would be prepared to +see party government develop itself in a pronounced form. Power would be +concentrated in the party majority and its leaders. The Executive would +become the humble instrument of their will. The courts of law, +especially in the Transvaal with its Flexible constitution, would be +unable to stem the tide of legislative violence. The President might +perhaps attempt to resist by producing a deadlock over appointments; and +he would have a certain moral advantage in being the direct choice of +the people. But the one-chambered Legislature would in all probability +prevail against him. + +Is this what has in fact happened? Far from it. Party government, in the +English and American sense, has not made its appearance. The Legislature +has not become the predominant power, subjecting all others to itself. +It has, in general, followed the lead of the Executive. The Courts of +law, though (in the Transvaal) at one moment menaced, have administered +justice with fairness and independence. But in order to describe what +has happened, I must, in a very few sentences, deal separately with the +Orange Free State and the South African Republic, for though their +constitutions are similar and the origin of their respective populations +nearly identical[205], their history has been very different. + +----- + +Footnote 205: + + The British element is larger among the citizens of the Orange Free + State than it is in the burgher population of the Transvaal. + +----- + +The Orange Free State had, for many years prior to 1899, a comparatively +tranquil and uneventful career. One native war inflicted some injury +upon it, but the result of that war was to give it a strip of valuable +territory. It had joined the British colonies in a South African Customs +Union, had placed its railroads under the management of the Cape +Government, had maintained friendly relations with the two British +self-governing colonies, had extended the franchise to immigrants on +easy terms, and was at all times recognized as absolutely independent by +the British Government. Internally its development, if not rapid, was +both steady and healthful. There was no poverty among the people, and +hardly any wealth. No exciting questions arose to divide the citizens, +and no political parties grew up. The Legislature, although too large, +has been a sensible, businesslike body, which wasted no more time than +debate necessarily implies. From 1863 to 1888 it was guided by the +counsels of President Brand, whom the people elected for five successive +terms, and whose power of sitting in it and addressing it proved of the +utmost value, for his judgement and patriotism inspired perfect +confidence. His successor Mr. Reitz, who was obliged by ill-health to +retire from office in 1895, enjoyed equal respect and almost equal +influence, when he chose to exert it, with the Volksraad, and things +went smoothly under him, as they promised to do under President Steyn, +who was elected in 1896, for the latter also was believed—so I heard +when visiting the Free State in 1895—to possess the qualities which had +endeared his predecessors to the community. The Executive Council has +not proved to be a very valuable part of the scheme of government; and +some judicious observers thought the constitution ought to be amended by +strengthening the position of the courts and introducing provisions for +a popular vote on constitutional amendments, similar to those which +exist in American States and in Switzerland. But, on the whole, the +system of government worked smoothly, purely and efficiently; the +Legislature was above suspicion, and the people were content with their +institutions. + +Very different had been the annals of the South African Republic. Soon +after the Grondwet was adopted in 1858, a civil war broke out; and from +that time onward factions and troubles of all kinds were seldom wanting. +In 1877 the country, then threatened by native enemies, was annexed to +the British dominions against the will of the people: in 1881 its +autonomy was restored, subject to British suzerainty[206]. Its +government, however, continued to be pressed by financial and other +difficulties, till the discovery of rich gold-fields in 1884-6, while +suddenly increasing the revenue, drew in a stream of immigrants which +has steadily continued to flow, and therewith raised that new crop of +political troubles of which all the world has heard[207]. The result has +been that the Constitution has never had any period of comparative peace +in which its working could be fairly tested. If it has not worked as +smoothly as that of the Free State, this may be due not merely to +inherent defects but to the strain which civil and foreign wars have +placed upon it. The Legislature, however, has not played the leading +part. President Burgers, who held office from 1872 till 1877, was, like +President M. W. Pretorius before him, practically more powerful than the +Volksraad; and since 1881 President Kruger, who has been thrice +re-elected, has been the ruling force in the politics of the country. By +his influence over the people, by his constant presence and speeches in +the Volksraad, he threw its leaders entirely into the shade, and +probably exerted more actual power than the chief magistrate of any +other republic, though there was scarcely any other chief magistrate +whose legal authority was confined within such narrow limits. So much +may foreign troubles or economic and social facts, and so much do the +qualities of individual men, affect and modify and prevail over the +formal rules and constitutional machinery of government. The Legislature +therefore has not had in the Transvaal that career of encroachment upon +and triumph over the other authorities in the State which might have +been predicted for it. Its turn might have come when external relations +were tranquil and domestic controversies arose. When foreign affairs +occupy men’s minds, and call for rapid decision as well as for +continuity of policy, the Legislature is apt to be, in all countries, +dwarfed by the Executive. + +----- + +Footnote 206: + + A further convention was made in 1884, whose articles, omitting all + reference to ‘suzerainty,’ conceded an independence qualified only in + respect of the veto retained by Britain over treaties with foreign + powers. + +Footnote 207: + + When these immigrants from all parts of the world swarmed into the + country, admission to the franchise was made more difficult, because + the conservative section of the citizens naturally feared that the + newcomers, many of whom did not intend to make the country their home, + might, if they forthwith acquired voting power, soon secure a majority + and overturn the existing system of the republic, including the + official use of the Dutch language and the relations of Church and + State. These non-burgher immigrants have been absurdly described as + ‘helots.’ A closer parallel to them is to be found not in the + semi-serfs of Sparta but in the class of resident aliens known at + Athens as metics (μέτοικοι). But they were indeed far better off than + that class, since they enjoyed full civic rights in all matters of + private law, wanting only the right of sharing in the government. + +----- + + + POSTSCRIPT. + +Since the foregoing sketch of these remarkable experiments in the +construction of Frames of Government was written (in 1896), both the +Dutch republics have become involved in a deplorable war with England, +which has lasted for many months, and still continues at the time of +this writing. It has brought misery and desolation upon South Africa, +and not least upon that singularly happy, prosperous, peaceful and +well-governed community, the Orange Free State. While the flames are +still raging, no one can conjecture in what form these two constitutions +will emerge from the furnace, or whether indeed they will survive at +all. In the midst of so terrible a catastrophe, a catastrophe unredeemed +by any prospect of benefit to any of the combatants, and one whose +results must be fateful in many ways for the future of South Africa, and +possibly also of Britain, the destruction or transformation of +constitutions seems but a small matter. But had these two republics been +suffered to continue the normal course of their constitutional +development, that development would have been full of interest. It might +even have conveyed valuable instruction or suggested useful examples to +other small commonwealths, for in the scheme of these Constitutions, and +especially in that of the Free State, there are some merits not to be +found either in the American or in the British system. These simple Free +State farmers were wiser in their simplicity than some of the +philosophers who have at divers times planned frames of government for +nascent communities. But though Wisdom is justified of all her children, +she cannot secure that her children shall survive the shock of arms. + + + + + VIII + + THE CONSTITUTION OF THE + COMMONWEALTH OF AUSTRALIA + + + I. INTRODUCTORY. + +Australia is the first instance in history of a whole continent whose +inhabitants are all (if we exclude the vanishing aborigines) of one race +and all owe one allegiance. Thus it has supplied the only instance in +which a political constitution has been, or could have been, framed for +a whole continent. It is moreover one of the very few cases in history +in which a number of communities politically unconnected (save by their +common allegiance to a distant Crown) who had felt themselves to be +practically a nation have suddenly transformed themselves into a +National State, formally recognizing their unity and expressing it in +the national institutions which they proceeded to create. There could +hardly be a more striking illustration of the speed with which events +have been moving during the last and the present age than the fact that +Australia, or New Holland as it was then called, was, except as to part +of its coasts, marked as a _Terra Incognita_ upon our maps so late as +the beginning of the eighteenth century, that the first British +settlement was not planted in it at Sydney (not far from Captain Cook’s +Botany Bay) till 1788, that responsible government was not conferred +upon the oldest colony, New South Wales, until 1855, nor upon West +Australia till 1890. + +Besides the interest with which every one must see the birth of a new +nation, occupying a vast and rich territory, the student of political +science finds further matter for inquiry and reflection in the enactment +of an elaborate constitution for the Commonwealth of Australia. Every +creation of a new scheme of government is a precious addition to the +political resources of mankind. It represents a survey and scrutiny of +the constitutional experience of the past. It embodies an experiment +full of instruction for the future. The statesmen of the Convention +which framed this latest addition to the world’s stock of Instruments of +Government had passed in review all previous experiments, had found in +them examples to follow and other examples to shun, had drawn from them +the best essence of the teachings they were fitted to impart. When the +Convention prepared its highly finished scheme of polity, it delivered +its judgement upon the work of all who had gone before, while +contributing to the materials which will be available for all who come +hereafter to the work of building up a State. + +Nearly all the precedents which the Australian Convention had at its +disposal belong to very recent times, in fact to the last century and a +half. Though federal governments are ancient—the oldest apparently is +that formed by the cities of Lycia in the fourth century B.C.—the +ancient federations scarcely got beyond the form of leagues of small +republics for the purpose of common military defence. Such leagues never +quite grew into Federal States, properly so called, _i.e._ States in +which the central government exercises direct power over the citizens of +the component communities. The same remark applies to the confederacies +of the Middle Ages, such as that of the Hanse Towns and that of the old +Swiss Cantons, as well as to the United Provinces of the Netherlands. +The first true Federal State founded on a complete and scientific basis +was the United States, which dates from 1788, when its present +Constitution was substituted for the Articles of Confederation of 1776. +Next came the Constitution of the Swiss Confederation, enacted in 1848, +and replacing a much looser form of union which had previously joined +the Cantons of Switzerland. Its present amended form dates from 1874. +The third was the Constitution of Canada, established by the British +North America Act of 1867. Still later came the Constitution of the +North German Confederation (1866) enlarged into that of the new Germanic +Empire (1871), a remarkable Federal State with a monarch for its head, +and including as its members both large kingdoms, such as Bavaria and +Würtemberg, and the city republics of Lübeck, Bremen, and Hamburg[208]. +But this last-named Federation, instructive as it is, deals with +conditions too dissimilar from those of Australia to furnish many +precedents in point. It was the Constitutions of the United States and +of Canada which the Australians studied most carefully, and whence they +drew as well inspiration as many useful suggestions. And the student who +examines the Australian scheme will find it interesting to note many +points that recall, by way either of likeness or of contrast, the +systems of the United States, of Switzerland, and of Canada. It is only +with these three that I propose to compare the Australian Constitution +in the pages that follow. As I am writing not for lawyers but for +students of history and of constitutions, who desire to understand the +nature of this new Government sufficiently to follow with intelligence +the course of political life under it, I shall pass lightly over its +more technical and more purely legal aspects, and dwell rather upon +those general features which will give to the future Australian polity +its character and spirit. + +----- + +Footnote 208: + + One might add the Constitution of the Austro-Hungarian Monarchy, which + is a sort of double federation. But it is too peculiar to serve as an + example to other peoples proposing to federalize. + +----- + + + II. THE MOVEMENT FOR FEDERATION. + +Like the settlements of Britain in North America, the Australian +settlements were organized as Colonies at different dates, and several +of them independently of the others[209]. So, again like those of North +America, each remained legally unconnected with the others, except +through the allegiance they all owed to the British Crown, which sent +out Governors to administer them. These officers were at first +practically despotic; but when self-government was conferred upon a +Colony, they became the nominal heads of an executive which in fact +consisted of ministers responsible to the elective legislature of that +Colony. + +----- + +Footnote 209: + + New South Wales in 1788, Tasmania in 1825, Western Australia in 1829, + South Australia in 1836, Victoria in 1851, Queensland in 1859. + Victoria and Queensland had however been originally settled (1836 and + 1826), and for some time administered, from New South Wales, while + Tasmania had been made a penal settlement as early as 1804. + +----- + +Little as there was in the way of official connexion between the +scattered settlements, their inhabitants always deemed themselves +Australians, giving their sentimental attachment rather to the country +as a whole than to their respective colonies. They were all English; +they all lived under similar conditions: their local life had not lasted +long enough to form local traditions with which sentiment could entwine +itself. The very names of some of the colonies did not favour +individualization, for who would call himself a New-southwalesian? And +the idea that the colonies ought to be united into one political body +emerged very early. As far back as 1849 a Committee in England had +recommended that there should be a Governor-General for all Australia, +with power to convene a General Assembly to legislate on matters of +common colonial interest, and a bill introduced into Parliament in that +year contained clauses for establishing such a legislature. These +provisions were dropped, for the time was not ripe, yet the idea +continued to occupy the minds of Australian statesmen from that year +onwards; and it received a certain impulse from the creation of the +Canadian Confederation in 1867. What it wanted was motive power, that is +to say, a sense of actual evils or dangers to be averted, of actual +benefits to be secured, by the union of the Colonies into one National +State. Democratic communities, occupied by their own party +controversies, are little disposed to deal with questions which are not +urgent, and which hold out no definite promise either of benefit to the +masses or of political gain to the leaders. However, in 1883 events +occurred which evoked a new Pan-Australian feeling, and indicated +objects fit to be secured by a united Australian government. The late +Lord Derby, then Secretary of State for the Colonies, was the most +cautious and unsentimental of mankind. He belonged to the old school of +English statesmen who deprecated—and in some cases wisely +deprecated—further additions to the territories and responsibilities of +Britain. Disregarding the representations of the Governments of several +among the Colonies, he neglected to occupy the northern part of the +great neighbouring island of New Guinea which Australian opinion desired +to see British, and permitted it, to their great vexation, to be taken +by Germany. About the same time the escape of convicts into Australia +from the French penal settlement in New Caledonia had caused annoyance, +and movements were soon afterwards made by France which seemed to +indicate an intention to appropriate the New Hebrides group of islands. +These occurrences roused the Australians to desire an authority which +might deliver their common wishes to the Home Government and take any +other steps necessary for guarding their common interests. Accordingly a +conference of delegates from all the Colonies, including New Zealand and +Fiji, met in 1884, and prepared a scheme which was transmitted to +England, and was there forthwith enacted by the Imperial Parliament +under the name of The Federal Council of Australasia Act, 1885. This +scheme was, however, (as I observed when it was under discussion in the +House of Commons) a very scanty, fragmentary and imperfect sketch of a +Federal Constitution. It had no executive power and no command of money. +No colony need join unless it pleased, and each might withdraw when it +pleased. Thus it befell that the plan excited little popular interest, +and gave such faint promise of energetic action that only four colonies, +Victoria, Queensland, Tasmania, and South Australia, entered into it; +and of these South Australia presently withdrew. Meanwhile the need for +some general military organization for all the Colonies began to be +felt; and further objects attainable by union floated before men’s +minds. With the increase of trade and industry, the vexation of tariff +barriers between the colonies grew daily less tolerable. Subjects +emerged on which uniformity of legislation was felt to be needful. The +irrigation question, one of great importance for so arid a country, +brings New South Wales, where some of the large rivers have their +source, into close relation with Victoria and South Australia, and +requires to be treated on common lines. These and other grounds led to +an Inter-Colonial Conference of Ministers at Melbourne in 1890, and then +to the summoning of a Convention of Delegates from the Parliaments of +all the Colonies, including Tasmania. This latter body, which included +many leading men, met at Sydney in 1891, debated the matter with great +ability, and produced a Draft Bill, which became the basis of all +subsequent discussions. The movement, hitherto confined to a group of +political leaders, now began to be taken up by the people, and became, +especially when the financial troubles of 1893 had begun to pass away, +the principal subject in men’s minds. That crisis had shown all the +Colonies how closely their interests were bound together, and had made +them desire to remove every hindrance to an industrial and financial +recovery. A Conference of Prime Ministers at Hobart in 1895 led to the +passing by the several Colonial Parliaments of enabling Acts under which +delegates were chosen, this time (following recent American precedents) +by popular vote, to a new Convention which met at Adelaide (in South +Australia) in 1897. It produced a second draft constitution, based on +that of 1891, and laid it before the legislatures of the Colonies for +criticism. About seventy-five amendments were proposed, and were +considered by the Convention at its further sittings, which closed in +March, 1898. The draft Constitution was then submitted to a popular +vote, a new expedient in the British dominions, but one amply justified +by the need for associating the people with the work. New South Wales +alone failed to adopt it by the prescribed majority, because a large +section of her inhabitants thought that her interests had not been duly +regarded, but after a few amendments had been inserted at a conference +of the Colonial Prime Ministers, her people ratified it upon a second +vote. On this vote enormous majorities were secured in Victoria, South +Australia and Tasmania, smaller ones in New South Wales and Queensland. +The Constitution was then sent to England and passed into law by the +Parliament of the United Kingdom under the title of The Commonwealth of +Australia Constitution Act (63 & 64 Vict. cap. 12). Action by the +Imperial Parliament was not only a convenient way of overriding all the +colonial constitutions by one comprehensive Act, but was legally +necessary, inasmuch as some provisions of the Constitution transcended +the powers of all the colonial legislatures taken together. Since it had +from the first been understood that the wish of the mother country was +not to impose her own views but simply to carry out the wishes of the +Colonies, only one slight alteration, an alteration rather of form than +substance, was made in the draft as transmitted from Australia, the +ill-considered notion of introducing a larger change having been +eventually dropped by the British Ministry. + +I have mentioned these details in order to emphasize the time, care and +pains bestowed by the Australians—for the work was entirely their +own—upon this latest effort of constructive statesmanship. The +Constitution of the United States was framed by a Convention which sat +at Philadelphia, with closed doors, for nearly five months, and was +accepted by Conventions in all the thirteen States without change, +though ten amendments were immediately thereafter passed by general +consent, their adoption having been the price paid for the ratification +of the main instrument by some doubtful States. + +The Constitution of Canada took a little more than two years to settle. +The Resolutions on which it was based were first of all drafted by a +conference of delegates at Quebec. These were approved after full debate +by the legislatures of the Provinces, and were, after some +modifications, embodied in a Bill prepared by a small conference of +Canadian statesmen who met in London. The Bill was then passed by the +Imperial Parliament, never having been submitted to any popular vote. +But this Australian instrument is the fruit of debates in two +Conventions, of a minute examination by legislatures, of a subsequent +revision by the second Convention, of further modifications in a few +details by a conference of Prime Ministers, and has after all this +preparation been sealed by the approval of the peoples of the Colonies +concerned. The process of incubation lasted for nearly nine years, being +all the while conducted in the full blaze of newspaper reporting and +under the constant oversight of public opinion. + + + III. THE CAUSES WHICH BROUGHT ABOUT + FEDERATION. + +The reasons and grounds assigned by the advocates of Federation were +more numerous than those urged in the United States in 1787-9, or in +Canada in 1864-6; but none of them were so imperative, for the +Australian Colonies were far less seriously menaced by actually +insistent evils, due to the want of a common national Government, than +was the welfare either of the American States in 1787, or of Switzerland +in 1848, or of Canada in 1867. In North America, it was the growing and +indeed hopeless weakness and poverty of the existing Confederation, +coupled with the barriers to commercial intercourse, the confusion and +depreciation of currency, and the financial demoralization of some of +the States, all of which had just emerged from an exhausting war, that +drew the wisest minds of the nation to Philadelphia, induced them to +persist in efforts to devise a better union, and enabled them to force +its acceptance upon a people largely reluctant. In Switzerland it was +the War of Secession (the so-called Sonderbund war) of 1847 that +compelled the victorious party to substitute a new and truly federal +constitution for the league which had proved too weak. In Canada the +relations of the French-speaking and English-speaking Provinces (Lower +and Upper Canada) had become so awkward that constitutional government +was being practically brought to a standstill, and nothing remained but +that the leaders of the two parties should devise some new system. +Australia was in no such straits. Her colonies might have continued to +go on and prosper, as six unconnected self-governing communities. It is +therefore all the more to the credit of her people that they forewent +the pleasures of local independence which are so dear to vivacious +democracies, perceiving that although necessity might not dictate a +federal union, reason recommended it. + +The grounds which were used in argument to urge the adoption of the +Federal Constitution may be summed up as follows:— + +The gain to trade and the general convenience to be expected from + abolishing the tariffs established on the frontiers of each colony. + +The need for a common system of military defence. + +The advantages of a common legislation for the regulation of railways + and the fixing of railway rates. + +The advantages of a common control of the larger rivers for the purposes + both of navigation and of irrigation. + +The need for uniform legislation on a number of commercial and + industrial topics. + +The importance of finding an authority competent to provide for old-age + pensions and for the settlement of labour disputes all over the + country. + +The need for uniform provisions against the entrance of coloured races + (especially Chinese, Malays, and Indian coolies). + +The gain to suitors from the establishment of a High Court to entertain + appeals and avoid the expense and delay involved in carrying cases to + the Privy Council in England. + +The probability that money could be borrowed more easily on the credit + of an Australian Federation than by each colony for itself. + +The stimulus to be given to industry and trade by substituting one great + community for six smaller ones. + +The possibility of making better arrangements for the disposal of the + unappropriated lands belonging to some of the colonies than could be + made by those colonies for themselves. + +There was in these arguments something to move every class in the +community. To the commercial classes, the prospect of getting rid of +custom-houses and of finding a large free market close at hand for all +products was attractive; as was also that of sweeping away the vexation +of railway rates planned in the interests of each colony rather than for +the common benefit of trade. Large-minded men, thinkers as well as +statesmen, hoped that a wider field would bring a loftier spirit into +public life. The working-classes might expect, not only advantages in +the way of brisker employment, but the establishment of that provision +for old age and sickness which a Government covering the whole country +and commanding ample resources could make more efficiently and on more +uniform lines than even the richest colony could do. Some of these +grounds for union measure the distance which the world has travelled +since 1788. Railways are far older than was self-government in the +oldest Australian colony, far younger than the youngest of the original +thirteen American States. Even so late as 1867, when Canada was +confederated, no one thought of suggesting that the State should provide +old-age pensions. + +The opponents of Australian Federation, although they came more and more +to feel their cause hopeless, were an active party, including many +influential men. Besides denying that the benefits just enumerated would +be attained, they dwelt upon the additional cost which a new Government, +superadded to the existing ones, must entail. They fanned the jealousies +which naturally exist between small and large communities, telling the +former that they would be overborne in voting, and the latter that they +would suffer in purse; and they wound up with the usual and often +legitimate appeals to local sentiment. + +The arguments drawn from considerations of expense and from local +jealousies were met by a series of ingenious compromises and financial +devices to which both the larger and smaller colonies were persuaded to +agree, while the love of each community for its own political +independence was overborne by the rising tide of national sentiment. An +ambition which aspired to make Australia take its place in the world as +a great nation, mistress of the Southern hemisphere, had been growing +for some time with the growth of a new generation born in the new home, +and was powerfully roused by the vision of a Federal Government which +should resemble that of the United States and warn off intruders in the +Western Pacific, as the American Republic had announced by the pen of +President Monroe that she would do on the North-American Continent. The +same nationally self-assertive spirit and desire for expansion which has +recently spurred four great European Powers into a rivalry for new +colonial possessions, and which in 1899 made the United States forswear +its old-established principles of policy, has been astir in the mind of +the Australians. It had been stimulated by the example of a similar +spirit in the mother country, and by the compliments which the English +had now begun to lavish upon their colonies. It had gained strength with +the growth to manhood of a generation born in Australia, and nurtured in +Australian patriotism. Such a patriotism, finding no fit scope in +devotion to the particular colonies, longed for a larger ideal. It +supplied the motive force needed to create a national union. Without it, +all the sober reasonings which counselled confederation might have +failed to prevail. No equally strenuous or forward-reaching spirit moved +the Canadians in 1867, nor are the traces of such a spirit conspicuous +in the American debates of 1787-9. Some men were then solicitous for +liberty, others for order and good government, but of imperial greatness +in the present sense of the term little was said. Liberty and peace at +home, not military strength and domination abroad, were the national +ideals of those days. + +The history of the Federation movement illustrates the truth that a +great change is seldom effected in politics save by the coincidence of +two moving forces—the prospect of material advantage and the power of +sentiment. In every community there are many who can be moved only by +one or other of these two forces, and nearly every man responds better +to the first if he can be warmed by the second. In the American debates +of 1788-9 feeling was mostly arrayed against the proposed federation, +though reason was almost entirely for it. Reason prevailed, but +prevailed with far more difficulty than the cause of Federalism, with +less cogent economic grounds behind it, prevailed in Australia. + +Like America in 1787, Australia was fortunate in having a group of able +statesmen, most of whom were also lawyers, and so doubly qualified for +the task of preparing a constitution. Their learning, their acuteness, +and their mastery of constitutional principles can best be appreciated +by any one who will peruse the interesting debates in the two +Conventions. They used the experience of the mother country and of their +predecessors in the work of federation-making, but they did so in no +slavish spirit, choosing from the doctrines of England and from the +rules of America, Switzerland, and Canada those which seemed best fitted +to the special conditions of their own country. And like the founders of +the American and Canadian Unions, they were not only guided by a clear +practical sense, but were animated by a spirit of reasonable compromise, +a spirit which promises well for the conduct of government under the +instrument which they have framed. + + + IV. THE CONDITIONS FOR A FEDERAL COMMONWEALTH. + +Before examining the provisions of the Constitution which is bringing +the hitherto independent colonies into one political body, it is well to +consider for a moment the territory and the inhabitants that are to be +thus united. + +The total area of Australia is nearly 3,000,000 square miles, not much +less than that of Europe. Of this a comparatively small part is peopled +by white men, for the interior, as well as vast tracts stretching inland +from the south-western and north-western coasts, is almost rainless, and +supplies, even in its better districts, nothing more than a scanty +growth of shrubs. Much of it is lower than the regions towards the +coast, and parts are but little above sea-level. It has been hitherto +deemed incapable of supporting human settlement, and unfit even for such +ranching as is practised on arid tracts in western North America and in +South Africa. Modern science has brought so many unexpected things to +pass, that this conclusion may prove to have been too hasty. Still no +growth of population in the interior can be looked for corresponding to +that which marked the development of the United States west of the +Alleghanies in the beginning of the nineteenth century. + +Of the six Australian colonies, one, Tasmania, occupies an island of its +own, fertile and beautiful, but rather smaller (26,000 square miles) +than Scotland or South Carolina. It lies 150 miles from the coast of +Victoria. Western Australia covers an enormous area (nearly 1,000,000 +square miles, between three and four times the size of Texas), and South +Australia, which stretches right across the Continent to the Gulf of +Carpentaria, is almost as large (a little over 900,000 square miles). +Queensland is smaller, with 668,000 square miles; New South Wales, on +the other hand, has only 310,000 square miles (_i.e._ is rather larger +than Sweden and Norway, and about the size of California, Oregon, and +Washington put together); Victoria only 87,000 (_i.e._ is as large as +Great Britain and a little larger than Idaho). The country (including +Tasmania) stretches from north to south over 32° of latitude (11° S. to +43° S.), a wider range than that of the United States (lat. 49° N. to +26° N.). There are thus even greater contrasts of climate than in the +last-named country, for though the Tasmanian winters are less cold than +those of Montana, the tropical heats of North Queensland and the shores +of the Gulf of Carpentaria exceed any temperature reached in Louisiana +and Texas. Fortunately, Northern Australia is, for its latitude, +comparatively free from malarial fevers. But it is too hot for the +out-door labour of white men. In these marked physical differences +between the extremities of the Continent there lie sources whence may +spring divergences not only of material interests but ultimately even of +character, divergences comparable to those which made the Gulf States of +the American Union find themselves drawn apart from the States of the +North Atlantic and Great Lakes. + +It must also be noted that the great central wilderness cuts off not +only the tropical north and north-west, but also the more temperate +parts of the west from the thickly peopled regions of the south-east. +Western Australia communicates with her Eastern sisters only by a long +sea voyage[210]. She is almost in the position held by California when, +before the making of the first transcontinental railway, people went +from New York to San Francisco via Panama. Nor is there much prospect +that settlements will arise here and there in the intervening desert. + +----- + +Footnote 210: + + It is four days’ voyage from Adelaide, the capital of S. Australia, to + Perth, the capital of W. Australia. + +----- + +The population of the Continent, which has now reached nearly 4,000,000, +is very unequally distributed. The three colonies of widest area, +Western Australia, South Australia, and Queensland, have none of them +500,000 inhabitants. Tasmania has about 170,000. Two others, New South +Wales and Victoria, have each more than 1,000,000[211]. This disparity +ranges them for political purposes into two groups, the large ones with +2,500,000 people in two colonies, and the small ones with 1,500,000 in +four colonies. + +----- + +Footnote 211: + + Two-fifths of the population of Victoria live in Melbourne, one-fourth + of the population of New South Wales in Sydney. + +----- + +Against these two sets of differences, physical and social, which might +be expected to induce an opposition of economic and political interests, +there is to be placed the fact that the Australian colonies are +singularly homogeneous in population. British North America is peopled +by a French as well as by an English race, British South Africa by a +Dutch race as well as an English. But Australia is purely British. Even +the Irish and the Scotch, though both races are specially prone to +emigrate, seem less conspicuous than they are in Canada[212]. Australia +is to-day almost as purely English as Massachusetts, Connecticut, and +Virginia were in 1776, and probably more English than were the thirteen +original States taken as a whole. In this fact the colonies found not +only an inducement to a closer union, but a security against the +occurrence of one of the dangers which most frequently threatens the +internal concord of a federation. Race antagonisms have troubled not +only Canada and South Africa but the United Kingdom itself, and they now +constitute the gravest of the perils that surround the Austro-Hungarian +monarchy. + +----- + +Footnote 212: + + In 1891, out of that part of the total population of Australia which + had been born in the United Kingdom, about one-fourth had been born in + Ireland and one-sixth in Scotland. Of the whole population of + Australia, 95 per cent. are of British stock. + +----- + +Among the other favouring conditions may be enumerated the use of one +language only (whereas in Canada and in South Africa two are spoken), +the existence of one system of law, the experience of the same form of +political institutions, a form modelled on that which the venerable +traditions of the mother country have endeared to Englishmen in all +parts of the world. It has also been a piece of good fortune that +religion has not interposed any grounds for jealousy or division. The +population of Australia is divided among various Christian denominations +very much as the population of England is, and the chief difference +between the old and the new country lies in the greater friendliness to +one another of various communions which exists in the new country, a +happy result due partly to the absence of any State Establishment of +religion, and partly to that sense of social equality which is strong +enough to condemn any attempt on the part of one religious body to claim +social superiority over the others. + +Finally, there is the unique position which Australia occupies. She has +a perfect natural frontier, because she is surrounded by the sea, an +island continent, so far removed from all other civilized nations that +she is not likely to be either threatened by their attacks or entangled +in their alliances. The United States had, when its career began, +British possessions on the north, French and Spanish on the south. But +the tropical islands which Holland, Germany and France claim as theirs +to the north and east of the Australian coasts are cut off by a wide +stretch of ocean[213]. They are not now, and are not likely at any time +we can foresee, to contain a white population capable of disturbing the +repose of Australia. Such a country seems made for one nation, though +the fact that its settled regions lie scattered round a vast central +wilderness suggests that it is better fitted for a federation than for a +government of the unified type. But, on the other hand, this very +remoteness might, in removing the force of external pressure, have +weakened the sense of need for a federal union had there not existed +that homogeneity of race and that aspiring national sentiment to which I +have adverted. + +----- + +Footnote 213: + + The nearest point of Dutch New Guinea is about 150 miles from + Australia. + +----- + +Compare these conditions with those of the three other Federations. The +thirteen colonies which have grown into the present forty-five States of +the American Union lay, continuous with one another, along the coast of +the Atlantic. England held Canada to the north of them, France held the +Mississippi Valley to the west of them, and, still further to the west, +Spain held the coasts of the Pacific. They had at that time no natural +boundaries on land; and the forces that drew them together were local +contiguity, race unity, and above all, the sense that they must combine +to protect themselves against powerful neighbours as well as against the +evils which had become so painfully evident in the governments of the +several States. Nature prescribed union, though few dreamt that Nature +meant that union to cover the whole central belt of a Continent. In the +case of Canada, Nature spoke with a more doubtful voice. She might +rather have appeared to suggest that this long and narrow strip of +habitable but only partially inhabited land, stretching from the Gulf of +St. Lawrence to Puget Sound, should either all of it unite with its +mighty neighbour to the south, or should form three or four separate +groups, separated by intervening wildernesses. Political feelings +however, compounded of attachment to Britain and a proud resolve not to +be merged in a rival power which had done nothing to conciliate them, +led the Canadians to form a confederation of their own, which Nature has +blessed in this point at least, that its territories are so similar in +climate and in conditions for industrial growth that few economic +antagonisms seem likely to arise among them. Switzerland, however, is +the most remarkable case of a Federation formed by historical causes in +the very teeth, as it might seem, of ethnological obstacles. Three +races, speaking three languages, have been so squeezed together by +formidable neighbours as to have grown into one. The help of Nature has +however been given in providing them with mountain fastnesses from which +the armies of those neighbours could be resisted; and the physical +character of the country has joined with the traditions of a splendid +warlike heroism in creating a patriotism perhaps more intense than any +other in the modern world. + + + V. THE CONSTITUTION AS A FEDERAL INSTRUMENT. + +In examining any Federal Constitution, it is convenient to consider the +system it creates first as a Federation, _i.e._ a contrivance for +holding minor communities together in a greater one; and then as a Frame +of Government, composed of organs for discharging the various functions +of administration. Although the former of these influences the latter, +because the federal character of a State prescribes to some extent the +character of that State’s governmental machinery, it conduces to +clearness to deal with these two aspects separately. Accordingly I begin +with the federal aspect of the Constitution. + +Federations are of two kinds. In some, the supreme power of the Central +Government acts upon the communities which make it up only as +communities. In others this power acts directly, not only upon the +component communities, but also upon the individual citizens as being +citizens of the Nation no less than of the several communities. The +former kind of Federation may be described as really a mere League of +States; the latter kind is a National as well as a Federal State. + +The Australian Federation is of this latter type. So are the United +States, the Swiss Confederation, and the Canadian Federation. It was +however to the former type that both the United States before 1788 and +Switzerland before 1848 belonged. So Germany was a mere League of States +before 1866, but has been a National as well as Federal State since 1866 +and 1871. + +The essential feature of this latter type, with which alone we are here +henceforth concerned, consists in the existence above every individual +citizen of two authorities, that of the State, or Canton (as in +Switzerland) or Province (as in Canada), to which he belongs, and that +of the Nation, which includes all the States, and operates with equal +force upon all their citizens alike. Thus each citizen has an allegiance +which is double, being due both to his own particular State and to the +Nation. He lives under two sets of laws, the laws of his State and the +laws of the Nation. He obeys two sets of officials, those of his State +and those of the Nation, and pays two sets of taxes, besides whatever +local taxes or rates his city or county may impose. + +Accordingly the character of each and every Federation depends upon the +distribution of powers between the Nation and the several States, since +some powers must be allotted to the larger, some to the smaller entity. +With regard to certain powers there can be no doubt. The navy, for +instance, the post office, the control of all foreign relations, must +obviously be assigned to the National Government, together with the +levying of customs duties at the frontiers and the raising of revenue +for the purposes above mentioned. On the other hand, matters of an +evidently local nature, such as police, prisons and asylums, the system +of municipal or county administration, with the power of taxing for +these purposes, will be allotted to the State Governments. But between +these two sets there lies a large field of legislation and +administration which may, according to the circumstances of each +particular country and the wishes of the people who enact their +constitution, be granted either to the Nation or to the States. The law +of marriage and divorce, for instance[214], criminal law[214], +bankruptcy, the traffic in intoxicating liquors[215], the regulation of +railways[215], the provision of schools or universities[216], are all +matters which have both a national and a local significance, and may be +entrusted either to the National legislature or to the State +legislatures according as one or other aspect of them predominates in +the mind of the people. + +----- + +Footnote 214: + + In the U.S.A. a State, in Canada a Federal matter. + +Footnote 215: + + In Switzerland a Federal matter, in the U.S.A. partly a Federal, + partly a State matter. + +Footnote 216: + + In the U.S.A. and Germany a State Matter, in Switzerland and Canada + partly a Federal Matter. + +----- + + + VI. DISTRIBUTION OF POWERS BETWEEN NATION + AND STATES. + +Now the fundamental question in the distribution of powers between the +Nation and the States is this—To which authority does the unallotted +residue of powers belong? It has been found that no distribution, +however careful, can exhaust beforehand all the powers that a +legislature or an executive may possibly have to exercise, and it +therefore becomes essential to provide, whenever a power not +specifically mentioned needs to be exercised, whether it should be +deemed to be rightfully exerciseable by the National or by the State +authority. In other words, which of these authorities is to be deemed +general legatee of any undistributed residue? + +This question has been answered differently by different Federations. +The United States and Switzerland leave to the States (to which they had +belonged previously) the undistributed powers. Canada (whose Provinces +were in a different position) bestows them upon the National (Dominion) +Government[217]. The question is the more important, because it creates +in all sorts of doubtful matters a presumption in favour of the National +Government or the State Governments, as the case may be. And it is +specially important at the moment of creating a new Federation, because +one of the difficulties always then experienced is to induce the States +to resign powers they have hitherto enjoyed. Hence it reassures and +comforts them to have the residue of powers not specifically distributed +left still in their hands. + +----- + +Footnote 217: + + See U.S.A. Constitution, Amendment X: Constitution of Swiss + Confederation, Art. 3: British North American Act (1867), sect. 91. + +----- + +The Australians have followed the example of the United States and +Switzerland rather than that of Canada; and they have done so for the +sake of appeasing the local sentiment of the several colonies, and +especially of the smaller colonies, who naturally feared that, as they +would have less weight than their larger neighbours in the national +legislature, they would be in more danger of being subjected to laws +which their local opinion did not approve. Section 107 provides that— + +‘Every power of the Parliament of a Colony which has become or becomes a +State shall, unless it is by this Constitution exclusively vested in the +Parliament of the Commonwealth or withdrawn from the Parliament of the +State, continue as at the establishment of the Commonwealth, or as at +the admission or establishment of the State[218], as the case may be.’ + +----- + +Footnote 218: + + These words are used to cover the case of the creation and admission + of future States. + + The name ‘State,’ which the Australians have substituted for + ‘Colonies,’ is significant. It imports a slightly greater independence + and has a more imposing sound than the Canadian term ‘Province.’ + +----- + +Comparatively few powers of legislation are ‘exclusively vested’ in the +Commonwealth Parliament; so that upon subjects other than these the +State Parliaments retain for the present their previous power to +legislate. But as it is also provided that all Acts of the Commonwealth +Parliament, within the range of the powers granted, shall override laws +of any State Parliament, such laws as the latter may pass upon subjects +open to both legislatures are left at the mercy of the Commonwealth +Parliament, which may, as and when it finds time or occasion, pass Acts +extinguishing, or modifying the effect of, those enacted by the States. + +Now the range of powers granted to the National or Commonwealth +Parliament is very wide, wider than that of Congress or of the Swiss +National Assembly, or even of the Dominion Parliament in Canada. I need +not enumerate the powers granted, forty-two in number, for they will be +found in sects. 52 and 53 of the Australian Constitution. Among them are +the following, which are not specifically given to, and nearly all of +which are not even claimed by, the United States Congress:—Powers to +take over State railways, and to construct and extend railways (with the +consent of the State in which the railway lies), to control telegraphs +and telephones and also trading and financial corporations, to take over +State debts[219], to legislate on marriage and divorce, on bills of +exchange and promissory notes, on invalid and old-age pensions, on +arbitration and conciliation in trade disputes (where these extend +beyond one State), on bounties on the production or export of goods, on +the service and execution throughout the Commonwealth of the civil and +criminal process and judgements of the State Courts. If these powers +come to be all put in force they may leave for State action a narrower +and less interesting field than it enjoys in the United States, where +nevertheless the State legislatures are bodies of no great account, +seldom enlisting the services of men of first-rate capacity. + +----- + +Footnote 219: + + Canada directs the Dominion to take over the Provincial debts existing + at the time of the Union. In the U.S.A. the war debts of the States + were taken over by the first Congress of the Union. + +----- + + + VII. CONSTITUTIONAL POSITION OF THE + AUSTRALIAN STATES. + +The Australian Constitution, like that of the United States, assumes the +States to be already organized communities, and contains nothing +regarding their constitutions. The case of Canada was different, because +there the previous government of the Upper and Lower Provinces, which +had been one, had to be cut in two, and arrangements made for duly +constituting the two halves. But in the case of Australia, the +pre-existing constitutions of the Colonies, granted by the Imperial +Government at various times, go on unchanged, subject only to the +supersession of some of their functions by the Commonwealth, and to one +or two specifically mentioned restrictions. That these restrictions are +comparatively few may be partly ascribed to that aversion which the +English everywhere show to this kind of safeguard against the misuse of +legislature power. The omnipotence of the British Parliament seems to +have fostered the notion that all Parliaments ought to be free to do +wrong as well as to do right. The only things from which a State is +disabled are the keeping of a naval or military force (except with the +consent of the Commonwealth Parliament), coining money, and making +anything but gold and silver coin legal tender[220]. A State is not, as +are the American States, forbidden to grant titles of nobility, or to +pass any _ex post facto_ law or law ‘impairing the obligation of +contracts.’ That no such prohibitions exist in Canada may be ascribed to +the fact that in Canada the National or Dominion Government has the +right of vetoing laws passed by provincial legislatures, so that +improper legislation can be in this way checked. The power is not often +exercised in Canada, but when exercised has sometimes led to friction. +This plan, however, is neither so respectful to the Provinces nor so +conformable to general principles as is the American plan, which leaves +the States subject only to the restrictions imposed by the Constitution, +restrictions which _ipso iure_ annul a law attempting to transgress +them. And the Australians have wisely followed the American rather than +the Canadian precedent. The Australians have, to be sure, in reserve a +power to which nothing similar exists in America, viz. the right of the +British Crown at home to veto legislation. Rarely as this right is put +in force, it might conceivably be used at the instance of the National +Government to avert an undesirable conflict between State statutes and +National statutes. Note further that each Australian State is left as +free to amend its own constitution as it was before, subject of course +to the veto of the British Crown, but to no interference by the +Commonwealth, whereas in Canada acts of the Provincial legislatures +amending their constitutions are subject to the veto of the Dominion +Government as representing the Crown. + +----- + +Footnote 220: + + See sections 114 and 115 of Constitution, and compare Art. I. sect. 10 + of Constitution of U.S.A. + +----- + +The omission of any provision similar to the famous and much litigated +clause which debars an American State legislature from passing any law +impairing the obligation of contracts is especially noteworthy. That +clause, introduced by the Philadelphia Convention in order to check the +tendency of some reckless States to get rid of their debts, produced in +course of time unexpectedly far-reaching results, from some of which +American legislatures and courts have made ingenious attempts to escape. +It has indeed been thought that several subsequent decisions of the +Supreme Court are not easily reconcileable with the famous judgement in +the Dartmouth College Case (A.D. 1818), in which the full effect of this +clause was for the first time displayed. That effect has been to fetter +legislation in ways which are found so inconvenient in practice that +they are acquiesced in only because many State legislatures are in the +United States objects of popular distrust. No corresponding distrust +seems to be felt in the British colonies, and therefore the Australians +have not deemed any such prohibition needful, following the example of +the British House of Commons, which in 1893 rejected a similar clause +when moved as an amendment to the Irish Home Rule Bill of that year. + +In another point the Australian States have been treated with respect. +In each of them the nominal executive head has hitherto been a Governor +appointed by the British Crown. This was the case in Canada prior to +1867: but when the Canadian Federation was formed, the appointment of +the Governors of the several provinces was entrusted to the +Governor-General of the Dominion, that is to say, to the Dominion +Cabinet by whose advice the Governor-General, being a sort of +constitutional monarch, is guided. In practice, therefore, these +governorships have become rewards bestowed upon leading party +politicians. The Australians wisely (as most Englishmen will think) +avoided this plan. Neither did they adopt the American method of letting +the people of each State elect the Governor, a method unsuited to +government on the Cabinet system, because, as the State Governor is +under that system only a nominal head of the Executive (the Cabinet +being the real Executive), there was no good reason for setting the +people to choose him, and good reasons against doing so, inasmuch as +popular elections are invariably fought on party lines. Accordingly the +Australians have preferred to let him continue to be appointed by the +Home Government, and to allow him to communicate directly with the +Colonial Office in London. His Ministers are indeed described in the +Constitution (sect. 44) as being ‘the Queen’s Ministers.’ + + + VIII. DIFFERENCES FROM THE UNITED STATES AND CANADIAN FEDERATIONS. + +Four other remarkable divergences, from both the American and the +Canadian Federal systems, remain to be mentioned. + +One relates to the judiciary. In the United States there is a complete +system of Federal Courts ramifying all over the Union and exercising +exclusive jurisdiction in all cases arising under Federal statutes, as +well as in a number of other matters specified in Art. III. sect. 2 of +the Constitution. But the State Courts remain quite independent in all +State matters, and determine the interpretation of the State +Constitutions and of all State statutes, nor does any appeal lie from +them to the Federal Courts. In Canada this was not thought necessary, so +there the same set of Courts deals with questions arising under Federal +statutes and with those arising under Provincial Statutes, and the +Supreme Court of Canada receives appeals from all other Courts. This is +less conformable to theory than the United States plan, but does not +seem to have worked ill. The danger that Courts sitting in the Provinces +would, under the influence of local feeling, pervert Federal law was not +serious in Canada (though a similar danger was feared in the United +States in 1787), and indeed all the Canadian judges are appointed by the +Dominion Government, a further illustration of the preponderance which +the Nation has over the Provinces. The Australians have taken a middle +course. They have established a Federal Supreme Court, to be called ‘The +High Court of Australia,’ and have taken power for their Parliament to +create other Federal Courts. So far, they follow the United States +precedent. But they have given power to the Commonwealth Parliament to +invest State Courts with federal jurisdiction, thereby allowing those +Courts to be, as in Canada, both State and Federal. And they have also +allowed an appeal from all State Courts to the Federal High Court. By +this plan the States are more directly connected with and subordinate to +the National Government than they are in the United States. The +Australian scheme has one great incidental advantage. In the United +States the law of different States may and does differ, not only in +respect of the difference between the statutes of one and the statutes +of another, but also in respect of questions of common law untouched by +statutes. The Supreme Court of Massachusetts may, for instance, take a +different view of what constitutes fraud at common law from that taken +by the Supreme Court of Pennsylvania, and there is no Court of Appeal +above both these Courts to bring their views into accord. This has not +happened to any great extent in Australia, because the British Privy +Council has entertained appeals from all its Courts, and it will happen +still less in future, because the Federal High Court will be close at +hand to settle questions on which the Courts of different States may +have been in disaccord. + +A second point shows how much less powerful the sentiment of State +sovereignty has been in Australia than it was in the United States. By +an amendment (xi) to the American Constitution made in 1798 it is +expressly declared that no State can be sued by a private plaintiff. But +Australia expressly grants jurisdiction in such cases to its Federal +High Court (sect. 75). + +A third point is the curious and novel power given to a State of +referring matters to the Commonwealth Parliament, and to that Parliament +of thereupon legislating on such matters (sect. 51 (xxxvii)). Under this +provision (which is not to be found in the Canadian Constitution[221]) +there is no department of State law wherewith the National legislature +may not be rendered competent to deal. It may be usefully employed to +secure uniformity of legislation over all Australia on a number of +subjects not within the specifically allotted field of the Commonwealth +Parliament. + +----- + +Footnote 221: + + But see section 94 of the Canadian Constitution. + +----- + +Finally, the Commonwealth Parliament may grant financial assistance to +any State, and may take over the whole or a part of its debts as +existing at the establishment of the Commonwealth[222]. Provisions such +as these imply, or will involve if put in practice, a relation between +the National Government and the States closer than that which exists in +America. + +----- + +Footnote 222: + + Sect. 105. + +----- + +To complete this account of the relation of the Nation to the States, +let it be noted that a State may surrender any part of its territory to +the Commonwealth, and that the Commonwealth is bound to protect each +State against invasion or, on the application of the Executive of the +State, against domestic violence[223]. This latter provision is drawn +from the United States constitution[224], though in America it is from +the State legislature, if then in session, that the application for +protection ought to come. Australia is right in her variation, because +in her States the Legislature acts through the Executive. Neither +provision occurs in the Constitution of Canada, which assigns military +and naval defence exclusively to the Dominion Government, and makes +itself responsible for the maintenance of order everywhere. In +Switzerland the management of the army, in which all citizens are bound +to serve, is divided between Cantons and Confederation, the supreme +control remaining with the latter (Artt. 18-22). The Confederation is +bound to protect a Canton against invasion and disorders, and may even +itself intervene if the Executive of the Canton cannot ask it on its own +motion (Artt. 16 and 17). Australia, as we have seen, allows the States +to maintain a force with the consent of the Commonwealth; and this is +permitted by the American Constitution also. + +----- + +Footnote 223: + + Sect. 119. + +Footnote 224: + + Art. II. sect. 3, and Art. IV. sect. 4. + +----- + + + IX. THE CONSTITUTION AS A FRAME OF NATIONAL + GOVERNMENT. + +We may now pass on to consider the National Government, the construction +whereof occupies by far the greater part of the Constitution, which, +while it left the States pretty much as they were, had here to build up +a new system from the ground. + +The first point to be examined relates to the limitations imposed on the +National Government as against the citizens generally, since I have +already dealt with the limitations on its powers as against the States. +Here a remarkable divergence from the American Constitution is +disclosed. When that instrument was enacted, the keenest suspicion and +jealousy was felt of the action of the Government to be established +under it. It was feared that Congress might become an illiberal +oligarchy and the President a new George the Third. Accordingly great +pains were taken to debar Congress from doing anything which could +infringe the primordial human rights of the citizen. Some restrictions +are contained in the original Constitution: others fill the first nine +amendments which were passed two or three years later, as a part of the +arrangements by which the acceptance of the Constitution was secured. +And down till our own time every State Constitution in America has +continued to contain a similar ‘Bill of Rights’ for the protection of +the citizens against abuse of legislative power. The English, however, +have completely forgotten these old suspicions, which, when they did +exist, attached to the Crown and not to the Legislature. So when +Englishmen in Canada or Australia enact new Constitutions, they take no +heed of such matters, and make their legislature as like the omnipotent +Parliament of Britain as they can. The Canadian Constitution leaves the +Dominion Parliament unfettered save by the direction (sect. 54) that +money shall not be appropriated to any purpose that has not been +recommended to the House of Commons by the Executive, a direction +embodying English practice, and now adopted by Australia also. And the +Australian Constitution contains but one provision which recalls the +old-fashioned Bill of Rights, viz. that which forbids the Commonwealth +to ‘make any law for establishing any religion or for imposing any +religious observance or for prohibiting the free exercise of any +religion.’ The Swiss Constitution, influenced by French and American +models, is in this respect more archaic, for it imposes a series of +disabilities on its Legislature in the interest of individual freedom +(sectt. 39, 49, 54-59). This diversity of attitude between the English +on the one hand and both the Americans and the Swiss on the other is a +curious instance of the way in which usage and tradition mould a +nation’s mind. Parliament was for so long a time the protector of +Englishmen against an arbitrary Executive that they did not form the +habit of taking precautions against the abuse of the powers of the +Legislature; and their struggles for a fuller freedom took the form of +making Parliament a more truly popular and representative body, not that +of restricting its authority. + +The point just examined is one which arises in all Rigid Constitutions, +whether Federal or Unitary. But the next point is one with which only +Federations are concerned; and it is one in which all the great +Federations agree. All have adopted the same method of providing both +for the predominance of the majority of the people considered as one +Nation, and for the maintenance of the rights of the States considered +as distinct communities. The Americans invented this method: the Swiss, +the Canadians, the Germans, and now the Australians, have imitated them. +This method is to divide the Legislature into two Houses, using one to +represent the whole people on the basis of numbers, and using the other +to represent the several States on the basis (except in Germany) of +their equality as autonomous communities. It was this device that made +Federation possible in the United States, for the smaller States would +not have foregone their independence in reliance upon any weaker +guarantee. + + + X. THE LEGISLATURE. + +The Australian scheme provides (sectt. 7-23) for an Upper House or +Senate of thirty-six members, six from each State, and a House of +Representatives (sectt. 24-40) of seventy-five members, elected on a +basis of population, so that forty-nine members will come from the two +large States, New South Wales and Victoria, and twenty-six from the four +small States. No Original State is ever to have less than five. + +The equal representation of the six Original States is always to be +maintained, but the number of Senators may be increased, and when new +States come to be formed, the Parliament may allot to them such number +of Senators as it thinks fit. Senators sit for six years, and do not all +retire at the same time. These features are taken from the Constitution +of the United States, which, as already observed, has been a model for +subsequent Federal Upper Houses. But there are remarkable variations in +the Australian scheme. + +1. In the United States each newly-created State receives as a matter of +right its two Senators. In Australia the Commonwealth may allot such +number as it thinks fit. + +In the United States one-third of the Senate retires every two years. In +Australia one-half retires every three years. + +3. In the United States the President of the Senate is the +Vice-President of the United States, chosen by the people[225]. In +Australia, the Senate is to choose its own President. + +----- + +Footnote 225: + + _i.e._ practically by the people, though formally by a body of + electors elected for that purpose. + +----- + +4. In the United States the quorum is one more than a half of the total +number; in Australia one-third of the total number. + +5. In the United States the Legislatures of the several States elect the +Senators. In Australia the Senators are elected by the people of the +State. + +This last point is one of great interest. Tocqueville, writing in +1832, attributed (erroneously, as the sequel has shown) the excellence +of the American Senate to the method of election by the State +Legislatures[226]. Since his days the American Senate has declined; +and so far from this mode of election having tended to sustain its +character, the general, though not unanimous, opinion of the wise in +America deems the Senate to be injured by it, and desires a change to +the method of election by direct popular vote. It was partly because +the Australian Convention had become aware of this tendency of +American opinion that they rejected the existing American plan; nor is +it impossible that the Americans themselves may alter their system, +which gives greater opportunities for intrigue and the use of money +than popular election would be likely to afford. In Australia, the +Senators are in the first instance to be elected by the people, each +State voting as one electorate, but this may be altered (_e.g._ to a +system of district elections) by the Parliament of the Commonwealth, +or failing its action, by the Parliament of a State. It will be +interesting to see what experiments are tried and how they work. +District voting may give different results from a general State vote, +and a party for the moment dominant may choose the plan that best +suits it. + +----- + +Footnote 226: + + See as to this, Essay VI, pp. 401, 421. + +----- + +6. In the United States the Senate is an undying body, perpetually +renewed by fresh elections, never losing more than one-third of its +members at any one time. In Australia the Senate may be dissolved in +case a deadlock should arise between it and the House of +Representatives. + +The Senate is the sheet-anchor of the four small States. Commanding a +majority in it, they have consented to acquiesce in the great +preponderance which their two larger neighbours possess in the House of +Representatives. The numbers of the latter House are to be always as +nearly as practicable double those of the Senate, a point whose +importance will presently appear. + +The House is to continue for three years (subject of course to +dissolution), a term intermediate, though inclining in the democratic +direction, between the two years of the American Congress and the seven +(practically (six) years of the British House of Commons. The Canadian +term is five years. Until the Commonwealth Parliament otherwise +provides, the electoral suffrage is to be (as in the United States) the +suffrage prescribed by State law for the election of members of the more +numerous State House, and it is expressly provided, doubtless with a +view to the fact that women’s suffrage already exists in two colonies, +that no law shall prevent a State voter from voting at Commonwealth +elections. So far from securing, as does the United States Constitution, +that no person shall be excluded on the ground of race from the +suffrage[227], Australia has expressly provided that persons belonging +to a particular race may be excluded, for she declares (sect. 25) that +in such case the excluded race is not to be reckoned among the +population of the State for the purposes of an allotment of +representatives. Plural voting is forbidden. The quorum of members is a +mean between the inconveniently large quorum (one-half) of the American, +and the very small one (forty) of the British House. The seat of any +Senator or member of the House becomes _ipso facto_ vacant if he fails +(without permission) to attend any session for two continuous months. No +person having any pecuniary interest in any agreement with the public +service (except as member of an incorporated company of at least +twenty-five persons), or holding any office of profit under the Crown, +can sit in either House, unless he be a Minister either of the +Commonwealth or of a State. The exception is noteworthy, not only +because it is framed with a view to the establishment of Cabinet +Government, but also because it implies that a man may, contrary to +American and Canadian usage, be at the same time both an executive +official of a State and also a member of the Federal Legislature. It +would appear that women are eligible to membership of either House. +Every Senator and Representative is to receive a salary, fixed for the +present at £400 ($2,000) a year. + +----- + +Footnote 227: + + See Amendment XV to the Constitution. + +----- + + + XI. THE EXECUTIVE. + +The Executive is to consist of the Governor-General and the Ministers. +To the great convenience of the Australian people, the head of the +Executive does not need to be elected either by popular vote (as in the +United States) or by the Chambers, as in France and Switzerland. He is +nominated by the British Crown, and holds office so long as the Crown +pleases, receiving a salary fixed, for the present, at £10,000 ($50,000) +a year (exactly the salary of the American President). He has an +Executive Council, modelled on the British Privy Council (though the +name Privy Council is not used as it is in the Canadian Constitution), +and from it he chooses a number of Ministers (fixed for the present at +seven) who are to administer the several departments of the public +service. They must be members of one or other House of Parliament—a +remarkable provision, for though this is the British practice, that +practice has never been embodied in any positive rule. As the +Governor-General is only a constitutional figure-head, these Ministers +will in fact constitute the ruling executive of the Commonwealth. + + + XII. THE JUDICIARY. + +The Judiciary is to consist in the first instance of a Federal High +Court (containing a Chief Justice and at least two other judges) capable +of exercising both original jurisdiction in certain sets of cases, and +also appellate jurisdiction not only from single Federal Judges and +inferior Federal Courts, but also from the Supreme Courts of the States. +Power is taken both to establish lower Federal Courts and to invest +State Courts with federal jurisdiction. But besides this Judiciary +proper, there is created a second Court for dealing with cases relating +to trade and commerce, under the name of the Inter-State Commission +(sect. 101). This remarkable and very important institution has +doubtless been suggested by the United States Inter-State Commerce +Commission created by Congress some eighteen years ago in order to deal +with railway and water traffic between the States. Its functions will be +half-administrative, half-judicial, and in questions of pure law an +appeal will lie from it to the High Court, while a guarantee for its +independence is found in the clause which declares that its members +shall not be removed during their seven years’ term of office. All +Federal Judges are to be appointed by the Governor-General, that is to +say, by the Executive Ministry. All trials (on indictment) for any +offence against the laws of the Commonwealth shall be by jury, and held +in the State where the alleged offence was committed. The judicial +establishments of the States remain unaffected, and the judges thereof +will continue to be appointed by the State Executives. + +In determining the functions of the High Court there arose an important +question which seemed for a moment to threaten the whole scheme of +Federation. The draft Constitution which the Convention had prepared and +which the people had approved by their vote provided that questions +arising on the interpretation of the Constitution as to the respective +limits of the powers of the Commonwealth and of the States, or as to the +respective limits of the constitutional powers of any two or more +States, should be adjudicated upon by the High Court of the +Commonwealth, and that no appeal should lie from its decision to the +Queen in Council (_i.e._ to the Judicial Committee of the Privy Council +in England, which is the Supreme Court of Appeal from the British +Colonies and India), ‘unless the public interest of some part of Her +Majesty’s dominions, other than the Commonwealth or a State, are +involved.’ When the draft reached England to be embodied in a Bill, the +British Government took exception to this provision as tending to weaken +the tie between the mother country and the colonies. There were many in +England who thought that it was not in the interest of Australia herself +that she should lose, in questions which might involve political feeling +and be complicated with party issues, the benefit of having a +determination of such questions by an authority absolutely impartial and +unconnected with her domestic interests and passions. How much better +(they argued) would it have been for the United States at some critical +moments could they have had constitutional disputes adjudicated on by a +tribunal above all suspicion of sectional or party bias, since it would +have represented the pure essence of legal wisdom, an unimpeachable +devotion to legal truth! + +To this the Australians replied that the experience of the United States +had shown that in constitutional questions it was sometimes right and +necessary to have regard to the actual conditions and needs of the +nation; that constitutional questions were in so far political that +where legal considerations were nearly balanced, the view ought to be +preferred which an enlightened regard for the welfare of the nation +suggested; that a Court sitting in England and knowing little of +Australia would be unable to appreciate all the bearings of a +constitutional question, and might, in taking a purely technical and +possibly too literal a view of the Constitution, give to the +Constitution a rigidity which would check its legitimate expansion and +aggravate internal strife. Australia must—so they pursued—be mistress of +her own destinies, and as it is she that had framed and procured the +enactment of this Constitution, so by her ought the responsibility to be +borne of working it on its judicial as well as its executive and +legislative side. Not only was this better for Australia herself, but it +would be more conducive to the maintenance of the connexion between the +Commonwealth and the mother country. + +After some wavering, the British Government, perceiving the risk of +offending Australian sentiment, gave way. They dropped in Committee of +the House of Commons the alteration which they had introduced into the +Australian draft, substituting for it an amendment which, while slightly +varying the original terms of the draft, practically conceded the point +for which the Australian Delegates, sent to England to assist in passing +the measure, had contended. The Act as passed provides that no appeal +shall lie to the Crown in Council upon the constitutional questions +above-mentioned unless the High Court itself shall, being satisfied that +the question is one which ought to be determined by the Privy Council, +certify to that effect. In all other such cases its judgement will be +final. + +Appeals to the Privy Council in questions other than constitutional will +continue to lie from the Supreme Courts of the States (with the +alternative of an appeal to the High Court) and from the High Court +itself, when special leave is given by the Privy Council. The +Commonwealth Parliament may limit the matters in which such leave may be +asked, but the laws imposing such limitations are to be reserved for the +pleasure of the Crown. + +The scheme of judicature above outlined follows in the main the model +contained in the American Constitution. It does not draw the line +between State and Federal matters and courts so sharply, for appeals are +to lie from State Courts in all matters alike, and State Courts may +receive jurisdiction in Federal matters. On the other hand, it is more +conformable to principle than either the Canadian plan, which provides +no Federal Courts save the Supreme Court and gives the appointment of +all judges alike to the Dominion Government, or the Swiss plan, which +refers questions of conflict between the Nation and the Cantons, or as +to the constitutionality of Federal laws, not to the Judiciary at all, +but to the Federal Legislature. Broadly speaking, the Australian High +Court will have to fill such a place and discharge such functions as +have been filled and discharged in America by that exalted tribunal +which Chief Justice John Marshall and other great legal luminaries have +made illustrious. In working out the provisions of the Constitution by +an expansive interpretation, cautious but large-minded, it may render to +Australia services not unworthy to be compared with those which America +has gratefully recognized. + + + XIII. WORKING OF THE FRAME OF GOVERNMENT. + THE CABINET. + +Now let us see how this Frame of Government, which I have briefly +outlined in its salient features, is intended to work. + +Its essence lies in a matter which is not indicated by any express +provision, the dependence of the Executive upon the Legislature. Herein +it differs fundamentally from the American and Swiss systems. It +reproduces the English system of what is called Cabinet or Responsible +Government; that is to say, a Government in which the Executive instead +of being, as in America, an independent authority, directly created by +the people and amenable to the people only, is created by and +responsible to the Legislature. As and when the British colonies +respectively obtained self-governing institutions, each of them adopted +this scheme, since it was the one familiar to them at home: and to it +they seem all determined to adhere. + +Its distinctive features are these. + +The nominal head of the Executive, in Britain the Crown, in Australia +the Governor-General as representing the Crown, is permanent, and is not +responsible to the Legislature, because he acts not on his own views, +but upon the advice of his Ministers. + +The Ministers are responsible to the Legislature which virtually chooses +them, and they depend upon its confidence for their continuance in +office. + +The Ministers are however not wholly at the mercy of the Legislature, +because they may dissolve it, that is to say, may appeal to the people, +in the hope that the people will elect a new Legislature which will +support them. This kind of government accordingly rests on a balance of +three authorities, the Executive, the Legislature, and the People, the +people being a sort of arbiter between Ministry and Parliament. As the +Ministry can at any moment appeal to the people, the threat of appealing +puts pressure upon the Parliament, and keeps a majority cohesive. In the +existence of this power of sudden dissolution there lies a marked +difference from the American scheme, which some one has called +Astronomical, because the four years’ term of office of the Executive +and the two years’ term of the Legislature are both fixed by the earth’s +course round the sun. + +I have spoken of the Legislature as the authority to which the Ministry +is responsible. But what is the Legislature? In England, although +Parliament consists of two Houses, the Minister-making power resides +solely in the House of Commons. Being elective, the House of Commons has +behind it the moral weight of the people and the prestige of many +victories. Being the holder of the purse, it has the legal machinery for +giving effect to its will, since without supplies administration cannot +be carried on. Accordingly, though the existence of two often discordant +Houses may arrest or modify legislation in Britain, it does not affect +the executive conduct of affairs, save on the rare occasions when +immediate legislation is deemed indispensable by the Executive. The same +remark applies to Canada. There also one finds two Houses, but the +Senate, being a nominated and not a representative body, holds an +entirely secondary place. The Ministry may disregard a vote of want of +confidence passed by it, just as in England they disregard an adverse +vote of the House of Lords. In Australia, however, things will be quite +different. There the Senate has been constituted as a representative +body, elected by the peoples of the States; and as the protector of the +rights and interests of the States it holds functions of the highest +importance. Its powers (save in one point to be presently mentioned) are +the same as those of the House. In whom then does the power of making +and unmaking ministries reside? Wherever one finds two assemblies, one +finds them naturally tending to differ; and this will be particularly +likely to occur where, as in Australia, they are constructed by +different modes of election. Suppose a vote of no confidence in a +particular Ministry is carried in one House and followed by a vote of +confidence passed in the other? Is the Ministry to resign because one +House will not support it? It retains the confidence of the other; and +if it does resign, and a new Ministry comes in, the House which +supported it may pass a vote of no confidence in those who have +succeeded it. + +The problem is one which cannot arise either under the English or under +the American system. Not under the English, because the two Houses are +not co-ordinate, the House of Commons being much the stronger. Not under +the American, because, although the Houses are co-ordinate, neither +House has the power of displacing the President or his Ministers. It is +therefore a new problem, and one which directly results from the attempt +to combine features of both schemes, the Cabinet system of England and +the co-ordinate Senate, strong because it represents the States, which a +Federal system prescribes. + + + XIV. PROVISIONS AGAINST DEADLOCKS. + +This, however, is only one, though perhaps the most acute, of the +difficulties that arise from the existence of two co-ordinate Houses. +Their differences upon questions of legislation are always liable to +produce deadlocks. These annoying phenomena occur in England, though +there the House of Lords, except upon Irish questions, usually gives way +(even without a dissolution of Parliament), because it is afraid of +incensing the people and thereby bringing about its own destruction if +it continues to resist the national will. In Irish questions the Upper +House has been apt to assume that the people of England and Scotland are +not sufficiently interested to resent very keenly its difference from +the Commons. In the United States there is no remedy for such deadlocks. +They have to be endured, at whatever cost. The resistance of the Senate +to various plans suggested by the House for dealing with the slavery +question may be reckoned among the causes which brought on the War of +Secession. The Australian colonies themselves have had frequent +experience of deadlocks in matters of legislation between the two +Houses, for in every colony there have been two Houses, though in every +colony it is the more popular House which has controlled the Executive. + +The difficulties I have indicated were fully before the minds of the +statesmen who sat in the two Conventions. An ingenious device has been +contrived for dealing with them (sect. 57). When the House passes a law +and the Senate disagrees, the House may pass it again after three +months, and if the Senate still disagrees, the Governor-General may +thereupon dissolve both House and Senate together, unless the Parliament +is within six months of its natural end by effluxion of time. If after +such dissolution the new House again passes the measure, and the Senate +once more disagrees, the Governor may convene a joint sitting of both +Houses. If the proposed law is then passed by an absolute majority of +the whole Parliament so convened in joint sitting, it shall be taken to +have been duly passed by both Houses. + +This method involves the expenditure of a good deal of time and the +worry of a double general election, one for the House and one for the +Senate. But it may prove to be the best method of solving a problem +which neither Britain nor the United States has yet attempted to solve, +and which certainly needs solution. The reader who remembers that the +numbers of the House have been fixed to be always double those of the +Senate, will now see how necessary such a provision was in order to +secure that in this final trial of strength between Senate and House the +principle of State rights and the principle of population shall each +have its due recognition. Should these two principles come into +collision, should, for instance, all the members from the four small +States be of one mind and all the members from the two large States of +another mind, the principle of population will prevail, for in the two +Houses sitting together, the large States will have sixty-one votes +(twelve senators and forty-nine representatives), whereas the small +States will have only fifty (twenty-four senators and twenty-six +representatives). Such a conjuncture may however never arise. + + + XV. RELATIONS OF THE TWO HOUSES. + +The question remains which of the two Houses will hold the place of the +British House of Commons as determining the tenure of office by +Ministries. Upon this question light may be cast by the provisions with +regard to money bills. The Constitution enacts (sect. 53) that all bills +appropriating revenue or imposing taxation must originate in the House, +and that the Senate may not amend taxing bills, or those ‘appropriating +money for the ordinary annual services of the Government,’ though it may +return such bills to the House suggesting certain amendments in them. +The Senate may however reject such bills. As this scheme, which somewhat +resembles that of the American Constitution[228], itself suggested by +the practice of England, seems to throw upon the House the primary +function of providing money for the public service, and thus the primary +control of the national exchequer, it would seem that Ministers, unable +without money to carry on that service, must stand or fall by a vote of +the House and not by a vote of the Senate. Yet the Senate, though it +cannot take the first steps for granting money, can withhold money; and +if it does so in order to get rid of a Ministry it dislikes, nothing +short of the deadlock provision above described can be invoked. Nor can +the expedient of mixing up a number of different taxing provisions in +one Bill, or inserting other matter in appropriation Bills (‘tacking’), +be resorted to, for these are expressly prohibited by the Constitution +(sectt. 54, 55). Possibly in practice the Houses will frequently agree +to let the accustomed services of the year be provided for without much +controversy, and will reserve their serious conflicts for new proposals +regarding taxation or appropriation. + +----- + +Footnote 228: + + In the U.S.A., however, the Senate may and does amend both + revenue-raising and appropriation bills, and indeed frequently + prevails against the House in the quarrels which arise over these + matters. + +----- + +Australians evidently expect that the usage hitherto prevailing in all +the Colonies of letting the Ministry be installed or ejected by the +larger House will be followed. Nevertheless the relations of the +Commonwealth Houses are so novel and peculiar, that the experience of +the new Government in working them out will deserve to be watched with +the closest attention by all students of politics. Englishmen in +particular have good reason for doing so, because England, when she has +substituted a representative Second Chamber for her present +theoretically indefensible House of Lords, will have to devise some +means for avoiding or solving deadlocks between such a Chamber and the +House of Commons. + +Some high Australian authorities have appeared to doubt whether two +co-ordinate Houses can be made to work along with Cabinet Government. +They observe that although there may be sometimes a willingness to make +compromises for the sake of the public service, there is also in all +governments, and certainly not least in those of the United States and +the British Colonies, a tendency to press every legal right to its +furthest limit, even if the machine should be stopped thereby. Were such +stoppages to become frequent, Australia might, they think, be driven to +amend her Constitution by so far disjoining the Executive from the +Legislature as to give it something of the permanence it enjoys in +America and Switzerland[229]. + +----- + +Footnote 229: + + It was suggested in the Convention by Mr. Playford (then Prime + Minister of South Australia) that the two Houses sitting together + might appoint the Executive Ministry, but this plan deviated too far + from British Colonial practice to find acceptance. A similar + suggestion was made by Sir John Cockburn in the Sydney Convention in + 1891. See his speech in an interesting volume published by him + entitled _Australian Federation_ (p. 139). + +----- + +The relations of the Senate to the House may largely depend on factors +still undetermined. One of these is the growth of population. Should the +small Colonies grow rapidly, their representation in the House would +before long be fairly proportionate to that which they enjoy in the +Senate, so that the balance of parties might, so far as the size of +States is concerned, tend to be nearly the same in both Houses. Another +is the character of the controversies which will arise. These may not be +such as to set the small States against the large ones, and the three +party organizations, which are already strong, though they possess no +such Machine System as America enjoys, may find their support pretty +equally in all or most of the States, so that the balance of parties may +in practice be found to differ but little in the Senate from what it is +in the House. Thus these particular wheels or shafts of the +constitutional machine, which are deemed less able than others to bear a +severe strain, may not for a long while to come have any severe strain +thrown upon them. + +Another thing which may affect the relations of the two Houses is the +comparative attractions which each will have for high political +capacity. In the United States the Senate became, within thirty years +from the establishment of the Constitution, an assembly much stronger, +through the eminence of its members, than was the House of +Representatives. As its term of membership was longer (six years against +two years), and as it had certain quasi-executive functions in connexion +with foreign relations and appointments, men of ability preferred it to +the House, and the House constantly saw its best talent drawn off to its +rival. The Senate has to-day no such intellectual ascendency as it had +then, but capable men still migrate to it when they can from the House +of Representatives. If the House establishes in Australia, as it will +apparently do, its sole right to make and unmake Ministries, it will be +the more tempting field for ambition: yet something will depend upon the +amount of genius and character which the Senate attracts, for the +presence of these in abundant measure will give it weight with the +nation. + +It has been suggested in Australia that the Senate with its thirty-six +members is too small. The Senate of the United States however began with +twenty-six; and it has been a great advantage to that body that its +original numbers were small, for traditions more dignified than those of +the tumultuous House were formed, and a somewhat stronger sense of +personal responsibility was developed just because the individual was +not lost in a crowd. + + + XVI. MISCELLANEOUS PROVISIONS. + +Questions of trade and finance fill a chapter of the Constitution +(sectt. 81-105); and it was indeed these questions, next to the issue +between the large and the small States, that gave most trouble to those +who framed the instrument. It is provided that the collection and +control of all duties of customs and excise shall pass to the +Commonwealth, but that not more than one-fourth thereof shall, for ten +years at least, be retained by the Commonwealth, the other three-fourths +being paid over to the several States, or applied to payment of the +interest on their respective debts, should these debts be assumed by the +Commonwealth. This arrangement was deemed needful to supply the States +with funds for defraying their administrative expenses and the interest +on their debts, seeing that the chief part of their revenue arose from +customs and excise, the five which prepared the Constitution, except New +South Wales, having adopted a protective policy. Bounties may be given +either by the Commonwealth, or by the States with its consent. There are +provisions regarding the collection of the customs, the control of +railways and settlement of railway rates, the use of rivers for +irrigation and water storage, and the State debts, but as these are +largely temporary, and have little special interest for the student of +constitutions, important as they are to Australian industries, I mention +them only to show how elaborately the scheme of union has been worked +out, and on how many perplexing topics, settled provisionally by the +Constitution, the Commonwealth Parliament will have to legislate. + +The question of the spot where the capital should be placed gave rise, +as had happened in the United States and in Canada, to some controversy. +It was adjusted by providing that the seat of Federal government should +be in the colony of New South Wales, but at least 100 miles from Sydney. +Here an area is to be set apart of not less than 100 square miles, which +shall be under the jurisdiction of the Commonwealth, as the District of +Columbia is under the authority of the National Government in the United +States: and here a stately city will doubtless in time spring up. + +Power is taken to admit new States, whether formed out of existing +States or not, upon any terms and conditions (_e.g._ as to number of +Senators) which the Parliament may fix, but if the new State is formed +out of an old one, only with the latter’s consent. The Parliament has +also full power to accept and provide for the administration of any +territory transferred to it by the Crown, so that no constitutional +questions can arise resembling that which has occupied American lawyers +since the annexation of Puerto Rico. + + + XVII. AMENDMENT OF THE CONSTITUTION. + +Last of all we come to the mode of amending the Constitution, a mode +easier to apply than that prescribed for the United States, but showing +the influence to some extent of the American though more largely of the +Swiss model in its reference to the popular vote. + +Every law proposing to alter the Constitution must be passed by an +absolute majority of each House, and thereupon (after two but before six +months) be submitted to the voters of every State. If in a majority of +States a majority of the electors voting approve the proposal, and if +these State majorities constitute a majority of all the electors voting +over the whole Commonwealth, the amendment is passed, and is then to be +presented to the Crown for assent. Should the two Houses differ, one +passing the proposed law and the other rejecting it (or passing it with +an amendment which the first-mentioned House rejects), the House which +approves the proposal may again pass it, and if the dissenting House +again dissents, the amendment may be submitted to the people as if both +Houses had passed it. The decision of the people is final. To meet the +fact that the suffrage is not in all the States confined to men, it is +further provided that, in any State wherein all adults are entitled to +vote, only one half of the vote shall be counted[230]. + +----- + +Footnote 230: + + But ‘no alteration diminishing the proportionate representation of any + State in either House of the Parliament, or the minimum number of + representatives of a State in the House of Representatives, or + increasing, diminishing or otherwise altering the limits of the State, + shall become law unless the majority of the electors voting in that + State approve the proposed law’ (sect. 128). + +----- + +Thus the requirements for the passing of an Amendment are:— + +1. Absolute majority in each House of Parliament, or else absolute +majority in one House given twice, the second time after three months’ +interval, _plus_ submission on both occasions to the other House. + +2. Approval of the people in a majority of States (_i.e._ at present in +four States at least). + +3. Approval of a majority of the people voting over the whole +Commonwealth. + +The American Federal Constitution requires a two-thirds’ majority in +each House of Congress and a three-fourths’ majority of States, or else +the proposal of a Convention by two-thirds of the States and a +three-fourths’ majority of States approving what the Convention has +settled, conditions extremely difficult to secure. The Swiss system +permits the Constitution to be amended by the same process as is applied +to the passing of laws, _plus_ a popular vote which results in a +majority of Cantons and in a majority of the people voting over the +whole Confederation. + + + XVIII. RELATIONS OF THE AUSTRALIAN COMMONWEALTH TO THE CROWN. + +It has not seemed necessary to set forth the relations of the +Commonwealth to the British Crown, because these relations are +substantially those which have heretofore existed between the Crown and +each of the self-governing colonies now united in the Federal +Commonwealth. The chief difference is that the Commonwealth Parliament +receives certain powers (as to extra-territorial fisheries and relations +with the islands of the Pacific) which were previously exerciseable only +by the (now extinct) Federal Council of Australasia (mentioned above), +that it has a general power to legislate on ‘external affairs’ (a +somewhat vague term, sect. 51, xxix), and that it may ‘exercise within +the Commonwealth, at the request or with the concurrence of the +Parliaments of all the States directly concerned, any power which can +now be exercised only by the Parliament of the United Kingdom or by the +Federal Council of Australasia’ (sect. 51, xxxviii). Apart from these +provisions, which may give rise to some delicate questions, the +principles and practice which have guided the action of the Home +Government and of the Colonial Governors will apparently be preserved. +Though the Imperial Parliament has an unquestioned right to legislate +for every part of the British dominions so as to override all local +legislation, it does not now exercise this power except for a few +purposes of utility common to all, or many, British possessions, such as +for the regulation of merchant-shipping or copyright, and when it does +so, it secures the assent of the self-governing Colonies. So again, +though the Crown has a legal right to withhold consent from Colonial +Statutes, this right is rarely exerted, and then only in respect of some +general imperial interest which it is supposed that the statute in +question may prejudicially affect, _i.e._ the Crown’s right is not +exerted in the interest of any class of persons in the Colony or in +pursuance of any particular view entertained either by the Governor +there or by the Ministry at home. The new Australian Constitution +provides (sectt. 58-60) that when a measure passed by the Parliament is +presented to the Governor-General, he may either assent to it in the +Queen’s name (but subject to a power to the Queen to disallow the same +within one year) or he may withhold assent; or he may reserve it for the +Queen’s pleasure, in which last case it shall not take effect unless he +announces within two years that the Queen has assented to it. This right +of veto, though it looks on paper larger than that which belongs to the +President of the United States, seeing that the President’s veto can be +overridden by a two-thirds’ majority in each House of Congress, is in +reality far more limited, and will constitute no check (except where +imperial interests may be affected) upon the practically sovereign power +of the Commonwealth Parliament. + + +XIX. COMPARISON WITH THE CONSTITUTIONS OF THE UNITED STATES AND CANADA. + +Before I make some general reflections on the character of this +Australian Constitution, it is worth while to note summarily the +principal points in which it differs from the two other Federal +Constitutions which it most resembles. + +The provisions which it has borrowed from the American Constitution have +been already adverted to. It differs from that Constitution in the +following (among other) respects:— + +1. It is a longer instrument, going into much fuller detail on many +topics. + +2. It leaves less power to the States and gives more power to the +Commonwealth; and it enables the Commonwealth Parliament to legislate +for a State upon the State’s request, a thing which lies quite outside +the functions of Congress. + +3. It does not establish a complete system of Federal Courts covering +the whole area of the Commonwealth, but allows State Courts to be +invested with Federal jurisdiction. + +4. It makes the Federal High Court a Court of appeal from State Courts, +whereas in the United States each State Supreme Court is final in its +proper sphere. + +5. It contains hardly any restrictions, in the nature of a ‘Bill of +Rights,’ upon the power of the Federal Legislature over the individual +citizen. + +6. Instead of disjoining Legislature and Executive, it unites them +closely by the system of Responsible or Cabinet Government, and so far +from excluding every official from Congress, it makes a seat in +Parliament a condition of Ministerial office. + +7. It vests the choice of the Head of the Executive, not in the people, +but in an external authority, the British Crown. To be sure, this Head +is nominal and not responsible either to the people or to the +legislature. + +8. It vests the election of Senators in the people, not in State +Legislatures, gives the Senate no power of amending but only of +suggesting amendments in money bills, makes the Senate dissoluble in +case of a deadlock between it and the House, and contemplates the +possibility that new States may have a smaller representation in the +Senate than original States. + +9. It gives to the Executive no such veto on legislation as the +President has in the United States. I have already explained that the +veto of the Governor-General and the Crown is a different thing, and +rarely employed. + +10. It makes the amendment of the Constitution a much less tedious and +difficult process. + +Thus it may be said that, as compared with the American Constitution, it +vests more power in the National Government as against the State +Governments, and that, as between the various departments of the +National Government itself, it concentrates power more fully in the +hands of the Legislature and imposes fewer restrictions upon its action. + +The Constitution of Canada seems at first sight nearer to that of +Australia than does the American. It has a Monarch, represented by a +Governor-General, for the head of its Executive. It contemplates a +number of States small when compared with the forty-five of the American +Union. It has adopted the British system of Cabinet or responsible +Government. + +But the differences are really so considerable as to place Australia’s +scheme as far from that of her colonial sister as from the American. +Among them are the following:— + +1. The Canadian Constitution prescribes the Constitutions of the several +Provinces, though it permits the Provincial legislatures to alter them +(subject to a Federal veto). The Australian assumes its State +Constitutions as existing, and makes no change in them, except so far as +the Federation controls or supersedes them. Hence the antecedent power +of changing them remains, so far as they are not affected by the Federal +Constitution. + +2. Australia leaves to the States all residuary powers (_i.e._ powers +not expressly granted). Canada withholds them from the Provinces and +vests them in the Dominion. + +3. Australia leaves the State Governors to be appointed, as now, by the +Home Government, apart from Federal interference. Canada gives the +appointment of them to the Federal Ministry. And whereas in Canada a +Provincial Governor cannot communicate directly with home but only with +the Governor-General, in Australia the State Governor and his Ministers +are in direct touch with the British Government in London. + +4. Australia gives to the Federal Government no right whatever to +interfere with State Statutes. Canada invests the Dominion Government +with a veto on Provincial legislation by placing the Governor-General as +regards such legislation in the place which the Queen holds as regards +Dominion legislation. + +5. Australia distinguishes Federal from State jurisdiction, taking power +to establish Federal Courts other than her High Court, and to invest +State Courts with Federal jurisdiction. Canada has no special Federal +Courts other than the Supreme Court of the Dominion. + +6. Australia makes her Senate an elective assembly. In Canada the Senate +is nominated by the Dominion Government, and is therefore a weak body, +quite unfit to try conclusions with the House which has the people +behind it. + +7. Australia provides a method whereby the Commonwealth may amend its +Constitution. Canada has no such method, and thereby leaves amendment to +the Imperial Parliament of the United Kingdom. + +This comparison shows that the Australian scheme of Federal Government +stands intermediate between that of the United States and that of +Canada. In the United States, the Federal Government has less power as +against the States than in Australia. In Canada, the Federal Government +has more power, or at least a wider range of action. In other words, the +Australian system approaches nearer, in point of form, to a Unitary +Government than does the United States, but not so near as does Canada. +I am speaking merely of form, that is, of the institutions as they stand +on paper, for it does not necessarily follow that the spirit in which +institutions are worked will precisely correspond to their form. The old +Romano-Germanic Empire, for instance (1638-1806), was less unitary in +practice than would have been collected from its form; the new German +Empire (since 1871) is more unitary in spirit and working than its form +would necessarily convey. + + + XX. GENERAL OBSERVATIONS ON THE CONSTITUTION. + +Technically regarded, the Constitution is an excellent piece of work. +Its arrangement is logical. Its language is for the most part clear and +precise. The occasional, and perhaps regrettable, vagueness of some +expressions appears due, not to any carelessness of the draftsmen, but +to the nature of the subject-matter. The cumbrousness of the provisions +regarding customs, duties, and the control of railways is the almost +inevitable result of an effort to meet the claims and appease the +apprehensions of neighbouring communities with interests that have been +deemed opposed. Although it is much longer, as well as less terse, than +the Constitution of the United States, going into fuller detail, and +with more of the flavour of an English statute about it, it +nevertheless, like that Constitution, leaves much to be subsequently +filled up by the action of the legislature. A very large field of +legislation remains common to the States and the Commonwealth +Parliament; and though statutes passed by the latter will of course +override or supersede those which may have been passed by the former, it +may be many years before the higher Parliament finds leisure to +cultivate all the ground which lies open before it. A further range of +activity for that Parliament may disclose itself if the State +legislatures should exert the power they possess of asking the +Commonwealth to take over part of their work. And apart from both these +lines of legislative action, the Parliament will find a very large +number of matters which the Constitution has expressly directed it to +settle by statutes. Till such statutes have been enacted, many points +material to the working of the system will remain undetermined. + +In two points the experience of the United States has been, consciously +or unconsciously, turned to account. The complaint has often been made +in America that the Constitution contains no recognition of the Supreme +Being. The Australians have introduced such a recognition in the +preamble of the Imperial Act establishing the Constitution, which runs +as follows: ‘Whereas the people of New South Wales, Victoria, South +Australia, Queensland, and Tasmania, humbly relying on the blessing of +Almighty God, have agreed to unite in one indissoluble Federal +Commonwealth under the Crown of the United Kingdom,’ &c. And they have +also solemnly enounced in the same preamble that indissolubility of +their union which the Americans did not enounce in 1788, and the absence +of which from the instrument gave rise to endless argumentation on the +part of those who maintained the right of a State to retire from the +Federation. + +The perfection of any Federal system may be tested by the degree of +thoroughness with which the Federal principle is worked out in its +application, not only to the legislative, but also to the executive and +judicial branches of government. In this respect the Australian scheme +is less perfect than the American; for the Commonwealth has received +power to legislate, no doubt at the request of the State, on purely +State matters, to return to the States part of the revenue it collects, +and to assume the pecuniary liabilities of the States. There is also, as +already noted, no such effort as in America to secure that questions of +State law shall be determined solely by State Courts, for such cases may +be appealed from State Courts to the Federal High Court. Thus the Nation +looms large over the whole instrument, overshadowing the States. There +are indeed many provisions for safeguarding the interests of the States, +yet these are not so much recognitions of States’ rights as stipulations +made to secure material advantages, industrial or commercial or +financial. An explanation of this remarkable feature of the scheme may +be found in the phenomena of Australian as compared with those of +American history. The thirteen States which united in 1788-9 had each of +them a long history. The two oldest dated back to the beginning of the +seventeenth century. The youngest had nearly sixty years of political +life behind it. All were animated by a strong sentiment of local +independence, and by a passion for liberty which had become associated +with local independence. Their notions of a Unitary Government were +formed from England, whose monarch they had latterly learned to hate as +their oppressor. Hence their love for their States was largely +sentimental. Their minds were filled, not by the mere sense of what they +gained from their States as business men, but by the loyalty they bore +to their States as protectors of their civic rights and embodiments of +their historical traditions. + +Very different were the feelings of the Australians. The oldest colony +dated back scarcely more than a hundred years, and had enjoyed +responsible government for less than fifty. Proud as each colony was of +its progress, there had not been time for those political traditions to +be formed in which the love of local independence roots itself. Neither +were there between the several colonies such differences of origin or of +usages and ways of life as separated the New Englanders from the men of +Virginia and the Carolinas, for the Australians had emigrated so +recently from Britain that no local types had yet been formed. Still +less was there that aversion to a Unitary system of government which the +strife with England had evoked among the Americans. The only political +model which the Australians knew at first hand was the government of +Britain by its Parliament, a government which had ceased in 1832 to be +oligarchic, and had since 1867 begun to be democratic. Accordingly, +among the Australians, State feeling had a thoroughly practical and +business character. It took in each man the form of a resolve to secure +the agricultural and trading interests of his own part of the country. +It was in fact the wish to make a good bargain for his community and +himself. Sentiment there was and is. But the sentiment gathered round +the Commonwealth of the future rather than the Colony of the past. The +same kind of feeling which attached the sons of the Cavaliers to +Virginia and the Puritans of Massachusetts to the old ‘Bay State’ made +the Australians desire to found a great nation which should be the +mistress of the Southern seas. Hence the absence of any jealousy of the +central power beyond that which is suggested by the fear that local +industrial or commercial interests might be unfairly dealt with. + +This attitude of Australian feeling will therefore (if the view here +presented be correct) work towards the development of those centralizing +tendencies in the Constitution for which its terms give ample scope. In +all forms of polity the influences which draw the members of a composite +political community together and those which thrust them asunder are +partly material, partly sentimental[231]. How the influences of material +interest will work in Australia I will not attempt to predict. Some of +them may prove centrifugal; others, such as those of trade, are clearly +centripetal. The Constitution frankly recognizes that economic +conditions prescribe a federal rather than a unitary government. But it +is a significant fact that the influences of sentiment were arrayed on +the side of the Nation rather than on that of the States. One can read +this between the lines of the Constitution; and it explains why the +Frame of Government is less consistently Federal than is that of the +United States. + +----- + +Footnote 231: + + See Essay IV. + +----- + + + XXI. MODERN AND DEMOCRATIC CHARACTER OF + THE AUSTRALIAN CONSTITUTION. + +The Australian instrument is the true child of its era, the latest birth +of Time. Compared with it, the American Constitution seems +old-fashioned, and parts of the Swiss Constitution positively archaic. +Cabinet Government, whose fully developed form is scarcely a century +old, is taken for its basis. Ideas and enterprises, problems and +proposals, so new that they are only just beginning to be seriously +discussed, figure in it. As slavery, an institution almost coeval with +the human race, but essentially barbarous, survived to be mentioned +(under a transparent euphemism) in the Constitution of the United +States, so a new industrial question—viz. the struggle between white +labour and free coloured labour—makes its appearance in this Australian +document. Here too are the new products and new methods of science, +telegraphs and telephones and the keeping of meteorological +observations; here is the extension of the suffrage to women; here are +the new troubles which spring from contests between employers and +workmen; here the new proposals for throwing on the State the function +of providing for its members in sickness and old age; here an express +recognition of the right of a State to control the traffic in +intoxicating liquors. And above all these one perceives through the +whole instrument that dominant factor of our age, the ever-present and +all-pervading influence of economic forces, of industrial production, of +commerce, of finance. The increased and increasing importance of these +influences in the life of the modern world, stimulated as they have been +by the amazing progress of scientific discovery, finds a fuller +expression in this Constitution than in any other yet framed. + +As in these points this Constitution is at least abreast of European and +American theory, and ahead of European or American practice, so also it +represents the high-water mark of popular government. It is penetrated +by the spirit of democracy. The actual everyday working of government in +the Australian Colonies is more democratic than in Britain, because +Britain has retained certain oligarchical habits, political as well as +social. It is more democratic than in the United States, because there +both the States and the Union are fettered by many constitutional +restrictions, and because wealth has there (as indeed in Britain also) +been able to exert a control none the less potent because +half-concealed. But the Constitution of this Federal Commonwealth is +more democratic than are the Constitutions of the several Australian +colonies, in some of which property qualifications and nominated second +chambers have survived till now. It prescribes no qualification for a +Senator or Representative beyond his having attained the age of +twenty-one and being himself qualified to become an elector. He need not +even be a resident in the State where he seeks election. The Senate as +well as the House is elective; both are chosen directly by the people, +and on the basis of the suffrage which each State prescribes for the +election of its more popular House. The duration of the House is only +three years. The direct popular vote, an institution specially +characteristic of advanced democracy, which has been developed +independently in the United States and in Switzerland (where it has +taken the double form of a Referendum to the people and an Initiative +proceeding from the people), is here applied to the enactment of +amendments to the Constitution, and, in the form of a general election +of both Houses simultaneously, to the settlement of deadlocks between +the Houses. There is no veto on the acts of the Legislature, for that +vested in the Governor-General and in the Crown is not intended to be +used except in the rare cases where imperial interests may be touched. +In fact all those checks and balances in the English and American +Constitutions by which the censors of democracy used to set such store, +have here dwindled down to one only, viz. the existence of two Chambers. +These two will be elected on the same franchise and composed of similar +men, but the tendency to dissension so natural to rival bodies may +sometimes interpose delays and ought certainly to make the criticism of +proposals more searching. If the principle of popular sovereignty is +expressed with equal clearness in the Constitutions of America and +Switzerland, it assumes in this Australian Constitution a more direct +and effective form, because many of the restrictions which the two +former constitutions (and especially that of America) impose on the +legislature in the supposed interests of the people are absent from the +Australian instrument. In Australia the people, through their +legislature with its short term, are not only supreme, but can, by the +legislature’s control of the Executive, give effect to their wishes with +incomparable promptitude. For this purpose, the expression ‘people’ +practically means the leader who for the time being commands the popular +majority. Holding in his hand both the Executive power of the Cabinet +and the legislative power of Parliament, he has opportunities of +effecting more than any one man can effect under the constitutions +either of America or of Switzerland. + +The solitary restraint which Australia provides is the co-ordinate +authority of the Senate, a hostile majority in which may check or at +least delay his legislative projects. Yet if his party in the country be +well organized and his programme alluring to the masses he may control +the Senate as well as the House, for it does not follow that because the +smaller States have prudently placed their interests under the +protection of the Senate, they will on the great issues of politics be +usually found opposed to their larger neighbours[232]. + +----- + +Footnote 232: + + In the first election of members of the two Houses, which took place + while these pages were passing through the press, every State was + divided upon the issue of Free Trade _versus_ Protection, though the + Protectionist (or high-tariff) party secured more seats, in + proportion, in the House than it did in the Senate. + +----- + +This highly democratic character of their Constitution has been fully +appreciated by Australian statesmen. The effusiveness with which they +dwell upon it is probably more sincere than even that which is displayed +by politicians in England, America, or France, when they chant the +praises of the multitude. Australians are as sanguine in their temper +now as Americans were in the days before the clouds of Slavery and +Secession had begun to darken their sky. + + + XXII. POLITICAL PARTY IN AUSTRALIA. + +Although the Constitution says no word about political parties, the fact +that it contemplates a party system is written over it in bold +characters. The sages of the Philadelphia Convention of 1787 neither +intended nor expected that the scheme they devised would fall into the +hands of parties. Indeed they had a touching faith, dispelled as soon as +Washington retired from the scene, that the electors who were to be +chosen to elect the President would select the best man in the nation +irrespective of his political ties. The Swiss, strange as it may seem to +men of English or Anglo-American race, have succeeded in keeping their +Executive, elected though it is by the Chambers, out of party politics +altogether, nor do parties dominate the legislature and colour the +public life of the nation as in America and England. But Government of +the English ‘Cabinet type’ is essentially party Government, that is to +say, it has been so hitherto both in England and wherever else it has +been tried, and no one has yet shown how it can be made to work +otherwise. + +In America the great parties are younger than the Constitution, which +may be said to have created them. In England they are older than Cabinet +Government proper, being practically contemporaneous in their rise with +that very rudimentary form of the Cabinet which began to emerge in the +time of King Charles II. In Australia every colony has had such active +and skilfully-organized parties that no one doubts but what the Federal +Legislature will find its first Ministry forthwith provided with a +competent Opposition. It is generally believed that the tariff will +furnish the first, and for some time the main, ground of party division, +for the new Government must begin by providing itself with an adequate +revenue; the chief part of that revenue must be raised by indirect +taxation, and the issue of Free Trade _versus_ Protection has for years +past been a burning one in the largest Colonies. + +I have observed that the Australian scheme contemplates a party system +to work it. But what sort of a party system? Obviously one in which +there are two parties only, each cohesive, each prepared to replace its +antagonist in the Executive. Such was the party system of England till +the present generation. Such has been the party system of the United +States. Exceptions indeed there have been, such as the Know-Nothing +party in 1852, the Greenback party in 1876, the Populist party which +arose in 1889, and is not quite extinct now (February 1901). In the +United States the power of the two great organizations is so vast, and +the cost of creating a new party so deterrent, that a third organization +seldom appears, and if it appears, presently disappears. But in France +there have been and are several parliamentary groups, which frequently +change their attitude towards one another, sometimes combining to +support a Ministry, sometimes falling asunder and leaving it to perish, +because one group alone was not sufficient to sustain it. Hence the +lives of Cabinets have been short, and would have been still shorter but +for the fact that an imminent peril to republican government itself has +sometimes compelled the various republican groups to hold together. In +Britain the same difficulty became acute from 1880 onwards, as the Irish +Nationalists consolidated themselves in a distinct Third Party; and it +may at any moment create serious embarrassment. It exists in Germany +also, and in the Reichsrath of the Austrian half of the Austro-Hungarian +Monarchy. Now in several of the Australian Colonial Parliaments a Labour +party has recently arisen, which, keeping itself independent of the two +older parties, can throw its weight on one or the other side and +endanger the stability of Cabinets. Should this phenomenon reappear in +the Parliament of the Commonwealth, it will complicate still further a +position which the co-ordinate powers of Senate and House make +complicated enough already[233]. + +----- + +Footnote 233: + + Since these lines were written, the phenomenon has reappeared, for at + the first elections, held in the spring of 1901, of the Senate and + House, the Labour party obtained more than one-fifth of the seats in + each House. + +----- + + + XXIII. POLITICAL ISSUES LIKELY TO ARISE + IN AUSTRALIA. + +The mention of parties suggests another question, the last I shall +attempt to discuss, viz. the lines on which the political life of +Australia is likely to move under her new Constitution. It is a topic on +which little will be said by any one who remembers how seldom great +constitutional changes have been followed by the results prophesied at +the time. The Reform Bill of 1832 in Britain, the Civil War in the +United States, the union of Italy under the dynasty of Savoy, not to +speak of the French Revolutions of 1789 and 1848, all brought forth +fruits very different from those predicted by some of the most judicious +and unbiassed contemporary observers. Even the extension of the suffrage +and redistribution of seats effected in Britain in 1884-5 were followed +by a shifting of the balance of party strength exactly the opposite of +that which the shrewdest party politicians had expected. But without +attempting forecasts, one may try to indicate certain conditions likely +to affect the development of Australian national and political life +under the new form which this Constitution gives it. + +First let us ask what are the controversies likely to occupy the nation +and to supply a basis for national parties? + +Taking one country with another, it will be found that the questions on +which men have grouped themselves into parties may be classed under five +heads, viz.:— + +1. Questions of Race, such as those which have contributed to distract +Ireland, which to-day trouble the Austrian Monarchy and (as respects the +Poles) the Prussian Monarchy, which exist, though at present not acute, +in Canada, and which are painfully acute in South Africa. + +2. Questions of religion, now generally less formidable than they once +were, yet embittering disputes regarding education in many modern +countries. + +3. Questions relating to foreign policy, whether as to the general lines +on which it should be conducted, or as to the attitude to be held +towards particular States at any given moment. + +4. Questions regarding the distribution of political power within the +nation itself. + +5. Questions of an economic or economico-social kind, _e.g._ regarding +the disposal of land in public hands or its tenure in private hands, +regarding the conditions of labour, regarding taxation and finance, the +policy of Protection or Free Trade, the policy of progressive imposts, +the propriety of assisting particular industries or particular classes +out of public funds, whether national or local. Some of these may seem +to be rather social than economic, but it will be found upon scrutiny +that it is their economic aspect, _i.e._ their tendency to take money +from or give money to some class in the community, that makes them bases +for party combination. A purely social question seldom assumes great +political significance. + +(1, 2) Applying this classification to Australia we shall find that the +first two sets of questions are absent. All the people are of +practically the same race. None are animated by any religious passion, +although controversies have sometimes arisen over theological teaching +in State schools. + +(3) Questions of foreign policy do not, strictly speaking, come within +the scope of the Commonwealth Parliament, because they belong to the +mother country. Nevertheless, it cannot be doubted that the Parliament +will from time to time interest itself in them, especially as regards +the isles of the Pacific and of the Eastern Archipelago, and will give +forcible expression to its views should any crisis arrive. One can well +imagine that the question of the attitude which the Commonwealth should +assume, or urge the mother country to assume, towards Germany or France, +or Holland, or even towards China or Japan or the United States, when +any of these Powers may be taking action in the Western Pacific, might +give rise to political contention. + +(4) As respects the distribution of political power and the structure of +the Federal Government, Australia is so democratic already that it +cannot go much further. It will doubtless, however, be proposed to +extend to women in all the States that right of voting at Commonwealth +elections which they already enjoy in South Australia and Western +Australia, under the local law, or to apply more widely the institution +of the direct popular vote; or to amend the Constitution in some point +which will raise an issue between the more radical and the more +conservative sections of opinion. That questions of constitutional +amendment have played so small a part in American politics may be +attributed to the extreme difficulty of securing the majorities required +for altering the Constitution. In Australia the process will be far +easier. The history of the United States during the first seventy years +of the Constitution suggests that the question of the respective rights +of the Federation and of the States may furnish a prominent and +persistent issue. This is quite possible, for in Federations there is a +tendency for many controversies of various kinds to connect themselves +with, or to raise afresh, controversies regarding the true construction +of the Federal instrument as respects the powers which it assigns to the +Nation and to the component communities. + +(5) It is however questions of the economic order that are likely to +occupy, more than any others, the minds and energies of Australian +statesmen. The tariff is a practically inexhaustible topic, because +apart from the general issue between a Protective and Free Trade policy, +the particular imports to be taxed and the particular duties to be +imposed will furnish matter for debates that can hardly have finality, +seeing that circumstances change, and that the financial needs of the +Government will increase. It need hardly be said that in a new country +like Australia direct taxation is difficult to collect and highly +unpopular, so that larger recourse will be had to customs and excise +than orthodox economists could justify in Europe. The financial +relations between the Commonwealth and the States will be another +fertile source of controversy. So may the regulation of the railways, +which the Commonwealth seems likely to take over. So will the +arrangements for securing the respective rights of different States as +regards both irrigation and the navigation of the rivers, practically +the only rivers of the Continent, which intersect the three +south-eastern colonies. Among the labour questions likely to arise, one +problem, much before the minds of Australians, may be found to cause +difficulties in its details if not in its general principle, viz. the +exclusion of immigrants of coloured race, Chinese, Japanese, Malays, and +Indian coolies. The white labourers of the temperate colonies have been +strongly opposed to the admission of such strangers, but the planters of +the tropical north, who have used the labour of Pacific islanders on +their sugar estates, take a different view of the case. + +Some may think that the obvious line of party division will be found to +be that which ranges the four smaller and the two larger States into +opposite camps. If this should happen, which may well be doubted, it +will be owing to a coincidence of economic interests, and not to the +mere fact that the strength of one set of States lies in the House, that +of the other in the Senate. The two largest States, New South Wales and +Victoria, have hitherto been conspicuously divergent in their financial +policy. In America, though the small States fought hard against the +large ones in the Convention of 1787, the distinction has never since +that date possessed any permanent political significance. + +If parties form themselves on any geographical lines, the line will more +probably be one between the tropical and the temperate regions. These +tropical regions are at present much less populous and wealthy than is +the temperate south-east corner of the Continent. They will doubtless +increase both in wealth and in population, but as the strong sun forbids +out-door labour to white men, the population enjoying political rights +cannot, for generations to come, be a large one. + + + XXIV. POSSIBLE ENTRANCE OF NEW STATES. + +The existing situation may be so materially affected by the entrance of +new States that one naturally asks what are the prospects that new +States will be admitted. As the whole Continent is already divided among +the five existing States, new ones can come into being only by carving +up the three larger of these. There has already been talk of dividing +Queensland into two or perhaps three States. Others might be formed out +of the now sparsely peopled regions of the north and north-west, when +they have become more thickly inhabited. How fast the process of +colonization will advance in these regions will depend upon what +engineering science may be found able to do for the more arid tracts in +the way of storing rain-water and raising it from deep wells, while +something will depend on the disposition of the Federal Government to +spend money for that purpose. Nor is another element to be overlooked. +Vast as is the mineral wealth already known to exist in the explored +parts of Australia, it may be equalled by that which exists in regions +which have received no thorough geological examination. Should mines +begin to be worked in the arid tracts, an additional motive would be +given for the provision of water supplies there, for the existence of a +population furnishing markets would stimulate men to develop the +capacities of the soil for ranching and even for tillage. These +possibilities show how many factors hitherto undetermined may go to +moulding the political future of the country. The increase of population +in regions now thinly peopled would either make the four smaller States, +or some of them, the equals of the larger, or would, more probably, lead +to the creation of new States, some of them with a character different +from that of the two which now command a decisive majority in the House +of Representatives. As the settlement of the Mississippi Valley changed +American politics, so a filling up of large parts of the interior and +north of Australia, unlikely as this now appears, might affect her +constitutional growth in ways at which we can now only guess. + +At present not only these tropical regions, but also the settled parts +of Western Australia are separated by vast uninhabited spaces from the +populous south-east corner of the continent. Hence just as in Canada an +Intercolonial Railway to connect Nova Scotia and New Brunswick with +Quebec and Ontario was provided for in the Constitution of 1867, and +just as the construction of the great transcontinental Canadian Pacific +line enabled Manitoba and British Columbia to become effective members +of the Federation, so a line of railway from east to west across +Australia, as well as the completion of the line, already partly +constructed, from the south to the north, are among the political needs +of the Commonwealth, and might do much to weld its people into an even +more united nation. + +One community remains to be mentioned whose geographical position +towards Australia recalls the saying of Grattan that while the Ocean +forbade Ireland to be politically severed from Britain, the Sea forbade +an incorporating union. It has been hoped that New Zealand would enter +the Federation, and she has herself seriously considered whether she +ought to do so. With a healthy climate, a soil generally well watered, +and an area not much less than that of the British Isles, New Zealand +has evidently a great future before her. The population, now between +700,000 and 800,000, has tripled within the last thirty years; and the +level of personal comfort and well-being is as high as anywhere in the +world. Her accession would give further strength to the Federal +Commonwealth. But New Zealand, as one of her statesmen observed, has +twelve hundred reasons against union with Australia, for she is +separated from the nearest part of Australia by twelve hundred miles of +stormy sea, a distance more than half of that which divides Ireland from +Newfoundland. She may therefore think that some sort of permanent league +with Australia, for the purposes of combined naval defence and joint +action in external questions of common concern, would conform better to +her outlying position than would participation in a Legislature which +must be mainly occupied with the affairs of Australia. Of the subjects +assigned by the Constitution to the Commonwealth Parliament, there are +several in which, because purely Australian, New Zealand would have no +interest, some also with regard to which she could legislate better for +herself than the Commonwealth could legislate for her, inasmuch as her +economic and social conditions are not the same as those of Australia. +An illustration is furnished by the difference between the native races +in the two countries. The Australian aborigines, one of the most +backward branches of the human family, are obviously unfit for the +exercise of any political functions. They are not permitted to vote in +any colony, and the Constitution provides that in determining the number +of representatives to be allotted to a State they shall not be reckoned +among its population. But the Maoris of New Zealand are an intelligent +folk, to whom New Zealand has given the suffrage, and who are now on +excellent terms with their white neighbours. It would no doubt be +possible for the Commonwealth Parliament to legislate differently for +them and for the ‘black fellows’ of Australia; but their dissimilar +character shows the difference of the problems which arise in the two +countries. New Zealand has however an interest in obtaining free access +to the Australian markets, and her final decision as to entering the +Federation may be influenced by the commercial policy which the larger +country pursues[234]. + +----- + +Footnote 234: + + While these pages were passing through the press, a Commission + appointed in New Zealand to consider the question has reported + strongly against her entrance into the Australian Federation. + +----- + +In this changeful world, no form of government ever remains the same +during a long series of years, and no Federation, however strictly the +rights of its members may be secured by a Rigid Constitution, can +continue to maintain exactly the same balance of powers between the +Nation and the States. I have already expressed the opinion that the +tendency is in Australia likely to be rather towards consolidation than +towards a relaxation of the Federal bond, because not only national +sentiment but economic influences also will work in that direction. Much +however may depend on a factor still unpredictable, the relations +between Australia, together with the British Empire generally, and the +other Powers which are interested in the Western Pacific. Nothing does +so much to draw together a people already homogeneous as the emergence +of issues which threaten, or result in, a struggle against foreign +States. The sentiment of internal unity is accentuated. Public attention +is diverted from domestic controversies. Powers are willingly yielded to +the Executive which would in days of peace be refused. The consequences +may be good or evil—they have sometimes been in the long run evil—but +either way they alter the character of the government. They may even +give a new direction to its policy, as the United States has recently, +and quite unexpectedly, discovered. + + + XXV. FUTURE RELATIONS OF THE AUSTRALIAN + COMMONWEALTH TO BRITAIN. + +Australia however is not a State standing alone in the world, but a +member of the British Empire, so we cannot close an examination of her +Constitution without asking whether the union of her Colonies will +affect her relations to the mother country. + +When the first Convention to frame a Federal Constitution assembled in +1891, most Englishmen supposed that a Federated Australia would soon +aspire to complete independence. Australian statesmen saw deeper, and +predicted that the formation from the several Colonies of an Australian +Nation would tend not to loosen, but rather to draw closer the ties that +unite the people to Great Britain. So far as can be judged from the +course of Australian opinion during the past ten years, this has been +the result. There were at first some who advocated Federation as a means +to independence. But they soon desisted, overborne by a different +current. The same National feeling through which Federalism triumphed +seems to have deepened the sense of unity with other members of the +British race. And possibly that suspicion which colonies are apt to feel +of a sort of patronage on the part of the mother country, and which +sometimes disposes them to be self-assertive, may have vanished as they +came to realize that the old country was proud of them and wished to +treat them not only as a daughter but as an equal. Neither do they, +democrats as they are, harbour distrust of a monarchy, or deem their +freedom in any way hampered by it. The love for republicanism in the +abstract, though far stronger in Continental Europe than in England, was +everywhere a force in the first half of the nineteenth century. It has +faded away in the second half throughout the British world, because the +solid substance of freedom has been secured, because the old mischiefs +of monarchical government have reappeared in republics, because men’s +minds have begun to be occupied with economic and social rather than +with purely political questions. The fact that the British Crown is +titular head of the Australian Commonwealth will not render the working +of the Constitution less truly popular, any more than has befallen in +Canada, a somewhat less democratic country. So far as the internal +politics of Australia are concerned, she will take her own course, +scarcely affected by her connexion with England. But the fact that she +is, and seems likely to remain, a part of the British Empire, sharing in +the enterprises and conflicts and responsibilities of that vast body, is +a fact of the highest moment for her future and for the future of the +world. Still more momentous might her relation to the Empire become +should any scheme be devised for giving the self-governing Colonies of +Britain a share in the financial liability for common defence, together +with a voice in the determination of a common foreign policy. The +difficulties of constructing any constitutional machinery for this +purpose are obvious, yet perhaps not insurmountable. Should any such +arrangement be ever reached, it will probably be reached through some +crisis in the history of the Empire itself. + +Sixty years ago it was generally believed that as soon as each British +self-governing colony had become conscious of its strength, it would +naturally desire, and could not be refused, its independence. But the +last sixty years have brought with them many favouring conditions; and +among these, one of which no one then thought, the long reign of a +sovereign whose personal character, by its purity, simplicity and +kindliness, won such reverence and affection, not only for herself, but +also for the ancient institutions at the head of which she stood, that +the prolongation of her life may be reckoned among the causes which have +kept these far-off lands a part of the British realm and have given its +actual form to the Commonwealth of Australia. + + + + + END OF VOL. 1 + + OXFORD + PRINTED AT THE CLARENDON PRESS + BY HORACE HART, M.A. + PRINTER TO THE UNIVERSITY + +------------------------------------------------------------------------ + +------------------------------------------------------------------------ + + Transcriber’s Note + +At 314.9, the Norse discoverer of Iceland, Naddodd (or Naddoðr in Old +Norse), is referred to as ‘Naddođ’. This is only occurence of the barred +d in this text, the Norse letter eth (ð) was probably intended. + +Other errors deemed most likely to be the printer’s have been corrected, +and are noted here. The references are to the page and line in the +original. + + 32.32 by Mr. E. G. Hardy.[)] Added. + 44.32 round the Aeg[a]ean. Removed. + 94.30 receptive rather than [resistent] _sic_ + 111.34 except[s] as respect[s] land Removed/Added. + 167.32 Ἀ[ρ]χαιοπλούτων Restored. + 260.1 the creation of a Rigid Constit[ut]ion Inserted. + 261.24 every[ ]thing tends to knit individual men Removed. + together + 316.13 where deserts[,] glaciers and morasses Added. + 323.9 Úlflj[o/ó]t having in the meantime returned Replaced. + 344.16 only a father[,] son or brother Added. + 408.3 confidently to answer[.] Added. + 502.3 as against the States[.] Added. + +*** END OF THE PROJECT GUTENBERG EBOOK 78300 *** diff --git a/78300-h/78300-h.htm b/78300-h/78300-h.htm new file mode 100644 index 0000000..173f2e3 --- /dev/null +++ b/78300-h/78300-h.htm @@ -0,0 +1,21269 @@ +<!DOCTYPE html> +<html lang="en"> + <head> + <meta charset="UTF-8"> + <title>Studies in History and Jurisprudence | Project Gutenberg</title> + <link rel="icon" href="images/cover.jpg" type="image/x-cover"> + <style> + body { margin-left: 8%; margin-right: 10%; } + h1 { text-align: center; font-weight: normal; font-size: 1.4em; } + h2 { text-align: center; font-weight: normal; font-size: 1.2em; } + h3 { text-align: center; font-weight: normal; font-size: 1.2em; } + .pageno { right: 1%; font-size: x-small; background-color: inherit; color: silver; + text-indent: 0em; text-align: right; position: absolute; + border: thin solid silver; padding: .1em .2em; font-style: normal; + font-variant: normal; font-weight: normal; text-decoration: none; } + p { text-indent: 0; margin-top: 0.5em; margin-bottom: 0.5em; text-align: justify; } + sup { vertical-align: top; font-size: 0.6em; } + .fss { font-size: 75%; } + .sc { font-variant: small-caps; } + .large { font-size: large; } + .xlarge { font-size: x-large; } + .small { font-size: small; } + .lg-container-b { text-align: center; } + .x-ebookmaker .lg-container-b { clear: both; } + .linegroup { display: inline-block; text-align: left; } + .x-ebookmaker .linegroup { display: block; margin-left: 1.5em; } + .linegroup .group { margin: 1em auto; } + .linegroup .line { text-indent: -3em; padding-left: 3em; } + div.linegroup > :first-child { margin-top: 0; } + .linegroup .in30 { padding-left: 18.0em; } + div.footnote > :first-child { margin-top: 1em; } + div.footnote p { text-indent: 1em; margin-top: 0.0em; margin-bottom: 0.0em; } + div.pbb { page-break-before: always; } + hr.pb { border: none; border-bottom: thin solid; margin-bottom: 1em; } + .x-ebookmaker hr.pb { display: none; } + .chapter { clear: both; page-break-before: always; } + .figcenter { clear: both; max-width: 100%; margin: 2em auto; text-align: center; } + .figcenter img { max-width: 100%; height: auto; } + .id001 { width:60%; } + .x-ebookmaker .id001 { margin-left:20%; width:60%; } + .ig001 { width:100%; } + .table0 { margin: auto; margin-top: 2em; margin-left: 0%; margin-right: 0%; + width: 100%; } + .table1 { margin: auto; width: 90%; } + .colwidth12 { width:12% ; } + .colwidth18 { width:18% ; } + .colwidth69 { width:69% ; } + .colwidth9 { width:9% ; } + .colwidth90 { width:90% ; } + .nf-center { text-align: center; } + .nf-center-c0 { text-align: left; margin: 0.5em 0; } + .c000 { margin-top: 1em; } + .c001 { text-indent: 1em; margin-top: 0.0em; margin-bottom: 0.0em; } + .c002 { page-break-before: always; margin-top: 1em; } + .c003 { margin-top: 4em; } + .c004 { margin-top: 5em; } + .c005 { page-break-before:auto; margin-top: 4em; } + .c006 { margin-top: 2em; text-indent: 1em; margin-bottom: 0.0em; } + .c007 { margin-top: 1em; text-indent: 1em; margin-bottom: 0.0em; } + .c008 { vertical-align: top; text-align: center; } + .c009 { vertical-align: top; text-align: justify; text-indent: -1em; + padding-left: 1em; padding-right: 1em; } + .c010 { vertical-align: top; text-align: right; } + .c011 { text-align: center; } + .c012 { text-decoration: none; } + .c013 { page-break-before: always; margin-top: 2em; } + .c014 { border: none; border-bottom: thin solid; width: 10%; margin-left: 0; + margin-top: 1em; text-align: left; } + .c015 { margin-top: 2em; } + .c016 { margin-left: 2.78%; text-indent: -2.78%; margin-top: 0.0em; + margin-bottom: 0.0em; } + .c017 { margin-top: 1em; font-size: 95%; } + .c018 { vertical-align: top; text-align: left; padding-right: 1em; } + .c019 { vertical-align: top; text-align: left; } + a:link { text-decoration: none; } + div.tnotes { padding-left:1em;padding-right:1em;background-color:#E3E4FA; + border:1px solid silver; margin:1em 5% 0 5%; text-align: justify; } + .blackletter { font-family: "Old English Text MT", Gothic, serif; } + .epubonly {visibility: hidden; display: none; } + .htmlonly {visibility: visible; display: inline; } + .x-ebookmaker .htmlonly { visibility: hidden; display: none; } + .x-ebookmaker .epubonly { visibility: visible; display: inline; } + .column-container { margin: auto; clear: both; } + .left { display: inline-block; text-align: left; vertical-align: bottom; + width:49%; } + .right { display: inline-block; text-align: right; vertical-align: top; width:49%; + } + .sigleft { display: inline-block; text-align: left; vertical-align: bottom; + width:34%; } + .sigright { display: inline-block; text-align: right; vertical-align: bottom; + width:64%; } + ins.correction { text-decoration:none; border-bottom: thin dotted gray; } + .quote { font-size: 95%; margin-top: 1.0em; margin-bottom: 1.0em; } + .linegroup .group { margin: 0em auto; } + </style> + </head> + <body> +<div style='text-align:center'>*** START OF THE PROJECT GUTENBERG EBOOK 78300 ***</div> + +<div class='pbb'> + <hr class='pb c000'> +</div> +<div class='tnotes'> + +<div class='nf-center-c0'> + <div class='nf-center'> + <div>Transcriber’s Note:</div> + </div> +</div> + +<p class='c001'>Footnotes have been collected at the end of text, and are +linked for ease of reference.</p> + +<p class='c001'>All Essays were subdivided into titled sections except +Essay I (Roman and British Empires) and Essay IV. (Primitive Iceland).</p> + +<p class='c001'>The table of contents includes references to the Essays in Volume II.</p> + +<p class='c001'>Minor errors, attributable to the printer, have been corrected. Please +see the transcriber’s <a href='#endnote'>note</a> at the end of this text +for details regarding the handling of any textual issues encountered +during its preparation.</p> + +<div class='htmlonly'> + +<p class='c001'>Any corrections are indicated using an <ins class='correction' title='original'>underline</ins> +highlight. Placing the cursor over the correction will produce the +original text in a small popup.</p> + +<div class='figcenter id001'> +<img src='images/cover.jpg' alt='' class='ig001'> +</div> + +</div> +<div class='epubonly'> + +<p class='c001'>Any corrections are indicated as hyperlinks, which will navigate the +reader to the corresponding entry in the corrections table in the +note at the end of the text.</p> + +</div> + +<p class='c001'>The blank cover has been modified to contain the basic +information from the title page and, so modified, is placed +in the public domain.</p> + +</div> + +<div> + <h1 class='c002'>STUDIES<br> <br> IN <br> <br>HISTORY AND JURISPRUDENCE</h1> +</div> + +<div class='nf-center-c0'> +<div class='nf-center c003'> + <div><span class='pageno' id='Page_I'>I</span>HENRY FROWDE, M.A.</div> + <div><span class='small'>PUBLISHER TO THE UNIVERSITY OF OXFORD</span></div> + <div>LONDON, EDINBURGH</div> + <div>NEW YORK</div> + </div> +</div> + +<div class='nf-center-c0'> +<div class='nf-center c003'> + <div>STUDIES</div> + <div><span class='xlarge'>IN HISTORY AND</span></div> + <div><span class='xlarge'>JURISPRUDENCE</span></div> + <div class='c000'><span class='small'>BY</span></div> + <div class='c000'><span class='large'>JAMES BRYCE, D.C.L.</span></div> + <div class='c000'><span class='small'>AUTHOR OF</span></div> + <div><span class='small'>‘THE HOLY ROMAN EMPIRE,’ ‘THE AMERICAN COMMONWEALTH,’ ETC.</span></div> + <div><span class='small'>FORMERLY REGIUS PROFESSOR OF CIVIL LAW IN THE UNIVERSITY</span></div> + <div><span class='small'>OF OXFORD; HONORARY FELLOW OF ORIEL AND TRINITY</span></div> + <div><span class='small'>COLLEGES, CORRESPONDING MEMBER OF THE</span></div> + <div><span class='small'>INSTITUTE OF FRANCE</span></div> + <div class='c003'>IN TWO VOLUMES</div> + <div class='c000'>VOLUME I</div> + <div class='c004'>OXFORD</div> + <div>AT THE CLARENDON PRESS</div> + <div>1901</div> + </div> +</div> + +<div class='nf-center-c0'> + <div class='nf-center'> + <div>OXFORD</div> + <div class='c000'>PRINTED AT THE CLARENDON PRESS</div> + <div class='c000'>BY HORACE HART, M.A.</div> + <div>PRINTER TO THE UNIVERSITY</div> + </div> +</div> + +<p class='c001'>THESE VOLUMES WERE TO HAVE BEEN OFFERED +TO HENRY SIDGWICK (LATE PROFESSOR OF +MORAL PHILOSOPHY IN THE UNIVERSITY OF +CAMBRIDGE) WITH WHOM I HAD OFTEN DISCUSSED +THE TOPICS THEY DEAL WITH, AND IN WHOM +I HAD ADMIRED, DURING AN INTIMATE FRIENDSHIP +OF NEARLY FORTY YEARS, A SUBTLE AND +FERTILE MIND, A CHARACTER OF SINGULAR PURITY +AND BEAUTY, AND AN UNFAILING LOVE OF TRUTH.</p> + +<div class='nf-center-c0'> + <div class='nf-center'> + <div>THEY ARE NOW DEDICATED TO HIS MEMORY.</div> + </div> +</div> + +<div class='chapter'> + <span class='pageno' id='Page_vii'>vii</span> + <h2 class='c005'>PREFACE</h2> +</div> + +<p class='c006'>These volumes contain a collection of Studies +composed at different times over a long series of +years. They treat of diverse topics: yet through +many of them there runs a common thread, that +of a comparison between the history and law of +Rome and the history and law of England. +I have handled this comparison from several +points of view, even at the risk of some little +repetition, applying it in one essay to the +growth of the Roman and British Empires +(Essay I), in another to the extension over the +world of their respective legal systems (Essay II), +in another to their Constitutions (Essay III), +in others to their legislation (Essays XIV and +XV), in another to an important branch of their +private civil law (Essay XVI). The topic is +one profitable to a student of the history of +either nation; and it has not been largely +treated by any writers known to me; as indeed +few of our best known historians touch upon the +legal aspects of history.</p> + +<p class='c001'>Two Essays (III and IV) embody an effort +to examine political constitutions generally from +comparatively unfamiliar points of view. Five +(IX, X, XI, XII and XIII) are devoted to the +discussion, in a non-technical way, of problems in +jurisprudence which have both a theoretical and +a historical—to some extent also a practical—side. +<span class='pageno' id='Page_viii'>viii</span>Another sketches in outline the early +history of Iceland, and the very peculiar constitution +of the primitive Icelandic Republic. +Three others relate to modern constitutions. +One contains reflections on the history of the +constitution of the United States, a second +describes the systems of the two Dutch Republics +in South Africa, and a third analyses +and comments on the constitution recently created +for the new Commonwealth of Australia.</p> + +<p class='c001'>My aim throughout the book has been to +bring out the importance, sometimes overlooked, +of the constitutional and legal element in history, +and to present topics which, because somewhat +technical, often repel people by their apparent +dryness, in a way which shall make them at +least intelligible—since they can hardly be made +seductive—to a reader who does not add to +a fair general knowledge of history any special +knowledge of law. Technicalities cannot be +wholly avoided; but I hope to have indulged in +none that were not absolutely necessary.</p> + +<p class='c001'>The longer one lives the more is one impressed +by the close connexion between the old +Greco-Italian world and our own. We are still +very near the ancients; and have still much to +learn from their writings and their institutions. +The current of study and education is at present +setting so strongly towards the sciences of nature +that it becomes all the more needful for those +who value historical inquiry and the literature +<span class='pageno' id='Page_ix'>ix</span>of the past to do what they can to bring that old +world into a definite and tangible relation with +the modern time, a relation which shall be not +only stimulative but also practically helpful.</p> + +<p class='c001'>None of these Studies have previously appeared +in print except two, viz. those relating to the +United States and to the two Dutch Republics; +and both of these have been enlarged and +revised. My thanks are due to my friend +Professor Herbert B. Adams of Johns Hopkins +University, Baltimore, and to the proprietors of +the <cite>Forum</cite> magazine respectively for permission +to republish these two.</p> + +<p class='c001'>Some Studies were (in substance) delivered +as Public Lectures at Oxford, during the years +1870-1893 (when I held the Regius Professorship +of Civil Law there), pursuant to the custom +which exists in that University for a professor +to deliver from time to time discourses dealing +with the wider and less technical aspects of his +subject. All these have, however, been rewritten +for publication; and whoever has had a similar +experience will know how much more time and +trouble it takes to rewrite a discourse than to +compose one <span lang="la"><i>de novo</i></span>. Two Lectures, delivered +one when I entered on and the other when +I resigned the professorship, have been appended, +in the belief that they may have some interest +for members of the University and for those who +watch with sympathy the development of legal +teaching in England.</p> + +<p class='c001'><span class='pageno' id='Page_x'>x</span>I have endeavoured to bring up to date all +references to recent events, so that when such +events are mentioned the book may be taken +to speak as from 1900 or 1901.</p> + +<p class='c001'>As it is now nine years since I was obliged +(when I entered Mr. Gladstone’s Ministry in +1892) to intermit any minute study either of +Roman or of English law, it is probable that the +book may disclose an imperfect knowledge of +facts and views given to the world during those +nine years. Under these conditions I might +have wished to keep the book longer before +publishing it. But life is short. Some of the +friends to whose comments and criticisms I had +most looked forward while composing these +Studies have already passed away. So it seemed +better to let what I have written, under the constant +pressure of other duties, go forth now.</p> + +<p class='c001'>Among the friends whom I have to thank for +information or suggestions are Professors A. V. +Dicey, Sir F. Pollock, Henry Goudy, and Henry +Pelham of Oxford, Sir Courtenay Ilbert (Parliamentary +Counsel to the Treasury), Dr. C. L. +Shadwell and Mr. Edward Jenks of Oxford, +Dr. F. Sigel of Warsaw, and Mr. Jón Stefánsson +of Iceland.</p> + +<p class='c001'>The Index has been prepared by Mr. J. S. +Cotton, to whom I am indebted for the care he +has bestowed upon it.</p> + +<p class='c007'><span class='small'><i>June 27, 1901.</i></span></p> + +<div class='chapter'> + <span class='pageno' id='Page_xi'>xi</span> + <h2 class='c005'>CONTENTS</h2> +</div> + +<table class='table0'> +<colgroup> +<col class='colwidth90'> +<col class='colwidth9'> +</colgroup> + <tr> + <td class='c008' colspan='2'><span class='large'><i>VOLUME I</i></span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY I</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'><span class='small'>PAGE</span></td> + </tr> + <tr> + <td class='c009'><i><span class='sc'>The Roman Empire and the British Empire in India</span></i></td> + <td class='c010'><a href='#eI'>1-84</a></td> + </tr> + <tr> + <td class='c009'>Conquest or Absorption by modern European nations of the less advanced races</td> + <td class='c010'><a href='#Page_1'>1</a></td> + </tr> + <tr> + <td class='c009'>Creation by this process of a sort of unity of mankind</td> + <td class='c010'><a href='#Page_2'>2</a></td> + </tr> + <tr> + <td class='c009'>Earlier effort of Rome to unify mankind</td> + <td class='c010'><a href='#Page_3'>3</a></td> + </tr> + <tr> + <td class='c009'>Part borne by England in the work of ruling and civilizing new territories</td> + <td class='c010'><a href='#Page_4'>4</a></td> + </tr> + <tr> + <td class='c009'>The Colonies of England: the British Empire in India</td> + <td class='c010'><a href='#Page_4'>4</a></td> + </tr> + <tr> + <td class='c009'>Position of Rome and England respectively in their Empires</td> + <td class='c010'><a href='#Page_8'>8</a></td> + </tr> + <tr> + <td class='c009'>Origin of the British Indian compared with that of the Roman Empire</td> + <td class='c010'><a href='#Page_8'>8</a></td> + </tr> + <tr> + <td class='c009'>Conditions favouring Roman and British Indian conquest</td> + <td class='c010'><a href='#Page_10'>10</a></td> + </tr> + <tr> + <td class='c009'>Military character of Roman and British rule</td> + <td class='c010'><a href='#Page_13'>13</a></td> + </tr> + <tr> + <td class='c009'>What the Roman and the English conquerors have owed to natural frontiers</td> + <td class='c010'><a href='#Page_14'>14</a></td> + </tr> + <tr> + <td class='c009'>Strength of the Roman and British armies</td> + <td class='c010'><a href='#Page_17'>17</a></td> + </tr> + <tr> + <td class='c009'>Efforts to find a scientific frontier</td> + <td class='c010'><a href='#Page_19'>19</a></td> + </tr> + <tr> + <td class='c009'>The Romans and English as Road and Railway Builders</td> + <td class='c010'><a href='#Page_21'>21</a></td> + </tr> + <tr> + <td class='c009'>Success of both in maintaining internal order and security</td> + <td class='c010'><a href='#Page_23'>23</a></td> + </tr> + <tr> + <td class='c009'>Character of Roman and British administration</td> + <td class='c010'><a href='#Page_26'>26</a></td> + </tr> + <tr> + <td class='c009'>Despotic system: measure of self-government left to the subjects</td> + <td class='c010'><a href='#Page_30'>30</a></td> + </tr> + <tr> + <td class='c009'>Variations in provincial administration in Roman Empire and India</td> + <td class='c010'><a href='#Page_35'>35</a></td> + </tr> + <tr> + <td class='c009'>Revenue and taxation of the two Empires</td> + <td class='c010'><a href='#Page_37'>37</a></td> + </tr> + <tr> + <td class='c009'>Employment of native subjects in civil and military posts</td> + <td class='c010'><a href='#Page_42'>42</a></td> + </tr> + <tr> + <td class='c009'>Civil rights of conquerors and of subjects</td> + <td class='c010'><a href='#Page_46'>46</a></td> + </tr> + <tr> + <td class='c009'>Respect shown to native religions and customs: contrast of religious feeling in ancient and in modern world</td> + <td class='c010'><a href='#Page_51'>51</a></td> + </tr> + <tr> + <td class='c009'>Character of the conquerors as a source of their strength</td> + <td class='c010'><a href='#Page_58'>58</a></td> + </tr> + <tr> + <td class='c009'>Contrasts between the two Empires: geographical position of the ruling race</td> + <td class='c010'><a href='#Page_61'>61</a></td> + </tr> + <tr> + <td class='c009'>Fusion of Romans and provincials: no similar fusion of English and Indians</td> + <td class='c010'><a href='#Page_62'>62</a></td> + </tr> + <tr> + <td class='c009'>Influence of Climate, of Colour, of Religion</td> + <td class='c010'><a href='#Page_63'>63</a></td> + </tr> + <tr> + <td class='c009'>Languages and literature in Roman Empire and in India</td> + <td class='c010'><a href='#Page_70'>70</a></td> + </tr> + <tr> + <td class='c009'><span class='pageno' id='Page_xii'>xii</span>Influences which favoured fusion in Roman Empire absent from India</td> + <td class='c010'><a href='#Page_74'>74</a></td> + </tr> + <tr> + <td class='c009'>Retroactive influences of the provinces on Rome and of India on Britain</td> + <td class='c010'><a href='#Page_76'>76</a></td> + </tr> + <tr> + <td class='c009'>What the experience of the English in India has proved</td> + <td class='c010'><a href='#Page_79'>79</a></td> + </tr> + <tr> + <td class='c009'>Causes which overthrew the Roman Empire</td> + <td class='c010'><a href='#Page_80'>80</a></td> + </tr> + <tr> + <td class='c009'>Probable future of British power in India</td> + <td class='c010'><a href='#Page_82'>82</a></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr><td class='c011' colspan='2'><span class='large'>ESSAY II</span></td></tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>The Extension of Roman and English Law throughout the World</span></td> + <td class='c010'><a href='#eII'>85-144</a></td> + </tr> + <tr> + <td class='c009'>Geographical areas now covered by Roman and by English Law</td> + <td class='c010'><a href='#Page_85'>85</a></td> + </tr> + <tr> + <td class='c009'>Extension of Roman Law by conquest</td> + <td class='c010'><a href='#Page_88'>88</a></td> + </tr> + <tr> + <td class='c009'>Methods of Legal Administration in the provinces</td> + <td class='c010'><a href='#Page_91'>91</a></td> + </tr> + <tr> + <td class='c009'>Gradual assimilation of Roman and Provincial Law</td> + <td class='c010'><a href='#Page_97'>97</a></td> + </tr> + <tr> + <td class='c009'>Establishment of one law for the Roman Empire</td> + <td class='c010'><a href='#Page_99'>99</a></td> + </tr> + <tr> + <td class='c009'>How the Romans were able to create an imperial law</td> + <td class='c010'><a href='#Page_103'>103</a></td> + </tr> + <tr> + <td class='c009'>Spread of Roman Law after the fall of the Western Empire</td> + <td class='c010'><a href='#Page_105'>105</a></td> + </tr> + <tr> + <td class='c009'>Diffusion of English Law over regions settled or conquered</td> + <td class='c010'><a href='#Page_110'>110</a></td> + </tr> + <tr> + <td class='c009'>Legal systems which the English found in India</td> + <td class='c010'><a href='#Page_113'>113</a></td> + </tr> + <tr> + <td class='c009'>Policy followed by the English in dealing with Indian Law</td> + <td class='c010'><a href='#Page_117'>117</a></td> + </tr> + <tr> + <td class='c009'>Codification in India</td> + <td class='c010'><a href='#Page_121'>121</a></td> + </tr> + <tr> + <td class='c009'>Reciprocal action of English and Native Law on one another</td> + <td class='c010'><a href='#Page_124'>124</a></td> + </tr> + <tr> + <td class='c009'>Merits and working of the Anglo-Indian Codes</td> + <td class='c010'><a href='#Page_127'>127</a></td> + </tr> + <tr> + <td class='c009'>Roman Law in the Empire compared with English Law in India</td> + <td class='c010'><a href='#Page_133'>133</a></td> + </tr> + <tr> + <td class='c009'>Probable future of English Law in India</td> + <td class='c010'><a href='#Page_138'>138</a></td> + </tr> + <tr> + <td class='c009'>English and Roman Law over the world</td> + <td class='c010'><a href='#Page_142'>142</a></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY III</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>Flexible and Rigid Constitutions</span></td> + <td class='c010'><a href='#Page_145'>145-254</a></td> + </tr> + <tr> + <td class='c009'>Observations on the Constitutions of Rome and England</td> + <td class='c010'><a href='#Page_145'>145</a></td> + </tr> + <tr> + <td class='c009'>Old Classification of Constitutions as Written and Unwritten</td> + <td class='c010'><a href='#Page_148'>148</a></td> + </tr> + <tr> + <td class='c009'>Proposed new classification</td> + <td class='c010'><a href='#Page_150'>150</a></td> + </tr> + <tr> + <td class='c009'>Flexible Constitutions: how far distinguishable from laws in general</td> + <td class='c010'><a href='#Page_154'>154</a></td> + </tr> + <tr> + <td class='c009'>Origin of Flexible Constitutions</td> + <td class='c010'><a href='#Page_159'>159</a></td> + </tr> + <tr> + <td class='c009'>Strength and weakness of Flexible Constitutions</td> + <td class='c010'><a href='#Page_163'>163</a></td> + </tr> + <tr> + <td class='c009'>Such Constitutions are rather elastic than unstable</td> + <td class='c010'><a href='#Page_168'>168</a></td> + </tr> + <tr> + <td class='c009'>Illustrations from the Constitutions of Rome and England</td> + <td class='c010'><a href='#Page_169'>169</a></td> + </tr> + <tr> + <td class='c009'>Dangers possibly inherent in Flexible Constitutions</td> + <td class='c010'><a href='#Page_175'>175</a></td> + </tr> + <tr> + <td class='c009'><span class='pageno' id='Page_xiii'>xiii</span>Flexible Constitutions suited to aristocratic governments</td> + <td class='c010'><a href='#Page_178'>178</a></td> + </tr> + <tr> + <td class='c009'>Checks applied in Rome and in England</td> + <td class='c010'><a href='#Page_181'>181</a></td> + </tr> + <tr> + <td class='c009'>Influence of Constitutions on the mind of a nation</td> + <td class='c010'><a href='#Page_185'>185</a></td> + </tr> + <tr> + <td class='c009'>Illustrations from Rome and England</td> + <td class='c010'><a href='#Page_189'>189</a></td> + </tr> + <tr> + <td class='c009'>Capacity of Constitutions for Territorial Expansion</td> + <td class='c010'><a href='#Page_193'>193</a></td> + </tr> + <tr> + <td class='c009'>Enumeration of existing Rigid Constitutions</td> + <td class='c010'><a href='#Page_196'>196</a></td> + </tr> + <tr> + <td class='c009'>Circumstances under which Rigid Constitutions arise</td> + <td class='c010'><a href='#Page_200'>200</a></td> + </tr> + <tr> + <td class='c009'>Enactment and amendment of Rigid Constitutions</td> + <td class='c010'><a href='#Page_205'>205</a></td> + </tr> + <tr> + <td class='c009'>Various modes now in use for amending them</td> + <td class='c010'><a href='#Page_210'>210</a></td> + </tr> + <tr> + <td class='c009'>How far can Rigid Constitutions be definite or complete?</td> + <td class='c010'><a href='#Page_217'>217</a></td> + </tr> + <tr> + <td class='c009'>Stability of Rigid Constitutions</td> + <td class='c010'><a href='#Page_221'>221</a></td> + </tr> + <tr> + <td class='c009'>The interpretation of Rigid Constitutions</td> + <td class='c010'><a href='#Page_228'>228</a></td> + </tr> + <tr> + <td class='c009'>Contrast of Anglo-American doctrines with those of the European Continent</td> + <td class='c010'><a href='#Page_230'>230</a></td> + </tr> + <tr> + <td class='c009'>American views as to Interpretation</td> + <td class='c010'><a href='#Page_232'>232</a></td> + </tr> + <tr> + <td class='c009'>Suitability of Rigid Constitutions to Democracies</td> + <td class='c010'><a href='#Page_234'>234</a></td> + </tr> + <tr> + <td class='c009'>Recent changes of opinion in the United States and England</td> + <td class='c010'><a href='#Page_239'>239</a></td> + </tr> + <tr> + <td class='c009'>Probable future of the two types of Constitution</td> + <td class='c010'><a href='#Page_242'>242</a></td> + </tr> + <tr> + <td class='c009'>Proposals for federalizing the British Constitution</td> + <td class='c010'><a href='#Page_245'>245</a></td> + </tr> + <tr> + <td class='c009'>Possible creation of new States and Constitutions</td> + <td class='c010'><a href='#Page_249'>249</a></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY IV</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>The Action of Centripetal and Centrifugal Forces on Political Constitutions</span></td> + <td class='c010'><a href='#eIV'>255-311</a></td> + </tr> + <tr> + <td class='c009'>The influence of aggregative and disjunctive forces on political societies</td> + <td class='c010'><a href='#Page_255'>255</a></td> + </tr> + <tr> + <td class='c009'>Tendencies which may act either Centripetally or Centrifugally</td> + <td class='c010'><a href='#Page_261'>261</a></td> + </tr> + <tr> + <td class='c009'>Influences of Interest and Sympathy</td> + <td class='c010'><a href='#Page_263'>263</a></td> + </tr> + <tr> + <td class='c009'>Illustrations of the action of Racial and Religious sentiment</td> + <td class='c010'><a href='#Page_265'>265</a></td> + </tr> + <tr> + <td class='c009'>In the progress of civilization, material interest and sentiment may be opposed</td> + <td class='c010'><a href='#Page_269'>269</a></td> + </tr> + <tr> + <td class='c009'>How Constitutions may use the existing Centripetal and Centrifugal forces</td> + <td class='c010'><a href='#Page_271'>271</a></td> + </tr> + <tr> + <td class='c009'>Illustrations from Commerce, Law and Religion</td> + <td class='c010'><a href='#Page_274'>274</a></td> + </tr> + <tr> + <td class='c009'>Instances of the troubles caused by Racial or Religious sentiment</td> + <td class='c010'><a href='#Page_281'>281</a></td> + </tr> + <tr> + <td class='c009'>Methods by which Constitutions may disarm or regulate the centrifugal forces: illustrations</td> + <td class='c010'><a href='#Page_286'>286</a></td> + </tr> + <tr> + <td class='c009'>Difficulties due to differences of colour in races</td> + <td class='c010'><a href='#Page_291'>291</a></td> + </tr> + <tr> + <td class='c009'>How the Constitutions of the United States and Switzerland have acted</td> + <td class='c010'><a href='#Page_296'>296</a></td> + </tr> + <tr> + <td class='c009'>The Centripetal force generally, but not always, dominant in European history</td> + <td class='c010'><a href='#Page_300'>300</a></td> + </tr> + <tr> + <td class='c009'><span class='pageno' id='Page_xiv'>xiv</span>Effects of Conquest and of Dynastic Succession</td> + <td class='c010'><a href='#Page_303'>303</a></td> + </tr> + <tr> + <td class='c009'>Probable future strength of the centrifugal and centripetal forces respectively</td> + <td class='c010'><a href='#Page_307'>307</a></td> + </tr> + <tr> + <td class='c009'>Present tendency to the enlargement or consolidation of States is not necessarily permanent</td> + <td class='c010'><a href='#Page_309'>309</a></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY V</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>Primitive Iceland</span></td> + <td class='c010'><a href='#eV'>312-358</a></td> + </tr> + <tr> + <td class='c009'>Discovery and Settlement of Iceland</td> + <td class='c010'><a href='#Page_312'>312</a></td> + </tr> + <tr> + <td class='c009'>Beginnings of a Polity: the Thing</td> + <td class='c010'><a href='#Page_316'>316</a></td> + </tr> + <tr> + <td class='c009'>Rise of the Goði or Priest-Chieftain</td> + <td class='c010'><a href='#Page_317'>317</a></td> + </tr> + <tr> + <td class='c009'>The first political constitution of the island</td> + <td class='c010'><a href='#Page_322'>322</a></td> + </tr> + <tr> + <td class='c009'>Judicial organization and powers of the Althing</td> + <td class='c010'><a href='#Page_325'>325</a></td> + </tr> + <tr> + <td class='c009'>The Speaker of the Law</td> + <td class='c010'><a href='#Page_327'>327</a></td> + </tr> + <tr> + <td class='c009'>Thingvellir and the meetings of the Althing</td> + <td class='c010'><a href='#Page_327'>327</a></td> + </tr> + <tr> + <td class='c009'>General character of the Icelandic Republic</td> + <td class='c010'><a href='#Page_333'>333</a></td> + </tr> + <tr> + <td class='c009'>Growth and character of the law of Iceland</td> + <td class='c010'><a href='#Page_335'>335</a></td> + </tr> + <tr> + <td class='c009'>Complexity of the constitution and the law</td> + <td class='c010'><a href='#Page_337'>337</a></td> + </tr> + <tr> + <td class='c009'>Sources of our knowledge of the law</td> + <td class='c010'><a href='#Page_341'>341</a></td> + </tr> + <tr> + <td class='c009'>Illustrations of features of the early law</td> + <td class='c010'><a href='#Page_343'>343</a></td> + </tr> + <tr> + <td class='c009'>An action for the ejectment of ghosts</td> + <td class='c010'><a href='#Page_345'>345</a></td> + </tr> + <tr> + <td class='c009'>The Judicial Duel: Story of Gunnlaug Snake’s Tongue and Helga the Fair</td> + <td class='c010'><a href='#Page_348'>348</a></td> + </tr> + <tr> + <td class='c009'>The introduction of Christianity</td> + <td class='c010'><a href='#Page_350'>350</a></td> + </tr> + <tr> + <td class='c009'>Reflections on the early history of Iceland</td> + <td class='c010'><a href='#Page_353'>353</a></td> + </tr> + <tr> + <td class='c009'>Fall of the Republic: subsequent fortunes of the isle</td> + <td class='c010'><a href='#Page_356'>356</a></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY VI</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>The Constitution of the United States as seen in the Past</span></td> + <td class='c010'><a href='#eVI'>359-429</a></td> + </tr> + <tr> + <td class='c009'>Value of contemporary views of an institution</td> + <td class='c010'><a href='#Page_359'>359</a></td> + </tr> + <tr> + <td class='c009'>The <cite>Federalist</cite>: Alex Hamilton and James Madison</td> + <td class='c010'><a href='#Page_360'>360</a></td> + </tr> + <tr> + <td class='c009'>The United States in <span class='fss'>A.D.</span> 1788</td> + <td class='c010'><a href='#Page_361'>361</a></td> + </tr> + <tr> + <td class='c009'>Predictions of the opponents of the New Constitution</td> + <td class='c010'><a href='#Page_366'>366</a></td> + </tr> + <tr> + <td class='c009'>Views of its supporters: dangers feared by them</td> + <td class='c010'><a href='#Page_369'>369</a></td> + </tr> + <tr> + <td class='c009'>Examination of the predictions of 1788</td> + <td class='c010'><a href='#Page_374'>374</a></td> + </tr> + <tr> + <td class='c009'>Characteristic merits and defects of American Democracy only slightly foreseen</td> + <td class='c010'><a href='#Page_378'>378</a></td> + </tr> + <tr> + <td class='c009'>The <cite>Democracy in America</cite> of Alexis de Tocqueville</td> + <td class='c010'><a href='#Page_381'>381</a></td> + </tr> + <tr> + <td class='c009'>Merits and flaws in Tocqueville’s study of the United States</td> + <td class='c010'><a href='#Page_382'>382</a></td> + </tr> + <tr> + <td class='c009'>His insufficient knowledge of England</td> + <td class='c010'><a href='#Page_385'>385</a></td> + </tr> + <tr> + <td class='c009'>His preoccupation with France</td> + <td class='c010'><a href='#Page_387'>387</a></td> + </tr> + <tr> + <td class='c009'><span class='pageno' id='Page_xv'>xv</span>The deficiencies observable in his book scarcely affect its present value</td> + <td class='c010'><a href='#Page_390'>390</a></td> + </tr> + <tr> + <td class='c009'>Condition of the United States in Tocqueville’s day</td> + <td class='c010'><a href='#Page_392'>392</a></td> + </tr> + <tr> + <td class='c009'>His description of the salient features of the nation</td> + <td class='c010'><a href='#Page_397'>397</a></td> + </tr> + <tr> + <td class='c009'>Advantages which he conceives Democracy to have secured</td> + <td class='c010'><a href='#Page_403'>403</a></td> + </tr> + <tr> + <td class='c009'>Evils he discovers in American Democracy</td> + <td class='c010'><a href='#Page_404'>404</a></td> + </tr> + <tr> + <td class='c009'>Causes which in his view maintain Republican government</td> + <td class='c010'><a href='#Page_406'>406</a></td> + </tr> + <tr> + <td class='c009'>His forecasts: the negroes: weakness of the Federal Union</td> + <td class='c010'><a href='#Page_408'>408</a></td> + </tr> + <tr> + <td class='c009'>Points omitted in his description</td> + <td class='c010'><a href='#Page_413'>413</a></td> + </tr> + <tr> + <td class='c009'>Chief events in the United States since Tocqueville’s time</td> + <td class='c010'><a href='#Page_415'>415</a></td> + </tr> + <tr> + <td class='c009'>Chief political changes of the last sixty-seven years</td> + <td class='c010'><a href='#Page_417'>417</a></td> + </tr> + <tr> + <td class='c009'>Examination of Tocqueville’s predictions</td> + <td class='c010'><a href='#Page_418'>418</a></td> + </tr> + <tr> + <td class='c009'>Summary of Tocqueville’s conclusions</td> + <td class='c010'><a href='#Page_425'>425</a></td> + </tr> + <tr> + <td class='c009'>General course of events in America since 1788</td> + <td class='c010'><a href='#Page_427'>427</a></td> + </tr> + <tr> + <td class='c009'>What Tocqueville would say to-day</td> + <td class='c010'><a href='#Page_428'>428</a></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY VII</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>Two South African Constitutions</span></td> + <td class='c010'><a href='#eVII'>430-467</a></td> + </tr> + <tr> + <td class='c009'>Originality of the Constitutions of the two Dutch Republics</td> + <td class='c010'><a href='#Page_430'>430</a></td> + </tr> + <tr> + <td class='c009'>Circumstances under which they arose</td> + <td class='c010'><a href='#Page_432'>432</a></td> + </tr> + <tr> + <td class='c009'>Constitution of the Orange Free State</td> + <td class='c010'><a href='#Page_436'>436</a></td> + </tr> + <tr> + <td class='c009'>Constitution of the South African Republic (Transvaal)</td> + <td class='c010'><a href='#Page_441'>441</a></td> + </tr> + <tr> + <td class='c009'>Observations on the Constitution of the South African Republic</td> + <td class='c010'><a href='#Page_448'>448</a></td> + </tr> + <tr> + <td class='c009'>Is it a Rigid or a Flexible Constitution?</td> + <td class='c010'><a href='#Page_449'>449</a></td> + </tr> + <tr> + <td class='c009'>Controversy as to the so-called ‘testing power’</td> + <td class='c010'><a href='#Page_452'>452</a></td> + </tr> + <tr> + <td class='c009'>The Constitution is certainly a Flexible one</td> + <td class='c010'><a href='#Page_453'>453</a></td> + </tr> + <tr> + <td class='c009'>Observations upon both these Constitutions</td> + <td class='c010'><a href='#Page_455'>455</a></td> + </tr> + <tr> + <td class='c009'>Comparison of these Constitutions with that of Britain and that of the United States</td> + <td class='c010'><a href='#Page_458'>458</a></td> + </tr> + <tr> + <td class='c009'>Relations of Executive and Legislature in these Dutch Republics</td> + <td class='c010'><a href='#Page_460'>460</a></td> + </tr> + <tr> + <td class='c009'>Practical Working of the Constitution of the Orange Free State</td> + <td class='c010'><a href='#Page_463'>463</a></td> + </tr> + <tr> + <td class='c009'>Working of the Constitution of the South African Republic</td> + <td class='c010'><a href='#Page_464'>464</a></td> + </tr> + <tr> + <td class='c009'>Postscript</td> + <td class='c010'><a href='#Page_466'>466</a></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY VIII</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>The Constitution of the Commonwealth of Australia</span></td> + <td class='c010'><a href='#eVIII'>468-553</a></td> + </tr> + <tr> + <td class='c009'>Interest attaching to the new Constitution of Australia</td> + <td class='c010'><a href='#Page_468'>468</a></td> + </tr> + <tr> + <td class='c009'>Origin and progress of the movement for federalizing Australia</td> + <td class='c010'><a href='#Page_471'>471</a></td> + </tr> + <tr> + <td class='c009'><span class='pageno' id='Page_xvi'>xvi</span>Causes which induced Federation</td> + <td class='c010'><a href='#Page_477'>477</a></td> + </tr> + <tr> + <td class='c009'>Influence of a Pan-Australian sentiment</td> + <td class='c010'><a href='#Page_480'>480</a></td> + </tr> + <tr> + <td class='c009'>Physical and racial conditions favouring Federation</td> + <td class='c010'><a href='#Page_483'>483</a></td> + </tr> + <tr> + <td class='c009'>Comparison with the conditions of the United States and of Canada</td> + <td class='c010'><a href='#Page_487'>487</a></td> + </tr> + <tr> + <td class='c009'>Two leading types of Federal Government</td> + <td class='c010'><a href='#Page_489'>489</a></td> + </tr> + <tr> + <td class='c009'>Distribution of powers between the Nation and the States in the Australian Constitution</td> + <td class='c010'><a href='#Page_491'>491</a></td> + </tr> + <tr> + <td class='c009'>Position of the Australian States under the Constitution</td> + <td class='c010'><a href='#Page_494'>494</a></td> + </tr> + <tr> + <td class='c009'>Differences from the Federal systems of the United States and of Canada</td> + <td class='c010'><a href='#Page_498'>498</a></td> + </tr> + <tr> + <td class='c009'>The National Government: few restrictions on its powers</td> + <td class='c010'><a href='#Page_501'>501</a></td> + </tr> + <tr> + <td class='c009'>The Legislature: Representation of the States in the Senate</td> + <td class='c010'><a href='#Page_503'>503</a></td> + </tr> + <tr> + <td class='c009'>The House of Representatives</td> + <td class='c010'><a href='#Page_506'>506</a></td> + </tr> + <tr> + <td class='c009'>The Executive and the Judiciary</td> + <td class='c010'><a href='#Page_508'>508</a></td> + </tr> + <tr> + <td class='c009'>Question as to Constitutional Appeals: the British Government yield to Australian sentiment</td> + <td class='c010'><a href='#Page_509'>509</a></td> + </tr> + <tr> + <td class='c009'>Intended working of the scheme of Government: The Cabinet</td> + <td class='c010'><a href='#Page_513'>513</a></td> + </tr> + <tr> + <td class='c009'>Provision against legislative deadlocks</td> + <td class='c010'><a href='#Page_516'>516</a></td> + </tr> + <tr> + <td class='c009'>Relations of the Two Houses</td> + <td class='c010'><a href='#Page_518'>518</a></td> + </tr> + <tr> + <td class='c009'>Financial provisions: railways and rivers</td> + <td class='c010'><a href='#Page_521'>521</a></td> + </tr> + <tr> + <td class='c009'>Location of the national capital: admission of New States</td> + <td class='c010'><a href='#Page_522'>522</a></td> + </tr> + <tr> + <td class='c009'>Mode of amending the Constitution</td> + <td class='c010'><a href='#Page_523'>523</a></td> + </tr> + <tr> + <td class='c009'>Relations of the Australian Commonwealth to the British Crown</td> + <td class='c010'><a href='#Page_525'>525</a></td> + </tr> + <tr> + <td class='c009'>General comparison of the Australian Constitution with that of the United States</td> + <td class='c010'><a href='#Page_527'>527</a></td> + </tr> + <tr> + <td class='c009'>Comparison with that of the Dominion of Canada</td> + <td class='c010'><a href='#Page_528'>528</a></td> + </tr> + <tr> + <td class='c009'>Further observations on the Constitution</td> + <td class='c010'><a href='#Page_531'>531</a></td> + </tr> + <tr> + <td class='c009'>It is less strictly Federal and more National than that of the United States</td> + <td class='c010'><a href='#Page_532'>532</a></td> + </tr> + <tr> + <td class='c009'>Its highly democratic character</td> + <td class='c010'><a href='#Page_535'>535</a></td> + </tr> + <tr> + <td class='c009'>It contemplates a party system</td> + <td class='c010'><a href='#Page_539'>539</a></td> + </tr> + <tr> + <td class='c009'>Difficulties which may arise from the existence of a third party</td> + <td class='c010'><a href='#Page_540'>540</a></td> + </tr> + <tr> + <td class='c009'>What political issues are likely to arise in Australia?</td> + <td class='c010'><a href='#Page_542'>542</a></td> + </tr> + <tr> + <td class='c009'>Probable prominence of Economic questions</td> + <td class='c010'><a href='#Page_545'>545</a></td> + </tr> + <tr> + <td class='c009'>Possible creation and admission of New States</td> + <td class='c010'><a href='#Page_547'>547</a></td> + </tr> + <tr> + <td class='c009'>Will New Zealand enter the Federation?</td> + <td class='c010'><a href='#Page_548'>548</a></td> + </tr> + <tr> + <td class='c009'>Tendencies to consolidation maybe strengthened by disputes with foreign powers</td> + <td class='c010'><a href='#Page_550'>550</a></td> + </tr> + <tr> + <td class='c009'>Future relations of Australia to Britain</td> + <td class='c010'><a href='#Page_551'>551</a></td> + </tr> + <tr> + <td class='c009'><span class='pageno' id='Page_xvii'>xvii</span> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'><i>VOLUME II</i></span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY IX</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>Obedience</span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/pg78301-images.html#eIX'>1-48</a></td> + </tr> + <tr> + <td class='c009'>Different Theories of the Nature of Political Obedience</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_1'>1</a></td> + </tr> + <tr> + <td class='c009'>The grounds of compliance in general: Indolence</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_6'>6</a></td> + </tr> + <tr> + <td class='c009'>Deference and Sympathy</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_9'>9</a></td> + </tr> + <tr> + <td class='c009'>Reason and Fear</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_12'>12</a></td> + </tr> + <tr> + <td class='c009'>Respective strength of these springs of Obedience</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_14'>14</a></td> + </tr> + <tr> + <td class='c009'>Will as a political force: Illustrations from the East</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_15'>15</a></td> + </tr> + <tr> + <td class='c009'>Formation of the habit of Obedience in the individual</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_19'>19</a></td> + </tr> + <tr> + <td class='c009'>Influences forming Obedience in early societies</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_21'>21</a></td> + </tr> + <tr> + <td class='c009'>Slight interest of men in liberty for its own sake</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_24'>24</a></td> + </tr> + <tr> + <td class='c009'>Is the tendency to obey likely to decrease?</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_26'>26</a></td> + </tr> + <tr> + <td class='c009'>Influences apparently making for subordination</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_28'>28</a></td> + </tr> + <tr> + <td class='c009'>What may be hoped for the future of democratic government</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_31'>31</a></td> + </tr> + <tr> + <td class='c009'>How a pessimist might view existing conditions</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_33'>33</a></td> + </tr> + <tr> + <td class='c009'>Conclusion: The disposition to obey will be permanent</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_41'>41</a></td> + </tr> + <tr> + <td class='c009'>Note on the application to the definitions of Jurisprudence of a theory of Obedience</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_44'>44</a></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY X</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>The Nature of Sovereignty</span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/pg78301-images.html#eX'>49-111</a></td> + </tr> + <tr> + <td class='c009'>Confusions regarding the term Sovereignty</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_49'>49</a></td> + </tr> + <tr> + <td class='c009'>Sovereignty <span lang="la"><i>de iure</i></span> and <span lang="la"><i>de facto</i></span> must be distinguished</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_51'>51</a></td> + </tr> + <tr> + <td class='c009'>Sovereignty <span lang="la"><i>de iure</i></span> exists in the sphere of law only, and is not concerned with obedience</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_56'>56</a></td> + </tr> + <tr> + <td class='c009'>Sovereignty <span lang="la"><i>de facto</i></span>: concrete instances</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_59'>59</a></td> + </tr> + <tr> + <td class='c009'>Relations of Sovereignty <span lang="la"><i>de iure</i></span> to that <span lang="la"><i>de facto</i></span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_64'>64</a></td> + </tr> + <tr> + <td class='c009'>Action and reaction of each on the other</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_68'>68</a></td> + </tr> + <tr> + <td class='c009'>The Roman doctrine of Sovereignty: the people are the source of political power</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_73'>73</a></td> + </tr> + <tr> + <td class='c009'>Mediaeval views of Sovereignty: Emperor and Pope</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_79'>79</a></td> + </tr> + <tr> + <td class='c009'>New theories of the sixteenth and seventeenth centuries</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_82'>82</a></td> + </tr> + <tr> + <td class='c009'>Bodin, Althaus, Hobbes</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_84'>84</a></td> + </tr> + <tr> + <td class='c009'>Relation of Hobbes’ system to the events of his time</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_86'>86</a></td> + </tr> + <tr> + <td class='c009'>Bentham revives Hobbes’ doctrine</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_88'>88</a></td> + </tr> + <tr> + <td class='c009'><span class='pageno' id='Page_xviii'>xviii</span>Views of John Austin: illustrations of their unsoundness</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_89'>89</a></td> + </tr> + <tr> + <td class='c009'>Confusion of various questions regarding Sovereignty which are really distinct</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_94'>94</a></td> + </tr> + <tr> + <td class='c009'>Rights in the moral sphere of Sovereignty <span lang="la"><i>de iure</i></span> and Sovereignty <span lang="la"><i>de facto</i></span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_98'>98</a></td> + </tr> + <tr> + <td class='c009'>Sovereignty in International Relations</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_101'>101</a></td> + </tr> + <tr> + <td class='c009'>Sovereignty in a Federation</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_104'>104</a></td> + </tr> + <tr> + <td class='c009'>Conclusion: Theoretical Controversies regarding Sovereignty have mostly had their origin in current politics</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_108'>108</a></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY XI</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>The Law of Nature</span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/pg78301-images.html#eXII'>112-171</a></td> + </tr> + <tr> + <td class='c009'>Origin of the notion of Nature as a ruling force</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_112'>112</a></td> + </tr> + <tr> + <td class='c009'>It is different from modern conception of the Laws of Nature</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_117'>117</a></td> + </tr> + <tr> + <td class='c009'>Nature as a force in human society</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_120'>120</a></td> + </tr> + <tr> + <td class='c009'>The term ‘Natural’ as applied to Customs and Laws</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_122'>122</a></td> + </tr> + <tr> + <td class='c009'>St. Paul and the Greek philosophers on Natural Law</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_124'>124</a></td> + </tr> + <tr> + <td class='c009'>The Roman Law of the Nations (<span lang="la"><i>Ius Gentium</i></span>)</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_128'>128</a></td> + </tr> + <tr> + <td class='c009'>How the ‘common law of the nations’ was formed</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_131'>131</a></td> + </tr> + <tr> + <td class='c009'>Cicero on the Law of the Nations and Law of Nature</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_135'>135</a></td> + </tr> + <tr> + <td class='c009'>Growth of the idea of Natural Law among the jurists</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_138'>138</a></td> + </tr> + <tr> + <td class='c009'>Practical identification of <span lang="la"><i>Ius Gentium</i></span> and <span lang="la"><i>Ius Naturae</i></span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_142'>142</a></td> + </tr> + <tr> + <td class='c009'>Points of difference which remained: Slavery</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_144'>144</a></td> + </tr> + <tr> + <td class='c009'>Extension of Roman citizenship removes the need for a <span lang="la"><i>Ius Gentium</i></span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_147'>147</a></td> + </tr> + <tr> + <td class='c009'>Senses in which the jurists use the term ‘Nature’</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_148'>148</a></td> + </tr> + <tr> + <td class='c009'>Value and practical influence of the notion of Natural Law</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_151'>151</a></td> + </tr> + <tr> + <td class='c009'>The Law of Nature and Law of God in the Middle Ages</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_157'>157</a></td> + </tr> + <tr> + <td class='c009'>The Law of Nature in Modern Times</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_161'>161</a></td> + </tr> + <tr> + <td class='c009'>Its relation to the Law of England</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_164'>164</a></td> + </tr> + <tr> + <td class='c009'>Its influence on the rise of International Law</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_167'>167</a></td> + </tr> + <tr> + <td class='c009'>‘Natural Law’ as meaning a Philosophy of Law</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_169'>169</a></td> + </tr> + <tr> + <td class='c009'>Conclusion: Comparative quiescence of the idea in recent times</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_170'>170</a></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY XII</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>The Methods of Legal Science</span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/pg78301-images.html#eXII'>172-208</a></td> + </tr> + <tr> + <td class='c009'>No Philosophy of Law among the Roman Jurists; is such a Philosophy necessary or serviceable?</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_172'>172</a></td> + </tr> + <tr> + <td class='c009'>Four Methods employed in Legal Science</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_174'>174</a></td> + </tr> + <tr> + <td class='c009'><span class='pageno' id='Page_xix'>xix</span>The Metaphysical Method: German <span lang="de"><i>Naturrecht</i></span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_174'>174</a></td> + </tr> + <tr> + <td class='c009'>The Analytic Method: the Benthamites</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_178'>178</a></td> + </tr> + <tr> + <td class='c009'>Errors in John Austin’s use of it</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_180'>180</a></td> + </tr> + <tr> + <td class='c009'>The Historical Method</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_184'>184</a></td> + </tr> + <tr> + <td class='c009'>The Comparative Method</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_186'>186</a></td> + </tr> + <tr> + <td class='c009'>Value of these four Methods respectively</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_190'>190</a></td> + </tr> + <tr> + <td class='c009'>How they may best be applied to Legal Study</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_193'>193</a></td> + </tr> + <tr> + <td class='c009'>Did the Romans suffer from having no general Philosophy of Law?</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_197'>197</a></td> + </tr> + <tr> + <td class='c009'>Merits observable in the Roman Jurists: comparison of their treatises with those of English lawyers</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_199'>199</a></td> + </tr> + <tr> + <td class='c009'>Summary: The Roman Jurists are philosophical in spirit and in their practical handling of law</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_207'>207</a></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY XIII</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>The Relations of Law and Religion</span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/pg78301-images.html#eXII'>209-246</a></td> + </tr> + <tr> + <td class='c009'>Apparent Antagonism of Law and Religion</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_209'>209</a></td> + </tr> + <tr> + <td class='c009'>Close connexion of Law and Religion in early states of Society</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_211'>211</a></td> + </tr> + <tr> + <td class='c009'>Differences in this respect between different peoples</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_215'>215</a></td> + </tr> + <tr> + <td class='c009'>The Jews in Roman times: primitive Christianity</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_216'>216</a></td> + </tr> + <tr> + <td class='c009'>Islam; identification of Law with Religion</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_218'>218</a></td> + </tr> + <tr> + <td class='c009'>Illustrations from a Musulman University: the Mosque El Azhar at Cairo</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_219'>219</a></td> + </tr> + <tr> + <td class='c009'>Description of El Azhar and its Teaching</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_220'>220</a></td> + </tr> + <tr> + <td class='c009'>Course of Instruction: Graduation: Endowments</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_225'>225</a></td> + </tr> + <tr> + <td class='c009'>Resemblances of El Azhar to the European Universities of the Middle Ages</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_229'>229</a></td> + </tr> + <tr> + <td class='c009'>Causes of the arrested development of Musulman Universities</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_233'>233</a></td> + </tr> + <tr> + <td class='c009'>Nature and consequences of the Musulman identification of Law and Religion</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_234'>234</a></td> + </tr> + <tr> + <td class='c009'>Identity of State and Church under Islam</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_240'>240</a></td> + </tr> + <tr> + <td class='c009'>How Christianity avoided a similar identification</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_242'>242</a></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY XIV</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>Methods of Law-making in Rome and in England</span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/pg78301-images.html#eXIV'>247-338</a></td> + </tr> + <tr> + <td class='c009'>Relations of the History of Law to the Constitutional or Political History of a Country</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_247'>247</a></td> + </tr> + <tr> + <td class='c009'>Law-making Authorities in general</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_249'>249</a></td> + </tr> + <tr> + <td class='c009'><span class='pageno' id='Page_xx'>xx</span>Three main sources of Law: the Ruling Authority, the Magistrate, and the Legal Profession</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_253'>253</a></td> + </tr> + <tr> + <td class='c009'>The Jurists as makers of Law in earlier times</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_255'>255</a></td> + </tr> + <tr> + <td class='c009'>Changed position of the Jurists under the Empire</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_257'>257</a></td> + </tr> + <tr> + <td class='c009'>Differences between the action of Roman and English Jurists</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_261'>261</a></td> + </tr> + <tr> + <td class='c009'>Roman Treatises compared with English Reports</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_266'>266</a></td> + </tr> + <tr> + <td class='c009'>Magistrates and Judges: in what sense Law-makers</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_269'>269</a></td> + </tr> + <tr> + <td class='c009'>The Praetor at Rome</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_273'>273</a></td> + </tr> + <tr> + <td class='c009'>Nature and Working of the Praetor’s Edict</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_275'>275</a></td> + </tr> + <tr> + <td class='c009'>The English Chancellor</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_278'>278</a></td> + </tr> + <tr> + <td class='c009'>Praetorian Edicts compared with English Case-Law</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_281'>281</a></td> + </tr> + <tr> + <td class='c009'>Further observations on Praetorian methods</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_287'>287</a></td> + </tr> + <tr> + <td class='c009'>Strong and weak points in the English Case-System</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_289'>289</a></td> + </tr> + <tr> + <td class='c009'>Direct Legislation at Rome: its Organs</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_293'>293</a></td> + </tr> + <tr> + <td class='c009'>The Popular Assembly: its method of legislating</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_297'>297</a></td> + </tr> + <tr> + <td class='c009'>Merits of the Roman Statutes</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_300'>300</a></td> + </tr> + <tr> + <td class='c009'>Legislation by the Senate: its characteristics</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_303'>303</a></td> + </tr> + <tr> + <td class='c009'>Direct legislation by the Emperor</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_308'>308</a></td> + </tr> + <tr> + <td class='c009'>Vast powers of the Emperor: his Privy Council</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_313'>313</a></td> + </tr> + <tr> + <td class='c009'>Defects in Imperial legislation</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_315'>315</a></td> + </tr> + <tr> + <td class='c009'>Profusion and inferiority of legislation under the later Emperors</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_318'>318</a></td> + </tr> + <tr> + <td class='c009'>Direct legislation in England: its history</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_321'>321</a></td> + </tr> + <tr> + <td class='c009'>Advantages of Parliament and Congress for legislation</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_323'>323</a></td> + </tr> + <tr> + <td class='c009'>Strictures commonly passed on English and American Statutes</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_325'>325</a></td> + </tr> + <tr> + <td class='c009'>Difficulties incident to Parliamentary legislation</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_327'>327</a></td> + </tr> + <tr> + <td class='c009'>Reflections suggested by the history of English compared with that of Roman legislation</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_332'>332</a></td> + </tr> + <tr> + <td class='c009'>Some branches of law better fitted than others to be handled by direct legislation</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_333'>333</a></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY XV</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>The History of Legal Development at Rome and in England</span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/pg78301-images.html#eXV'>339-380</a></td> + </tr> + <tr> + <td class='c009'>Roman and English Law have both been developed in a comparatively independent way</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_339'>339</a></td> + </tr> + <tr> + <td class='c009'>Conspicuous epochs of legal change at Rome and in England</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_341'>341</a></td> + </tr> + <tr> + <td class='c009'>Forces and influences chiefly active in determining legal changes</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_344'>344</a></td> + </tr> + <tr> + <td class='c009'>Roman Legal History during the republican period</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_345'>345</a></td> + </tr> + <tr> + <td class='c009'><span class='pageno' id='Page_xxi'>xxi</span>Effect on the law of the establishment of the imperial autocracy</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_350'>350</a></td> + </tr> + <tr> + <td class='c009'>Rise of Christianity: dissolution of the Empire in the West</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_352'>352</a></td> + </tr> + <tr> + <td class='c009'>The decline in legal learning induced Codification</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_354'>354</a></td> + </tr> + <tr> + <td class='c009'>Political events and External Influences are the chief sources of changes in Roman Law</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_357'>357</a></td> + </tr> + <tr> + <td class='c009'>Causes of legal change operative in England: the periods of Henry II and Edward I</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_358'>358</a></td> + </tr> + <tr> + <td class='c009'>The Reformation and the Civil War</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_361'>361</a></td> + </tr> + <tr> + <td class='c009'>The Reform Act of 1832 and the Victorian Epoch</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_364'>364</a></td> + </tr> + <tr> + <td class='c009'>The Law of Family and Inheritance at Rome and the Law of Land in England</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_367'>367</a></td> + </tr> + <tr> + <td class='c009'>Effects of Territorial Expansion on Roman and on English Law</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_369'>369</a></td> + </tr> + <tr> + <td class='c009'>Economic influences more generally potent in England: political in Rome</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_371'>371</a></td> + </tr> + <tr> + <td class='c009'>Observations on France and Germany</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_375'>375</a></td> + </tr> + <tr> + <td class='c009'>Private law is the branch least affected by political changes</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_377'>377</a></td> + </tr> + <tr> + <td class='c009'>Legal topics in which further advances may be looked for</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_379'>379</a></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c008' colspan='2'><span class='large'>ESSAY XVI</span></td> + </tr> + <tr> + <td class='c009'> </td> + <td class='c010'> </td> + </tr> + <tr> + <td class='c009'><span class='sc'>Marriage and Divorce in Roman and in English Law</span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/pg78301-images.html#eXVI'>381-474</a></td> + </tr> + <tr> + <td class='c009'>Diversity of the Law of Marriage in different countries</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_381'>381</a></td> + </tr> + <tr> + <td class='c009'>Features generally characteristic of the institution in the ancient Mediterranean World</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_383'>383</a></td> + </tr> + <tr> + <td class='c009'>Early Marriage law of the Romans</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_386'>386</a></td> + </tr> + <tr> + <td class='c009'>Subordination of the Wife: the ‘Hand Power’ (<span lang="la"><i>Manus</i></span>)</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_387'>387</a></td> + </tr> + <tr> + <td class='c009'>Transition to a freer system</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_389'>389</a></td> + </tr> + <tr> + <td class='c009'>Later Marriage Law: nature of the personal relation it creates</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_392'>392</a></td> + </tr> + <tr> + <td class='c009'>Relation of the Consorts as respects Property</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_395'>395</a></td> + </tr> + <tr> + <td class='c009'>General character of the Roman Conception of Marriage: its freedom</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_400'>400</a></td> + </tr> + <tr> + <td class='c009'>Roman doctrine and practice regarding Divorce</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_402'>402</a></td> + </tr> + <tr> + <td class='c009'>Influence of Christianity on Imperial Legislation</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_406'>406</a></td> + </tr> + <tr> + <td class='c009'>Other Roman rules: prohibited degrees: <span lang="la"><i>Concubinatus</i></span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_409'>409</a></td> + </tr> + <tr> + <td class='c009'>Marriage under the Canon Law</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_416'>416</a></td> + </tr> + <tr> + <td class='c009'>The English Law: jurisdiction of the Spiritual Courts</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_420'>420</a></td> + </tr> + <tr> + <td class='c009'>Relations of the Consorts as respects Property under English Law</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_424'>424</a></td> + </tr> + <tr> + <td class='c009'>Amendment of English Matrimonial Law by courts of Equity and by Legislation</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_427'>427</a></td> + </tr> + <tr> + <td class='c009'>Personal Liberty of the Wife now well established</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_430'>430</a></td> + </tr> + <tr> + <td class='c009'><span class='pageno' id='Page_xxii'>xxii</span>English law has wavered between different theories of the relation</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_431'>431</a></td> + </tr> + <tr> + <td class='c009'>Divorce under the Canon Law</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_433'>433</a></td> + </tr> + <tr> + <td class='c009'>History of Divorce in England</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_436'>436</a></td> + </tr> + <tr> + <td class='c009'>Divorce Laws in the United States</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_439'>439</a></td> + </tr> + <tr> + <td class='c009'>Laxity of Procedure in Divorce Cases</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_441'>441</a></td> + </tr> + <tr> + <td class='c009'>Statistics of Divorce in the United States: causes for which it is granted</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_443'>443</a></td> + </tr> + <tr> + <td class='c009'>Illustrations from the ‘Western Reserve’ counties of Ohio</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_446'>446</a></td> + </tr> + <tr> + <td class='c009'>Divorce in modern European countries</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_450'>450</a></td> + </tr> + <tr> + <td class='c009'>Comparison of the phenomena of Divorce in the Roman and in the Modern World</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_453'>453</a></td> + </tr> + <tr> + <td class='c009'>Causes now tending to weaken the permanence of the Marriage Tie</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_457'>457</a></td> + </tr> + <tr> + <td class='c009'>Does the growth of Divorce betoken a moral decline?</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_461'>461</a></td> + </tr> + <tr> + <td class='c009'>Influence of the Church and of the Law</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_464'>464</a></td> + </tr> + <tr> + <td class='c009'>Does the English Divorce Law need amendment?</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_465'>465</a></td> + </tr> + <tr> + <td class='c009'>Changes in Theory and in Sentiment regarding Marriage</td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_469'>469</a></td> + </tr> + <tr> + <td class='c009'><span class='sc'>Inaugural Lecture</span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_475'>475</a></td> + </tr> + <tr> + <td class='c009'><span class='sc'>Valedictory Lecture</span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_504'>504</a></td> + </tr> + <tr> + <td class='c009'><span class='sc'>Index</span></td> + <td class='c010'><a href='https://www.gutenberg.org/files/78301/78301-h/78301-h.htm#Page_527'>527</a></td> + </tr> +</table> + +<div class='chapter'> + <span class='pageno' id='Page_1'>1</span> + <h2 id='eI' class='c005'>I <br> <br> THE ROMAN EMPIRE AND THE<br> BRITISH EMPIRE IN INDIA</h2> +</div> + +<p class='c006'>In several of the Essays contained in these volumes +comparisons are instituted between Rome and England +in points that touch the constitutions and the +laws of these two great imperial States. This Essay +is intended to compare them as conquering and ruling +powers, acquiring and administering dominions outside +the original dwelling-place of their peoples, and impressing +upon these dominions their own type of civilization.</p> + +<p class='c001'>This comparison derives a special interest from a +consideration of the position in which the world finds +itself at the beginning of the twentieth century. The +great civilized nations have spread themselves out so +widely, and that with increasing rapidity during the +last fifty years, as to have brought under their dominion +or control nearly all the barbarous or semi-civilized +races. Europe—that is to say the five or six races +which we call the European branch of mankind—has +annexed the rest of the earth, extinguishing some races, +absorbing others, ruling others as subjects, and spreading +over their native customs and beliefs a layer of +European ideas which will sink deeper and deeper till +the old native life dies out. Thus, while the face of the +earth is being changed by the application of European +science, so it seems likely that within a measurable +time European forms of thought and ways of life will +<span class='pageno' id='Page_2'>2</span>come to prevail everywhere, except possibly in China, +whose vast population may enable her to resist these +solvent influences for several generations, perhaps for +several centuries. In this process whose agencies are +migration, conquest, and commerce, England has led +the way and has achieved the most. Russia however, +as well as France and Germany, have annexed vast +areas inhabited by backward races. Even the United +States has, by occupying the Hawaiian and the Philippine +Islands, entered, somewhat to her own surprise, +on the same path. Thus a new sort of unity is being +created among mankind. This unity is seen in the +bringing of every part of the globe into close relations, +both commercial and political, with every other part. +It is seen in the establishment of a few ‘world languages’ +as vehicles of communication between many +peoples, vehicles which carry to them the treasures of +literature and science which the four or five leading +nations have gathered. It is seen in the diffusion of +a civilization which is everywhere the same in its +material aspects, and is tolerably uniform even on its +intellectual side, since it teaches men to think on +similar lines and to apply similar methods of scientific +inquiry. The process has been going on for some +centuries. In our own day it advances so swiftly that we +can almost foresee the time when it will be complete. +It is one of the great events in the history of the world.</p> + +<p class='c001'>Yet it is not altogether a new thing. A similar process +went on in the ancient world from the time of +Alexander the Macedonian to that of Alaric the Visigoth. +The Greek type of civilization, and to some extent the +Greek population also, spread out over the regions +<span class='pageno' id='Page_3'>3</span>around the eastern Mediterranean and the Euxine. +Presently the conquests of Rome brought all these +regions, as well as the western countries as far as Caledonia, +under one government. This produced a uniform +type of civilization which was Greek on the side of +thought, of literature, and of art, Roman on the side of +law and institutions. Then came Christianity which, in +giving to all these countries one religion and one standard +of morality, created a still deeper sense of unity among +them. Thus the ancient world, omitting the barbarous +North and the semi-civilized heathen who dwelt beyond +the Euphrates, became unified, the backward races +having been raised, at least in the upper strata of their +population, to the level of the more advanced. One +government, one faith, and two languages, were making +out of the mass of races and kingdoms that had existed +before the Macedonian conquest, a single people who +were at once a Nation and a World Nation.</p> + +<p class='c001'>The process was not quite complete when it was +interrupted by the political dissolution of the Roman +dominion, first through the immigrations of the Teutonic +peoples from the north, then by the terrible strokes +dealt at the already weakened empire by the Arab +conquerors from the south-east. The results that had +been attained were not wholly lost, for Europe clung +to the Greco-Romano-Christian civilization, though in +a lowered form and with a diminished sense of intellectual +as well as of political unity. But that civilization +was not able to extend itself further, save by slow +degrees over the north and towards the north-east. +Several centuries passed. Then, at first faintly from +the twelfth century onwards, afterwards more swiftly +<span class='pageno' id='Page_4'>4</span>from the middle of the fifteenth century, when the intellectual +impulse given by the Renaissance began to be +followed by the rapid march of geographical discovery +along the coasts of Africa, in America, and in the further +east, the process was resumed. We have watched its +later stages with our own eyes. It embraces a far +vaster field than did the earlier one, the field of the +whole earth. As we watch it, we are naturally led to +ask what light the earlier effort of Nature to gather +men together under one type of civilization throws on +this later one. As Rome was the principal agent in +the earlier, so has England been in the later effort. +England has sent her language, her commerce, her laws +and institutions forth from herself over an even wider +and more populous area than that whose races were +moulded into new forms by the laws and institutions +of Rome. The conditions are, as we shall see, in many +respects different. Yet there is in the parallel enough +to make it instructive for the present, and possibly +significant for the future.</p> + +<p class='c001'>The dominions of England beyond the seas are, however, +not merely too locally remote from one another, +but also too diverse in their character to be compared +as one whole with the dominions of Rome, which were +contiguous in space, and were all governed on the same +system. The Britannic Empire falls into three territorial +groups, the self-governing colonies, the Crown +colonies, and the Indian territories ruled by or dependent +on the sovereign of Britain. Of these three groups, +since they cannot be treated together, being ruled on +altogether different principles, it is one group only +that can usefully be selected for comparison with the +<span class='pageno' id='Page_5'>5</span>Roman Empire. India contains that one group. She +is fitter for our purpose than either of the other two +groups, because the self-governing colonies are not +subject territories administered from England, but new +Englands planted far away beyond the oceans, reproducing, +each in its own way, the features of the constitution +and government of the old country, while the +Crown colonies are so scattered and so widely diverse +in the character of their inhabitants that they cannot +profitably be dealt with as one body. Jamaica, Cyprus, +Basutoland, Singapore, and Gibraltar, have little in +common except their dependence on Downing Street. +Neither set of colonies is sufficiently like the dominion +of Rome to make it possible for us to draw parallels +between them and it. India, however, is a single subject +territory, and India is compact, governed on the +same principles and by the same methods over an area +not indeed as wide as that of the Roman Empire but +more populous than the Roman Empire was in its +palmiest days. British India (including Burma) covers +about 965,000 square miles, and the protected States +(including Kashmir, but not Nepal and Bhotan), about +600,000 square miles, making a total of (roughly) 1,565,000 +square miles, with a population of nearly 290 millions. +The area of the territories included in the Roman Empire +at its greatest extent (when Dacia and the southern part +of what is now Scotland belonged to it) may have been +nearly 2,500,000 square miles. The population of that +area is now, upon a very rough estimate, about 210 +millions. What it was in ancient times we have no +data even for guessing, but it must evidently have +been much smaller, possibly not 100 millions, for +<span class='pageno' id='Page_6'>6</span>although large regions, such as parts of Asia Minor and +Tunisia, now almost deserted, were then filled by a +dense industrial population, the increase in the inhabitants +of France and England, for instance, has far more +than compensated this decline.</p> + +<p class='c001'>The Spanish Empire in America as it stood in the +sixteenth and seventeenth centuries was still vaster in +area, as is the Russian Empire in Asia to-day. But the +population of Spanish America was extremely small in +comparison with that of the Roman Empire or that of +India, and its organization much looser and less +elaborate<a id='r1'></a><a href='#f1' class='c012'><sup>[1]</sup></a>. Both the Spanish and the Russian Empires, +however, furnish illustrations which we shall have +occasion presently to note.</p> + +<p class='c001'>Of all the dominions which the ancient world saw, it +is only that of Rome that can well be compared with +any modern civilized State. The monarchies of the +Assyrian and Egyptian conquerors, like those of the +Seleucid kings and of the Sassanid dynasty in Persia, +stood on a far lower level of culture and administrative +efficiency than did the Roman. Neither was there in +the Middle Ages any far stretching dominion fit to be +matched with that of Rome, for the great Ommiad +Khalifate and the Mogul monarchy in India were both +of them mere aggregates of territories, not really unified +by any administrative system, while the authority or +suzerainty of the Chinese sovereigns over Turkistan, +Mongolia, and Tibet presents even fewer points of resemblance. +So when we wish to examine the methods +and the results of British rule in India by the light of any +<span class='pageno' id='Page_7'>7</span>other dominion exercised under conditions even remotely +similar, it is to the Roman Empire of the centuries between +Augustus and Honorius that we must go.</p> + +<p class='c001'>When one speaks of conditions even remotely similar +one must frankly admit the existence of an obvious and +salient point of contrast. Rome stood in the middle of +her dominions, Britain stands, by the Red Sea route, +six thousand miles from the nearest part of hers. She +can reach them only by water, and she conquered them +by troops which had been sent round the Cape over +some thirteen thousand miles of ocean. Here there is +indeed an unlikeness of the utmost significance. Yet, +without minimizing the importance of the contrast, we +must remember that Britain can communicate more +quickly with the most distant part of her territories than +Rome could with hers. It takes only twenty-two days +to reach any part of British India (except Kashmir and +Upper Assam) from London. But it took a nimble, or +as Herodotus says, a ‘well girt traveller,’ perhaps forty +days from Rome to reach Derr on the Nile, the last +fortress in Nubia where Roman masonry can be seen, or +Gori, at the foot of the Caucasus, also a Roman stronghold, +or Old Kilpatrick (near Dumbarton) where the +rampart of Antoninus touches the Clyde; not to add that +the sea part of these journeys might be much longer if +the winds were adverse. News could be carried not +much faster than an official could travel, whereas Britain +is, by the electric telegraph, in hourly communication +with every part of India: and the difference in speed +between the movement of an army and that of a traveller +was, of course, greater in ancient times than it is now.</p> + +<p class='c001'>Thus, for the purposes both of war and of administration, +<span class='pageno' id='Page_8'>8</span>England is better placed than Rome was as respects +those outlying parts of the Roman empire which were +most exposed to attack. Dangers are more quickly +known at head quarters; troops can reach the threatened +frontier in a shorter time; errors in policy can be more +adequately corrected, because explanations can be asked, +and blundering officials can be more promptly dismissed. +Nevertheless the remoteness of India has had results of +the highest moment in making her relation to England +far less close than was that of Rome to the provinces.</p> + +<p class='c001'>This point will be considered presently. Meantime +our comparison may begin with the points in which the +two Empires resemble and illustrate one another. The +first of these turns upon the circumstances of their +respective origins.</p> + +<p class='c001'>Empire is retained, says a famous maxim, by the same +arts whereby it was won. Some Empires have been +won easily. Spain acquired hers through the pertinacity +and daring of a Genoese sailor. She had comparatively +little fighting to do, for the only opponents she encountered, +who added to valour some slight tincture of +civilization, were the Mexicans.</p> + +<p class='c001'>Russia has met with practically no resistance in occupying +her vast territories in Northern Asia; though she +had some sharp tussles with the nomad Turkmans, and +tedious conflicts both with Shamyl and with the Circassians +in the Caucasus. But both Rome and England +had to fight long and fight hard for what they won. The +progress of Roman and British expansion illustrates the +remark of Oliver Cromwell that no one goes so far as +he who does not know whither he is going. Neither +power set out with a purpose of conquest, such as +<span class='pageno' id='Page_9'>9</span>Alexander the Great, and perhaps Cyrus, had planned +and carried out before them. Just as Polybius, writing +just after the destruction of Carthage in <span class='fss'>B.C.</span> 146, +already perceived that Rome was, by the strength of her +government and the character of her people, destined +to be the dominant power of the civilized world, so it +was prophesied immediately after the first victories of +Clive that the English would come to be the masters +of all India. Each nation was drawn on by finding +that one conquest led almost inevitably to another +because restless border tribes had to be subdued, +because formidable neighbours seemed to endanger the +safety of subjugated but often discontented provinces, +because allies inferior in strength passed gradually into +the position first of dependants and then of subjects.</p> + +<p class='c001'>The Romans however, though they did not start out +with the notion of conquering even Italy, much less the +Mediterranean world, came to enjoy fighting for its own +sake, and were content with slight pretexts for it. For +several centuries they were always more or less at war +somewhere. The English went to India as traders, +with no intention of fighting anybody, and were led +into the acquisition of territory partly in order to recoup +themselves for the expensive efforts they had made to +support their first allies, partly that they might get +revenue for the East India Company’s shareholders, +partly in order to counterwork the schemes of the +French, who were at once their enemies in Europe +and their rivals in the East. One may find a not too +fanciful analogy to the policy of the English in the days +of Clive, when they were drawn further and further into +Indian conflicts by their efforts to check the enterprises +<span class='pageno' id='Page_10'>10</span>of Dupleix and Lally, in the policy of the Romans when +they entered Sicily to prevent Carthage from establishing +her control over it. In both cases an effort which +seemed self-protective led to a long series of wars and +annexations.</p> + +<p class='c001'>Rome did not march so swiftly from conquest to conquest +as did England. Not to speak of the two centuries +during which she was making herself supreme in +Italy, she began to conquer outside its limits from the +opening of the First Punic War in <span class='fss'>B.C.</span> 264, and did +not acquire Egypt till <span class='fss'>B.C.</span> 30, and South Britain till +<span class='fss'>A.D.</span> 43-85<a id='r2'></a><a href='#f2' class='c012'><sup>[2]</sup></a>. Her Eastern conquests were all the easier +because Alexander the Great’s victories, and the +wars waged by his successors, had broken up and denationalized +the East, much as the Mogul conquerors +afterwards paved the way for the English in India. +England’s first territorial gains were won at Plassy in +<span class='fss'>A.D.</span> 1757<a id='r3'></a><a href='#f3' class='c012'><sup>[3]</sup></a>: her latest acquisition was the occupation of +Mandalay in 1885. Her work was done in a century +and a quarter, while that of Rome took fully three +centuries. But England had two great advantages. +Her antagonists were immeasurably inferior to her in +arms as well as in discipline. As early as <span class='fss'>A.D.</span> 1672 +the great Leibnitz had in a letter to Lewis XIV +pointed out the weakness of the Mogul Empire; and +about the same time Bernier, a French physician +resident at the Court of Aurungzeb, declared that +<span class='pageno' id='Page_11'>11</span>20,000 French troops under Condé or Turenne could +conquer all India<a id='r4'></a><a href='#f4' class='c012'><sup>[4]</sup></a>. A small European force, and even +a small native force drilled and led by Europeans, was +as capable of routing huge Asiatic armies as the army +of Alexander had proved capable of overthrowing the +immensely more numerous hosts of Darius Codomannus. +Moreover, the moment when the English appeared on the +scene was opportune. The splendid Empire of Akbar +was crumbling to pieces. The Mahratta confederacy +had attained great military power, but at the battle of +Paniput, in 1761, it received from the Afghans under +Ahmed Shah Durani a terrific blow which for the time +arrested its conquests. Furthermore, India, as a whole, +was divided into numerous principalities, the feeblest of +which lay on the coasts of the Bay of Bengal. These +principalities were frequently at war with one another, +and glad to obtain European aid in their strife. And +England had a third advantage in the fact that she +encountered the weakest of her antagonists first. Had +she, in those early days when her forces were slender, +been opposed by the valour of Marathas or Sikhs, +instead of by the feeble Bengalis and Madrassis, her +ambitions might have been nipped in the bud. When +she found herself confronted by these formidable foes +she had already gained experience and had formed a +strong native army. But when the Romans strove +against the Achaean League and Macedon they had to +fight troops all but equal to themselves. When Carthage +was their antagonist, they found in Hamilcar a commander +equal, in Hannibal a commander superior to +<span class='pageno' id='Page_12'>12</span>any one they could send against him. These earlier +struggles so trained Rome to victory that her later +conquests were made more easily. The triumphs of +the century before and the century after Julius Caesar +were won either over Asiatics, who had discipline but +seldom valour, or over Gauls, Iberians, Germans, and +Caledonians, who had valour but not discipline. Occasional +reverses were due to the imprudence of a general, +or to an extreme disparity of forces; for, like the +English, the Romans did not hesitate to meet greatly +superior numbers. The defeat of Crassus by the Parthians +and the catastrophe which befell Varus in the +forests of Paderborn find a parallel in the disastrous +retreat of the English army from Cabul in 1843. Except +on such rare occasions the supremacy of Roman +arms was never seriously challenged, nor was any +great calamity suffered till the barbarian irruption into +Italy in the reign of Marcus Aurelius. A still graver +omen for the future was the overthrow of Valerian by +the Persians in <span class='fss'>A.D.</span> 260. The Persians were inferior +in the arts of civilization and probably in discipline: +but the composition of the Roman armies was no +longer what it had been three centuries earlier, for +the peasantry of Italy, which had formed the kernel +of their strength, were no longer available. As the +provincial subjects became less and less warlike, men +from beyond the frontier were enrolled, latterly in +bodies under their native chiefs—Germans, or Arabs, +or, in still later days, Huns—just as the native army in +British India, which has now become far more peaceful +than it was a century ago, is recruited by Pathans and +Ghurkas from the hills outside British territory as well +<span class='pageno' id='Page_13'>13</span>as by the most warlike among the Indian subjects of the +Crown. The danger of the practice is obvious. Rome +was driven to it for want of Roman fighting-men<a id='r5'></a><a href='#f5' class='c012'><sup>[5]</sup></a>. England +guards against its risks by having a considerable +force of British troops alongside her native army.</p> + +<p class='c001'>The fact that their dominions were acquired by force +of arms exerted an enduring effect upon the Roman +Empire and continues to exert it upon the British in +imprinting upon their rule in India a permanently military +character. The Roman administration began with +this character, and never lost it, at least in the frontier +provinces. The governors were pro-consuls or propraetors, +or other officials<a href='#f5' class='c012'><sup>[5]</sup></a> entrusted with the exercise +of an authority in its origin military rather than civil. +A governor’s first duty was to command the troops +stationed in the province. The camps grew into towns, +and that which had been a group of <span lang="la"><i>canabae</i></span> or market +stalls, a sort of bazaar for the service of the camp, +sometimes became a municipality. One of the most +efficient means of unifying the Empire was found +in the bringing of soldiers born in one part of it +to be quartered for many years together in another. +Military distinction was open to every subject, and +military distinction might lead to the imperial throne. +So the English in India are primarily soldiers. True it +is that they went to India three centuries ago as traders, +that it was out of a trading company that their power +arose, and that this trading company did not disappear +till 1858. The covenanted civil service, to which Clive +for instance belonged, began as a body of commercial +<span class='pageno' id='Page_14'>14</span>clerks. Nothing sounds more pacific. But the men +of the sword very soon began to eclipse the men of +the quill and account book. Being in the majority, +they do so still, although for forty years there have been +none but petty frontier wars. Society is not in India, +as it is in England, an ordinary civil society occupied +with the works and arts of peace, with an extremely +small military element. It is military society, military +first and foremost, though with an infusion of civilian +officials, and in some towns with a small infusion of +lawyers and merchants, as well as a still smaller infusion +of missionaries. Military questions occupy every one’s +thoughts and talk. A great deal of administrative or +diplomatic work is done, and often extremely well +done, by officers in civil employment. Many of the +railways are primarily strategic lines, as were the +Roman roads. The railway stations are often placed, +for military reasons, at a distance from the towns they +serve: and the cantonments where the Europeans, +civilians as well as soldiers, reside, usually built some +way off from the native cities, have themselves, as +happened in the Roman Empire, grown into regular +towns. The traveller from peaceful England feels himself, +except perhaps in Bombay, surrounded by an atmosphere +of gunpowder all the time he stays in India.</p> + +<p class='c001'>Before we pass from the military aspects of the comparison +let it be noted that both Empires have been +favoured in their extension and their maintenance by +the frontiers which Nature had provided. The Romans, +when once they had conquered Numidia, Spain, and +Gaul, had the ocean and nothing but the ocean (save +for the insignificant exception of barbarous Mauretania) +<span class='pageno' id='Page_15'>15</span>to the west and north-west of them, an awesome and +untravelled ocean, from whose unknown further shore +no enemy could appear. To the south they were +defended by the equally impassable barrier of a torrid +and waterless desert, stretching from the Nile to the +Atlantic. It was only on the north and east that there +were frontiers to be defended; and these two sides +remained the quarters of danger, because no natural +barrier, arresting the progress of armies or constituting +a defensible frontier, could be found without pushing +all the way to the Baltic in one direction or to the ranges +of Southern Kurdistan, perhaps even to the deserts of +Eastern Persia in the other. The north and the east +ultimately destroyed Rome. The north sent in those +Teutonic tribes which occupied the western provinces +and at last Italy herself, and those Slavonic tribes which +settled between the Danube, the Aegean, and the +Adriatic, and permeated the older population of the +Hellenic lands. Perhaps the Emperors would have +done better for the Empire (whatever might have been +the ultimate loss to mankind) if, instead of allowing +themselves to be disheartened by the defeat of Varus, +they had pushed their conquests all the way to the +Baltic and the Vistula, and turned the peoples of North +and Middle Germany into provincial Romans. The +undertaking would not have been beyond the resources +of the Empire in its vigorous prime, and would have +been remunerative, if not in money, at any rate in the +way of providing a supply of fighting-men for the army. +So too the Emperors might possibly have saved much +suffering to their Romanized subjects in South Britain +had they followed up the expedition of Agricola and +<span class='pageno' id='Page_16'>16</span>subdued the peoples of Caledonia and Ierne, who afterwards +became disagreeable as Picts and Scots. The +east was the home of the Parthians, of the Persians, +so formidable to the Byzantine Emperors in the days +of Kobad and Chosroes Anushirwan, and of the tribes +which in the seventh and eighth centuries, fired by +the enthusiasm of a new faith and by the prospect of +booty, overthrew the Roman armies and turned Egypt, +Syria, Africa, Spain, and ultimately the greater part +of Asia Minor into Muhamadan kingdoms. Had Rome +been menaced on the south and west as she was +generally menaced on the east and sometimes on the +north, her Empire could hardly have lived so long. +Had she possessed a natural barrier on the east like +that which the Sahara provided on the south she might +have found it easy to resist, and not so very hard +even to subjugate, the fighting races of the north.</p> + +<p class='c001'>Far more fortunate has been the position of the +English in India. No other of the great countries of the +world is protected by such a stupendous line of natural +entrenchments as India possesses in the chain of the +Himalayas from Attock and Peshawur in the west to +the point where, in the far east, the Tsanpo emerges +from Tibet to become in Upper Assam the Brahmaputra. +Not only is this mountain mass the loftiest and most +impassable to be found anywhere on our earth; it is +backed by a wide stretch of high and barren country, +so thinly peopled as to be incapable of constituting +a menace to those who live in the plains south of the +Himalayas. And in point of fact the relations, commercial +as well as political, of India with Tibet, and with +the Chinese who are suzerains of Tibet, have been, at +<span class='pageno' id='Page_17'>17</span>least in historical times, extremely scanty. On the east, +India is divided from the Indo-Chinese peoples, Talains, +Burmese and Shans, by a belt of almost impenetrable +hill and forest country: nor have these peoples ever +been formidable neighbours. It is only at its north-western +angle, between Peshawur and Quetta (for south +of Quetta as far as the Arabian Sea there are deserts +behind the mountains and the Indus) that India is +vulnerable. The rest of the country is protected by +a wide ocean. Accordingly the masters of India have +had only two sets of foes to fear; European maritime +powers who may arrive by sea after a voyage which, +until our own time, was a voyage of three or four +months, and land powers who, coming from the side +of Turkistan or Persia, may find their way, as did +Alexander the Great and Nadir Shah, through difficult +passes into the plains of the Punjab and Sindh. This +singular natural isolation of India, as it facilitated the +English conquest by preventing the native princes from +forming alliances with or obtaining help from powers +beyond the mountains or the sea, so has it also enabled +the English to maintain their hold with an army extraordinarily +small in proportion to the population of the +country. The total strength of the Roman military +establishment in the days of Trajan, was for an area +of some two and a half millions of square miles and +population of possibly one hundred millions, between +280,000 and 320,000 men. Probably four-fifths of this +force was stationed on the Rhine, the Danube, and the +Euphrates. There were so few in most of the inner +provinces that, as some one said, the nations wondered +where were the troops that kept them in subjection.</p> + +<p class='c001'><span class='pageno' id='Page_18'>18</span>The peace or ‘established’ strength of the British +army in India is nearly 230,000 men, of whom about +156,000 are natives and 74,000 Englishmen. To these +there may be added the so-called ‘active reserve’ of +natives who have served with the colours, about 17,000 +men, and about 30,000 European volunteers. Besides +these there are of course the troops of the native +princes, estimated at about 350,000 men, many of +them, however, far from effective. But as these troops, +though a source of strength while their masters are +loyal, might under altered circumstances be conceivably +a source of danger, they can hardly be reckoned +as part of the total force disposable by the British +Government. Recently, however, about 20,000 of them +have been organized as special contingents of the +British army, inspected and advised by British officers, +and fit to take their place with regiments of the line.</p> + +<p class='c001'>It would obviously be impossible to defend such +widely extended dominions by a force of only 230,000 +or 250,000 men, but for the remoteness of all possibly +dangerous assailants. The only formidable land neighbour +is Russia, the nearest point of whose territories +in the Pamirs is a good long way from the present +British outposts, with a very difficult country between. +The next nearest is France on the Mekong River, some +200 miles from British Burma, though a shorter distance +from Native States under British influence. As for sea +powers, not only is Europe a long way off, but the +navy of Britain holds the sea. It was by her command +of the sea that Britain won India. Were she to cease +to hold it, her position there would be insecure indeed.</p> + +<p class='c001'>In another respect also the sharp severance of +<span class='pageno' id='Page_19'>19</span>India from all the surrounding countries may be +deemed to have proved a benefit to the English. It +has relieved them largely if not altogether from the +temptation to go on perpetually extending their borders +by annexing contiguous territory. When they had +reached the natural boundaries of the Himalayas and +the ranges of Afghanistan, they stopped. Beyond these +lie rugged and unprofitable highlands, and still more +unprofitable wildernesses. In two regions only was an +advance possible: and in those two regions they have +yielded to temptation. They have crossed the southern +part of the Soliman mountains into Baluchistan in search +for a more ‘scientific’ frontier, halting for the present +on the Amram range, north-west of Quetta, where from +the Khojak heights the eye, ranging over a dark-brown +arid plain, descries seventy miles away the rocks that +hang over Kandahar. They moved on from Arakhan +and Tenasserim into Lower Burma, whence in 1885 +they conquered Upper Burma and proclaimed their +suzerainty over some of the Shan principalities lying +further to the east. But for the presence of France in +these regions, which makes them desire to keep Siam in +existence as a so-called ‘Buffer State,’ manifest destiny +might probably lead them ultimately eastward across +the Menam and Mekong to Annam and Cochin China.</p> + +<p class='c001'>The Romans too sought for a scientific frontier, and +hesitated often as to the line they should select, sometimes +pushing boldly eastward beyond the Rhine and +the Euphrates, sometimes receding to those rivers. +Not till the time of Hadrian did they create a regular +system of frontier defence, strengthened at many points +by fortifications, among which the forts that lie along +<span class='pageno' id='Page_20'>20</span>the Roman Wall from the Tyne to the Solway are +perhaps the best preserved. So the English wavered +for a time between the line of the Indus and that of the +Soliman range; so in the wild mountain region beyond +Kashmir they have, within the last few years, alternately +occupied and retired from the remote outpost of Chitral. +It has been their good fortune to have been obliged to +fortify a comparatively small number of points, and all +of these are on the north-west frontier.</p> + +<p class='c001'>There have been those who would urge them to +occupy Afghanistan and entrench themselves therein +to resist a possible Russian invasion. But for the +present wiser counsels have prevailed. Afghanistan +is a more effective barrier in the hands of its own fierce +tribes than it would be as a part of British territory. +A parallel may be drawn between the part it has played +of late years and that which Armenia played in the +ancient world from the days of Augustus to those of +Heraclius. Both countries had been the seats of short-lived +Empires, Armenia in the days of Tigranes, +Afghanistan in those of Ahmed Shah. Both are wild +and rugged regions, the dwelling-places of warlike +races. Christian Armenia was hostile from religious +sentiment to the enemies whom Rome had to fear, +the Persian Fire-worshippers. Musulman Afghanistan +dreads the power of Christian Russia. But the loyalty +or friendship of the Armenian princes was not always +proof against the threats of the formidable Sassanids, +and the action of the Afghans is an element of uncertainty +and anxiety to the British rulers of India.</p> + +<p class='c001'>To make forces so small as those on which Rome +relied and those which now defend British India +<span class='pageno' id='Page_21'>21</span>adequate for the work they have to do, good means of +communication are indispensable. It was one of the +first tasks of the Romans to establish such means. +They were the great—indeed one may say, the only—road +builders of antiquity. They began this policy +before they had completed the conquest of Italy; and +it was one of the devices which assured their supremacy +throughout the peninsula. They followed it out in +Gaul, Spain, Africa, Britain, and the East, doing their +work so thoroughly that in Britain some of the roads +continued to be the chief avenues of travel down till +the eighteenth century. So the English have been in +India a great engineering people, constructing lines of +communication, first roads and afterwards railways, +on a scale of expenditure unknown to earlier ages. +The potentates of elder days, Hindu rajahs, and subsequently +Pathans and Moguls, with other less famous +Musulman dynasties, have left their memorials in temples +and mosques, in palaces and tombs. The English +are commemorating their sway by railway works, by +tunnels and cuttings, by embankments and bridges. If +India were to relapse into barbarism the bridges, being +mostly of iron, would after a while perish, and the embankments +would in time be swept away by torrential +rains, but the rock-cuttings and the tunnels would +remain, as the indestructible paving-stones of the +Roman roads, and majestic bridges, like the Pont du +Gard in Languedoc, remain to witness to the skill and +thoroughness with which a great race did its work.</p> + +<p class='c001'>The opening up of India by railroads suggests not +a few interesting questions which, however, I can +do no more than indicate here. Railroad construction +<span class='pageno' id='Page_22'>22</span>has imposed upon the Indian exchequer a +strain all the heavier because some lines, especially +those on the north-west frontier, having been undertaken +from strategic rather than commercial motives, +will yield no revenue at all proportionate to their cost. +It has been suggested that although railroads were +meant to benefit the peasantry, they may possibly have +increased the risk of famine, since they induce the +producer to export the grain which was formerly +locally stored up in good years to meet the scarcity +of bad years. The comparative quickness with which +food can be carried by rail into a famine area +does not—so it is argued—compensate for the loss +of these domestic reserves. Railways, bringing the +numerous races that inhabit India into a closer touch +with one another than was possible before, are +breaking down, slowly but surely, the demarcations +of caste, and are tending towards an assimilation of +the jarring elements, racial and linguistic, as well as +religious, which have divided India into a number of +distinct, and in many cases hostile, groups. Centuries +may elapse before this assimilation can become a source +of political danger to the rulers of the country: yet we +discern the beginnings of the process now, especially +in the more educated class. The Roman roads, being +highways of commerce as well as of war, contributed +powerfully to draw together the peoples whom Rome +ruled into one imperial nationality. But this was a process +which, as we shall presently note, was for Rome an +unmixed gain, since it strengthened the cohesion of an +Empire whose inhabitants had every motive for loyalty +to the imperial Government, if not always to the particular +<span class='pageno' id='Page_23'>23</span>sovereign. The best efforts of Britain may not +succeed in obtaining a similar attachment from her +Indian subjects, and their union into a body animated +by one national sentiment might become an element of +danger against which she has never yet been required +to take precautions.</p> + +<p class='c001'>The excellence of the highways of communication +provided by the wise energy of the Romans and of the +English has contributed not only to the easier defence +of the frontiers of both Empires, but also to the maintenance +of a wonderfully high standard of internal +peace and order. Let any one think of the general +state of the ancient world before the conquests of Rome, +and let him then think of the condition not merely of +India after the death of the Emperor Aurungzeb, but +of the chief European countries as they stood in the +seventeenth century, if he wishes to appreciate what +Rome did for her subjects, or what England has done +in India. In some parts of Europe private war still +went on two hundred and fifty years ago. Almost +everywhere robber bands made travelling dangerous +and levied tribute upon the peasantry. Even in the +eighteenth century, and even within our own islands, +Rob Roy raided the farmers of Lennox, and landlords +in Connaught fought pitched battles with +one another at the head of their retainers. Even +a century ago the coasts of the Mediterranean +were ravaged by Barbary pirates, and brigandage +reigned unchecked through large districts of Italy. But +in the best days of the Roman Empire piracy was +unknown; the peasantry were exempt from all exactions +except those of the tax-gatherer; and the great roads +<span class='pageno' id='Page_24'>24</span>were practically safe for travellers. Southern and +western Europe, taken as a whole, would seem to have +enjoyed better order under Hadrian and the Antonines +than was enjoyed again until nearly our own times. +This was the more remarkable because the existence of +slavery must have let loose upon society, in the form +of runaway slaves, a good many dangerous characters. +Moreover, there remained some mountainous regions +where the tribes had been left practically to themselves +under their own rude customs. These enclaves of +barbarism within civilized territory, such as was Albania, +in the central mountain knot of which no traces of Roman +building have been found, and the Isaurian country in +Asia Minor, and possibly the Cantabrian land on the +borders of south-western Gaul and northern Spain, +where the Basque tongue still survives, do not appear +to have seriously interfered with the peace and well-being +of the settled population which dwelt around +them, probably because the mountaineers knew that it +was only by good behaviour that they could obtain permission +to enjoy the measure of independence that had +been left to them. The parts of provincial Africa +which lay near the desert were less orderly, because +it was not easy to get behind the wild tribes who had +the Sahara at their back.</p> + +<p class='c001'>The internal peace of the Roman Empire was, however, +less perfect than that which has been established +within the last sixty years in India. Nothing surprises +the visitor from Europe so much as the absolute confidence +with which he finds himself travelling unprotected +across this vast country, through mountains and jungles, +among half savage tribes whose languages he does not +<span class='pageno' id='Page_25'>25</span>know, and that without seeing, save at rare intervals, any +sign of European administration. Nor is this confined +to British India. It is almost the same in Native States. +Even along the lofty forest and mountain frontier that +separates the native (protected) principality of Sikkim +from Nepal—the only really independent Indian State—an +Englishman may journey unarmed and alone, except +for a couple of native attendants, for a week or more. +When he asks his friends at Darjiling, before he starts, +whether he ought to take a revolver with him, they smile +at the question. There is not so complete a security +for native travellers, especially in native States, for here +and there bands of brigands called Dacoits infest the +tracks, and rob, sometimes the wayfarer, sometimes the +peasant, escaping into the recesses of the jungle when +the police are after them. But dacoity, though it +occasionally breaks out afresh in a few districts, has +become much less frequent than formerly. The practice +of Thuggi which seventy years ago still caused many +murders, has been extirpated by the unceasing energy +of British officers. Crimes of violence show a percentage +to the population which appears small when one +considers how many wild tribes remain. The native +of course suffers from violence more frequently than +does the European, whose prestige of race, backed by +the belief that punishment will surely follow on any injury +done to him, keeps him safe in the wildest districts<a id='r6'></a><a href='#f6' class='c012'><sup>[6]</sup></a>.</p> + +<p class='c001'>I have referred to the enclaves within the area of the +<span class='pageno' id='Page_26'>26</span>Roman Empire where rude peoples were allowed to live +after their own fashion so long as they did not disturb +the peace of their more civilized neighbours. One finds +the Indian parallel to these districts, not so much in the +Native States, for these are often as advanced in the +arts of life, and, in a very few instances, almost as well +administered, as British territory, but rather in the hill +tribes, which in parts of central, of north-western, and +of southern India, have retained their savage or semi-savage +customs, under their own chiefs, within the +provinces directly subject to the Crown. These tribes, +as did the Albanians and Basques, cleave to their primitive +languages, and cleave also to their primitive forms +of ghost-worship or nature-worship, though Hinduism +is beginning to lay upon them its tenacious grasp. +Of one another’s lives and property they are not very +careful. But they are awed by the European and +leave him unmolested.</p> + +<p class='c001'>The success of the British, like that of the Roman +administration in securing peace and good order, has +been due, not merely to a sense of the interest which a +government has in maintaining conditions which, because +favourable to industry are favourable also to revenue, but +also to the high ideal of the duties of a ruler which both +nations have set before themselves. Earlier Empires, like +those of the Persian Achaemenids or of the successors of +Alexander, had been content to tax their subjects and +raise armies from them. No monarch, except perhaps +some of the Ptolemies in Egypt, seems to have set +himself to establish a system from which his subjects +would benefit. Rome, with larger and higher views, +gave to those whom she conquered some compensations +<span class='pageno' id='Page_27'>27</span>in better administration for the national independence +she extinguished. Her ideals rose as she +acquired experience, and as she came to feel the magnificence +of her position. Even under the Republic +attempts were made to check abuses of power on the +part of provincial governors. The proceedings against +Verres, which we know so well because Cicero’s +speeches against that miscreant have been preserved, +are an instance of steps taken in the interests of a +province whose discontent was so little likely to harm +Rome that no urgent political necessity prescribed +them. Those proceedings showed how defective was +the machinery for controlling or punishing a provincial +governor; and it is clear enough that a great deal of +extortion and misfeasance went on under proconsuls +and propraetors in the later days of the Republic, to the +enrichment, not only of those functionaries, but of the +hungry swarm who followed them, including men who, +like the poet Catullus, were made for better things<a id='r7'></a><a href='#f7' class='c012'><sup>[7]</sup></a>. +With the establishment of a monarchy administration +improved. The Emperor had a more definite responsibility +for securing the welfare and contentment of the +provinces than had been felt by the Senate or the jurors +of the Republic, swayed by party interest or passion, +not to speak of more sordid motives. He was, moreover, +able to give effect to his wishes more promptly and more +effectively. He could try an incriminated official in the +way he thought best, and mete out appropriate punishment. +It may indeed be said that the best proof of the +<span class='pageno' id='Page_28'>28</span>incompetence of the Republican system for the task of +governing the world, and of the need for the concentration +of powers in a single hand, is to be found in the +scandals of provincial administration, scandals which, +so far as we can judge, could not have been remedied +without a complete change either in the tone and +temper of the ruling class at Rome, or in the ancient +constitution itself.</p> + +<p class='c001'>On this point the parallel with the English in India is +interesting, dissimilar as the circumstances were. The +English administration began with extortions and corruptions. +Officials were often rapacious, sometimes +unjust, in their dealings with the native princes. But +the statesmen and the public opinion of England, even +in the latter half of the eighteenth century, had higher +standards than those of Rome in the days of Sulla and +Cicero, while the machinery which the House of +Commons provided for dealing with powerful offenders +was more effective than the Roman method of judicial proceedings +before tribunals which could be, and frequently +were, bribed. The first outbreak of greed and corruption +in Bengal was dealt with by the strong hand of +Clive in 1765. It made so great an impression at home +as to give rise to a provision in a statute of 1773, making +offences against the provisions of that Act or against the +natives of India, punishable by the Court of King’s Bench +in England. By Pitt’s Act of 1784, a Special Court, consisting +of three judges, four peers, and six members of the +House of Commons, was created for the trial in England +of offences committed in India. This singular tribunal, +which has been compared with the <span lang="la"><i>quaestio perpetua</i></span> +(<span lang="la"><i>de pecuniis repetundis</i></span>) of Senators created by a Roman +<span class='pageno' id='Page_29'>29</span>statute of <span class='fss'>B.C.</span> 149 to try offences committed by Roman +officials against provincials, has never acted, or even been +summoned<a id='r8'></a><a href='#f8' class='c012'><sup>[8]</sup></a>. Soon after it came the famous trial which +is more familiar to Englishmen than any other event in +the earlier relations of England and India. The impeachment +of Warren Hastings has often been compared with +the trial of Verres, though Hastings was not only a far +more capable, but a far less culpable man. Hastings, +like Verres, was not punished. But the proceedings +against him so fixed the attention of the nation upon the +administration of India as to secure for wholesome +principles of conduct a recognition which was never +thereafter forgotten. The Act of 1784 in establishing +a Board of Control responsible to Parliament found a +means both for supervising the behaviour of officials and +for taking the large political questions which arose in +India out of the hands of the East India Company. This +Board continued till India was placed under the direct +sway of the British Crown in 1858. At the same time +the appointment of Governors-General who were mostly +men of wealth, and always men of rank and position at +home, provided a safeguard against such misconduct as +the proconsuls under the Roman Republic had been +prone to commit. These latter had little to fear from +prosecution when their term of office was over, and the +opinion of their class was not shocked by offences which +would have fatally discredited an English nobleman. +The standard by which English public opinion judges +the behaviour of Indian or Colonial officials has, on the +whole, risen during the nineteenth century; and the idea +<span class='pageno' id='Page_30'>30</span>that the government of subject-races is to be regarded +as a trust to be discharged with a sense of responsibility +to God and to humanity at large has become generally +accepted. Probably the action of the Emperors, or at +least of such men as Trajan and his three successors, +raised the standard of opinion in the Roman Empire +also. It was, however, not so much to that opinion as to +their sovereign master that Roman officials were responsible. +The general principles of policy which guided the +Emperors were sound, but how far they were applied to +check corruption or oppression in each particular case +is a matter on which we are imperfectly informed. +Under an indolent or vicious Emperor, a governor who +had influence at Court, or who remitted the full tribute +punctually, may probably have sinned with impunity.</p> + +<p class='c001'>The government of India by the English resembles +that of her provinces by Rome in being thoroughly despotic. +In both cases, whatever may have been done +for the people, nothing was or is done by the people. +There was under Rome, and there is in British India, no +room for popular initiative, or for popular interference +with the acts of the rulers, from the Viceroy down to +a district official. For wrongs cognizable by the +courts of law, the courts of law were and are open, +doubtless more fully open in India than they were in +the Roman Empire. But for errors in policy or for +defects in the law itself, the people of a province +had no remedy available in the Roman Empire +except through petition to the sovereign. Neither is +there now in India any recourse open to the inhabitants +except an appeal to the Crown or to Parliament, a Parliament +in which the Indian subjects of the Crown have +<span class='pageno' id='Page_31'>31</span>not been, and cannot be, represented. This was, and is, +by the nature of the case, inevitable.</p> + +<p class='c001'>In comparing the governmental systems of the two +Empires, it is hardly necessary to advert to such +differences as the fact that India is placed under a +Viceroy to whom all the other high functionaries, +Governors, Lieutenant-Governors and Chief Commissioners, +are subordinated, whereas in the Roman world +every provincial governor stood directly under the +Emperor. Neither need one dwell upon the position in +the English system of the Secretary of State for India +in Council as a member of the British Cabinet. Such +details do not affect the main point to which I now come.</p> + +<p class='c001'>The territories conquered by the Romans were of +three kinds. Some, such as Egypt, Macedonia, and +Pontus, had been, under their own princes, monarchies +practically despotic. In these, of course, there could +be no question of what we call popular government. +Some had been tribal principalities, monarchic or +oligarchic, such as those among the Iceni and Brigantes +in Britain, the Arverni in Gaul, the Cantabrian mountaineers +in Spain. Here, again, free institutions had not +existed before, and could hardly have been created by the +conqueror. The third kind consisted of small commonwealths, +such as the Greek cities. These were fitted for +self-government, which indeed they had enjoyed before +they were subjected by Rome. Very wisely, municipal +self-government was to a large extent left to them by the +Emperors down till the time of Justinian. It was more +complete in some cities than in others; and it was in +nearly all gradually reduced by the equalizing pressure of +the central authority. But they were all placed under the +<span class='pageno' id='Page_32'>32</span>governor of the province; most of them paid taxes, and in +most both the criminal and the higher civil jurisdiction +were in the hands of imperial officials. Of the introduction +of any free institutions for the empire at large, or even +for any province as a whole, there seems never to have +been any question. Among the many constitutional inventions +we owe to the ancient world representative government +finds no place. A generation before the fall of the +Republic, Rome had missed her opportunity when the +creation of such a system was most needed and might +have been most useful. After her struggle against the +league of her Italian allies, she consented to admit them +to vote in her own city tribes, instead of taking what +seems to us moderns the obvious expedient of allowing +them to send delegates to an assembly which should +meet in Rome. So it befell that monarchy and a city +republic or confederation of such republics remained +the only political forms known to antiquity<a id='r9'></a><a href='#f9' class='c012'><sup>[9]</sup></a>.</p> + +<p class='c001'>India is ruled despotically by the English, not merely +<span class='pageno' id='Page_33'>33</span>because they found her so ruled, but because they conceive +that no other sort of government would suit a vast +population of different races and tongues, divided by the +religious animosities of Hindus and Musulmans, and +with no sort of experience of self-government on +a scale larger than that of the Village Council. No +more in India than in the Roman Empire has there been +any question of establishing free institutions either for +the country as a whole, or for any particular province. +But the English, like the Romans, have permitted such +self-government as they found to subsist. It subsists +only in the very rudimentary but very useful form of +the Village Council just referred to, called in some parts +of India the Panchayet or body of five. Of late years +municipal constitutions, resembling at a distance those +of English boroughs, have been given to some of the +larger cities as a sort of experiment, for the sake of +training the people to a sense of public duty, and of +relieving the provincial government of local duties. +So far the experiment has in most cities been only a +moderate success. The truth is that, though a few +intelligent men, educated in European ideas, complain +of the despotic power of the Anglo-Indian bureaucracy, +the people of India generally do not wish to govern +themselves. Their traditions, their habits, their ideas, +are all the other way, and dispose them to accept submissively +any rule which is strong and which neither +disturbs their religion and customs nor lays too heavy +imposts upon them.</p> + +<p class='c001'>Here let an interesting contrast be noted. The +Roman Emperors were despots at home in Italy, +almost as much, and ultimately quite as much, as +<span class='pageno' id='Page_34'>34</span>in the provinces. The English govern their own +country on democratic, India on absolutist principles. +The inconsistency is patent but inevitable. It affords +an easy theme for declamation when any arbitrary act of +the Indian administration gives rise to complaints, and +it may fairly be used as the foundation for an argument +that a people which enjoys freedom at home is specially +bound to deal justly and considerately with those subjects +to whom she refuses a like freedom. But every +one admits in his heart that it is impossible to ignore +the differences which make one group of races unfit +for the institutions which have given energy and +contentment to another more favourably placed.</p> + +<p class='c001'>A similar inconsistency presses on the people of the +United States in the Philippine Isles. It is a more +obtrusive inconsistency because it has come more +abruptly, because it has come, not by the operation +of a long series of historical causes, but by the sudden +and little considered action of the American Republic +itself, and because the American Republic has proclaimed, +far more loudly and clearly than the English +have ever done, the principle contained in the Declaration +of Independence that the consent of the governed +is the only foundation of all just government. The +Americans will doubtless in time either reconcile +themselves to their illogical position or alter it. But +for the present it gives to thoughtful men among +them visions of mocking spirits, which the clergy are +summoned to exorcize by dwelling upon the benefits +which the diffusion of a pure faith and a commercial +civilization will confer upon the lazy and superstitious +inhabitants of these tropical isles.</p> + +<p class='c001'><span class='pageno' id='Page_35'>35</span>Subject to the general principle that the power of +the Emperor was everywhere supreme and absolute, +the Romans recognized, at least in the earlier days +of the Empire, considerable differences between the +methods of administering various provinces. A distinction +was drawn between the provinces of the Roman +people, to which proconsuls or propraetors were sent, +and the provinces of Caesar, placed under the more +direct control of the Emperor, and administered in his +name by an official called the <span lang="la"><i>praeses</i></span> or <span lang="la"><i>legatus Caesaris</i></span>, +or sometimes (as was the case in Judaea, at the time +when it was ruled by Pontius Pilate) by a <span lang="la"><i>procurator</i></span>, +an officer primarily financial, but often entrusted with +the powers of a <span lang="la"><i>praeses</i></span>. Egypt received special treatment +because the population was turbulent and liable +to outbursts of religious passion, and because it +was important to keep a great cornfield of the +Empire in good humour. These distinctions between +one province and another tended to vanish as the +administrative system of the whole Empire grew +better settled and the old republican forms were forgotten. +Still there were always marked differences +between Britain, for instance, at the one end of the +realm and Syria at the other. So there were all +sorts of varieties in the treatment of cities and tribes +which had never been conquered, but passed peaceably +through alliance into subjection. Some of the +Hellenic cities retained their republican institutions till +far down in imperial times. Distinctions not indeed +similar, yet analogous, have existed between the +different parts of British India. There is the old +distribution of provinces into Regulation and Non-Regulation. +<span class='pageno' id='Page_36'>36</span>The name ‘Province,’ one may observe in +passing, a name unknown elsewhere in the dominions +of Britain<a id='r10'></a><a href='#f10' class='c012'><sup>[10]</sup></a> (though a recent and vulgar usage sometimes +applies it to the parts of England outside London) +except as a relic of French dominion in Canada, bears +witness to an authority which began, as in Canada, +through conquest. Though the names of Regulation +and Non-Regulation provinces are now no longer used, +a distinction remains between the districts to the +higher posts in which none but members of the covenanted +service are appointed, and those in which the +Government have a wider range of choice, and also +between those districts for which the Governor-General +can make ordinances in his executive capacity, and +those which are legislated for by him in Council in the +ordinary way. There are also many differences in the +administrative systems of the different Presidencies +and other territories, besides of course all imaginable +diversities in the amount of independence left to the +different ‘Protected States,’ some of which are powerful +kingdoms, like Hyderabad, while many, as for instance +in Gujarat, are petty principalities of two or three +dozen square miles.</p> + +<p class='c001'>The mention of these protected States suggests +another point of comparison. Rome brought many +principalities or kingdoms under her influence, especially +in the eastern parts of the Empire; and dealt +with each upon the basis of the treaty by which her +supremacy had been acknowledged, allowing to some +<span class='pageno' id='Page_37'>37</span>a wider, to some a narrower measure of autonomy<a id='r11'></a><a href='#f11' class='c012'><sup>[11]</sup></a>. +Ultimately, however, all these, except a few on the +frontiers, passed under her direct sway: and this frequently +happened in cases where the native dynasty +had died out, so that the title lapsed to the Emperor. +The Iceni in Britain seem to have been such a protected +State, and it was the failure of male heirs that caused +a lapse. So the Indian Government was wont, when +the ruling family became extinct or hopelessly incompetent, +to annex to the dominions of the British Crown +the principality it had ruled. From the days of Lord +Canning, however, a new policy has been adopted. It +is now deemed better to maintain the native dynasties +whenever this can be done, so a childless prince is +suffered to adopt, or provide for the adoption of, some +person approved by the Government; and the descendants +of this person are recognized as rulers<a id='r12'></a><a href='#f12' class='c012'><sup>[12]</sup></a>. The +incoming prince feels that he owes his power to the +British Government, while adoption gives him a title +in the eyes of his subjects.</p> + +<p class='c001'>The differences I have mentioned between the British +provinces are important, not only as respects administration, +but as respects the system of landholding. All +over India, as in many other Oriental countries, it is +<span class='pageno' id='Page_38'>38</span>from the land that a large part of revenue, whether one +calls it rent or land tax, is derived. In some provinces +the rent is paid direct to the Government by the cultivator, +in others it goes to intermediary landlords, who +in their turn are responsible to the State. In some +provinces it has been permanently fixed, by what is +called a Land-settlement<a id='r13'></a><a href='#f13' class='c012'><sup>[13]</sup></a>, and not always on the same +principles. The subject is far too large and intricate to +be pursued here. I mention it because in the Roman +Empire also land revenue was the mainstay of the imperial +treasury. Where territory had been taken in war, +the fact of conquest was deemed to have made the +Roman people ultimate owners of the land so acquired, +and the cultivators became liable to pay what we should +call rent for it. In some provinces this rent was farmed +out to contractors called <em>publicani</em>, who offered to the +State a sum equivalent to the rent of the area contracted +for, minus the expense of collection and their own +profit on the undertaking, and kept for themselves +whatever they could extract from the peasantry. This +vicious system, resembling that of the tithe farmers in +Ireland seventy years ago, was regulated by Nero +and abolished by Hadrian, who placed the imperial +procurator in charge of the land revenue except as +regarded the forests and the mines. It exists to-day in +the Ottoman Empire. Convenient for the State as it +seems, it is wasteful, and naturally exposes the peasant, +as is conspicuously the case in Asiatic Turkey, to +oppressions perhaps even harder to check than are +<span class='pageno' id='Page_39'>39</span>those of State officials. When the English came to +India they found it in force there; and the present landlord +class in Bengal, called Zemindars, are the representatives +of the rent or land tax-farmers under the +native princes who were, perhaps unwisely, recognized +as landowners by the British a century ago. This kind +of tax-farming is, however, no longer practised in +India, a merit to be credited to the English when we +are comparing them with the Romans of the Republic +and the earlier Empire.</p> + +<p class='c001'>Where the revenue of the State comes from the land, +the State is obliged to keep a watchful eye upon the +condition of agriculture, since revenue must needs +decline when agriculture is depressed. There was not +in the Roman world, and there is not in India now, any +question of agricultural depression arising from foreign +competition, for no grain came into the Empire from +outside, or comes now into India<a id='r14'></a><a href='#f14' class='c012'><sup>[14]</sup></a>. But a year of +drought, or, in a long course of years, the exhaustion +of the soil, tells heavily on the agriculturist, and may +render him unable to pay his rent or land tax. In bad +years it was the practice of the more indulgent Emperors +to remit a part of the tax for the year: and +one of the complaints most frequently made against +harsh sovereigns, or extravagant ones like Justinian, +was that they refused to concede such remissions. A +similar indulgence has to be and is granted in India in +like cases.</p> + +<p class='c001'>Finance was the standing difficulty of the Roman as +it is of the Anglo-Indian administrator. Indeed, the +Roman Empire may be said to have perished from want +<span class='pageno' id='Page_40'>40</span>of revenue. Heavy taxation, and possibly the exhaustion +of the soil, led to the abandonment of farms, reducing +the rent derivable from the land. The terrible plague +of the second century brought down population, and +was followed by a famine. The eastern provinces had +never furnished good fighting material: and the diminution +of the agricultural population of Italy, due partly +to this cause, partly to the growth of large estates +worked by slave labour, made it necessary to recruit +the armies from the barbarians on the frontiers. Even +in the later days of the Republic the native auxiliaries +were beginning to be an important part of a Roman +army. Moreover, with a declining revenue, a military +establishment such as was needed to defend the eastern +and the northern frontiers could not always be maintained. +The Romans had no means of drawing a +revenue from frontier customs, because there was very +little import trade; but dues were levied at ports and +there was a succession tax, which usually stood at five +per cent. In most provinces there were few large +fortunes on which an income or property tax could +have been levied, except those of persons who were +already paying up to their capacities as being responsible +for the land tax assessed upon their districts. +The salt tax was felt so sorely by the poor that Aurelian +was hailed as a benefactor when he abolished it.</p> + +<p class='c001'>India has for many years past been, if not in financial +straits, yet painfully near the limit of her taxable resources. +There too the salt tax presses hard upon the +peasant; and the number of fortunes from which much +can be extracted by an income or property tax is, relatively +to the population, very small. Comparing her +<span class='pageno' id='Page_41'>41</span>total wealth with her population, India is a poor country, +probably poorer than was the Roman Empire in the +time of Constantine<a id='r15'></a><a href='#f15' class='c012'><sup>[15]</sup></a>. A heavy burden lies upon her +in respect of the salaries of the upper branches of the +Civil Service, which must of course be fixed at figures +sufficient to attract a high order of talent from England, +and a still heavier one in respect of military charges. +On the other hand, she has the advantage of being able, +when the guarantee of the British Government is given +for the loan, to borrow money for railways and other +public works, at a rate of interest very low as compared +with what the best Native State would be obliged +to offer, or as compared with that which the Roman +Government paid.</p> + +<p class='c001'>Under the Republic, Rome levied tribute from the +provinces, and spent some of it on herself, though of +course the larger part went to the general expenses of the +military and civil administration. Under the Emperors +that which was spent in Rome became gradually less and +less, as the Emperor became more and more detached +from the imperial city, and after Diocletian, Italy was +treated as a province. England, like Spain in the days +of her American Empire and like Holland now, for +a time drew from her Indian conquests a substantial +revenue. An inquiry made in 1773 showed that, since +<span class='pageno' id='Page_42'>42</span>1765, about two millions a year had been paid by the +Company to the British exchequer. By 1773, however, +the Company had incurred such heavy debts that the +exchequer had to lend them money: and since that +time Britain has drawn no tribute from India. She +profits by her dominion only in respect of having an +enormous market for her goods, industrial or commercial +enterprises offering comparatively safe investments +for her capital, and a field where her sons can make +a career. Apart from any considerations of justice or of +sentiment, India could not afford to make any substantial +contribution to the expenses of the non-Indian dominions +of the Crown. It is all she can do to pay her own way.</p> + +<p class='c001'>Those whom Rome sent out to govern the provinces +were, in the days of the Republic and in the days of +Augustus, Romans, that is to say Roman citizens and +natives of Italy. Very soon, however, citizens born in +the provinces began to be admitted to the great offices +and to be selected by the Emperor for high employment. +As early as the time of Nero, an Aquitanian chief, Julius +Vindex, was legate of the great province of Gallia Lugdunensis. +When the imperial throne itself was filled by +provincials, as was often the case from Trajan onwards, +it was plain that the pre-eminence of Italy was gone. +If a man, otherwise eligible, was not a full Roman +citizen, the Emperor forthwith made him one. By the +time of the Antonines (<span class='fss'>A.D.</span> 138-180) there was practically +no distinction between a Roman and a provincial +citizen; and we may safely assume that the large +majority of important posts, both military and civil, +were held by men of provincial extraction. Indeed +merit probably won its way faster to military than to civil +<span class='pageno' id='Page_43'>43</span>distinction, for in governments which are militant as +well as military, promotion by merit is essential to +the success of the national arms, and the soldier identifies +himself with the power he serves even faster +than does the civilian. So, long before full citizenship +was granted to the whole Roman world (about +<span class='fss'>A.D.</span> 217), it is clear that not only the lower posts +in which provincials had always been employed, but +the highest also were freely open to all subjects. +A Gaul might be sent to govern Cilicia, or a Thracian +Britain, because both were now Romans rather than +Gauls or Thracians. The fact that Latin and Greek were +practically familiar to nearly all highly educated civil +servants, because Latin was the language of law as +well as the tongue commonly spoken in the West, while +Greek was the language of philosophy and (to a great +extent) of letters, besides being the spoken tongue of +most parts of the East, made a well-educated man fit for +public employment everywhere, for he was not (except +perhaps in Syria and Egypt and a few odd corners +of the Empire) obliged to learn any fresh language. +And a provincial was just as likely as an Italian to be +highly educated. Thus the officials could easily get +into touch with the subjects, and felt hardly more strange +if they came from a distance than a Scotchman feels if +he is appointed to a professorship in Quebec, or an +Irishman if he becomes postmaster in a Norfolk village. +Nothing contributed more powerfully to the unity and +the strength of the Roman dominion than this sense of +an imperial nationality.</p> + +<p class='c001'>The English in India have, as did the Romans, +always employed the natives in subordinate posts. The +<span class='pageno' id='Page_44'>44</span>enormous majority of persons who carry on the civil +administration there at this moment are Asiatics. But +the English, unlike the Romans, have continued to +reserve the higher posts for men of European stock. +The contrast in this respect between the Roman and +the English policy is instructive, and goes down to the +foundation of the differences between English and +Roman rule. As we have seen, the City of Rome +became the Empire, and the Empire became Rome. +National independence was not regretted, for the East +had been denationalized before the Italian conqueror +appeared, and the tribes of the West, even those who +fought best for freedom, had not reached a genuine +national life when Spain, Gaul, and Britain were brought +under the yoke. In the third century <span class='fss'>A.D.</span> a Gaul, a +Spaniard, a Pannonian, a Bithynian, a Syrian called +himself a Roman, and for all practical purposes was a +Roman. The interests of the Empire were his interests, +its glory his glory, almost as much as if he had been +born in the shadow of the Capitol. There was, therefore, +no reason why his loyalty should not be trusted, +no reason why he should not be chosen to lead in war, +or govern in peace, men of Italian birth. So, too, the +qualities which make a man capable of leading in war +or administering in peace were just as likely to be +found in a Gaul, or a Spaniard, or a German from the +Rhine frontier as in an Italian. In fact, men of Italian +birth play no great part in later imperial history<a id='r16'></a><a href='#f16' class='c012'><sup>[16]</sup></a>.</p> + +<p class='c001'>It is far otherwise in India, though there was among +<span class='pageno' id='Page_45'>45</span>the races of India no nation. The Englishman does +not become an Indian, nor the Indian an Englishman. +The Indian does not as a rule, though of course there +have been not a few remarkable exceptions to the rule, +possess the qualities which the English deem to be +needed for leadership in war or for the higher posts of +administration in peace<a id='r17'></a><a href='#f17' class='c012'><sup>[17]</sup></a>. For several reasons, reasons +to be referred to later, he can seldom be expected to +feel like an Englishman, and to have the same devotion +to the interests of England which may be counted on +in an Englishman. Accordingly the English have made +in India arrangements to which there was nothing +similar in the Roman Empire. They have two armies, +a native and a European, the latter of which is never +suffered to fall below a certain ratio to the former. +The latter is composed entirely of Englishmen. In +the former all military posts in line regiments above +that of subahdar (equivalent to captain) are reserved +to Englishmen<a id='r18'></a><a href='#f18' class='c012'><sup>[18]</sup></a>. The artillery and engineer services +are kept in English hands, <i>i.e.</i> there is hardly any +native artillery. It is only, therefore, in the native contingents +already referred to that natives are found in +the higher grades. These contingents may be compared +with the auxiliary barbarian troops under non-Roman +commanders whom we find in the later ages of +Rome, after Constantine. Such commanders proved +sometimes, like the Vandal Stilicho, energetic defenders +of the imperial throne, sometimes, like the Suevian +<span class='pageno' id='Page_46'>46</span>Ricimer, formidable menaces to it<a id='r19'></a><a href='#f19' class='c012'><sup>[19]</sup></a>. But apart from +these, the Romans had but one army; and it was an +army in which all subjects had an equal chance of rising.</p> + +<p class='c001'>In a civil career, the native of India may go higher +under the English than he can in a military one. A +few natives, mostly Hindus, and indeed largely Bengali +Hindus, have won their way into the civil service by +passing the competitive Indian Civil Service examination +in England, and some of these have risen to the +posts of magistrate and district judge. A fair proportion +of the seats on the benches of the Supreme Courts +in Calcutta, Madras, Bombay, Allahabad, and Lahore +have been allotted to native barristers of eminence, +several of whom have shown themselves equal in point +of knowledge and capacity, as well as in integrity, to +the best judges selected from the European bar in +India or sent out from the English bar. No native, +however, has ever been thought of for the great places, +such as those of Lieutenant-Governor or Chief Commissioner, +although all British subjects are legally +eligible for any post in the service of the Crown in +any part of the British Dominions.</p> + +<p class='c001'>Regarding the policy of this exclusion there has been +much difference of opinion. As a rule, Anglo-Indian +officials approve the course which I have described as +that actually taken. But I know some who think that +there are natives of ability and force of character such +as to fit them for posts military as well as civil, higher +<span class='pageno' id='Page_47'>47</span>than any to which a native has yet been advanced, and +who see advantages in selecting a few for such posts. +They hold, however, that such natives ought to be +selected for civil appointments, not by competitive +examination in England but in India itself by those +who rule there, and in respect of personal merits tested +by service. Some opposition to such a method might +be expected from members of the regular civil service, +who would consider their prospects of promotion to +be thereby prejudiced.</p> + +<p class='c001'>Here we touch an extremely interesting point of comparison +between the Roman and the English systems. +Both nations, when they started on their career of conquest, +had already built up at home elaborate constitutional +systems in which the rights of citizens, both +public and private civil rights, had been carefully +settled and determined. What was the working of +these rights in the conquered territories? How far were +they extended by the conquerors, Roman and English, +and with what results?</p> + +<p class='c001'>Rome set out from the usual practice of the city +republics of the ancient world. No man enjoyed any +rights at all, public or private, except a citizen of the +Republic. A stranger coming to reside in the city did +not, no matter how long he lived there, nor did his son +or grandson, obtain those rights unless he was specially +admitted to become a citizen. From this principle +Rome, as she grew, presently found herself obliged to +deviate. She admitted one set of neighbours after +another, sometimes as allies, sometimes in later days, as +conquered and incorporated communities, to a citizenship +which was sometimes incomplete, including only +<span class='pageno' id='Page_48'>48</span>private civil rights, sometimes complete, including the +right of voting in the assembly and the right of being +chosen to a public office. Before the dictatorship of +Julius Caesar practically all Italians, except the people +of Cisalpine Gaul, which remained a province till +<span class='fss'>B.C.</span> 43, had been admitted to civic rights. Citizenship, +complete or partial (<i>i.e.</i> including or not including +public rights) had also begun to be conferred on a +certain number of cities or individuals outside Italy. +Tarsus in Cilicia, of which St. Paul was a native, enjoyed +it, so he was born a Roman citizen. This process +of enlarging citizenship went on with accelerated speed, +in and after the days of the Flavian Emperors. Under +Hadrian, the whole of Spain seems to have enjoyed +civic rights. Long before this date the ancient right +of voting in the Roman popular Assembly had become +useless, but the other advantages attached to the status +of citizen were worth having, for they secured valuable +immunities. Finally, early in the third century <span class='fss'>A.D.</span>, +every Roman subject was by imperial edict made a +citizen for all purposes whatsoever. Universal eligibility +to office had, as we have seen, gone ahead of this extension, +for all offices lay in the gift of the Emperor or +his ministers; and when it was desired to appoint any +one who might not be a full citizen, citizenship was conferred +along with the office. Thus Rome at last extended +to all her subjects the rights that had originally been +confined to her own small and exclusive community.</p> + +<p class='c001'>In England the principle that all private civil rights +belong to every subject alike was very soon established, +and may be said to have never been doubted since the +final extinction of serfdom in the beginning of the seventeenth +<span class='pageno' id='Page_49'>49</span>century. Public civil rights, however, did not +necessarily go with private. Everybody, it is true, was +(subject to certain religious restrictions now almost +entirely repealed) eligible to any office to which he +might be appointed by the Crown, and was also (subject +to certain property qualifications which lasted till our +own time) capable of being chosen to fill any elective +post or function, such as that of member of the House +of Commons. But the right of voting did not necessarily +go along with other rights, whether public or +private, and it is only within the last forty years that it +has been extended by a series of statutes to the bulk +of the adult male population. Now when Englishmen +began to settle abroad, they carried with them all their +private rights as citizens, and also their eligibility to +office; but their other public rights, <i>i.e.</i> those of voting, +they could not carry, because these were attached to +local areas in England. When territories outside +England were conquered, their free inhabitants, in +becoming subjects of the Crown, became therewith +entitled to all such rights of British subjects as were +not connected with residence in Britain: that is to say, +they had all the private civil rights of Englishmen, and +also complete eligibility to public office (unless of course +some special disqualification was imposed). The rights +of an English settler in Massachusetts in the seventeenth +and eighteenth centuries were those of an Englishman, +except that he could not vote at an English parliamentary +election because he was not resident in any English +constituency; and the same rule became applicable +to a French Canadian after the cession of Canada to +the British Crown.</p> + +<p class='c001'><span class='pageno' id='Page_50'>50</span>So when India was conquered, the same principles +were again applied. Every free Indian subject of the +Crown soon became entitled to the private civil rights +of an Englishman, except so far as his own personal +law, Hindu or Musulman or Parsi or Jain, might modify +those rights; and if there was any such modification, +that was recognized for his benefit rather than to his +prejudice. Thus the process which the Romans took +centuries to complete was effected almost at once in +India by the application of long established doctrines of +English law. Accordingly we have in India the singular +result that although there are in that country no free +institutions (other than those municipal ones previously +referred to) nor any representative government, every +Indian subject is eligible to any office in the gift of the +Crown anywhere, and to any post or function to which +any body of electors may select him. He may be +chosen by a British constituency a member of the +British House of Commons, or by a Canadian constituency +a member of the House of Commons of Canada. +Two natives of India (both Parsis) have already been +chosen, both by London constituencies, to sit in the +British House. So a native Hindu or Musulman might +be appointed by the Crown to be Lord Chief Justice of +England or Governor-General of Canada or Australia. +He might be created a peer. He might become Prime +Minister. And as far as legal eligibility goes, he might +be named Governor-General of India, though as a matter +of practice, no Indian has ever been placed in any high +Indian office. Neither birth, nor colour, nor religion constitutes +any legal disqualification. This was expressly +declared as regards India by the India Act of 1833, and +<span class='pageno' id='Page_51'>51</span>has been more than once formally declared since, but it +did not require any statute to establish what flowed from +the principles of our law. And it need hardly be added +that the same principles apply to the Chinese subjects +of the Crown in Hong Kong or Singapore and to the +negro subjects of the Crown in Jamaica or Zululand. +In this respect at least England has worthily repeated +the liberal policy of Rome. She has done it, however, +not by way of special grants, but by the automatic +and probably uncontemplated operation of the general +principles of her law.</p> + +<p class='c001'>As I have referred to the influence of English constitutional +ideas, it is worth noting that it is these ideas +which have led the English of late years not only to +create in India city municipalities, things entirely foreign +to the native Indian mind, but also to provide by statute +(in 1892) for the admission of a certain number of nominated +non-official members to the legislative councils of +the Governors in Bengal, Bombay, Madras, the North-West +Provinces and Oudh, and the Punjab. These +members are nominated, not elected, because it has been +found difficult to devise a satisfactory scheme of election. +But the provision made for the presence of native non-officials +testifies to the wish of the English Government +to secure not only a certain amount of outside +opinion, but also a certain number of native councillors +through whom native sentiment may be represented, +and may obtain its due influence on the conduct of +affairs.</p> + +<p class='c001'>The extension of the civil rights of Englishmen to the +subjects of the Crown in India would have been anything +but a boon had it meant the suppression and +<span class='pageno' id='Page_52'>52</span>extinction of native law and custom. This of course it +has not meant. Neither had the extension of Roman +conquest such an effect in the Roman Empire; and +even the grant of citizenship to all subjects did not +quite efface local law and usage. As the position and +influence of English law in India, viewed in comparison +with the relation of the older Roman law to the Roman +provinces, is the subject of another of these Essays, +I will here pass over the legal side of the matter, and +speak only of the parallel to be noted between the +political action of the conquering nations in both cases.</p> + +<p class='c001'>Both have shown a prudent wish to avoid disturbing, +any further than the fixed principles of their policy made +needful, the usages and beliefs of their subjects. The +Romans took over the social and political system which +they found in each of the very dissimilar regions they +conquered, placed their own officials above it, modified +it so far as they found expedient for purposes of revenue +and civil administration generally, but otherwise let it +stand as they found it and left the people alone. In +course of time the law and administration of the conquerors, +and the intellectual influences which literature +called into play, did bring about a considerable measure +of assimilation between Romans and provincials, especially +in the life and ideas of the upper classes. But +this was the result of natural causes. The Romans did +not consciously and deliberately work for uniformity. +Especially in the sphere of religion they abstained from +all interference. They had indeed no temptation to +interfere either with religious belief or with religious +practice, for their own system was not a universal but +a strictly national religion, and the educated classes had +begun to sit rather loose to that religion before the +<span class='pageno' id='Page_53'>53</span>process of foreign conquest had gone far. According +to the theory of the ancient world, every nation had +its own deities, and all these deities were equally to +be respected in their own country. Whether they were +at bottom the same deities under different names, or +were quite independent divine powers, did not matter. +Each nation and each member of a nation was expected +to worship the national gods: but so long as an individual +man did not openly reject or insult those gods, +he might if he pleased worship a god belonging to +some other country, provided that the worship was not +conducted with shocking or demoralizing rites, such as +led to the prohibition of the Bacchanalian cult at Rome<a id='r20'></a><a href='#f20' class='c012'><sup>[20]</sup></a>. +The Egyptian Serapis was a fashionable deity among +Roman women as early as the time of Catullus. We +are told that Claudius abolished Druidism on account +of its savage cruelty, but this may mean no more than +that he forbade the Druidic practice of human sacrifices<a id='r21'></a><a href='#f21' class='c012'><sup>[21]</sup></a>. +There was therefore, speaking broadly, no religious +persecution and little religious intolerance in the ancient +world, for the Christians, it need hardly be said, were +persecuted not because of their religion but because +they were a secret society, about which, since it was new, +and secret, and Oriental, and rejected all the gods of +all the nations alike, the wildest calumnies were readily +believed. The first religious persecutors were the Persian +Fire-worshipping kings of the Sassanid dynasty, who +occasionally worried their Christian subjects.</p> + +<p class='c001'>Neither, broadly speaking, was religious propagandism +known to the ancient world. There were no missions, +<span class='pageno' id='Page_54'>54</span>neither foreign missions nor home missions. If a man +did not sacrifice to the gods of his own country, his fellow +citizens might think ill of him. If he was accused of +teaching that the gods did not exist, he might possibly, +like Socrates, be put to death, but nobody preached +to him. On the other hand, if he did worship them, +he was in the right path, and it would have been deemed +not only impertinent, but almost impious, for the native +of another country to seek to convert him to another +faith, that is to say, to make him disloyal to the +gods of his own country, who were its natural and time-honoured +protectors. The only occasions on which one +hears of people being required to perform acts of +worship to any power but the deities of their country +are those cases in which travellers were expected to +offer a prayer or a sacrifice to some local deity whose +territory they were traversing, and whom it was therefore +expedient to propitiate, and those other cases in +which a sort of worship was required to be rendered +to the monarch, or the special protecting deity of the +monarch, under whose sway they lived. The edict +attributed to Nebuchadnezzar in the book of Daniel +may in this connexion be compared with the practice +in the Roman Empire of adoring the spirit that watched +over the reigning Caesar. To burn incense on the altar +of the Genius of the Emperor was the test commonly +proposed to the persons accused of being Christians.</p> + +<p class='c001'>All this is the natural result of polytheism. With the +coming of faiths each of which claims to be exclusively +and universally true, the face of the world was changed. +Christianity was necessarily a missionary religion, and +unfortunately soon became also, forgetting the precepts +of its Founder, a persecuting religion. Islam followed +<span class='pageno' id='Page_55'>55</span>in the same path, and for similar reasons. In India +the strife of Buddhism with Hinduism gave rise to +ferocious persecutions, which however were perhaps as +much political as religious. When the Portuguese and +Spaniards began to discover and conquer new countries +beyond the oceans, the spread of religion was in the +mouths of all the adventurers, and in the minds of many +of the baser as well as of the better sort. Spain accordingly +forced her faith upon all her subjects, and found +no great resistance from the American peoples, though +of course their Christianity seldom went deep, as +indeed it remains to-day in many parts of Central and +South America, a thin veneer over the ancient superstitions +of the aborigines. Portugal did the like, so far as +she could, in India and in Africa. So too the decrees +by which the French colonizing companies were +founded in the days of Richelieu provided that the +Roman Catholic faith was to be everywhere made +compulsory, and that converted pagans were to be +admitted to the full civil rights of Frenchmen<a id='r22'></a><a href='#f22' class='c012'><sup>[22]</sup></a>. But +when the English set forth to trade and conquer they +were not thinking of religion. The middle of the +eighteenth century, when Bengal and Madras were +acquired, was for England an age when persecution +had died out and missionary propagandism had scarcely +begun. The East India Company did not at first interfere +in any way with the religious rites it found practised +by the people, however cruel or immoral they might be. +It gave no advantages to Christian converts, and for +a good while it even discouraged the presence of +missionaries, lest they should provoke disturbances. +Bishops were thought less dangerous, and one was +<span class='pageno' id='Page_56'>56</span>appointed, with three Archdeacons under him, by the +Act of 1813. A sort of miniature church establishment, +for the benefit of Europeans, still exists and is supported +out of Indian revenues. After a time, however, +some of the more offensive or harmful features of native +worship began to be forbidden. The human sacrifices +that occasionally occurred among the hill tribes were +treated as murders, and the practice of Sutti—the +self-immolation of the Hindu widow on her husband’s +funeral pyre—was forbidden as far back as 1829. No +hindrance is now thrown in the way of Christian +missions: and there is perfect equality, as respects +civil rights and privileges, not only between the native +votaries of all religions, but also between them and +Europeans.</p> + +<p class='c001'>So far as religion properly so-called is concerned, +the policy of the English is simple and easy to +apply. But as respects usages which are more or +less associated with religion in the native mind, but +which European sentiment disapproves, difficulties +sometimes arise. The burning of the widow was one +of these usages, and has been dealt with at the risk of +offending Hindu prejudice. Infanticide is another; and +the British Government try to check it, even in some +of the protected States. The marriage of young children +is a third: and this it has been thought not yet prudent +to forbid, although the best native opinion is beginning +to recognize the evils that attach to it. Speaking +generally, it may be said that the English have, like the +Romans but unlike the Spaniards, shown their desire to +respect the customs and ideas of the conquered peoples. +Indifferentism has served them in their career of conquest +as well as religious eclecticism served the Romans, +<span class='pageno' id='Page_57'>57</span>so that religious sentiment, though it sometimes stimulated +the valour of their native enemies, has not really +furnished any obstacle to the pacification of a conquered +people. The English have, however, gone +further than did the Romans in trying to deter their +subjects from practices socially or morally deleterious.</p> + +<p class='c001'>As regards the work done by the English for education +in the establishment of schools and Universities, +no comparison with Rome can usefully be drawn: +because it was not deemed in the ancient world to be +the function of the State to make a general educational +provision for its subjects. The Emperors, however, +appointed and paid teachers of the liberal arts in some +of the greater cities. That which the English have +done, however, small as it may appear in comparison +with the vast population they have to care for<a id='r23'></a><a href='#f23' class='c012'><sup>[23]</sup></a>, witnesses +to the spirit which has animated them in seeking to +extend to the conquered the opportunities of progress +which they value for themselves.</p> + +<p class='c001'>The question how far the triumphs of Rome and of +England are due to the republican polity of the one, +and the practically republican (though not until 1867 +or 1885 democratic) polity of the other, is so large +a one that I must be content merely to indicate it as +well deserving a discussion. Several similar empires +have been built up by republican governments of the +oligarchic type, as witness the empire of Carthage in +the ancient, and that of Venice in the later mediaeval +world. One can explain this by the fact that in such +governments there is usually, along with a continuity of +<span class='pageno' id='Page_58'>58</span>policy hardly to be expected from a democracy, a constant +succession of capable generals and administrators +such as a despotic hereditary monarchy seldom provides, +for a monarchy of that kind must from time to time +have feeble or dissolute sovereigns, under whom bad +selections will be made for important posts, policy will +oscillate, and no adequate support will be given to the +armies or fleets which are maintaining the interests of +the nation abroad. A republic is moreover likely to +have a larger stock of capable and experienced men on +which to draw during the process of conquering and +organizing. The two conspicuous instances in which +monarchies have acquired and long held vast external +dominions are the Empires of Spain and Russia. +The former case is hardly an exception to the doctrine +just stated, because the oceanic Empire of Spain +was won quickly and with little fighting against +opponents immeasurably inferior, and because it had no +conterminous enemies to take advantage of the internal +decay which soon set in. In the case of Russia the +process has been largely one of natural expansion over +regions so thinly peopled and with inhabitants so backward +that no serious resistance was made to an advance +which went on rather by settlement than by conquest. +It is only in the Caucasus and in Turkistan that +Russia has had to establish her power by fighting. +Her conflicts even with the Persians and the Ottoman +Turks have been, as Moltke is reported to have said, +battles of the one-eyed against the blind. But it must +be added that Russia has shown during two centuries +a remarkable power of holding a steady course of +foreign policy. She sometimes trims her sails, and +lays the ship upon the other tack, but the main direction +<span class='pageno' id='Page_59'>59</span>of the vessel’s course is not altered. This must +be the result of wisdom or good fortune in the choice +of ministers, for the Romanoff dynasty has not contained +more than its fair average of men of governing capacity.</p> + +<p class='c001'>There is one other point in which the Romans and +the English may be compared as conquering powers. +Both triumphed by force of character. During the +two centuries that elapsed between the destruction of +Carthage, when Rome had already come to rule +many provinces, and the time of Vespasian, when she +had ceased to be a city and was passing into a nation +conterminous with her dominions, the Romans were +the ruling race of the world, small in numbers, even if +we count the peoples of middle Italy as Romans, but +gifted with such talents for war and government, and +possessed of such courage and force of will as to be +able, not only to dominate the whole civilized world +and hold down its peoples, but also to carry on a succession +of bloody civil wars among themselves without +giving those peoples any chance of recovering their +freedom. The Roman armies, though superior in discipline +to the enemies they had to encounter, except the +Macedonians and Greeks, were not generally superior +in arms, and had no resources of superior scientific +knowledge at their command. Their adversaries in +Africa, in Greece, and in Asia Minor were as far advanced +in material civilization as they were themselves. +It was their strenuous and indomitable will, buoyed up +by the pride and self-confidence born of a long succession +of victories in the past, that enabled them to achieve +this unparalleled triumph. The triumph was a triumph +of character, as their poet felt when he penned the +famous line, <span lang="la"><i>Moribus antiquis stat res Romana virisque</i></span>. +<span class='pageno' id='Page_60'>60</span>And after the inhabitants of the City had ceased to be +the heart of the Empire, this consciousness of greatness +passed to the whole population of the Roman +world when they compared themselves with the barbarians +outside their frontiers. One finds it even in +the pages of Procopius, a Syrian writing in Greek, +after the western half of the Empire had been dismembered +by barbarian invasions.</p> + +<p class='c001'>The English conquered India with forces much +smaller than those of the Romans; and their success +in subjugating a still vaster population in a shorter +time may thus appear more brilliant. But the English +had antagonists immeasurably inferior in valour, in +discipline, in military science, and generally also in the +material of war, to those whom the Romans overcame. +Nor had they ever either a first-rate general or a monarch +of persistent energy opposed to them. No Hannibal, +nor even a Mithradates, appeared to bar their path. +Hyder Ali had no nation behind him; and fortune +spared them an encounter with the Afghan Ahmed +Shah and the Sikh Ranjit Singh. Their most formidable +opponents might rather be compared with the +gallant but untrained Celtic Vercingetorix, or the +showy but incompetent Antiochus the Great. It was +only when Europeans like Dupleix came upon the scene +that they had men of their own kind to grapple with; +and Dupleix had not the support from home which +Clive could count on in case of dire necessity. Still the +conquest of India was a splendid achievement, more +striking and more difficult, if less romantic, than the +conquest of Mexico by Hernan Cortez or the conquest of +Peru by Francisco Pizarro, though it must be admitted +that the courage of these two adventurers in venturing +<span class='pageno' id='Page_61'>61</span>far into unknown regions with a handful of followers has +never been surpassed. Among the English, as among +the Romans, the sense of personal force, the conscious +ascendency of a race so often already victorious, with +centuries of fame behind them, and a contempt for +the feebler folk against whom they were contending, +were the main source of that dash and energy and +readiness to face any odds which bore down all resistance. +These qualities have lasted into our own time. +No more brilliant examples were ever given of them +than in the defence of the Fort at Lucknow and in the +siege of Delhi at the time of the Indian Mutiny of +1857-8. And it is worth noting that almost the only +disasters that have ever befallen the British arms have +occurred where the general in command was either +incompetent, as must sometimes happen in every army, +or was wanting in boldness. In the East, more than +anywhere else, confidence makes for victory, and one +victory leads on to another.</p> + +<p class='c001'>It is by these qualities that the English continue to +hold India. In the higher grades of the civil administration +which they fill there are only about one thousand +persons: and these one thousand control two hundred +and eighty-seven millions, doing it with so little friction +that they have ceased to be surprised at this extraordinary +fact. The English have impressed the imagination +of the people by their resistless energy and their +almost uniform success. Their domination seems to +have about it an element of the supernatural, for the +masses of India are still in that mental condition which +looks to the supernatural for an explanation of whatever +astonishes it. The British Raj fills them with a sense of +awe and mystery. That nearly three hundred millions +<span class='pageno' id='Page_62'>62</span>of men should be ruled by a few palefaced strangers +from beyond the great and wide sea, strangers who all +obey some distant power, and who never, like the +lieutenants of Oriental sovereigns, try to revolt for their +own benefit,—this seems too wonderful to be anything +but the doing of some unseen and irresistible divinity. +I heard at Lahore an anecdote which, slight as it is, +illustrates the way in which the native thinks of these +things. A tiger had escaped from the Zoological +Gardens, and its keeper, hoping to lure it back, followed +it. When all other inducements had failed, he lifted +up his voice and solemnly adjured it in the name of +the British Government, to which it belonged, to come +back to its cage. The tiger obeyed.</p> + +<p class='c001'>Now that we have rapidly surveyed the more salient +points of resemblance or analogy between these two +empires, it remains to note the capital differences +between them, one or two of which have been already +incidentally mentioned. On the most obvious of all +I have already dwelt. It is the fact that, whereas the +Romans conquered right out from their City in all +directions—south, north, west, and east—so that the +capital, during the five centuries from <span class='fss'>B.C.</span> 200 (end of +the Second Punic War) to <span class='fss'>A.D.</span> 325 (foundation of Constantinople), +stood not far from the centre of their dominions, +England has conquered India across the ocean, +and remains many thousands of miles from the nearest +point of her Indian territory. Another not less obvious +difference is perhaps less important than it seems. +Rome was a city, and Britain is a country. Rome, when +she stepped outside Italy to establish in Sicily her first +province, had a free population of possibly only seventy +or eighty thousand souls. Britain, when she began her +<span class='pageno' id='Page_63'>63</span>career of conquest at Plassy had (if we include Ireland, +then still a distinct kingdom, but then less a source of +weakness than she has sometimes since been), a population +of at least eleven or twelve millions. But, apart from +the fact that the distance from Britain to India round the +Cape made her larger population less available for action +in India than was the smaller population of Rome for +action in the Mediterranean, the comparison must not +really be made with Rome as a city, but with Rome as +the centre of a large Italian population, upon which +she drew for her armies, and the bulk of which had, +before the end of the Republic, become her citizens. +On this point of dissimilarity no more need be said, +because its significance is apparent. I turn from it to +another of greater consequence.</p> + +<p class='c001'>The relations of the conquering country to the conquered +country, and of the conquering race to the +conquered races, are totally different in the two cases +compared. In the case of Rome there was a similarity +of conditions which pointed to and ultimately effected +a fusion of the peoples. In the case of England there +is a dissimilarity which makes the fusion of her people +with the peoples of India impossible.</p> + +<p class='c001'>Climate offers the first point of contrast. Rome, to +be sure, ruled countries some of which were far hotter +and others far colder than was the valley of the Tiber. +Doubtless the officer who was stationed in Nubia complained +of the torrid summer, much as an English +officer complains of Quetta or Multan; nor were the +winters of Ardoch or Hexham agreeable to a soldier +from Apulia. But if the Roman married in Nubia, he +could bring up his family there. An English officer +cannot do this at Quetta or Multan. The English race +<span class='pageno' id='Page_64'>64</span>becomes so enfeebled in the second generation by living +without respite under the Indian sun that it would +probably die out, at least in the plains, in the third +or fourth. Few Englishmen feel disposed to make +India their home, if only because the physical conditions +of life there are so different from those under +which their earlier years were passed. But the Italian +could make himself at home, so far as natural conditions +went, almost anywhere from the Dnieper to the +Guadalquivir.</p> + +<p class='c001'>The second contrast is in the colour of the races. +All the races of India are dark, though individuals +may be found among high-caste Brahmins and among +the Parsis of Poona or Gujarat who are as light in hue +as many Englishmen. Now to the Teutonic peoples, +and especially to the English and Anglo-Americans, the +difference of colour means a great deal. It creates +a feeling of separation, perhaps even of a slight repulsion. +Such a feeling may be deemed unreasonable +or unchristian, but it seems too deeply rooted to +be effaceable in any time we can foresee. It is, to be +sure, not nearly so strong towards members of the +more civilized races of India, with their faces often full +of an intelligence and refinement which witnesses to +many generations of mental culture, as it is in North +America towards the negroes of the Gulf Coast, or in +South Africa towards the Kafirs. Yet it is sufficient to +be, as a rule, a bar to social intimacy, and a complete +bar to intermarriage.</p> + +<p class='c001'>Among the highest castes of Hindus and among the +most ancient princely families, such as those famous +Rajput dynasties whose lineage runs back further than +does that of any of the royal houses of Europe, there is +<span class='pageno' id='Page_65'>65</span>a corresponding pride of race quite as strong as that +felt by the best-born European. So, too, some of the +oldest Musulman families, tracing their origin to the +relatives of the Prophet himself, are in respect of long +descent equal to any European houses. Nevertheless, +although the more educated and tactful among the +English pay due honour to these families, colour would +form an insurmountable barrier to intermarriage, even +were the pride of the Rajputs disposed to invite it. +The oldest of the Rajput dynasties, that of Udaipur, +always refused to give a daughter in marriage even +to the Mogul Emperors.</p> + +<p class='c001'>There was no severing line like this in the ancient +world. The only dark races (other than the Egyptians) +with whom the Romans came in contact were some +of the Numidian tribes, few of whom became really +Romanized, and the Nubians of the Middle Nile, also +scarcely within the pale of civilization. The question, +therefore, did not arise in the form it has taken in India. +Probably, however, the Romans would have felt and +acted not like Teutons, but rather as the Spanish and +Portuguese have done. Difference of colour does not +repel members of these last-named nations. Among +them, unions, that is to say legitimate unions, of whites +with dark-skinned people, are not uncommon, nor is the +mulatto or quadroon offspring kept apart and looked +down upon as he is among the Anglo-Americans. +Nothing contributed more to the fusion of the races +and nationalities that composed the Roman Empire +than the absence of any physical and conspicuous +distinctions between those races, just as nothing did +more to mitigate the horrors of slavery than the fact +<span class='pageno' id='Page_66'>66</span>that the slave was usually of a tint and type of features +not markedly unlike those of his master. Before the +end of the Republic there were many freedmen in the +Senate, though their presence there was regarded as +a sign of declension. The son of a freed-man passed +naturally and easily—as did the poet Horace—into the +best society of Rome when his personal merits or the +favour of a great patron gave him entrance, though his +detractors found pleasure in reminding one another of +his origin. In India it is otherwise. Slavery, which +was never harsh there, has fortunately not come into +the matter, in the way it did in the Southern States +of America and in South Africa. But the population +is sharply divided into whites and natives. The so-called +Eurasians, a mixed race due to the unions of +whites with persons of Indian race, give their sympathies +to the whites, but are treated by the latter as +an inferior class. They are not numerous enough to +be an important factor, nor do they bridge over the +chasm which divides the rulers from the ruled. It is +not of the want of political liberty that the latter complain, +for political liberty has never been enjoyed in +the East, and would not have been dreamt of had not +English literature and English college teaching implanted +the idea in the minds of the educated natives. But +the hauteur of the English and the sense of social +incompatibility which both elements feel, are unfortunate +features in the situation, and have been so from +the first. Even in 1813 the representatives of the East +India Company stated to a committee of the House of +Commons that ‘Englishmen of classes not under the +observation of the supreme authorities were notorious +for the contempt with which, in their ignorance and +<span class='pageno' id='Page_67'>67</span>arrogance, they contemplated the usages and institutions +of the natives, and for their frequent disregard of +justice and humanity in their dealings with the people +of India<a id='r24'></a><a href='#f24' class='c012'><sup>[24]</sup></a>.’ And the Act of 1833 requires the Government +of India ‘to provide for the protection of the +natives from insult and outrage in their persons, religions, +and opinions<a id='r25'></a><a href='#f25' class='c012'><sup>[25]</sup></a>.’</p> + +<p class='c001'>It may be thought that, even if colour did not form +an obstacle to intermarriage, religion would. Religion, +however, can be changed, and colour cannot. In North +America blacks and whites belong to the same religious +denominations, but the social demarcation remains complete. +Still it is true that the difference of religion does +constitute in India a further barrier not merely to intermarriage +but also to intimate social relations. Among +the Musulmans the practice, or at any rate the legal +possibility of polygamy, naturally deters white women +from a union they might otherwise have contemplated. +(There have, however, been a few instances of such +unions.) Hinduism stands much further away from +Christianity than does Islam; and its ceremonial rules +regarding the persons in whose company food may be +partaken of operate against a form of social intercourse +which cements intimacy among Europeans<a id='r26'></a><a href='#f26' class='c012'><sup>[26]</sup></a>.</p> + +<p class='c001'>One must always remember that in the East religion +constitutes both a bond of union and a dividing line +of severance far stronger and deeper than it does in +Western Europe. It largely replaces that national +feeling which is absent in India and among the +<span class='pageno' id='Page_68'>68</span>Eastern peoples (except the Chinese and Japanese) +generally. Among Hindus and Musulmans religious +practices are inwoven with a man’s whole life. To the +Hindu more especially caste is everything. It creates +a sort of nationality within a nationality, dividing +the man of one caste from the man of another, as +well as from the man who stands outside Hinduism +altogether. Among Muslims there is indeed no regular +caste (though evident traces of it remain among the +Muhamadans of India); but the haughty exclusiveness +of Islam keeps its votaries quite apart from the professors +of other faiths. The European in India, when +he converses with either a Hindu or a Musulman, +feels strongly how far away from them he stands. +There is always a sense of constraint, because both +parties know that a whole range of subjects lies outside +discussion, and must not be even approached. It +is very different when one talks to a native Christian +of the upper ranks. There is then no great need for +reserve save, of course, that the racial susceptibilities +of the native gentleman who does not belong to the +ruling class must be respected. Community of religion +in carrying the educated native Christian far away from +the native Hindu or Muslim, brings him comparatively +near to the European. Because he is a Christian he +generally feels himself more in sympathy with his +European rulers than he does with his fellow subjects +of the same race and colour as himself.</p> + +<p class='c001'>Here I touch a matter of the utmost interest when +one thinks of the more remote future of India. Political +consequences greater than now appear may depend +upon the spread of Christianity there, a spread whose +progress, though at present scarcely perceptible in the +<span class='pageno' id='Page_69'>69</span>upper classes, may possibly become much more rapid +than it has been during the last century. I do not +say that Hinduism or Islam is a cause of hostility to +British rule. Neither do I suggest that a Christian +native population would become fused with the European +or Eurasian population. But if the number of +Christians, especially in the middle and upper ranks +of Indian society, were to increase, the difficulty of +ascertaining native opinion, now so much felt by +Indian administrators, would be perceptibly lessened, +and the social separation of natives and Europeans +might become less acute, to the great benefit of both +sections of the population.</p> + +<p class='c001'>When we turn back to the Roman Empire how +striking is the absence of any lines of religious demarcation! +One must not speak of toleration as the note of +its policy, because there was nothing to tolerate. All +religions were equally true, or equally useful, each for +its own country or nation. The satirist of an age which +had already lost belief in the Olympian deities might +scoff at the beast-gods of Egypt and the fanaticism which +their worship evoked. But nobody thought of converting +the devotees of crocodiles or cats. A Briton brought +up by the Druids, or a Frisian who had worshipped +Woden in his youth, found, if he was sent to command a +garrison in Syria, no difficulty in attending a sacrifice to +the Syrian Sun-god, or in marrying the daughter of the +Sun-god’s priest. Possibly the first injunctions to have +regard to religion in choosing a consort that were ever +issued in the ancient world were such as that given by +St. Paul when he said, ‘Be not unequally yoked together +with unbelievers.’ Christianity had a reason for this +precept which the other religions had not, because to it +<span class='pageno' id='Page_70'>70</span>all the other religions were false and pernicious, drawing +men away from the only true God. We may +accordingly say that, old-established and strong as some +of the religions were which the Romans found when +they began to conquer the Mediterranean countries, +religion did not constitute an obstacle to the fusion +of the peoples of those countries into one Roman +nationality.</p> + +<p class='c001'>When the Monotheistic religions came upon the scene, +things began to change. Almost the only rebellions +against Rome which were rather religious than political, +were those of the Jews. When in the fourth, fifth, sixth, +and seventh centuries, sharp theological controversies +began to divide Christians, especially in the East, +dangers appeared such as had never arisen from +religious causes in the days of heathenism. Schisms, +like that of the Donatists, and heresies, began to trouble +the field of politics. The Arian Goths and Vandals +remained distinct from the orthodox provincials whom +they conquered. In Egypt, a country always prone to +fanaticism, the Monophysite antagonism to the orthodoxy +of the Eastern Emperors was so bitter that the +native population showed signs of disaffection as early +as the time of Justinian, and they offered, a century +later, scarcely any resistance to those Musulman invaders +from Arabia whom they disliked no more than +they did their own sovereign at Constantinople.</p> + +<p class='c001'>A fourth agency working for fusion which the Roman +Empire possessed, and which the English in India want, +is to be found in language and literature. The conquests +of Rome had been preceded by the spread of +the Greek tongue and of Greek culture over the coasts +of the Eastern Mediterranean. Even in the interior of +<span class='pageno' id='Page_71'>71</span>Asia Minor and Syria, though the native languages +continued to be spoken in the cities as late as the +time of Tiberius<a id='r27'></a><a href='#f27' class='c012'><sup>[27]</sup></a>, and probably held their ground +in country districts down till the Arab conquest, +Greek was understood by the richer people, and +was a sort of <span lang="la"><i>lingua franca</i></span> for commerce from Sicily +to the Euphrates<a id='r28'></a><a href='#f28' class='c012'><sup>[28]</sup></a>. Greek literature was the basis +of education, and formed the minds of the cultivated +class. It was indeed familiar to that class even in +the western half of the Empire, through which, by +the time of the Antonines, Latin had begun to be +generally spoken, except in remote regions such as +the Basque country and the banks of the Vaal +and North-Western Gaul. As the process of unification +usually works downwards from the wealthier +and better educated to the masses, it was of the +utmost consequence that the upper class should +have, in these two great languages, a factor constantly +operative in the assimilation of the ideas of peoples +originally distinct, in the diffusion of knowledge, and in +the creation of a common type of civilization. Just as +the use of Latin and of the Vulgate maintained a sort +of unity among Christian nations and races even in the +darkest and most turbulent centuries of the Middle +Ages, so the use of Latin and Greek throughout the +whole Roman Empire powerfully tended to draw its +parts together. Nor was it without importance that all +the subjects of the Empire had the same models of +poetic and prose style in the classical writers of Greece +<span class='pageno' id='Page_72'>72</span>and in the Latin writers of the pre-Augustan and +Augustan age. Virgil in particular became the national +poet of the Empire, in whom imperial patriotism found +its highest expression.</p> + +<p class='c001'>Very different have been the conditions of India. +When the British came, they found no national literature, +unless we can apply that name to the ancient +Sanskrit epics, written in a tongue which had ceased +to be spoken many centuries before. Persian and +Arabic were cultivated languages, used by educated +Musulmans and by a few Hindu servants of the Musulman +princes. The <span lang="la"><i>lingua franca</i></span> called Hindustani or +Urdu, which had sprung up in the camps of the Mogul +Emperors, was becoming a means of intercourse over +Northern India, but was hardly used throughout the +South. Only a handful of the population were sufficiently +educated to be accessible to the influences +of any literature, or spoke any tongue except that of +their own district. At present five great languages<a id='r29'></a><a href='#f29' class='c012'><sup>[29]</sup></a>, +branches of the Aryan family, divide between them +Northern, North-Western and Middle India, and four +others<a id='r30'></a><a href='#f30' class='c012'><sup>[30]</sup></a> of the Dravidian type cover Southern India: +while many others are spoken by smaller sections of the +people. The language of the English conquerors, which +was adopted as the official language in 1835, is the parent +tongue of only about 250,000 persons out of 287,000,000, +less than one in one thousand. An increasing number +of natives of the educated class have learnt to speak it, +but even if we reckon in these, it affects only the most +insignificant fraction of the population. I have already +observed that it was an advantage for England in +<span class='pageno' id='Page_73'>73</span>conquering India, and is an advantage for her in ruling +it, that the inhabitants are so divided by language as well +as by religion and (among the Hindus) by caste that they +could not combine to resist her. Rome had enjoyed, in +slighter measure, a similar advantage. But whereas in the +Roman Empire Greek and Latin spread so swiftly and +steadily that the various nationalities soon began to blend, +the absence in India of any two such dominant tongues +and the lower level of intellectual progress keep the +vast bulk of the Indian population without any general +vehicle for the interchange of thought or for the formation +of any one type of literary and scientific culture. +There is therefore no national literature for India, nor +any prospect that one will arise. No Cicero forms +prose style, no Virgil inspires an imperial patriotism. +The English have established places of higher instruction +on the model not so much of Oxford and Cambridge +as of the Scottish Universities and the new +University Colleges which have recently sprung up +in England, together with five examining Universities. +Through these institutions they are giving to the +ambitious youth of India, and especially to those +who wish to enter Government employment or the +learned professions, an education of a European type, +a type so remote from the natural quality and proclivities +of the Indian mind that it is not likely to give birth +to any literature with a distinctively Indian character. +Indeed the chief effect of this instruction has so far been +to make those who receive it cease to be Hindus or +Musulmans without making them either Christians or +Europeans. It acts as a powerful solvent, destroying the +old systems of conventional morality, and putting little +in their place. The results may not be seen for a +<span class='pageno' id='Page_74'>74</span>generation or two. When they come they may prove +far from happy.</p> + +<p class='c001'>If in the course of ages any one language comes +to predominate in India and to be the language not +only of commerce, law, and administration, but also of +literature, English is likely to be that language; and +English will by that time have also become the leading +language of the world<a id='r31'></a><a href='#f31' class='c012'><sup>[31]</sup></a>. This will tend both to unify +the peoples of India and (in a sense) to bring them +nearer to their rulers. By that time, however, if it ever +arrives, so many other changes will also have arrived +that it is vain to speculate on the type of civilization +which will then have been produced.</p> + +<p class='c001'>These considerations have shown us how different +have been the results of English from those of Roman +conquest. In the latter case a double process began +from the first. The provinces became assimilated to +one another, and Rome became assimilated to them, or +they to her. As her individuality passed to them it was +diluted by their influence. Out of the one conquering +race and the many conquered races there was growing up +a people which, though many local distinctions remained, +was by the end of the fourth century <span class='fss'>A.D.</span> tending to become +substantially one in religion, one in patriotism, one +in its type of intellectual life and of material civilization. +The process was never completed, because the end of +the fourth century was just the time when the Empire +began, not from any internal dissensions, but from +financial and military weakness, to yield to invasions and +immigrations which forced its parts asunder. But it was +<span class='pageno' id='Page_75'>75</span>so far completed that Claudian could write in the days +of Honorius: ‘We who drink of the Rhone and the +Orontes are all one nation.’ In this one huge nation +the city and people of Rome had been merged, their +original character so obliterated that they could give +their name to the world. But in India there has been +neither a fusion of the conquerors and the conquered, +nor even a fusion of the various conquered races into +one people. Differences of race, language, and religion +have prevented the latter fusion: yet it may some day +come. But a fusion of conquerors and conquered +seems to be forbidden by climate and by the disparity +of character and of civilization, as well as by antagonisms +of colour and religion. The English are too +unlike the races of India, or any one of those races, to +mingle with them, or to come to form, in the sense of +Claudian’s words, one people.</p> + +<p class='c001'>The nations and tribes that were overcome and +incorporated by Rome were either the possessors of a +civilization as old and as advanced as was her own, or +else, like the Gauls and the Germans, belonged to stocks +full of intellectual force, capable of receiving her lessons, +and of rapidly rising to the level of her culture. But the +races of India were all of them far behind the English +in material civilization. Some of them were and are +intellectually backward; others, whose keen intelligence +and aptitude for learning equals that of Europeans, are +inferior in energy and strength of will. Yet even these +differences might not render an ultimate fusion impossible. +It is religion and colour that seem to place that result +beyond any horizon to which our eyes can reach. The +semi-barbarous races of Southern Siberia will become +Russians. The Georgians and Armenians of Transcaucasia, +<span class='pageno' id='Page_76'>76</span>unless their attachment to their national churches +saves them, may become Russians. Even the Turkmans +of the Khanates will be Russians one day, as the Tatars +of Kazan and the Crimea are already on the way to +become. But the English seem destined to remain quite +distinct from the natives of India, neither mingling their +blood nor imparting their character and habits.</p> + +<p class='c001'>So too, it may be conjectured, there will not be, for +ages to come, any fusion of Americans with the races of +the Philippine Isles.</p> + +<p class='c001'>The observation that Rome effaced herself in giving +her name and laws to the world suggests an inquiry +into what may be called the retroactive influence of India +upon England. In the annals of Rome, war, conquest, +and territorial expansion pervade and govern the whole +story. Her constitutional, her social, her economic +history, from the end of the Samnite wars onwards, is +substantially determined by her position as a ruling +State, first in Italy and then in the Mediterranean world. +It was the influence upon the City of the phenomena +of her rule in the provinces that did most to destroy +not only the old constitution but the old simple and +upright character of the Roman people. The provinces +avenged themselves upon their conquerors. In +the end, Rome ceases to have any history of her own, +except an architectural history, so completely is she +merged in her Empire. To a great extent this is true +of Italy as well as of Rome. Italy, which had subjected +so many provinces, ends by becoming herself a province—a +province no more important than the others, except +in respect of the reverence that surrounded her name. +Her history, from the time of Augustus till that of +Odovaker and Theodorich the Ostrogoth, is only a part +<span class='pageno' id='Page_77'>77</span>of the history of the Empire. Quite otherwise with +England. Though England has founded many colonies, +sent out vast bodies of emigrants, and conquered wide +dominions, her domestic history has been, since she +lost Normandy and Aquitaine, comparatively little +affected by these frequent wars and this immense +expansion. One might compose a constitutional history +of England, or an economic and industrial history, or an +ecclesiastical history, or a literary history, or a social history, +in which only few and slight references would need +to be made to either the colonies or India. England was a +great European power before she had any colonies or any +Indian territories: and she would be a great European +power if all of these transmarine possessions were to +drop off. Only at a few moments in the century and a +half since the battle of Plassy have Indian affairs gravely +affected English politics. Every one remembers Fox’s +India Bill, in 1783, and the trial of Warren Hastings, +and the way in which the Nabobs seemed for a time to +be demoralizing society and politics. It was in India +that the Duke of Wellington first showed his powers. +It was through the Indian opium trade that England first +came into collision with China. The notion that Russian +ambition might become dangerous to the security of +Britain in India had something to do with the Crimean +War, and with the subsequent policy towards the Turks +followed by England down to 1880. The deplorable +Afghan War of 1878-9 led, more perhaps than anything +else, to the fall of Lord Beaconsfield’s Ministry in 1880. +Other instances might be added in which Indian questions +have told upon the foreign policy of Great Britain, +or have given rise to parliamentary strife; although, by +a tacit convention between the two great parties in England, +<span class='pageno' id='Page_78'>78</span>efforts are usually made—and made most wisely—to +prevent questions of Indian administration from becoming +any further than seems absolutely necessary +matters of party controversy. Yet, if these instances be +all put together, they are less numerous and momentous +than might have been expected when one considers the +magnitude of the stake which Britain holds in India. And +even when we add to these the effect of Indian markets +upon British trade, and the undeniable influence of the +possession of India upon the thoughts and aspirations +of Englishmen, strengthening in them a sense of pride +and what is called an imperial spirit, we shall still be +surprised that the control of this vast territory and of +a population more than seven times as large as that of +the United Kingdom has not told more forcibly upon +Britain, and coloured her history more deeply than it +has in fact done. Suppose that England had not +conquered India. Would her domestic development, +whether constitutional or social, have taken a course +greatly different from that which it has actually followed? +So far as we can judge, it would not. It has been +the good fortune of England to stand far off from the +conquered countries, and to have had a population too +large to suffer sensibly from the moral evils which +conquest and the influx of wealth bring in their train<a id='r32'></a><a href='#f32' class='c012'><sup>[32]</sup></a>.</p> + +<p class='c001'>The remark was made at the outset of this discussion +that the contact of the English race with native races +in India, and the process by which the former is giving +the material civilization, and a tincture of the intellectual +culture of Europe to a group of Asiatic peoples, +<span class='pageno' id='Page_79'>79</span>is only part of that contact of European races with +native races and of that Europeanizing of the latter by +the former which is going on all over the world. France +is doing a similar work in North Africa and Madagascar. +Russia is doing it in Turkistan and on the Amur; and +may probably be soon engaged upon it in Manchuria. +Germany is doing it in tropical Africa. England is +doing it in Egypt and Borneo and Matabililand. The +people of the United States are entering upon it in the +Philippine Islands. Every one of these nations professes +to be guided by philanthropic motives in its +action. But it is not philanthropy that has carried any +of them into these enterprises, nor is it clear that the +result will be to increase the sum of human happiness.</p> + +<p class='c001'>It is in India, however, that the process has been in +progress for the longest time and on the largest scale. +Even after a century’s experience the results cannot +be adequately judged, for the country is in a state +of transition, with all sorts of new factors, such as railways, +and newspapers, and colleges, working as well +upon the humbler as upon the wealthier sections of the +people. Three things, however, the career of the English +in India has proved. One is, that it is possible +for a European race to rule a subject native race on +principles of strict justice, restraining the natural propensity +of the stronger to abuse their power. India +has been, and is, ruled upon such principles. When +oppression or cruelty is perpetrated, it is not by the +European official but by his native subordinates, and +especially by the native police, whose delinquencies the +European official cannot always discover. Scorn or +insolence is sometimes displayed towards the natives by +Europeans, and nothing does more to destroy the good +<span class='pageno' id='Page_80'>80</span>effects of just government than such displays of scorn. +But again, it is seldom the European civil officials, but +either private persons or occasionally junior officers +in the army, who are guilty of this abuse of their +racial superiority.</p> + +<p class='c001'>The second thing is that a relatively small body of +European civilians, supported by a relatively small armed +force, can maintain peace and order in an immense +population standing on a lower plane of civilization, and +itself divided by religious animosities bitter enough to +cause the outbreak of intestine wars were the restraining +hand withdrawn.</p> + +<p class='c001'>The third fact is that the existence of a system +securing these benefits is compatible with an absolute +separation between the rulers and the ruled. +The chasm between them has in these hundred years +of intercourse grown no narrower. Some even deem +it wider, and regret the fact that the European official, +who now visits England more easily and frequently, does +not identify himself so thoroughly with India as did his +predecessors some seventy years ago. As one of the +greatest problems of this age, and of the age which will +follow, is and must be the relation between the European +races as a whole on the one hand, and the more +backward races of a different colour on the other hand, +this incompatibility of temper, this indisposition to be +fused, or, one may almost say, this impracticability of +fusion, is a momentous result, full of significance for the +future. It was quite otherwise with that first effort of +humanity to draw itself together, which took shape in +the fusion of the races that Rome conquered, and the +creation of one Greco-Roman type of civilization for +them. But the conditions of that small ancient world +<span class='pageno' id='Page_81'>81</span>were very different from those by which mankind finds +itself now confronted.</p> + +<p class='c001'>It is impossible to think of the future and to recall that +first impulse towards the unity of mankind which closed +fourteen centuries ago, without reverting once more +to the Roman Empire, and asking whether the events +which caused, and the circumstances which accompanied, +its dissolution throw any light on the probable fate of +British dominion in the East.</p> + +<p class='c001'>Empires die sometimes by violence and sometimes +by disease. Frequently they die from a combination of +the two, that is to say, some chronic disease so reduces +their vitality that a small amount of external violence +suffices to extinguish the waning life. It was so with the +dominion of Rome. To outward appearance it was the +irruption of the barbarians from the north that tore away +the provinces in the west, as it was the assault of the +Turks in 1453 that gave the last death blow to the +feeble and narrowed Empire which had lingered on +in the East. But the dissolution and dismemberment +of the western Roman Empire, beginning with the +abandonment of Britain in <span class='fss'>A.D.</span> 411, and ending with the +establishment of the Lombards in Italy in <span class='fss'>A.D.</span> 568, +with the conquest of Africa by the Arab chief Sidi Okba +in the seventh century, and with the capture of Sicily +by Musulman fleets in the ninth, were really due to +internal causes which had been for a long time at +work. In some provinces at least the administration +had become inefficient or corrupt, and the humbler +classes were oppressed by the more powerful. The +population had in many regions been diminished. In +nearly all it had become unwarlike, so that barbarian +<span class='pageno' id='Page_82'>82</span>levies, raised on the frontier, had taken the place of +native troops. The revenue was unequal to the task of +maintaining an army sufficient for defence. How far +the financial straits to which the government was +reduced were due to the exhaustion of the soil, how far +to maladministration is not altogether easy to determine. +They had doubtless been aggravated by the disorders +and invasions of <span class='fss'>A.D.</span> 260-282. Neither can we tell +whether the intellectual capacity of the ruling class and +the physical vigour of the bulk of the population may not +have declined. But it seems pretty clear that the armies +and the revenue that were at the disposal of Trajan +would have been sufficient to defend the Empire three +centuries later, when the first fatal blows were struck; +and we may therefore say that it was really from internal +maladies, from anaemia or atrophy, from the want of +men and the want of money, perhaps also from the +want of wisdom, rather than from the appearance of more +formidable foes, that the Empire perished in the West.</p> + +<p class='c001'>British power in India shows no similar signs of +weakness, for though the establishment of internal +peace is beginning to make it less easy to recruit the +native army with first-class fighting-men, such as the +Punjab used to furnish, it has been hitherto found +possible to keep that army up to its old standard of +numbers and efficiency. Still the warning Rome has +bequeathed is a warning not to be neglected. Her great +difficulty was finance and the impoverishment of the +cultivator. Finance and the poverty of the cultivator, +who is always in danger of famine, and is taxed to the +full measure of his capacity—these are the standing +difficulties of Indian administration; and they do not +grow less, for, as population increases, the struggle for +<span class='pageno' id='Page_83'>83</span>food is more severe, and the expenditure on frontier +defence, including strategic railways, has gone on rapidly +increasing.</p> + +<p class='c001'>As England seems to be quite as safe from rebellion +within India as was Rome within her Empire, so is she +stronger against external foes than Rome was, for she +has far more defensible frontiers, viz. the sea which +she commands, and a tremendous mountain barrier in +whose barren gorges a comparatively small force might +repel invaders coming from a distance and obliged to +carry their food with them. There is really, so far as +can be seen at present, only one danger against which +the English have to guard, that of provoking discontent +among their subjects by laying on them too heavy a +burden of taxation. It has been suggested that when +the differences of caste and religion which now separate +the peoples of India from one another have begun to +disappear, when European civilization has drawn them +together into one people, and European ideas have +created a large class of educated and restless natives +ill disposed to brook subjection to an alien race, new +dangers may arise to threaten the permanence of British +power. Such possibilities, however, belong to a future +which is still far distant.</p> + +<p class='c001'>It is, of course, upon England in the last resort that +the defence of India rests. The task is well within her +strength, though serious enough to make it fitting that +a prudent and pacific spirit should guide her whole +foreign and colonial policy, that she should neither +embark on needless wars nor lay on herself the burden +of holding down disaffected subjects.</p> + +<p class='c001'>England must be prepared to command the sea, and +to spare 80,000 of her soldiers to garrison the country. +<span class='pageno' id='Page_84'>84</span>Were she ever to find herself unable to do this, what +would become of India? Its political unity, which +depends entirely on the English Raj, would vanish like +a morning mist. Wars would break out, wars of +ambition, or plunder, or religion, which might end in the +ascendency of a few adventurers, not necessarily belonging +to the reigning native dynasties, but probably either +Pathans, or Sikhs, or Musulmans of the north-west. +The Marathas might rise in the West. The Nepalese +might descend upon Bengal. Or perhaps the country +would, after an interval of chaos, pass into the hands +of some other European Power. To India severance +from England would mean confusion, bloodshed, and +pillage. To England however, apart from the particular +events which might have caused the snapping +of the tie, and apart from the possible loss of a market, +severance from India need involve no lasting injury. +To be mistress of a vast country whose resources for +defence need to be supplemented by her own, adds +indeed to her fame, but does not add to her strength. +England was great and powerful before she owned +a yard of land there, and might be great and powerful +again with no more foothold in the East than would +be needed for the naval fortresses which protect her +commerce.</p> + +<p class='c001'>Happily, questions such as these are for the moment +purely speculative.</p> + +<div class='chapter'> + <span class='pageno' id='Page_85'>85</span> + <h2 id='eII' class='c005'>II <br> <br> THE EXTENSION OF ROMAN AND <br> ENGLISH LAW THROUGHOUT <br>THE WORLD</h2> +</div> +<h3 class='c013'>I. <span class='sc'>The Regions covered by Roman and English Law.</span></h3> + +<p class='c007'>From a general comparison of Rome and England as +powers conquering and administering territories beyond +their original limits, it is natural to pass on to consider +one particular department of the work which territorial +extension has led them to undertake, viz. their action as +makers of a law which has spread far out over the +world. Both nations have built up legal systems which +are now—for the Roman law has survived the Roman +Empire, and is full of vitality to-day—in force over +immense areas that were unknown to those who laid +the foundations of both systems. In this respect Rome +and England stand alone among nations, unless we +reckon in the law of Islam which, being a part of the +religion of Islam, governs Musulmans wherever Musulmans +are to be found.</p> + +<p class='c001'>Roman law, more or less modified by national or +local family customs or land customs and by modern +legislation, prevails to-day in all the European countries +which formed part either of the ancient or of the +mediaeval Roman Empire, that is to say, in Italy, in +Greece and the rest of South-Eastern Europe (so far +as the Christian part of the population is concerned), +in Spain, Portugal, Switzerland, France, Germany +(including the German and Slavonic parts of the Austro-Hungarian +<span class='pageno' id='Page_86'>86</span>monarchy), Belgium, Holland. The only +exception is South Britain, which lost its Roman law +with the coming of the Angles and Saxons in the fifth +century. The leading principles of Roman jurisprudence +prevail also in some other outlying countries which have +borrowed much of their law from some one or more +of the countries already named, viz. Denmark, Norway, +Sweden, Russia, and Hungary. Then come the non-European +colonies settled by some among the above +States, such as Louisiana, the Canadian province of +Quebec, Ceylon, British Guiana, South Africa (all the +above having been at one time colonies either of France +or of Holland), German Africa, and French Africa, +together with the regions which formerly obeyed Spain +or Portugal, including Mexico, Central America, South +America, and the Philippine Islands. Add to these the +Dutch and French East Indies, and Siberia. There is +also Scotland, which has since the establishment of the +Court of Session by King James the Fifth in 1532 built +up its law out of Roman Civil and (to some slight extent) +Roman Canon Law<a id='r33'></a><a href='#f33' class='c012'><sup>[33]</sup></a>.</p> + +<p class='c001'>English law is in force not only in England, Wales, +and Ireland but also in most of the British colonies. +Quebec, Ceylon, Mauritius, South Africa, and some few +of the West Indian islands follow the Roman law<a id='r34'></a><a href='#f34' class='c012'><sup>[34]</sup></a>. The +rest, including Australia, New Zealand, and all Canada +except Quebec, follow English; as does also the United +<span class='pageno' id='Page_87'>87</span>States, except Louisiana, but with the Hawaiian Islands, +and India, though in India, as we shall see, native law +is also administered.</p> + +<p class='c001'>Thus between them these two systems cover nearly the +whole of the civilized, and most of the uncivilized world. +Only two considerable masses of population stand outside—the +Musulman East, that is, Turkey, North Africa, +Persia, Western Turkistan and Afghanistan, which obey +the sacred law of Islam, and China, which has customs +all her own. It is hard to estimate the total number of +human beings who live under the English common law, +for one does not know whether to reckon in the semi-savage +natives of such regions as Uganda, for instance, +or Fiji. But there are probably one hundred and thirty +millions of civilized persons (without counting the +natives of India) who do: and the number living under +some modern form of the Roman law is still larger.</p> + +<p class='c001'>It is of the process by which two systems which had +their origin in two small communities, the one an +Italian city, the other a group of Teutonic tribes, have +become extended over nine-tenths of the globe that +I propose to speak in the pages that follow. There are +analogies between the forms which the process took in +the two cases. There are also contrasts. The main +contrast is that whereas we may say that (roughly +speaking) Rome extended her law by conquest, that is, +by the spreading of her power, England has extended +hers by settlement, that is, by the spreading out of her +race. In India, however, conquest rather than colonization +has been the agency employed by England, and it +is therefore between the extension of English law to +India and the extension of Roman law to the Roman +Empire that the best parallel can be drawn. It need +<span class='pageno' id='Page_88'>88</span>hardly be added that the Roman law has been far more +changed in descending to the modern world and becoming +adapted to modern conditions of life than the law of +England has been in its extension over new areas. +That extension is an affair of the last three centuries +only, and the whole history of English law is of only +some eleven centuries reckoning from Kings Ine and +Alfred, let us say, to <span class='fss'>A.D.</span> 1900, or of eight, if we begin +with King Henry the Second, whereas that of Roman +law covers twenty-five centuries, of which all but the first +three have witnessed the process of extension, so early +did Rome begin to impose her law upon her subjects. +To the changes, however, which have passed on the +substance of the law we shall return presently. Let us +begin by examining the causes and circumstances which +induced the extension to the whole ancient world of +rules and doctrines that had grown up in a small city.</p> + +<h3 class='c013'>II. <span class='sc'>The Diffusion of Roman Law by Conquest.</span></h3> + +<p class='c007'>The first conquests of Rome were made in Italy. +They did not, however, involve any legal changes, for +conquest meant merely the reduction of what had been +an independent city or group of cities or tribes to +vassalage, with the obligation of sending troops to serve +in the Roman armies. Local autonomy was not (as +a rule) interfered with; and such autonomy included +civil jurisdiction, so the Italic and Greco-Italic cities continued +to be governed by their own laws, which in the +case at least of Oscan and Umbrian communities usually +resembled that of Rome, and which of course tended to +become assimilated to it even before Roman citizenship +was extended to the Italian allies. With the annexation +<span class='pageno' id='Page_89'>89</span>of part of Sicily in <span class='fss'>A.D.</span> 230 the first provincial +government was set up, and the legal and administrative +problems which Rome had to deal with began to show +themselves. Other provinces were added in pretty +rapid succession, the last being Britain (invaded under +Claudius in <span class='fss'>A.D.</span> 43). Now although in all these +provinces the Romans had to maintain order, to collect +revenue and to dispense justice, the conditions under +which these things, and especially the dispensing of +justice, had to be done differed much in different +provinces. Some, such as Sicily, Achaia, Macedonia +and the provinces of Western Asia Minor, as well as +Africa (<i>i.e.</i> such parts of that province as Carthage had +permeated), were civilized countries, where law-courts +already existed in the cities<a id='r35'></a><a href='#f35' class='c012'><sup>[35]</sup></a>. The laws had doubtless +almost everywhere been created by custom, for the so-called +Codes we hear of in Greek cities were often +rather in the nature of political constitutions and penal +enactments than summarized statements of the whole +private law; yet in some cities the customs had been so +summarized<a id='r36'></a><a href='#f36' class='c012'><sup>[36]</sup></a>. Other provinces, such as those of Thrace, +Transalpine Gaul, Spain, and Britain, were in a lower +stage of social organization, and possessed, when they +were conquered, not so much regular laws as tribal +usages, suited to their rude inhabitants. In the former +set of cases not much new law was needed. In the +latter set the native customs could not meet the needs of +communities which soon began to advance in wealth and +culture under Roman rule, so law had to be created.</p> + +<p class='c001'><span class='pageno' id='Page_90'>90</span>There were also in all these provinces two classes +of inhabitants. One consisted of those who enjoyed +Roman citizenship, not merely men of Italian birth +settled there but also men to whom citizenship had +been granted (as for instance when they retired from +military service), or the natives of cities on which (as to +Tarsus in Cilicia, St. Paul’s birthplace) citizenship had +been conferred as a boon<a id='r37'></a><a href='#f37' class='c012'><sup>[37]</sup></a>. This was a large class, and +went on rapidly increasing. To it pure Roman law +was applicable, subject of course to any local customs.</p> + +<p class='c001'>The other class consisted of the provincial subjects +who were merely subjects, and, in the view of the +Roman law, aliens (<span lang="la"><i>peregrini</i></span>). They had their own laws +or tribal customs, and to them Roman law was primarily +inapplicable, not only because it was novel and unfamiliar, +so strange to their habits that it would have +been unjust as well as practically inconvenient to have +applied it to them, but also because the Romans, like the +other civilized communities of antiquity, had been so +much accustomed to consider private legal rights as +necessarily connected with membership of a city community +that it would have seemed unnatural to apply the +private law of one city community to the citizens of +another. It is true that the Romans after a time disabused +their minds of this notion, as indeed they had from +a comparatively early period extended their own private +civil rights to many of the cities which had become their +subject allies. Still it continued to influence them at +<span class='pageno' id='Page_91'>91</span>the time (<span class='fss'>B.C.</span> 230 to 120) when they were laying out +the lines of their legal policy for the provinces.</p> + +<p class='c001'>Of that legal policy I must speak quite briefly, partly +because our knowledge, though it has been enlarged +of late years by the discovery and collection of a great +mass of inscriptions, is still imperfect, partly because +I could not set forth the details without going into a +number of technical points which might perplex readers +unacquainted with the Roman law. It is only the main +lines on which the conquerors proceeded that can be +here indicated.</p> + +<p class='c001'>Every province was administered by a governor +with a staff of subordinate officials, the higher ones +Roman, and (under the Republic) remaining in office +only so long as did the governor. The governor was +the head of the judicial as well as the military and civil +administration, just as the consuls at Rome originally +possessed judicial as well as military and civil powers, +and just as the praetor at Rome, though usually occupied +with judicial work, had also both military and civil authority. +The governor’s court was the proper tribunal for +those persons who in the provinces enjoyed Roman +citizenship, and in it Roman law was applied to such +persons in matters touching their family relations, their +rights of inheritance, their contractual relations with one +another, just as English law is applied to Englishmen +in Cyprus or Hong Kong. No special law was needed +for them. As regards the provincials, they lived under +their own law, whatever it might be, subject to one important +modification. Every governor when he entered +his province issued an Edict setting forth certain rules +which he proposed to apply during his term of office. +These rules were to be valid only during his term, for +<span class='pageno' id='Page_92'>92</span>his successor issued a fresh Edict, but in all probability +each reproduced nearly all of what the preceding Edict +had contained. Thus the same general rules remained +continuously in force, though they might be modified in +detail, improvements which experience had shown to be +necessary being from time to time introduced<a id='r38'></a><a href='#f38' class='c012'><sup>[38]</sup></a>. This +was the method which the praetors followed at Rome, +so the provincial governors had a precedent for it and +knew how to work it. Now the Edict seems to have +contained, besides its provisions regarding the collection +of revenue and civil administration in general, certain +more specifically legal regulations, intended to indicate +the action which the governor’s court would take not +only in disputes arising between Roman citizens, but +also in those between citizens and aliens, and probably +also to some extent in those between aliens themselves. +Where the provisions of the Edict did not +apply, aliens would be governed by their own law. +In cities municipally organized, and especially in the +more civilized provinces, the local city courts would +doubtless continue to administer, as they had done +before the Romans came, their local civil law; and in +the so-called free cities, which had come into the Empire +as allies, these local courts had for a long time a wide +scope for their action. Criminal law, however, would +seem to have fallen within the governor’s jurisdiction, +at any rate in most places and for the graver offences, +because criminal law is the indispensable guarantee +for public order and for the repression of sedition +or conspiracy, matters for which the governor was of +course responsible<a id='r39'></a><a href='#f39' class='c012'><sup>[39]</sup></a>. Thus the governor’s court was +<span class='pageno' id='Page_93'>93</span>not only that which dispensed justice between Roman +citizens, and which dealt with questions of revenue, but +was also the tribunal for cases between citizens and +aliens, and for the graver criminal proceedings. It was +apparently also a court which entertained some kinds +of suits between aliens, as for instance between aliens +belonging to different cities, or in districts where no +regular municipal courts existed, and (probably) dealt +with appeals from those courts where they did exist. +Moreover where aliens even of the same city chose to +resort to it they could apparently do so. I speak of +courts rather than of law, because it must be remembered +that although we are naturally inclined to think +of law as coming first, and courts being afterwards +created to administer law, it is really courts that come +first, and that by their action build up law partly out +of customs observed by the people and partly out of +their own notions of justice. This, which is generally +true of all countries, is of course specially true of +countries where law is still imperfectly developed, and of +places where different classes of persons, not governed +by the same legal rules, have to be dealt with.</p> + +<p class='c001'>The Romans brought some experience to the task +of creating a judicial administration in the provinces, +where both citizens and aliens had to be considered, for +Rome herself had become, before she began to acquire +territories outside Italy, a place of residence or resort +for alien traders, so that as early as <span class='fss'>B.C.</span> 247 she created +a magistrate whose special function it became to handle +suits between aliens, or in which one party was an +alien. This magistrate built up, on the basis of mercantile +<span class='pageno' id='Page_94'>94</span>usage, equity, and common sense, a body of +rules fit to be applied between persons whose native +law was not the same; and the method he followed +would naturally form a precedent for the courts of the +provincial governors.</p> + +<p class='c001'>Doubtless the chief aim, as well as the recognized +duty, of the governors was to disturb provincial usage +as little as they well could. The temptations to which +they were exposed, and to which they often succumbed, +did not lie in the direction of revolutionizing local law +in order to introduce either purely Roman doctrines +or any artificial uniformity<a id='r40'></a><a href='#f40' class='c012'><sup>[40]</sup></a>. They would have made +trouble for themselves had they attempted this. And +why should they attempt it? The ambitious governors +desired military fame. The bad ones wanted money. +The better men, such as Cicero, and in later days +Pliny, liked to be fêted by the provincials and have +statues erected to them by grateful cities. No one +of these objects was to be attained by introducing legal +reforms which theory might suggest to a philosophic +statesman, but which nobody asked for. It seems safe +to assume from what we know of official human nature +elsewhere, that the Roman officials took the line of least +resistance compatible with the raising of money and +the maintenance of order. These things being secured, +they would be content to let other things alone.</p> + +<p class='c001'>Things, however, have a way of moving even when +officials may wish to let them rest. When a new and +vigorous influence is brought into a mixture of races +receptive rather than <a id='corr94.30'></a><span class='htmlonly'><ins class='correction' title='sic'>resistent</ins></span><span class='epubonly'><a href='#c_94.30'><ins class='correction' title='sic'>resistent</ins></a></span> (as happened in Asia +Minor under the Romans), or when a higher culture +<span class='pageno' id='Page_95'>95</span>acts through government upon a people less advanced +but not less naturally gifted (as happened in Gaul under +the Romans), changes must follow in law as well as in +other departments of human action. Here two forces +were at work. One was the increasing number of persons +who were Roman citizens, and therefore lived by +the Roman law. The other was the increasing tendency +of the government to pervade and direct the whole public +life of the province. When monarchy became established +as the settled form of the Roman government, provincial +administration began to be better organized, and a +regular body of bureaucratic officials presently grew up. +The jurisdiction of the governor’s court extended itself, +and was supplemented in course of time by lower courts +administering law according to the same rules. The law +applied to disputes arising between citizens and non-citizens +became more copious and definite. The provincial +Edicts expanded and became well settled as +respects the larger part of their contents. So by +degrees the law of the provinces was imperceptibly +Romanized in its general spirit and leading conceptions, +probably also in such particular departments as the +original local law of the particular province had not +fully covered. But the process did not proceed at the +same rate in all the provinces, nor did it result in a uniform +legal product, for a good deal of local customary law +remained, and this customary law of course differed in +different provinces. In the Hellenic and Hellenized +countries the pre-existing law was naturally fuller and +stronger than in the West; and it held its ground more +effectively than the ruder usages of Gauls or Spaniards, +obtaining moreover a greater respect from the Romans, +who felt their intellectual debt to the Greeks.</p> + +<p class='c001'><span class='pageno' id='Page_96'>96</span>It may be asked what direct legislation there was +during this period for the provinces. Did the Roman +Assembly either pass statutes for them, as Parliament +has sometimes done for India, or did the Assembly +establish in each province some legislative authority? +So far as private law went Rome did neither during +the republican period<a id='r41'></a><a href='#f41' class='c012'><sup>[41]</sup></a>. The necessity was not felt, +because any alterations made in Roman law proper +altered it for Roman citizens who dwelt in the provinces +no less than for those in Italy, while as to +provincial aliens, the Edict of the governor and the +rules which the practice of his courts established +were sufficient to introduce any needed changes. But +the Senate issued decrees intended to operate in the +provinces, and when the Emperors began to send +instructions to their provincial governors or to issue +declarations of their will in any other form, these had +the force of law, and constituted a body of legislation, +part of which was general, while part was special to the +province for which it was issued.</p> + +<p class='c001'>Meantime—and I am now speaking particularly of +the three decisively formative centuries from <span class='fss'>B.C.</span> 150 +to <span class='fss'>A.D.</span> 150—another process had been going on even +more important. The Roman law itself had been +changing its character, had been developing from a +rigid and highly technical system, archaic in its forms +and harsh in its rules, preferring the letter to the spirit, +and insisting on the strict observance of set phrases, into +a liberal and elastic system, pervaded by the principles +of equity and serving the practical convenience of a +cultivated and commercial community. The nature of +<span class='pageno' id='Page_97'>97</span>this process will be found described in other parts of +these volumes<a id='r42'></a><a href='#f42' class='c012'><sup>[42]</sup></a>. Its result was to permeate the original +law of Rome applicable to citizens only (<span lang="la"><i>ius civile</i></span>) +with the law which had been constructed for the +sake of dealing with aliens (<span lang="la"><i>ius gentium</i></span>), so that the +product was a body of rules fit to be used by any +civilized people, as being grounded in reason and +utility, while at the same time both copious in quantity +and refined in quality.</p> + +<p class='c001'>This result had been reached about <span class='fss'>A.D.</span> 150, by which +time the laws of the several provinces had also been +largely Romanized. Thus each body of law—if we +may venture for this purpose to speak of provincial law +as a whole—had been drawing nearer to the other. +The old law of the city of Rome had been expanded +and improved till it was fit to be applied to the provinces. +The various laws of the various provinces had +been constantly absorbing the law of the city in the +enlarged and improved form latterly given to it. Thus +when at last the time for a complete fusion arrived the +differences between the two had been so much reduced +that the fusion took place easily and naturally, with +comparatively little disturbance of the state of things +already in existence. One sometimes finds on the +southern side of the Alps two streams running in +neighbouring valleys. One which has issued from +a glacier slowly deposits as it flows over a rocky bed +the white mud which it brought from its icy cradle. +The other which rose from clear springs gradually +gathers colouring matter as in its lower course it cuts +through softer strata or through alluvium. When at last +they meet, the glacier torrent has become so nearly +<span class='pageno' id='Page_98'>98</span>clear that the tint of its waters is scarcely distinguishable +from that of the originally bright but now slightly turbid +affluent. Thus Roman and provincial law, starting from +different points but pursuing a course in which their +diversities were constantly reduced, would seem to have +become so similar by the end of the second century +<span class='fss'>A.D.</span> that there were few marked divergences, so far as +private civil rights and remedies were concerned, +between the position of citizens and that of aliens.</p> + +<p class='c001'>Here, however, let a difference be noted. The power +of assimilation was more complete in some branches +of law than it was in others; and it was least complete +in matters where old standing features of national +character and feeling were present. In the Law of +Property and Contract it had advanced so far as to +have become, with some few exceptions<a id='r43'></a><a href='#f43' class='c012'><sup>[43]</sup></a>, substantially +identical. The same may be said of Penal Law and +the system of legal procedure. But in the Law of +Family Relations and in that of Inheritance, a matter +closely connected with family relations, the dissimilarities +were still significant; and we shall find this +phenomenon reappearing in the history of English and +Native Law in India.</p> + +<p class='c001'>Two influences which I have not yet dwelt upon had +been, during the second century, furthering the assimilation. +One was the direct legislation of the Emperor +which, scanty during the first age of the monarchy, had +now become more copious, and most of which was +intended to operate upon citizens and aliens alike. The +other was the action of the Emperor as supreme judicial +authority, sometimes in matters brought directly before +<span class='pageno' id='Page_99'>99</span>him for decision, more frequently as judge of appeals +from inferior tribunals. He had a council called the +Consistory which acted on his behalf, because, especially +in the troublous times which began after the reign of +Marcus Aurelius and presaged the ultimate dissolution +of the Empire, the sovereign was seldom able to preside +in person. The judgements of the Consistory, +being delivered in the Emperor’s name as his, and +having equal authority with statutes issued by him, +must have done much to make law uniform in all the +provinces and among all classes of subjects<a id='r44'></a><a href='#f44' class='c012'><sup>[44]</sup></a>.</p> + +<h3 class='c013'>III. <span class='sc'>The Establishment of One Law for <br>the Empire.</span></h3> + +<p class='c007'>Finally, in the beginning of the third century <span class='fss'>A.D.</span>, the +decisive step was taken. The distinction between +citizens and aliens vanished by the grant of full citizenship +to all subjects of the Empire, a grant however +which may have been, in the first instance, applied +only to organized communities, and not also to the +backward sections of the rural population, in Corsica, +for instance, or in some of the Alpine valleys. Our +information as to the era to which this famous Edict +of Caracalla’s belongs is lamentably scanty. Gaius, who +is the best authority for the middle period of the law, +lived fifty or sixty years earlier. The compilers of +Justinian’s <cite>Digest</cite>, which is the chief source of our +knowledge for the law as a whole, lived three hundred +years later, when the old distinctions between the legal +<span class='pageno' id='Page_100'>100</span>rights of citizens and those of aliens had become mere +matters of antiquarian curiosity. These compilers therefore +modified the passages of the older jurists which +they inserted in the <cite>Digest</cite> so as to make them suit their +own more recent time. As practical men they were right, +but they have lessened the historical value of these +fragments of the older jurists, just as the modern restorer +of a church spoils it for the purposes of architectural +history, when he alters it to suit his own ideas of +beauty or convenience. Still it may fairly be assumed +that when Caracalla’s grant of citizenship was made the +bulk of the people, or at least of the town dwellers, +had already obtained either a complete or an incomplete +citizenship in the more advanced provinces, and +that those who had not were at any rate enjoying +under the provincial Edicts most of the civil rights that +had previously been confined to citizens, such for +instance as the use of the so-called Praetorian Will +with its seven seals.</p> + +<p class='c001'>How far the pre-existing local law of different provinces +or districts was superseded at one stroke by +this extension of citizenship, or in other words, what +direct and immediate change was effected in the modes +of jurisdiction and in the personal relations of private +persons, is a question which we have not the means of +answering. Apparently many difficulties arose which +further legislation, not always consistent, was required +to deal with<a id='r45'></a><a href='#f45' class='c012'><sup>[45]</sup></a>. One would naturally suppose that where +Roman rules differed materially from those which a +provincial community had followed, the latter could not +have been suddenly substituted for the former.</p> + +<p class='c001'><span class='pageno' id='Page_101'>101</span>A point, for instance, about which we should like +to be better informed is whether the Roman rules +which gave to the father his wide power over his +children and their children were forthwith extended to +provincial families. The Romans themselves looked +upon this paternal power as an institution peculiar to +themselves. To us moderns, and especially to Englishmen +and Americans, it seems so oppressive that we +cannot but suppose it was different in practice from +what it looks on paper. And although it had lost some +of its old severity by the time of the Antonines, one +would think that communities which had not grown up +under it could hardly receive it with pleasure.</p> + +<p class='c001'>From the time of Caracalla (<span class='fss'>A.D.</span> 211-217) down till +the death of Theodosius the Great (<span class='fss'>A.D.</span> 395) the Empire +had but one law. There was doubtless a certain amount +of special legislation for particular provinces, and a +good deal of customary law peculiar to certain provinces +or parts of them. Although before the time of Justinian +it would seem that every Roman subject, except the +half-barbarous peoples on the frontiers, such as the +Soanes and Abkhasians of the Caucasus or the +Ethiopic tribes of Nubia, and except a very small class +of freedmen, was in the enjoyment of Roman citizenship, +with private rights substantially the same, yet +it is clear that in the East some Roman principles and +maxims were never fully comprehended by the mass of +the inhabitants and their legal advisers of the humbler +sort, while other principles did not succeed in displacing +altogether the rules to which the people were attached. +We have evidence in recently recovered fragments +of an apparently widely used law-book, Syriac and +Armenian copies of which remain, that this was the +<span class='pageno' id='Page_102'>102</span>case in the Eastern provinces, and no doubt it was +so in others also. In Egypt, for instance, it may be +gathered from the fragments of papyri which are now +being published, that the old native customs, overlaid +or re-moulded to some extent by Greek law, held their +ground even down to the sixth or seventh century<a id='r46'></a><a href='#f46' class='c012'><sup>[46]</sup></a>. +Still, after making all allowance for these provincial +variations, philosophic jurisprudence and a levelling +despotism had done their work, and given to the +civilized world, for the first and last time in its history, +one harmonious body of legal rules.</p> + +<p class='c001'>The causes which enabled the Romans to achieve +this result were, broadly speaking, the five following:—</p> + +<p class='c001'>(1) There was no pre-existing body of law deeply rooted +and strong enough to offer resistance to the spread +of Roman law. Where any highly developed system +of written rules or customs existed, it existed only in +cities, such as those of the Greek or Graecized provinces +on both sides of the Aegean. The large +countries, Pontus, for instance, or Macedonia or Gaul, +were in a legal sense unorganized or backward. Thus +the Romans had, if not a blank sheet to write on, yet +no great difficulty in overspreading or dealing freely +with what they found.</p> + +<p class='c001'>(2) There were no forms of faith which had so interlaced +<span class='pageno' id='Page_103'>103</span>religious feelings and traditions with the legal notions +and customs of the people as to give those notions and +customs a tenacious grip on men’s affection. Except +among the Jews, and to some extent among the +Egyptians, Rome had no religious force to overcome +such as Islam and Hinduism present in India.</p> + +<p class='c001'>(3) The grant of Roman citizenship to a community +or an individual was a privilege highly valued, because +it meant a rise in social status and protection against +arbitrary treatment by officials. Hence even those who +might have liked their own law better were glad to part +with it for the sake of the immunities of a Roman citizen.</p> + +<p class='c001'>(4) The Roman governor and the Roman officials in +general had an administrative discretion wider than +officials enjoy under most modern governments, and +certainly wider than either a British or an United States +legislature would delegate to any person. Hence +Roman governors could by their Edicts and their +judicial action mould the law and give it a shape suitable +to the needs of their province with a freedom of +handling which facilitated the passage from local law or +custom to the jurisprudence of the Empire generally.</p> + +<p class='c001'>(5) Roman law itself, <i>i.e.</i> the law of the city, went on +expanding and changing, ridding itself of its purely +national and technical peculiarities, till it became fit to +be the law of the whole world. This process kept step +with, and was the natural expression of, the political +and social assimilation of Rome to the provinces and +of the provinces to Rome.</p> + +<p class='c001'>At the death of Theodosius the Great the Roman +Empire was finally divided into an Eastern and a Western +half; so that thenceforward there were two legislative +authorities. For the sake of keeping the law as uniform +<span class='pageno' id='Page_104'>104</span>as possible, arrangements were made for the transmission +by each Emperor to the other of such ordinances +as he might issue, in order that these might be, if +approved, issued for the other half of the Empire. +These arrangements, however, were not fully carried +out: and before long the Western Empire drifted into +so rough a sea that legislation practically stopped. +The great Codex of Theodosius the Second (a collection +of imperial enactments published in <span class='fss'>A.D.</span> 438) +was however promulgated in the Western as well as in +the Eastern part of the Empire, whereas the later Codex +and Digest of Justinian, published nearly a century later, +was enacted only for the East, though presently extended +(by re-conquest) to Italy, Sicily, and Africa. Parts of +the Theodosian Codex were embodied in the manuals +of law made for the use of their Roman subjects by +some of the barbarian kings. It continued to be recognized +in the Western provinces after the extinction of the +imperial line in the West in <span class='fss'>A.D.</span> 476: and was indeed, +along with the manuals aforesaid, the principal source +whence during a long period the Roman population drew +their law in the provinces out of which the kingdoms of +the Franks, Burgundians, and Visigoths were formed.</p> + +<p class='c001'>Then came the torpor of the Dark Ages.</p> + +<h3 class='c013'><span class='sc'>IV. The Extension of Roman Law after the<br>Fall of the Western Empire.</span></h3> + +<p class='c007'>Upon the later history of the Roman law and its +diffusion through the modern world I can but briefly +touch, for I should be led far away from the special topic +here considered. The process of extension went on in +some slight measure by conquest, but mainly by peaceful +means, the less advanced peoples, who had no regular +<span class='pageno' id='Page_105'>105</span>legal system of their own, being gradually influenced +by and learning from their more civilized neighbours to +whom the Roman system had descended. The light of +legal knowledge radiated forth from two centres, from +Constantinople over the Balkanic and Euxine countries +between the tenth and the fifteenth centuries, from +Italy over the lands that lay north and west of her +from the twelfth to the sixteenth century. Thereafter +it is Germany, Holland, and France that have chiefly +propagated the imperial law, Germany by her universities +and writers, France and Holland both through +their jurists and as colonizing powers.</p> + +<p class='c001'>In the history of the mediaeval and modern part of +the process of extension five points or stages of especial +import may be noted.</p> + +<p class='c001'>The first is the revival of legal study which began in +Italy towards the end of the eleventh century <span class='fss'>A.D.</span>, and +the principal agent in which was the school of Bologna, +famous for many generations thereafter. From that +date onward the books of Justinian, which had before +that time been superseded in the Eastern Empire, were +lectured and commented on in the universities of Italy, +France, Spain, England, Germany, and have continued +to be so till our own day. They formed, except in +England where from the time of Henry the Third +onwards they had a powerful and at last a victorious +rival in the Common Law, the basis of all legal training +and knowledge.</p> + +<p class='c001'>The second is the creation of that vast mass of rules +for the guidance of ecclesiastical matters and courts—courts +whose jurisdiction was in the Middle Ages far +wider than it is now—which we call the Canon Law. +These rules, drawn from the canons of Councils and +<span class='pageno' id='Page_106'>106</span>decrees of Popes, began to be systematized during +the twelfth century, and were first consolidated into +an ordered body by Pope Gregory the Ninth in the +middle of the thirteenth<a id='r47'></a><a href='#f47' class='c012'><sup>[47]</sup></a>. They were so largely based +on the Roman law that we may describe them as being +substantially a development of it, partly on a new side, +partly in a new spirit, and though they competed with +the civil law of the temporal courts, they also extended +the intellectual influence of that law.</p> + +<p class='c001'>The third is the acceptance of the Roman law as +being of binding authority in countries which had not +previously owned it, and particularly in Germany and +Scotland. It was received in Germany because the +German king (after the time of Otto the Great) was +deemed to be also Roman Emperor, the legitimate successor +of the far-off assemblies and magistrates and +Emperors of old Rome; and its diffusion was aided +by the fact that German lawyers had mostly received +their legal training at Italian universities. It came in +gradually as subsidiary to Germanic customs, but the +judges, trained in Italy in the Roman system, required +the customs to be proved, and so by degrees Roman +doctrines supplanted them, though less in the Saxon +districts, where a native law-book, the <span lang="de"><cite>Sachsenspiegel</cite></span>, +had already established its influence. The acceptance +nowhere went so far as to supersede the whole +customary law of Germany, whose land-rights, for +instance, retained their feudal character. The formal +declaration of the general validity of the <span lang="la"><i>Corpus Iuris</i></span> +in Germany is usually assigned to the foundation by +the Emperor Maximilian I, in 1495, of the Imperial +Court of Justice (Reichskammergericht). As Holland +<span class='pageno' id='Page_107'>107</span>was then still a part of the Germanic Empire, as +well as of the Burgundian inheritance, it was the law +of Holland also, and so has become the law of Java, +of Celebes, and of South Africa. In Scotland it was +adopted at the foundation of the Court of Session, on +the model of the Parlement of Paris, by King James the +Fifth. Political antagonism to England and political +attraction to France, together with the influence of +the Canonists, naturally determined the King and the +Court to follow the system which prevailed on the +European continent.</p> + +<p class='c001'>The fourth stage is that of codification. In many +parts of Gaul, though less in Provence and Languedoc, +the Roman law had gone back into that shape of a body +of customs from which it had emerged a thousand years +before; and in Northern and Middle Gaul some customs, +especially in matters relating to land, were not Roman. +At last, under Lewis the Fourteenth, a codifying process +set in. Comprehensive Ordinances, each covering a +branch of law, began to be issued from 1667 down to +1747. These operated throughout France, and, being +founded on Roman principles, further advanced the +work, already prosecuted by the jurists, of Romanizing +the customary law of Northern France. That of +Southern France (the <span lang="fr"><i>pays du droit écrit</i></span>) had been more +specifically Roman, for the South had been less affected +by Frankish conquest and settlement. The five Codes +promulgated by Napoleon followed in 1803 to 1810<a id='r48'></a><a href='#f48' class='c012'><sup>[48]</sup></a>. +Others reproducing them with more or less divergence +have been enacted in other Romance countries.</p> + +<p class='c001'><span class='pageno' id='Page_108'>108</span>In Prussia, Frederick the Second directed the preparation +of a Code which became law after his death, +in 1794. From 1848 onwards parts of the law of +Germany (which differed in different parts of the +country) began to be codified, being at first enacted +by the several States, each for itself, latterly by the +legislature of the new Empire. Finally, after twenty-two +years of labour, a new Code for the whole German +Empire was settled, was passed by the Chambers, and +came into force on the first of January, 1900. It does +not, however, altogether supersede pre-existing local +law. This Code, far from being pure Roman law, +embodies many rules due to mediaeval custom +(especially custom relating to land-rights) modernized +to suit modern conditions, and also a great deal of +post-mediaeval legislation<a id='r49'></a><a href='#f49' class='c012'><sup>[49]</sup></a>. Some German jurists complain +that it is too Teutonic; others that it is not +Teutonic enough. One may perhaps conclude from +these opposite criticisms that the codifiers have made +a judiciously impartial use of both Germanic and +Roman materials.</p> + +<p class='c001'>Speaking broadly, it may be said that the groundwork +of both the French and the German Codes—that is to +say their main lines and their fundamental legal conceptions—is +Roman. Just as the character and genius +of a language are determined by its grammar, irrespective +of the number of foreign words it may have +picked up, so Roman law remains Roman despite the +accretion of the new elements which the needs of +modern civilization have required it to accept.</p> + +<p class='c001'><span class='pageno' id='Page_109'>109</span>The fifth stage is the transplantation of Roman law in +its modern forms to new countries. The Spaniards and +Portuguese, the French, the Dutch, and the Germans +have carried their respective systems of law with them +into the territories they have conquered and the colonies +they have founded; and the law has often remained +unchanged even when the territory or the colony has +passed to new rulers. For law is a tenacious plant, +even harder to extirpate than is language; and new +rulers have generally had the sense to perceive that they +had less to gain by substituting their own law for that +which they found than they had to lose by irritating +their new subjects. Thus, Roman-French law survives +in Quebec (except in commercial matters) and in Louisiana, +Roman-Dutch law in Guiana and South Africa.</p> + +<p class='c001'>The cases of Poland, Russia and the Scandinavian +kingdoms are due to a process different from any of +those hitherto described. The law of Russia was +originally Slavonic custom, influenced to some extent +by the law of the Eastern Roman Empire, whence +Russia took her Christianity and her earliest literary +impulse. In its present shape, while retaining in many +points a genuinely Slavonic character, and of course far +less distinctly Roman than is the law of France, it has +drawn so much, especially as regards the principles of +property rights and contracts, from the Code Napoléon +and to a less degree from Germany, that it may be +described as being Roman ‘at the second remove,’ +and reckoned as an outlying and half-assimilated +province, so to speak, of the legal realm of Rome. +Poland, lying nearer Germany, and being, as a Catholic +country, influenced by the Canon Law, as well as by +German teaching and German books, adopted rather +<span class='pageno' id='Page_110'>110</span>more of Roman doctrine than Russia did<a id='r50'></a><a href='#f50' class='c012'><sup>[50]</sup></a>. Her +students learnt Roman law first at Italian, afterwards +at German Universities, and when they became judges, +naturally applied its principles. The Scandinavian +countries set out with a law purely Teutonic, and +it is chiefly through the German Universities and the +influence of German juridical literature that Roman +principles have found their way in and coloured the +old customs. Servia, Bulgaria and Rumania, on the +other hand, were influenced during the Middle Ages +by the law of the Eastern Empire, whence they drew +their religion and their culture. Thus their modern +law, whose character is due partly to these Byzantine +influences—of course largely affected by Slavonic +custom—and partly to what they have learnt from +France and Austria, may also be referred to the +Roman type.</p> + +<h3 class='c013'><span class='sc'>V. The Diffusion of English Law.</span></h3> + +<p class='c007'>England, like Rome, has spread her law over a large +part of the globe. But the process has been in her +case not only far shorter but far simpler. The work +has been (except as respects Ireland) effected within +the last three centuries; and it has been effected +(except as regards Ireland and India) not by conquest +but by peaceful settlement. This is one of the two +points in which England stands contrasted with Rome. +The other is that her own law has not been affected +by the process. It has changed within the seven +<span class='pageno' id='Page_111'>111</span>centuries that lie between King Henry the Second +and the present day, almost if not quite as much +as the law of Rome changed in the seven centuries +between the enactment of the Twelve Tables and the +reign of Caracalla. But these changes have not been +due, as those I have described in the Roman Empire +were largely due, to the extension of the law of England +to new subjects. They would apparently have come to +pass in the same way and to the same extent had the +English race remained confined to its own island.</p> + +<p class='c001'>England has extended her law over two classes of +territories.</p> + +<p class='c001'>The first includes those which have been peacefully +settled by Englishmen—North America (except Lower +Canada), Australia, New Zealand, Fiji, the Falkland +Isles. All of these, except the United States, have +remained politically connected with the British Crown.</p> + +<p class='c001'>The second includes conquered territories. In +some of these, such as Wales, Ireland, Gibraltar, the +Canadian provinces of Ontario and Nova Scotia, +and several of the West India Islands, English law +has been established as the only system, applicable +to all subjects<a id='r51'></a><a href='#f51' class='c012'><sup>[51]</sup></a>. In others, such as Malta, Cyprus, +Singapore, and India, English law is applied to Englishmen +and native law to natives, the two systems being +worked concurrently. Among these cases, that which +presents problems of most interest and difficulty is +India. But before we consider India, a few words may +be given to the territories of the former class. They are +<span class='pageno' id='Page_112'>112</span>now all of them, except the West Indies, Fiji and the +Falkland Isles, self-governing, and therefore capable of +altering their own law. This they do pretty freely. The +United States have now forty-nine legislatures at work, +viz. Congress, forty-five States, and three Organized +Territories. They have turned out an immense mass +of law since their separation from England. But +immense as it is, and bold as are some of the experiments +which may be found in it, the law of the United +States remains (except of course in Louisiana) substantially +English law. An English barrister would find +himself quite at home in any Federal or State Court, +and would have nothing new to master, except a few +technicalities of procedure and the provisions of any +statutes which might affect the points he had to argue. +And the patriarch of American teachers of law (Professor +C. C. Langdell of the Law School in Harvard University), +consistently declining to encumber his expositions +with references to Federal or State Statutes, continues +to discourse on the Common Law of America, which +differs little from the Common Law of England. The +old Common Law which the settlers carried with them +in the seventeenth century has of course been developed +or altered by the decisions of American Courts. These, +however, have not affected its thoroughly English +character. Indeed, the differences between the doctrines +enounced by the Courts of different States are +sometimes just as great as the differences between the +views of the Courts of Massachusetts or New Jersey +and those of Courts in England.</p> + +<p class='c001'>The same is true of the self-governing British +colonies. In them also legislation has introduced +deviations from the law of the mother country. More +<span class='pageno' id='Page_113'>113</span>than forty years ago New Zealand, for instance, repealed +the Statute of Uses, which is the corner-stone of English +conveyancing; and the Australian legislatures have +altered (among other things) the English marriage law. +But even if the changes made by statute had been far +greater than they have been, and even if there were +not, as there still is, a right of appeal from the highest +Courts of these colonies to the Crown in Council, their +law would still remain, in all its essential features, +a genuine and equally legitimate offspring of the +ancient Common Law.</p> + +<p class='c001'>We come now to the territories conquered by England, +and to which she has given her law whether in +whole or in part. Among these it is only of India +that I shall speak, as India presents the phenomena of +contact between the law of the conqueror and that of +the conquered on the largest scale and in the most +instructive form. What the English have done in +India is being done or will have to be done, though +nowhere else on so vast a scale, by the other great +nations which have undertaken the task of ruling and of +bestowing what are called the blessings of civilization +upon the backward races. Russia, France, Germany, +and now the United States also, all see this task before +them. To them therefore, as well as to England, the +experience of the British Government in India may +be profitable.</p> + +<h3 class='c013'><span class='sc'>VI. English Law in India.</span></h3> + +<p class='c007'>When the English began to conquer India they found +two great systems of customary law in existence there, +the Musulman and the Hindu. There were other +<span class='pageno' id='Page_114'>114</span>minor bodies of custom, prevailing among particular +sects, but these may for the present be disregarded. +Musulman law regulated the life and relations of all +Musulmans; and parts of it, especially its penal provisions, +were also applied by the Musulman potentates +to their subjects generally, Hindus included. The +Musulman law had been most fully worked out in the +departments of family relations and inheritance, in some +few branches of the law of contract, such as money loans +and mortgages and matters relating to sale, and in the +doctrine of charitable or pious foundations called Wakuf.</p> + +<p class='c001'>In the Hindu principalities, Hindu law was dominant, +and even where the sovereign was a Musulman, the +Hindu law of family relations and of inheritance was +recognized as that by which Hindus lived. There were +also of course many land customs, varying from district +to district, which both Hindus and Musulmans observed, +as they were not in general directly connected with +religion. In some regions, such as Oudh and what are +now the North-West provinces, these customs had been +much affected by the land revenue system of the Mogul +Emperors. It need hardly be said that where Courts +of law existed, they administered an exceedingly rough +and ready kind of justice, or perhaps injustice, for +bribery and favouritism were everywhere rampant.</p> + +<p class='c001'>There were also mercantile customs, which were +generally understood and observed by traders, and +which, with certain specially Musulman rules recognized +in Musulman States, made up what there was of +a law of contracts.</p> + +<p class='c001'>Thus one may say that the law (other than purely +religious law) which the English administrators in the +days of Clive and Warren Hastings found consisted of—</p> + +<p class='c001'><span class='pageno' id='Page_115'>115</span>First, a large and elaborate system of Inheritance +and Family Law, the Musulman pretty uniform throughout +India, though in some regions modified by Hindu +custom, the Hindu less uniform. Each was utterly +unlike English law and incapable of being fused with +it. Each was closely bound up with the religion and +social habits of the people. Each was contained in +treatises of more or less antiquity and authority, some +of the Hindu treatises very ancient and credited with +almost divine sanction, the Musulman treatises of +course posterior to the Koran, and consisting of commentaries +upon that Book and upon the traditions that +had grown up round it.</p> + +<p class='c001'>Secondly, a large mass of customs relating to the +occupation and use of land and of various rights connected +with tillage and pasturage, including water-rights, +rights of soil-accretion on the banks of rivers, and +forest-rights. The agricultural system and the revenue +system of the country rested upon these land customs, +which were of course mostly unwritten and which +varied widely in different districts.</p> + +<p class='c001'>Thirdly, a body of customs, according to our ideas +comparatively scanty and undeveloped, but still important, +relating to the transfer and pledging of property, and +to contracts, especially commercial contracts.</p> + +<p class='c001'>Fourthly, certain penal rules drawn from Musulman +law and more or less enforced by Musulman +princes.</p> + +<p class='c001'>Thus there were considerable branches of law +practically non-existent. There was hardly any law of +civil and criminal procedure, because the methods +of justice were primitive, and would have been cheap, +<span class='pageno' id='Page_116'>116</span>but for the prevalence of corruption among judges +as well as witnesses. There was very little of the law +of Torts or Civil Wrongs, and in the law of property +of contracts and of crimes, some departments were +wanting or in a rudimentary condition. Of a law +relating to public and constitutional rights there could +of course be no question, since no such rights existed.</p> + +<p class='c001'>In this state of facts the British officials took the line +which practical men, having their hands full of other +work, would naturally take, viz. the line of least +resistance. They accepted and carried on what they +found. Where there was a native law, they applied it, +Musulman law to Musulmans, Hindu law to Hindus, +and in the few places where they were to be found, +Parsi law to Parsis, Jain law to Jains. Thus men of +every creed—for it was creed, not race nor allegiance +by which men were divided and classified in India—lived +each according to his own law, as Burgundians +and Franks and Romanized Gauls had done in the +sixth century in Europe. The social fabric was not +disturbed, for the land customs and the rules of +inheritance were respected, and of course the minor +officers, with whom chiefly the peasantry came in +contact, continued to be natives. Thus the villager +scarcely felt that he was passing under the dominion +of an alien power, professing an alien faith. His life +flowed on in the same equable course beside the +little white mosque, or at the edge of the sacred +grove. A transfer of power from a Hindu to a Musulman +sovereign would have made more difference to +him than did the establishment of British rule; and life +was more placid than it would have been under either +a rajah or a sultan, for the marauding bands which +<span class='pageno' id='Page_117'>117</span>had been the peasants’ terror were soon checked by +European officers.</p> + +<p class='c001'>So things remained for more than a generation. So +indeed things remain still as respects those parts of +law which are inwoven with religion, marriage, adoption +(among Hindus) and other family relations, and +with the succession to property. In all these matters +native law continues to be administered by the Courts +the English have set up; and when cases are appealed +from the highest of those Courts to the Privy Council +in England, that respectable body determines the true +construction to be put on the Koran and the Islamic +Traditions, or on passages from the mythical Manu, in +the same business-like way as it would the meaning of +an Australian statute<a id='r52'></a><a href='#f52' class='c012'><sup>[52]</sup></a>. Except in some few points to +be presently noted, the Sacred Law of Islam and that +of Brahmanism remain unpolluted by European ideas. +Yet they have not stood unchanged, for the effect of +the more careful and thorough examination which the +contents of these two systems have received from +advocates, judges, and text-writers, both native and +English, imbued with the scientific spirit of Europe, +has been to clarify and define them, and to develop +out of the half-fluid material more positive and rigid +doctrines than had been known before. Something +like this may probably have been done by the Romans +for the local or tribal law of their provinces.</p> + +<p class='c001'>In those departments in which the pre-existing +<span class='pageno' id='Page_118'>118</span>customs were not sufficient to constitute a body of law +large enough and precise enough for a civilized Court +to work upon, the English found themselves obliged +to supply the void. This was done in two ways. +Sometimes the Courts boldly applied English law. +Sometimes they supplemented native custom by +common sense, <i>i.e.</i> by their own ideas of what was +just and fair. The phrase ‘equity and good conscience’ +was used to embody the principles by which judges +were to be guided when positive rules, statutory or +customary, were not forthcoming. To a magistrate +who knew no law at all, these words would mean that +he might follow his own notions of ‘natural justice,’ +and he would probably give more satisfaction to +suitors than would his more learned brother, trying +to apply confused recollections of Blackstone or Chitty. +In commercial matters common sense would be aided +by the usage of traders. In cases of Tort native +custom was not often available, but as the magistrate +who dealt out substantial justice would give what the +people had rarely obtained from the native courts, +they had no reason to complain of the change. As +to rules of evidence, the young Anglo-Indian civilian +would, if he were wise, forget all the English technicalities +he might have learnt, and make the best use +he could of his mother-wit<a id='r53'></a><a href='#f53' class='c012'><sup>[53]</sup></a>.</p> + +<p class='c001'>For the first sixty years or more of British rule there +was accordingly little or no attempt to Anglify the law +of India, or indeed to give it any regular and systematic +form. Such alterations as it underwent were the +<span class='pageno' id='Page_119'>119</span>natural result of its being dispensed by Europeans. +But to this general rule there were two exceptions, +the law of Procedure and the law of Crimes. Courts +had been established in the Presidency towns even +before the era of conquest began. As their business +increased and subordinate Courts were placed in the +chief towns of the annexed provinces, the need for some +regular procedure was felt. An Act of the British +Parliament of <span class='fss'>A.D.</span> 1781 empowered the Indian Government +to make regulations for the conduct of the +provincial Courts, as the Court at Fort William (Calcutta) +had already been authorized to do for itself by an Act +of 1773. Thus a regular system of procedure, modelled +after that of England, was established; and the Act +of 1781 provided that the rules and forms for the +execution of process were to be accommodated to the +religion and manners of the natives.</p> + +<p class='c001'>As respects penal law, the English began by adopting +that which the Musulman potentates had been accustomed +to apply. But they soon found that many +of its provisions were such as a civilized and nominally +Christian government could not enforce. Mutilation +as a punishment for theft, for instance, and stoning +for sexual offences, were penalties not suited to +European notions; and still less could the principle +be admitted that the evidence of a non-Musulman is +not receivable against one of the Faithful. Accordingly +a great variety of regulations were passed amending +the Musulman law of crimes from an English point +of view. In Calcutta the Supreme Court did not +hesitate to apply English penal law to natives; and +applied it to some purpose at a famous crisis in +the fortunes of Warren Hastings when (in 1775) it +<span class='pageno' id='Page_120'>120</span>hanged Nuncomar for forgery under an English +statute of 1728, which in the opinion of many high +authorities of a later time had never come into force at +all in India. It was inevitable that the English should +take criminal jurisdiction into their own hands—the +Romans had done the same in their provinces—and inevitable +also that they should alter the penal law in conformity +with their own ideas. But they did so in a very +haphazard fashion. The criminal law became a patchwork +of enactments so confused that it was the first +subject which invited codification in that second epoch +of English rule which we are now approaching.</p> + +<p class='c001'>Before entering on this remarkable epoch, one must +remember that the English in India, still a very small +though important class, were governed entirely by +English law. So far as common law and equity went, +this law was exactly the same as the contemporaneous +law of England. But it was complicated by the fact that +a number of Regulations, as they were called, had been +enacted for India by the local government, that many +British statutes were not intended to apply and probably +did not apply to India (though whether they did or +not was sometimes doubtful), and that a certain number +of statutes had been enacted by Parliament expressly +for India. Thus though the law under which the +English lived had not been perceptibly affected by +Indian customs, it was very confused and troublesome +to work. That the learning of the judges sent from +home to sit in the Indian Courts was seldom equal to +that of the judges in England was not necessarily a disadvantage, +for in traversing the jungle of Indian law +the burden of English case lore would have too much +impeded the march of justice.</p> + +<p class='c001'><span class='pageno' id='Page_121'>121</span>The first period of English rule, the period of rapid +territorial extension and of improvised government, may +be said to have ended with the third Maratha war of +1817-8. The rule of Lord Amherst and Lord William +Bentinck (1823-35) was a comparatively tranquil period, +when internal reforms had their chance, as they had in +the Roman Empire under Hadrian and Antoninus Pius. +This was also the period when a spirit of legal reform +was on foot in England. It was the time when the +ideas of Bentham had begun to bear fruit, and when +the work begun by Romilly was being carried on by +Brougham and others. Both the law applied to +Englishmen, and such parts of native law as had been +cut across, filled up, and half re-shaped by English +legal notions and rules, called loudly for simplification +and reconstruction.</p> + +<p class='c001'>The era of reconstruction opened with the enactment, +in the India Charter Act of 1833, of a clause declaring +that a general judicial system and a general body of +law ought to be established in India applicable to all +classes, Europeans as well as natives, and that all laws +and customs having legal force ought to be ascertained, +consolidated, and amended. The Act then went on to +provide for the appointment of a body of experts to be +called the Indian Law Commission, which was to +inquire into and report upon the Courts, the procedure +and the law then existing in India. Of this commission, +Macaulay, appointed in 1833 legal member of the +Governor-General’s Council, was the moving spirit: +and with it the work of codification began. It prepared +a Penal Code, which however was not passed into law +until 1860, for its activity declined after Macaulay’s +return to England and strong opposition was offered +<span class='pageno' id='Page_122'>122</span>to his draft by many of the Indian judges. A second +Commission was appointed under an Act of 1853, and +sat in England. It secured the enactment of the Penal +Code, and of Codes of Civil and of Criminal Procedure. +A third Commission was created in 1861, and drafted +other measures. The Government of India demurred +to some of the proposed changes and evidently thought +that legislation was being pressed on rather too fast. +The Commission, displeased at this resistance, resigned +in 1870; and since then the work of preparing as well +as of carrying through codifying Acts has mostly been +done in India. The net result of the sixty-six years +that have passed since Macaulay set to work in 1834 +is that Acts codifying and amending the law, and declaring +it applicable to both Europeans and natives, +have been passed on the topics following:—</p> + +<p class='c001'>Crimes (1860).</p> + +<p class='c001'>Criminal Procedure (1861, 1882, and 1898).</p> + +<p class='c001'>Civil Procedure (1859 and 1882).</p> + +<p class='c001'>Evidence (1872).</p> + +<p class='c001'>Limitation of Actions (1877).</p> + +<p class='c001'>Specific Relief (1877).</p> + +<p class='c001'>Probate and Administration (1881).</p> + +<p class='c001'>Contracts (1872) (but only the general rules of contract +with a few rules on particular parts of the subject).</p> + +<p class='c001'>Negotiable Instruments (1881) (but subject to native +customs).</p> + +<p class='c001'>Besides these, codifying statutes have been passed +which do not apply (at present) to all India, but only to +parts of it, or to specified classes of the population, +on the topics following:—</p> + +<p class='c001'>Trusts (1882).</p> + +<p class='c001'>Transfer of Property (1882).</p> + +<p class='c001'><span class='pageno' id='Page_123'>123</span>Succession (1865).</p> + +<p class='c001'>Easements (1882).</p> + +<p class='c001'>Guardians and Wards (1890).</p> + +<p class='c001'>These statutes cover a large part of the whole field +of law, so that the only important departments not yet +dealt with are those of Torts or Civil Wrongs (on which +a measure not yet enacted was prepared some years +ago); certain branches of contract law, which it is not +urgent to systematize because they give rise to lawsuits +only in the large cities, where the Courts are quite able +to dispose of them in a satisfactory way; Family Law, +which it would be unsafe to meddle with, because the +domestic customs of Hindus, Musulmans, and Europeans +are entirely different; and Inheritance, the greater +part of which is, for the same reason, better left to +native custom. Some points have, however, been +covered by the Succession Act already mentioned. +Thus the Government of India appear to think that they +have for the present gone as far as they prudently can +in the way of enacting uniform general laws for all +classes of persons. Further action might displease +either the Hindus or the Musulmans, possibly both: +and though there would be advantages in bringing the +law of both these sections of the population into a more +clear and harmonious shape, it would in any case be +impossible to frame rules which would suit both of +them, and would also suit the Europeans. Here Religion +steps in, a force more formidable in rousing opposition +or disaffection than any which the Romans had to fear.</p> + +<p class='c001'>In such parts of the law as are not covered by these +enumerated Acts, Englishmen, Hindus and Musulmans +continue to live under their respective laws. So do +Parsis, Sikhs, Buddhists (most numerous in Burma), +<span class='pageno' id='Page_124'>124</span>and Jains, save that where there is really no native law +or custom that can be shown to exist, the judge will +naturally apply the principles of English law, handling +them, if he knows how, in an untechnical way. Thus +beside the new stream of united law which has its source +in the codifying Acts, the various older streams of law, +each representing a religion, flow peacefully on.</p> + +<p class='c001'>The question which follows—What has been the +action on the other of each of these elements? resolves +itself into three questions:—</p> + +<p class='c001'>How far has English Law affected the Native Law +which remains in force?</p> + +<p class='c001'>How far has Native Law affected the English Law +which is in force?</p> + +<p class='c001'>How have the codifying Acts been framed—<i>i.e.</i> are +they a compromise between the English and the native +element, or has either predominated and given its colour +to the whole mass?</p> + +<p class='c001'>The answer to the first question is that English +influence has told but slightly upon those branches of +native law which had been tolerably complete before +the British conquest, and which are so interwoven with +religion that one may almost call them parts of religion. +The Hindu and Musulman customs which regulate the +family relations and rights of succession have been +precisely defined, especially those of the Hindus, which +were more fluid than the Muslim customs, and were much +less uniform over the whole country. Trusts have been +formally legalized, and their obligation rendered stronger. +Adoption has been regularized and stiffened, for its +effects had been uncertain in their legal operation. +Where several doctrines contended, one doctrine has +been affirmed by the English Courts, especially by the +<span class='pageno' id='Page_125'>125</span>Privy Council as ultimate Court of Appeal, and the +others set aside. Moreover the Hindu law of Wills +has been in some points supplemented by English +legislation, and certain customs repugnant to European +ideas, such as the self-immolation of the widow on the +husband’s funeral pyre, have been abolished. And in +those parts of law which, though regulated by local +custom, were not religious, some improvements have +been effected. The rights of the agricultural tenant have +been placed on a more secure basis. Forest rights +have been ascertained and defined, partly no doubt for +the sake of the pecuniary interests which the Government +claims in them, and which the peasantry do not +always admit. But no attempt has been made to Anglify +these branches of law as a whole.</p> + +<p class='c001'>On the other hand, the law applicable to Europeans +only has been scarcely (if at all) affected by native +law. It remains exactly what it is in England, except +in so far as the circumstances of India have called for +special statutes.</p> + +<p class='c001'>The third question is as to the contents of those +parts of the law which are common to Europeans and +Natives, that is to say, the parts dealt by the codifying +Acts already enumerated. Here English law has +decisively prevailed. It has prevailed not only because +it would be impossible to subject Europeans to rules +emanating from a different and a lower civilization, but +also because native custom did not supply the requisite +materials. Englishmen had nothing to learn from +natives as respects procedure or evidence. The native +mercantile customs did not constitute a system even of +the general principles of contract, much less had those +principles been worked out in their details. Accordingly +<span class='pageno' id='Page_126'>126</span>the Contract Code is substantially English, and where +it differs from the result of English cases, the differences +are due, not to the influence of native ideas or native +usage, but to the views of those who prepared the +Code, and who, thinking the English case-law susceptible +of improvement, diverged from it here and +there just as they might have diverged had they been +preparing a Code to be enacted for England. There +are, however, some points in which the Penal Code +shows itself to be a system intended for India. The +right of self-defence is expressed in wider terms than +would be used in England, for Macaulay conceived that +the slackness of the native in protecting himself by force +made it desirable to depart a little in this respect from +the English rules. Offences such as dacoity (brigandage +by robber bands), attempts to bribe judges or witnesses, +the use of torture by policemen, kidnapping, the offering +of insult or injury to sacred places, have been dealt with +more fully and specifically than would be necessary in +a Criminal Code for England. Adultery has, conformably +to the ideas of the East, been made a subject for +criminal proceedings. Nevertheless these, and other +similar, deviations from English rules which may be +found in the Codes enacted for Europeans and natives +alike, do not affect the general proposition that the codes +are substantially English. The conquerors have given +their law to the conquered. When the conquered had +a law of their own which this legislation has effaced, the +law of the conquerors was better. Where they had one +too imperfect to suffice for a growing civilization, the +law of the conquerors was inevitable.</p> + +<div> + <span class='pageno' id='Page_127'>127</span> + <h3 class='c013'><span class='sc'>VII. The Working of the Indian Codes.</span></h3> +</div> + +<p class='c007'>Another question needs to be answered. It has +a twofold interest, because the answer not only affects +the judgement to be passed on the course which the +English Government in India has followed, but also +conveys either warning or encouragement to England +herself. This question is—How have these Indian +Codes worked in practice? Have they improved the +administration of justice? Have they given satisfaction +to the people? Have they made it easier to know the +law, to apply the law, to amend the law where it proves +faulty?</p> + +<p class='c001'>When I travelled in India in 1888-9 I obtained +opinions on these points from many persons competent +to speak. There was a good deal of difference of view, +but the general result seemed to be as follows. I take +the four most important codifying Acts, as to which +it was most easy to obtain profitable criticisms.</p> + +<p class='c001'>The two Procedure Codes, Civil and Criminal, were +very generally approved. They were not originally +creative work, but were produced by consolidating and +simplifying a mass of existing statutes and regulations, +which had become unwieldy and confused. Order +was evoked out of chaos, a result which, though beneficial +everywhere, was especially useful in the minor +Courts, whose judges had less learning and experience +than those of the five High Courts at Calcutta, Madras, +Bombay, Allahabad and Lahore.</p> + +<p class='c001'>The Penal Code was universally approved; and it +deserves the praise bestowed on it, for it is one of the +noblest monuments of Macaulay’s genius. To appreciate +<span class='pageno' id='Page_128'>128</span>its merits, one must remember how much, when +prepared in 1834, it was above the level of the English +criminal law of that time. The subject is eminently +fit to be stated in a series of positive propositions, and +so far as India was concerned, it had rested mainly +upon statutes and not upon common law. It has been +dealt with in a scientific, but also a practical commonsense +way: and the result is a body of rules which +are comprehensible and concise. To have these on +their desks has been an immense advantage for magistrates +in the country districts, many of whom have had +but a scanty legal training. It has also been claimed +for this Code that under it crime has enormously +diminished: but how much of the diminution is due to +the application of a clear and just system of rules, how +much to the more efficient police administration, is a +question on which I cannot venture to pronounce<a id='r54'></a><a href='#f54' class='c012'><sup>[54]</sup></a>.</p> + +<p class='c001'>No similar commendation was bestowed on the +Evidence Code. Much of it was condemned as being +too metaphysical, yet deficient in subtlety. Much was +deemed superfluous, and because superfluous, possibly +perplexing. Yet even those who criticized its drafting +admitted that it might possibly be serviceable to +untrained magistrates and practitioners, and I have +myself heard some of these untrained men declare that +they did find it helpful. They are a class relatively +larger in India than in England.</p> + +<p class='c001'>It was with regard to the merits of the Contract Code +that the widest difference of opinion existed. Any one +<span class='pageno' id='Page_129'>129</span>who reads it can see that its workmanship is defective. +It is neither exact nor subtle, and its language is often +far from lucid. Every one agreed that Sir J. F. Stephen +(afterwards Mr. Justice Stephen), who put it into the +shape in which it was passed during his term of office +as Legal Member of Council, and was also the author of +the Evidence Act, was a man of great industry, much +intellectual force, and warm zeal for codification. But +his capacity for the work of drafting was deemed not +equal to his fondness for it. He did not shine either in +fineness of discrimination or in delicacy of expression. +Indian critics, besides noting these facts, went on to +observe that in country places four-fifths of the provisions +of the Contract Act were superfluous, while +those which were operative sometimes unduly fettered +the discretion of the magistrate or judge, entangling him +in technicalities, and preventing him from meting out +that substantial justice which is what the rural suitor +needs. The judge cannot disregard the Act, because +if the case is appealed, the Court above, which has +only the notes of the evidence before it, and does not +hear the witnesses, is bound to enforce the provisions of +the law. In a country like India, law ought not to be too +rigid: nor ought rights to be stiffened up so strictly as +they are by this Contract Act. Creditors had already, +through the iron regularity with which the British +Courts enforce judgements by execution, obtained far +more power over debtors than they possessed in the +old days, and more than the benevolence of the English +administrator approves. The Contract Act increases this +power still further. This particular criticism does not +reflect upon the technical merits of the Act in itself. +<span class='pageno' id='Page_130'>130</span>But it does suggest reasons which would not occur to +a European mind, why it may be inexpedient by making +the law too precise to narrow the path in which the +judge has to walk. A stringent administration of the +letter of the law is in semi-civilized communities no +unmixed blessing.</p> + +<p class='c001'>So much for the rural districts. In the Presidency +cities, on the other hand, the Contract Code is by most +experts pronounced to be unnecessary. The judges +and the bar are already familiar with the points which +it covers, and find themselves—so at least many of them +say—rather embarrassed than aided by it. They think +it cramps their freedom of handling a point in argument. +They prefer the elasticity of the common law. And in +point of fact, they seem to make no great use of the Act, +but to go on just as their predecessors did before it was +passed.</p> + +<p class='c001'>These criticisms may need to be discounted a little, +in view of the profound conservatism of the legal +profession, and of the dislike of men trained at the +Temple or Lincoln’s Inn to have anything laid down or +applied on the Hooghly which is not being done at +the same moment on the Thames. And a counterpoise +to them may be found in the educational value +which is attributed to the Code by magistrates and +lawyers who have not acquired a mastery of contract +law through systematic instruction or through experience +at home. To them the Contract Act is a manual +comparatively short and simple, and also authoritative; +and they find it useful in enabling them to learn their +business. On the whole, therefore, though the Code +does not deserve the credit which has sometimes been +<span class='pageno' id='Page_131'>131</span>claimed for it, one may hesitate to pronounce its enactment +a misfortune. It at any rate provides a basis on +which a really good Code of contractual law may some +day be erected.</p> + +<p class='c001'>Taking the work of Indian codification as a whole, it +has certainly benefited the country. The Penal Code +and the two Codes of Procedure represent an unmixed +gain. The same may be said of the consolidation of the +statute law, for which so much was done by the energy +and skill of Mr. Whitley Stokes. And the other codifying +acts have on the whole tended both to improve the +substance of the law and to make it more accessible. +Their operation has, however, been less complete than +most people in Europe realize, for while many of them +are confined to certain districts, others are largely +modified by the local customs which they have (as expressed +in their saving clauses) very properly respected. +If we knew more about the provinces of the Roman +Empire we might find that much more of local custom +subsisted side by side with the apparently universal +and uniform imperial law than we should gather from +reading the compilations of Justinian.</p> + +<p class='c001'>It has already been observed that Indian influences +have scarcely at all affected English law as it continues +to be administered to Englishmen in India. Still less +have they affected the law of England at home. It seems +to have been fancied thirty or forty years ago, when law +reform in general and codification in particular occupied +the public mind more than they do now, that the enactment +of codes of law for India, and the success which +was sure to attend them there, must react upon England +and strengthen the demand for the reduction of her law +<span class='pageno' id='Page_132'>132</span>into a concise and systematic form. No such result has +followed. The desire for codification in England has +not been perceptibly strengthened by the experience of +India. Nor can it indeed be said that the experience +of India has taught jurists or statesmen much which +they did not know before. That a good code is a very +good thing, and that a bad code is, in a country which +possesses competent judges, worse than no code at +all—these are propositions which needed no Indian experience +to verify them. The imperfect success of the +Evidence and Contract Acts has done little more than +add another illustration to those furnished by the Civil +Code of California and the Code of Procedure in New +York of the difficulty which attends these undertakings. +Long before Indian codification was talked of, Savigny +had shown how hard it is to express the law in a set +of definite propositions without reducing its elasticity +and impeding its further development. His arguments +scarcely touch penal law, still less the law of procedure, +for these are not topics in which much development +need be looked for. But the future career of the +Contract Act and of the projected Code of Torts, when +enacted, may supply some useful data for testing the +soundness of his doctrine.</p> + +<p class='c001'>One reason why these Indian experiments have so +little affected English opinion may be found in the fact +that few Englishmen have either known or cared anything +about them. The British public has not realized +how small is the number of persons by whom questions +of legal policy in India have during the last seventy +years been determined. Two or three officials in +Downing Street and as many in Calcutta have practically +<span class='pageno' id='Page_133'>133</span>controlled the course of events, with little interposition +from outside. Even when Commissions have been +sitting, the total number of those whose hand is felt has +never exceeded a dozen. It was doubtless much the +same in the Roman Empire. Indeed the world seldom +realizes by how few persons it is governed. There is +a sense in which power may be said to rest with the +whole community, and there is also a sense in which +it may be said, in some governments, to rest with a +single autocrat. But in reality it almost always rests +with an extremely small number of persons, whose +knowledge and will prevail over or among the titular +possessors of authority.</p> + +<p class='c001'>Before we attempt to forecast the future of English +law in India, let us cast a glance back at the general +course of its history as compared with that of the law +of Rome in the ancient world.</p> + +<h3 class='c013'>VIII. <span class='sc'>Comparison of the Roman Law with<br>English Law in India.</span></h3> + +<p class='c007'>Rome grew till her law became first that of Italy, +then that of civilized mankind. The City became the +World, <span lang="la"><i>Urbs</i></span> became <span lang="la"><i>Orbis</i></span>, to adopt the word-play +which was once so familiar. Her law was extended +over her Empire by three methods:—</p> + +<p class='c001'>Citizenship was gradually extended over the provinces +till at last all subjects had become citizens.</p> + +<p class='c001'>Many of the principles and rules of the law of the +City were established and diffused in the provinces by +the action of Roman Magistrates and Courts, and +especially by the Provincial Edict.</p> + +<p class='c001'>The ancient law of the City was itself all the while +<span class='pageno' id='Page_134'>134</span>amended, purged of its technicalities, and simplified in +form, till it became fit to be the law of the World.</p> + +<p class='c001'>Thus, when the law of the City was formally extended +to the whole Empire by the grant of citizenship to all +subjects, there was not so much an imposition of the +conqueror’s law upon the conquered as the completion +of a process of fusion which had been going on for +fully four centuries. The fusion was therefore natural; +and because it was natural it was complete and final. +The separation of the one great current of Roman law +into various channels, which began in the fifth century +<span class='fss'>A.D.</span> and has continued ever since, has been due to +purely historical causes, and of late years (as we shall +see presently) the streams that flow in these channels +have tended to come nearer to one another.</p> + +<p class='c001'>During the period of more than four centuries (<span class='fss'>B.C.</span> +241 to <span class='fss'>A.D.</span> 211-7), when these three methods of development +and assimilation were in progress, the original +law of the City was being remoulded and amended in +the midst of and under the influence of a non-Roman +population of aliens (<span lang="la"><i>peregrini</i></span>) at Rome and in the +provinces, and that semi-Roman law which was administered +in the provinces was being created by +magistrates and judges who lived in the provinces and +who were, after the time of Tiberius, mostly themselves +of provincial origin. Thus the intelligence, +reflection, and experience of the whole community +played upon and contributed to the development of +the law. Judges, advocates, juridical writers and +teachers as well as legislators, joined in the work. +The completed law was the outcome of a truly +national effort. Indeed it was largely through making +<span class='pageno' id='Page_135'>135</span>a law which should be fit for both Italians and provincials +that the Romans of the Empire became almost a nation.</p> + +<p class='c001'>In India the march of events has been different, +because the conditions were different. India is ten +thousand miles from England. The English residents +are a mere handful.</p> + +<p class='c001'>The Indian races are in a different stage of civilization +from the English. They are separated by religion; +they are separated by colour.</p> + +<p class='c001'>There has therefore been no fusion of English and +native law. Neither has there been any movement of +the law of England to adapt itself to become the law of +her Indian subjects. English law has not, like Roman, +come halfway to meet the provinces. It is true that +no such approximation was needed, because English +law had already reached, a century ago, a point of +development more advanced than Roman law had +reached when the conquest of the provinces began, +and the process of divesting English law of its archaic +technicalities went on so rapidly during the nineteenth +century under purely home influences, that neither the +needs of India nor the influences of India came into +the matter at all.</p> + +<p class='c001'>The Romans had less resistance to meet with from +religious diversities than the English have had, for the +laws of their subjects had not so wrapped their roots +round religious belief or usage as has been the case in +India. But they had more varieties of provincial custom +to consider, and they had, especially in the laws of the +Hellenized provinces, systems more civilized and advanced +first to recognize and ultimately to supersede +than any body of law which the English found.</p> + +<p class='c001'><span class='pageno' id='Page_136'>136</span>There is no class in India fully corresponding to +the Roman citizens domiciled in the provinces during +the first two centuries of the Roman Empire. The +European British subjects, including the Eurasians, +are comparatively few, and they are to a considerable +extent a transitory element, whose true home is +England. Only to a very small extent do they enjoy +personal immunities and privileges such as those +that made Roman citizenship so highly prized, for the +English, more liberal than the Romans, began by +extending to all natives of India, as and when they +became subjects of the British Crown, the ordinary +rights of British subjects enjoyed under such statutes +as Magna Charta and the Bill of Rights. The natives +of India have entered into the labours of the barons +at Runnymede and of the Whigs of 1688.</p> + +<p class='c001'>What has happened has been that the English have +given to India such parts of their own law (somewhat +simplified in form) as India seemed fitted to receive. +These parts have been applied to Europeans as well as +to natives, but they were virtually applicable to Europeans +before codification began. The English rulers +have filled up those departments in which there was +no native law worthy of the name, sometimes, however, +respecting local native customs. Here one finds an interesting +parallel to the experience of the Romans. +They, like the English, found criminal law and the +law of procedure to be the departments which could +be most easily and promptly dealt with. They, like +the English, were obliged to acquiesce in the retention +by a part of the population of some ancient customs +regarding the Family and the Succession to Property. +<span class='pageno' id='Page_137'>137</span>But this acquiescence was after all partial and local; +whereas the English have neither applied to India the +more technical parts of their own law, such as that +relating to land, nor attempted to supersede those parts +of native law which are influenced by religion, such as +the parts which include family relations and inheritance. +Thus there has been no general fusion comparable to +that which the beginning of the third century <span class='fss'>A.D.</span> saw +in the Roman Empire.</p> + +<p class='c001'>As respects codification, the English have in one +sense done more than the Romans, in another sense +less. They have reduced such topics as penal law and +procedure, evidence and trusts, to a compact and well-ordered +shape, which is more than Justinian did for any +part of the Roman law. But they have not brought the +whole law together into one <span lang="la"><i>Corpus Iuris</i></span>, and they have +left large parts of it in triplicate, so to speak, that is to +say, consisting of rules which are entirely different for +Hindus, for Musulmans, and for Europeans.</p> + +<p class='c001'>Moreover, as it is the law of the conquerors which +has in India been given to the conquered practically +unaffected by native law, so also the law of England +has not been altered by the process. It has not been +substantially altered in India. The uncodified English +law there is the same (local statutes excepted) as the +law of England at home. Still less has it been altered +in England itself. Had Rome not acquired her Empire, +her law would never have grown to be what it was in +Justinian’s time. Had Englishmen never set foot in +India, their law would have been, so far as we can tell, +exactly what it is to-day.</p> + +<p class='c001'>Neither have those natives of India who correspond +<span class='pageno' id='Page_138'>138</span>to the provincial subjects of Rome borne any recognizable +share in the work of Indian legal development. +Some of them have, as text-writers or as judges, +rendered good service in elucidating the ancient Hindu +customs. But the work of throwing English law into +the codified form in which it is now Applied in India to +Europeans and natives alike has been done entirely by +Englishmen. In this respect also the more advanced +civilization has shown its dominant creative force.</p> + +<h3 class='c013'>IX. <span class='sc'>The Future of English Law in India.</span></h3> + +<p class='c007'>Here, however, it is fit to remember that we are not, +as in the case of the Romans, studying a process which +has been completed. For them it was completed before +the fifth century saw the dissolution of the western half +of the Empire. For India it is still in progress. Little +more than a century has elapsed since English rule was +firmly established; only half a century since the Punjab +and (shortly afterwards) Oudh were annexed. Although +the Indian Government has prosecuted the work of +codification much less actively during the last twenty +years than in the twenty years preceding, and seems to +conceive that as much has now been done as can +safely be done at present, still in the long future that +seems to lie before British rule in India the equalization +and development of law may go much further than +we can foresee to-day. The power of Britain is at this +moment stable, and may remain so if she continues +to hold the sea and does not provoke discontent by +excessive taxation.</p> + +<p class='c001'>Two courses which legal development may follow +are conceivable. One is that all those departments of +<span class='pageno' id='Page_139'>139</span>law whose contents are not determined by conditions +peculiar to India will be covered by further codifying +acts, applicable to Europeans and natives alike, and that +therewith the process of equalization and assimilation +will stop because its natural limits will have been +reached. The other is that the process will continue +until the law of the stronger and more advanced race +has absorbed that of the natives and become applicable +to the whole Empire.</p> + +<p class='c001'>Which of these two things will happen depends upon +the future of the native religions, and especially of +Hinduism and of Islam, for it is in religion that the legal +customs of the natives have their roots. Upon this +vast and dark problem it may seem idle to speculate; +nor can it be wholly dissevered from a consideration +of the possible future of the religious beliefs which +now hold sway among Europeans. Both Islam and +Hinduism are professed by masses of human beings so +huge, so tenacious of their traditions, so apparently +inaccessible to European influences, that no considerable +declension of either faith can be expected within +a long period of years. Yet experience, so far as it is +available, goes to show that no form of heathenism, +not even an ancient and in some directions highly cultivated +form like Hinduism, does ultimately withstand +the solvent power of European science and thought. +Even now, though Hinduism is growing every day, +at the expense of the ruder superstitions among the +hill-folk, it is losing its hold on the educated class, +and it sees every day members of its lower castes pass +over to Islam. So Islam also, deeply rooted as it may +seem to be, wanes in the presence of Christianity, and +<span class='pageno' id='Page_140'>140</span>though it advances in Central Africa, declines in the +Mediterranean countries. It has hitherto declined not +by the conversion of its members to other faiths, but by +the diminution of the Muslim population; yet one must +not assume that when the Turkish Sultanate or Khalifate +has vanished, it may not lose much of its present hold +upon the East. Possibly both Hinduism and Islam +may, so potent are the new forces of change now at +work in India, begin within a century or two to show +signs of approaching dissolution. Polygamy may by that +time have disappeared. Other peculiar features of the +law of family and inheritance will tend to follow, though +some may survive through the attachment to habit even +when their original religious basis has been forgotten.</p> + +<p class='c001'>In the Arctic seas, a ship sometimes lies for weeks +together firmly bound in a vast ice-field. The sailor +who day after day surveys from the masthead the +dazzling expanse sees on every side nothing but a solid +surface, motionless and apparently immoveable. Yet +all the while this ice-field is slowly drifting to the +south, carrying with it the embedded ship. At last, +when a warmer region has been reached and the +south wind has begun to blow, that which overnight +was a rigid and glittering plain is in the light of dawn +a tossing mass of ice-blocks, each swiftly melting into +the sea, through which the ship finds her homeward +path. So may it be with these ancient religions. +When their dissolution comes, it may come with unexpected +suddenness, for the causes which will produce it +will have been acting simultaneously and silently over +a wide area. If the English are then still the lords of +India, there will be nothing to prevent their law from +<span class='pageno' id='Page_141'>141</span>becoming (with some local variations) the law of all +India. Once established and familiar to the people, it +will be likely to remain, whatever political changes may +befall, for nothing clings to the soil more closely than +a body of civilized law once well planted. So the law +of England may become the permanent heritage, not +only of the hundreds of millions who will before the +time we are imagining be living beyond the Atlantic, +but of those hundreds of millions who fill the fertile +land between the Straits of Manaar and the long +rampart of Himalayan snows.</p> + +<p class='c001'>We embarked on this inquiry for the sake of ascertaining +what light the experience of the English in +India throws upon the general question of the relation +of the European nations to those less advanced races +over whom they are assuming dominion, and all of +whom will before long own some European master<a id='r55'></a><a href='#f55' class='c012'><sup>[55]</sup></a>.</p> + +<p class='c001'>These races fall into two classes, those which do and +those which do not possess a tolerably complete system +of law. Turks, Persians, Egyptians, Moors, and Siamese +belong to the former class; all other non-European races +to the latter.</p> + +<p class='c001'>As to the latter there is no difficulty. So soon as +Kafirs or Mongols or Hausas have advanced sufficiently +to need a regular set of legal rules, they will (if their +European masters think it worth while) become subject +to the law of those masters, of course more or less +differentiated according to local customs or local needs. +<span class='pageno' id='Page_142'>142</span>It may be assumed that French law will prevail in +Madagascar, and English law in Uganda, and Russian +law in the valley of the Amur.</p> + +<p class='c001'>Where, however, as is the case in the Musulman and +perhaps also in the Buddhist countries belonging to the +former class, a legal system which, though imperfect, +especially on the commercial side, has been carefully +worked out in some directions, holds the field and rests +upon religion, the question is less simple. The experience +of the English in India suggests that European +law will occupy the non-religious parts of the native +systems, and will tend by degrees to encroach upon +and permeate even the religious parts, though so long +as Islam (or Brahmanism) maintains its sway the legal +customs and rules embedded in religion will survive. +No wise ruler would seek to efface them so far as they +are neither cruel nor immoral. It is only these ancient +religions—Hinduism, Buddhism, and especially Islam—that +can or will resist, though perhaps only for a time, +and certainly only partially, the rising tide of European +law.</p> + +<h3 class='c013'>X. <span class='sc'>Present Position of Roman and English Law in the World.</span></h3> + +<p class='c007'>European law means, as we have seen, either Roman +law or English law, so the last question is: Will either, +and if so which, of these great rival systems prevail +over the other?</p> + +<p class='c001'>They are not unequally matched. The Roman jurists, +if we include Russian as a sort of modified Roman law, +influence at present a larger part of the world’s population, +but Bracton and Coke and Mansfield might rejoice +to perceive that the doctrines which they expounded +<span class='pageno' id='Page_143'>143</span>are being diffused even more swiftly, with the swift +diffusion of the English tongue, over the globe. It +is an interesting question, this competitive advance +of legal systems, and one which would have engaged +the attention of historians and geographers, were not +law a subject which lies so much outside the thoughts +of the lay world that few care to study its historical +bearings. It furnishes a remarkable instance of the +tendency of strong types to supplant and extinguish +weak ones in the domain of social development. The +world is, or will shortly be, practically divided between +two sets of legal conceptions of rules, and two only. +The elder had its birth in a small Italian city, and +though it has undergone endless changes and now +appears in a variety of forms, it retains its distinctive +character, and all these forms still show an underlying +unity. The younger has sprung from the union of the +rude customs of a group of Low German tribes with +rules worked out by the subtle, acute and eminently +disputatious intellect of the Gallicized Norsemen who +came to England in the eleventh century. It has been +much affected by the elder system, yet it has retained +its distinctive features and spirit, a spirit specially contrasted +with that of the imperial law in everything that +pertains to the rights of the individual and the means +of asserting them. And it has communicated something +of this spirit to the more advanced forms of the Roman +law in constitutional countries.</p> + +<p class='c001'>At this moment the law whose foundations were laid +in the Roman Forum commands a wider area of the +earth’s surface, and determines the relations of a larger +mass of mankind. But that which looks back to Westminster +<span class='pageno' id='Page_144'>144</span>Hall sees its subjects increase more rapidly, +through the growth of the United States and the British +Colonies, and has a prospect of ultimately overspreading +India also. Neither is likely to overpower or absorb +the other. But it is possible that they may draw nearer, +and that out of them there may be developed, in the +course of ages, a system of rules of private law which +shall be practically identical as regards contracts and +property and civil wrongs, possibly as regards offences +also. Already the commercial law of all civilized +countries is in substance the same everywhere, that +is to say, it guarantees rights and provides remedies +which afford equivalent securities to men in their dealings +with one another and bring them to the same goal +by slightly different paths.</p> + +<p class='c001'>The more any department of law lies within the +domain of economic interest, the more do the rules that +belong to it tend to become the same in all countries, +for in the domain of economic interest Reason and +Science have full play. But the more the element of +human emotion enters any department of law, as for +instance that which deals with the relations of husband +and wife, or of parent and child, or that which defines +the freedom of the individual as against the State, the +greater becomes the probability that existing divergences +between the laws of different countries may in that department +continue, or even that new divergences may +appear.</p> + +<p class='c001'>Still, on the whole, the progress of the world is +towards uniformity in law, and towards a more evident +uniformity than is discoverable either in the sphere of +religious beliefs or in that of political institutions.</p> + +<div class='chapter'> + <span class='pageno' id='Page_145'>145</span> + <h2 id='eIII' class='c005'>III <br> <br> FLEXIBLE AND RIGID <br> CONSTITUTIONS<a id='r56'></a><a href='#f56' class='c012'><sup>[56]</sup></a></h2> +</div> + +<h3 class='c013'>I. <span class='sc'>The Constitutions of Rome and England.</span></h3> + +<p class='c007'>Rome and England are the two States whose constitutions +have had the greatest interest for the world, +and have exerted the greatest influence upon it. Out +of the republic on the Tiber, a city with a rural +territory round it no bigger than Surrey or Rhode +Island, grew a World Empire, and the framework of +that Empire retained till its fall traces of the institutions +under which the little republic, circled and threatened +by a crowd of hostile States, had risen to show herself +the strongest of them all. In England a monarchy, +first tribal and then feudal, developed from very small +beginnings into a second World Empire of a wholly +different type, while at the same time the ancient +form of government, through a series of struggles +and efforts, guided by an only half-conscious purpose, +slowly developed itself into a system monarchical +only in name. That system became in the eighteenth +century the starting-point for all modern political philosophy<a id='r57'></a><a href='#f57' class='c012'><sup>[57]</sup></a>, +and in the nineteenth the model for nearly all +the schemes of free representative polity that have +<span class='pageno' id='Page_146'>146</span>arisen in the Old World as well as for many in the newer +countries.</p> + +<p class='c001'>It is, however, not merely the range of their influence, +nor merely the fact that, as the Roman Constitution +worked upon the whole of the ancient, so the English +Constitution has worked upon the whole of the modern +world, that makes these two systems deserve constant +study. Constitutions are the expression of national +character, as they in their turn mould the character of +those who use them; and the same causes which +made both peoples great have made their political +institutions also strong and rich, specially full of instruction +for all nations in all times. There were in +the fifth century <span class='fss'>B.C.</span> hundreds of commonwealths in +the Mediterranean countries with republican frames of +government, many of which bore a general resemblance +to that of Rome. There were in the fourteenth century +<span class='fss'>A.D.</span> several monarchies in Europe similar in their constitutional +outlines to that of England, and with what +seemed an equal promise of rich and free development. +Of the former, Rome alone survived, destroying or +absorbing all the rest. Of the latter, that of England is +the only one which had at the end of the eighteenth +century grown into a system at once broad-based and +strong, a system which secured both public order and +the freedom of the individual citizen, and in which the +people were able to make their voice heard and to +influence the march of national policy. All the others +had either degenerated into despotisms or remained +comparatively crude and undeveloped. Thus when, +after the flood of Napoleonic conquest had subsided, +the peoples of the European continent began to essay +<span class='pageno' id='Page_147'>147</span>the establishment of free constitutions, they found in that +of England the model fittest to be followed, and sought +to adapt its principles to their own several conditions.</p> + +<p class='c001'>England, moreover, has been the parent of free +governments in a further sense. Though she has not, +like Rome, stretched her system of government till it +embraced the world, she has reproduced it in those +parts of her transoceanic dominions where her children +have been able to form self-governing communities. +Reduced copies of the British Constitution have been +created in seventeen self-governing colonies. Seven of +these have in North America been united in a Federation +whose frame of government is built on British +lines. Six others, in Australia, have been similarly +grouped in another Federal Government of a not less +distinctively British type. And an independent Republic, +far vaster in population than all these colonies +put together, has, less closely, but yet in the main +and essential points, reproduced the principles, although +not the form, of the institutions of the motherland. +It is, therefore, to Rome and to England that the +eye of the student of political constitutions will +most often turn. They represent the most remarkable +developments of ordered political life for the +ancient and for the modern world respectively. And +whoever attempts to classify Constitutions and to note +the distinctive features of the principal types they +present, will find that it is from Rome and from +England that illustrations can most frequently and +most profitably be drawn<a id='r58'></a><a href='#f58' class='c012'><sup>[58]</sup></a>.</p> + +<div> + <span class='pageno' id='Page_148'>148</span> + <h3 class='c013'>II. <span class='sc'>The Traditional Classification of Constitutions.</span></h3> +</div> + +<p class='c007'>The old-fashioned classification of Constitutions which +has come down to our own times is based on the +distinction of Written and Unwritten Law, itself an ill-expressed +and rather confusing distinction, because <span lang="la"><i>ius +non scriptum</i></span> is intended to denote customs: and when +customs have been recorded in writing, they can hardly +continue to be called unwritten. This classification +places in the category of Written Constitutions those +which are expressly set forth in a specially important +document or documents, and in the category of Unwritten +those which began, not in formal agreements, but in +usage, a usage which lives in men’s recollections, and +which, even when it has been to a large extent defined, +and secured against error, by being committed to writing, +is recorded as embodying that which men have observed, +and are deemed likely to continue to observe, not as that +to which they have bound themselves formally by a law.</p> + +<p class='c001'>These terms are, however, not happy terms, although +the distinction they aim at expressing is a real distinction. +The line which they attempt to draw between the two +classes of Constitutions is not a clear or sharp line, +because in all Written Constitutions there is and must +be, as we shall presently see, an element of unwritten +usage, while in the so-called Unwritten ones the tendency +to treat the written record of custom or precedent as +practically binding is strong, and makes that record +almost equivalent to a formally enacted law, not to add +that Unwritten Constitutions, though they began in +custom, always include some statutes. Moreover, these +names, while they dwell on a superficial distinction, +<span class='pageno' id='Page_149'>149</span>ignore a more essential one to be presently mentioned. +Let us therefore try to find a better classification.</p> + +<p class='c001'>If we survey Constitutions generally, in the past +as well as in the present, we find them conforming to +one or other of two leading types. Some are natural +growths, unsymmetrical both in their form and in their +contents. They consist of a variety of specific enactments +or agreements of different dates, possibly proceeding +from different sources, intermixed with customary +rules which rest only on tradition or precedent, but are +deemed of practically equal authority. Other Constitutions +are works of conscious art, that is to say, they +are the result of a deliberate effort on the part of the +State to lay down once for all a body of coherent +provisions under which its government shall be established +and conducted. Such Constitutions are usually +comprised in one instrument—possibly, however, in +more than one—an instrument solemnly enacted whose +form and title distinguish it from ordinary laws. We +may provisionally call these two types the Old and the +New, because all ancient and mediaeval as well as some +few recent Constitutions are of the former kind, while +most modern ones belong to the latter. The distinction +corresponds roughly to that drawn, in England and +America, between common law and statute law, or to +the Roman distinction between <span lang="la"><i>ius</i></span> and <span lang="la"><i>lex</i></span>, so that +we might describe the types as Common Law Constitutions +and Statutory Constitutions respectively. Yet +the line of demarcation is not always a plain one. In +countries with constitutions of the Common Law type, +statutes are frequently passed, declaring or modifying +or abolishing antecedent usage, which supersede and +<span class='pageno' id='Page_150'>150</span>replace parts, possibly large parts, of the common +law maxims, so that at last most of the leading rules +can be found in a few great statutes. On the other +hand, the Statutory Constitutions become developed +by interpretation and fringed with decisions and enlarged +or warped by custom, so that after a time the +letter of their text no longer conveys their full effect. +It is, therefore, desirable to have some more definite +and characteristic test or criterion whereby to mark +off the two types which have been just described in +general terms.</p> + +<h3 class='c013'>III. <span class='sc'>A Proposed New Classification of Constitutions.</span></h3> + +<p class='c007'>Such a criterion may be found in the relation which +each Constitution bears to the ordinary laws of the State, +and to the ordinary authority which enacts those laws. +Some constitutions, including all that belong to the +older or Common Law type, are on the level of the +other laws of the country, whether those laws exist in +the form of statutes only, or also in the form of recorded +decisions defining and confirming a custom. Such +constitutions proceed from the same authorities which +make the ordinary laws; and they are promulgated or +repealed in the same way as ordinary laws. In such +cases the term ‘Constitution’ denotes nothing more +than such and so many of the statutes and customs +of the country as determine the form and arrangements +of its political system. And (as will presently +appear) it is often difficult to say of any particular law +whether it is or is not a part of the political Constitution.</p> + +<p class='c001'>Other constitutions, most of them belonging to the +<span class='pageno' id='Page_151'>151</span>newer or Statutory class, stand above the other laws of +the country which they regulate. The instrument (or +instruments) in which such a constitution is embodied +proceeds from a source different from that whence +spring the other laws, is repealable in a different way, +exerts a superior force. It is enacted, not by the +ordinary legislative authority, but by some higher or +specially empowered person or body. If it is susceptible +of change, it can be changed only by that authority +or by that special person or body. When any of its +provisions conflict with a provision of the ordinary +law, it prevails, and the ordinary law must give way. +These are features, partly political, partly legal, which +mark off the two types of Constitution from one +another; and although it will appear that in some few +cases the question to which type the Constitution of a +particular State belongs may be a nice one, still the +general legal criteria to be applied are clear and definite. +In a State possessing a constitution of the former—the +older—type, all laws (excluding of course by-laws, municipal +regulations, and so forth) are of the same rank and +exert the same force. There is, moreover, only one legislative +authority competent to pass laws in all cases and +for all purposes. But in a State whose Constitution +belongs to the latter—the newer—type, there are two +kinds of laws, one kind higher than the other, and +more universally potent; and there are likewise two +legislative authorities, one superior and capable of legislating +for all purposes whatsoever, the other inferior +and capable of legislating only so far as the superior +authority has given it the right and function to do so.</p> + +<p class='c001'>The difference of these two types is best explained +<span class='pageno' id='Page_152'>152</span>by illustrative instances. At Rome in the second century +<span class='fss'>B.C.</span> there was but one kind of enactment. All +<span lang="la"><i>leges</i></span> passed by the general assembly (whether <span lang="la"><i>comitia +centuriata</i></span> or <span lang="la"><i>comitia tributa</i></span>) were of the same generality +and the same force. There was but one legislative +authority, the people voting in the <span lang="la"><i>comitia</i></span>. So in +England, during the last few centuries, there has been +but one direct legislative authority, viz. Parliament, +which is supreme, and all whose acts bind every +citizen everywhere. Accordingly in England the +laws called constitutional differ only in respect of their +subject-matter from other laws, but are of no higher +order. Each of such laws, though we call them in +their totality ‘the British Constitution,’ is alterable +by the ordinary legislative authority at any moment, +just like other laws. Between an Act for making a +railway from Manchester to Liverpool and an Act +extending the electoral suffrage to all householders +or disestablishing the Protestant Episcopal Church in +Ireland there is no difference whatever in point of +form or in degree of authority. In Switzerland, however, +and in France the case is different. The Constitution +of the Swiss Confederation is a document which +was enacted by the people, and any amendment of +which needs to be similarly enacted by them, whereas +ordinary laws are passed by the Federal legislature of +two Houses<a id='r59'></a><a href='#f59' class='c012'><sup>[59]</sup></a>. The present Constitution of the French +Republic was enacted by the two Chambers sitting +together as a Constituent Assembly, and can be amended +only by the Chambers sitting together in that capacity, +<span class='pageno' id='Page_153'>153</span>after each Chamber has separately resolved that revision +is needed, whereas ordinary laws are passed by the two +Chambers sitting separately. Thus both in Switzerland +and in France there is a distinction in the enacting +authority, and therewith also a distinction in the quality +and force of the laws enacted, the law which is called +the Constitution being entirely superior to the other +laws which are passed by the legislature in the ordinary +every-day course of its action.</p> + +<p class='c001'>What in the case of each State of the latter or newer +type may be the higher (and indeed supreme) authority +which is alone competent to enact a Constitution depends +upon the provisions of each particular system. It may be +the whole people, voting by what is sometimes, though +not very happily, called a plebiscite. It may be a body +specially elected for the purpose, which dissolves when +its work has been completed. It may be certain local +bodies, each voting separately on the same instrument +submitted to them. It may be, as in the case just +mentioned of France, the ordinary legislature sitting in +a peculiar way, or acting by a prescribed majority, or +rendering several successive votes to the same effect +at prescribed intervals of time. These are matters of +detail. The essential point is that in States possessing +Constitutions of the newer type that paramount or fundamental +law which is called the Constitution takes +rank above the ordinary laws, and cannot be changed +by the ordinary legislative authority.</p> + +<p class='c001'>I have sought in many quarters for names, necessarily +metaphorical names, suitable to describe these two types +of Constitution. They might be called Moving and +Stationary, because those of the older kind are virtually +<span class='pageno' id='Page_154'>154</span>never at rest, but are always undergoing some sort of +change, however slight, in the course of ordinary legislation, +while those of the newer type abide fixed and +stable in their place. Or they might be described, the +former as Fluid, and the latter as Solid or Crystallized. +When a man desires to change<a id='r60'></a><a href='#f60' class='c012'><sup>[60]</sup></a> the composition of +a liquid, he pours in some other liquid or dissolves +a solid in the liquid, and shakes the mixture. But +he who wishes to alter the composition of a solid +must first dissolve it or fuse it, and then, having got +it into a liquid or gaseous state, must mix in or +extract (as the case may be) the other substance. +The analogy between these two processes and those +whereby a Constitution of the older and one of the +newer type are respectively changed might justify +these names. But there is another and simpler +metaphor, which, though not quite perfect, seems on +the whole preferable. Constitutions of the older type +may be called Flexible, because they have elasticity, +because they can be bent and altered in form while +retaining their main features. Constitutions of the newer +kind cannot, because their lines are hard and fixed. +They may therefore receive the name of Rigid Constitutions: +and by these two names I propose that we +shall call them for the purposes of this inquiry. If +the characteristics of the two types have not been made +sufficiently clear by what has been already said, they +will probably become clear in the more detailed examination +of them, to which we may now proceed.</p> + +<p class='c001'>I begin with Flexible Constitutions, not only because +they are more familiar to students of Roman history +<span class='pageno' id='Page_155'>155</span>and to Englishmen, but also because they are anterior +in date. They are indeed the only constitutions which +the ancient world possessed, for although, in the absence +of Aristotle’s famous treatise <cite>On Politics</cite>, we know comparatively +little about most of the constitutions even of +the more famous Greek cities (except Athens), and practically +nothing about any others, save those of Rome +and Carthage, there are reasons, to be given presently, +why we may safely assume that all of them belonged +to the Flexible type. But in the modern world they +have become rare. Excluding despotically governed +countries, such as Russia, Turkey, and Montenegro, +there are now only three in Europe, those of the United +Kingdom, of Hungary—an ancient and very interesting +Constitution, presenting remarkable analogies to that +of England—and of Italy, whose constitution, though +originally set forth in one document, has been so changed +by legislation as to seem now properly referable to the +Flexible type. Elsewhere than in Europe, all Constitutions +would appear to be Rigid<a id='r61'></a><a href='#f61' class='c012'><sup>[61]</sup></a>.</p> + +<p class='c001'>But a preliminary objection deserves to be first considered. +Can we properly talk of a Constitution at all +in States which, like Rome and England, draw no +formal and technical distinction between laws of different +kinds? Since there was at Rome and is in England +but one legislative authority, and all its statutes are of +equal force, how distinguish those which relate to the +general frame of government from those which embody +the minor details of administration? The great Reform +Act of <span class='fss'>A.D.</span> 1832, for instance—and the same remark +<span class='pageno' id='Page_156'>156</span>applies to the parliamentary reform Acts of 1867 and +1884—was clearly a constitutional statute. But it contained +minor provisions which no one could call +fundamental, and some of which were soon changed +by other statutes which would scarcely be described as +constitutional. There are many statutes of which, as of +the Municipal Reform Act of 1834 (and I may add as +of the Local Government Acts of 1888 and 1894), it +would be hard to say whether they are or are not +constitutional statutes, and there are statutes which +would not be termed constitutional (such as the Scottish +Universities Act of 1852), which have in fact modified +such a momentous constitutional document as the Act +of Union with Scotland (5 Anne, c. 6, art. xxv).</p> + +<p class='c001'>Technically, therefore, we cannot draw a distinction +between constitutional and other laws. There was in +strictness no Roman Constitution. There is no British +Constitution. That is to say, there are no laws which +can be definitely marked off as Fundamental Laws, defining +and distributing the powers of government, the +mode of creating public authorities, the rights and immunities +of the citizen. That which we call the Constitution +of the Roman State, that which we now call the +Constitution of the United Kingdom, is a mass of precedents, +carried in men’s memories or recorded in writing, +of dicta of lawyers or statesmen, of customs, usages, understandings +and beliefs bearing upon the methods of +government, together with a certain number of statutes, +some of them containing matters of petty detail, others +relating to private just as much as to public law, nearly +all of them presupposing and mixed up with precedents +and customs, and all of them covered with a parasitic +<span class='pageno' id='Page_157'>157</span>growth of legal decisions and political habits, apart +from which the statutes would be almost unworkable, +or at any rate quite different in their working from what +they really are. The most skilful classifier could not +draw up a list that would bear criticism of Roman or of +British statutes embodying the Constitution of either +State: and even if such a list were prepared, the statutes +so classified would fail to contain some cardinal doctrines +and rules. Such a list, for instance, of British statutes +would contain nothing about the Cabinet, and very little +about the relations of the House of Commons to the +House of Lords. On such subjects as the control of the +House of Commons over foreign affairs, the obligation of +the Crown to take, or the possible right of the Crown in +certain cases to overrule, the advice of its ministers, no +light would be thrown. Yet the statutes form the clearest +and most manageable part of the materials which make +up the British Constitution. Those other materials +which have been referred to are by their very nature +vague and indeterminate, unsusceptible of classification, +and in many instances incapable of being set forth in +definite rules<a id='r62'></a><a href='#f62' class='c012'><sup>[62]</sup></a>. A certain part of them is already, or is +on the way to become, obsolete. Another part is matter +of controversy between different schools of jurists or +historians. The same thing was true of Rome, for at +Rome it would seem that no statute defined the power +of the consuls, nor their relation to the Senate, nor set +limits to the quasi-legislative authority of that great +magistrate the Praetor. So far from being clearly ascertained +were the powers of the Senate, that in Cicero’s +<span class='pageno' id='Page_158'>158</span>time it was matter of constitutional debate whether its +decrees had or had not the full force of law<a id='r63'></a><a href='#f63' class='c012'><sup>[63]</sup></a>; and men +took one view or the other according to their political +proclivities, just as in England men at one time differed +regarding the right of the House of Lords to deal with +money bills.</p> + +<p class='c001'>These facts are of course obvious enough to-day to +every English lawyer, and indeed to those laymen who +have some tincture of historical or legal knowledge. +It is otherwise with the general public. To them the +word Constitution seems to represent something definite +and positive. Much of the current talk about the +danger of altering the British Constitution<a id='r64'></a><a href='#f64' class='c012'><sup>[64]</sup></a> seems to +spring from the notion that the name represents a concrete +thing, an ascertainable and positive definite body +of rules laid down in black and white. The Romans had +no single word to convey what we mean by ‘Constitution.’ +Even in the last days of the Republic Cicero +had to use such phrases as <span lang="la"><i>forma</i></span>, or <span lang="la"><i>ratio</i></span>, or <span lang="la"><i>genus rei +publicae</i></span>, or <span lang="la"><i>leges et instituta</i></span>; and what we call ‘constitutional +law’ appears in the jurists of the Empire as +<span lang="la"><i>ius quod ad statum rei Romanae spectat</i></span><a id='r65'></a><a href='#f65' class='c012'><sup>[65]</sup></a>.</p> + +<p class='c001'>The objection, however, which we have been considering, +goes only to misconceptions that may arise +from the word ‘Constitution,’ not to the use of the word +itself, for some such word is indispensable. The +thing exists, and there must be a name to describe +it. A thing is not the less real because its limits +<span class='pageno' id='Page_159'>159</span>cannot be sharply defined. A hill is a hill and +a plain a plain, though you cannot fix the point +where the hill subsides into the plain. The aggregate +of the laws and customs through and under +which the public life of a State goes on may fitly +be called its Constitution; and even the still vaguer +phrases, ‘Spirit of the Constitution,’ ‘Principles of the +Constitution,’ may properly be used, since they too +describe a general quality or tendency pervading the +whole mass of laws and customs that rule a State which +gives to this mass a character differing from that of the +Constitution of any other State; just as each great +nation has what we call a National Character, though +this character can be more easily recognized than defined.</p> + +<h3 class='c013'>IV. <span class='sc'>The Origin of Flexible Constitutions.</span></h3> + +<p class='c007'>Now let us return to consider the history and the +attributes of Flexible Constitutions. We have seen +that they are older than those of the Rigid type. It +may be thought that this is so because they are more +compatible with a rude condition of society, and because +springing out of custom, always the first source +of law, they are the simplest and most obvious form +which regular political society can take. This is true, +but does not fully explain the phenomena.</p> + +<p class='c001'>A Constitution properly so called is a frame of +political society organized through and by law, that +is to say, one in which law has established permanent +institutions with recognized functions and definite +rights. Now such forms of organized political society +appear first in small communities, whether Urban, +like the City States of Greece, or Rural, like those of +<span class='pageno' id='Page_160'>160</span>early England or mediaeval Switzerland. Wherever +in the earlier stages of civilization we find large +communities, like Egypt, Assyria, Peru, Russia in +the sixteenth century, we find that a tribal organization +has passed into a despotism<a id='r66'></a><a href='#f66' class='c012'><sup>[66]</sup></a>, apparently without +passing through the intermediate stage of a more +or less restricted monarchy. Now in a small area +men usually organize themselves in a regular community +by vesting legal authority in a mass meeting of +the citizens. The Folk Mot of our Teutonic ancestors, +like the still surviving Landesgemeinde of Uri or +Appenzell, represents in a rural community what +the ἀγορά represents in Homeric Greece, what the +ἐκκλησία represents in the later Greek cities, and what +the <span lang="la"><i>comitia</i></span> represent at Rome; I might add, what (in +a more rudimentary form) the popular meeting represents +to-day in Albania and what the similar meeting +called a <em>Pitso</em> represents among the Basuto and +Bechuana Kafirs. Such meetings, like the New England +Town Meeting, are Primary, not Representative. +They consist of all the freemen within the community, +though, in their earlier stage, it is in practice the +leading men who determine the action of the whole +assembly. They make such laws as there are. Being +<span class='pageno' id='Page_161'>161</span>not only the supreme, but the only legislative authority, +they can at any moment change the laws they deem +fundamental, if there are any such laws, for the more +backward races remain in the stage of mere custom, +and do not reach the conception of a fundamental law. +Whether the system of their government is formally +embodied in one group of specially important laws, +or, as more often happens, is left to be collected from +a number of enactments connected and supplemented +by usages, that system remains on a level with +all the other laws and usages, because it emanates +from the same source, viz. the governing primary +assembly. It is not till the growth of some scheme of +representation has made familiar the distinction between +the authority of the people themselves and that of their +representatives that truly Rigid Constitutions appear, +for it is not till then that a method suggests itself of +enacting a kind of law which shall be superior to that +which the ordinary legislative body creates. Accordingly +the Primary Assembly, whether in ancient Greece and +Italy or in mediaeval Europe, works for some time, and +may create by its constant action what is practically +a Constitution (<i>i.e.</i> a set of established rules embodying +and directing the practice of government), before the +idea of a regular political Constitution emerges. That +idea comes into being when in the progress of political +thought and of jurisprudence men begin to distinguish +between laws and customs which relate to the structure +of the State and the management of its affairs and +those which relate to other matters, such as the civil +rights of individuals; and when they also distinguish +between rules and usages which are fixed and settled, +<span class='pageno' id='Page_162'>162</span>because generally observed and regularly applied to +recurrent facts, and the particular decisions taken in +particular cases. In this sense the Romans may have +begun to feel they had a Constitution before they had +gone far in the conquest of Italy. Our English ancestors +reached the same consciousness in the fourteenth +century, when much stress began to be laid upon +political precedents, and Parliament, by this time a +Representative body, and thereby entitled to speak for +the nation, had definitely established its rights as +against the Crown<a id='r67'></a><a href='#f67' class='c012'><sup>[67]</sup></a>. The Confirmation of the Charters +together with the statute De Tallagio Non Concedendo +of <span class='fss'>A.D.</span> 1297 is often taken as marking the first form of +the plainly settled English Constitution, but perhaps +the successful resistance of Parliament to King Edward +the Third sixty years later is a better point to choose. +Anyhow the language of Chief Justice Fortescue (under +Henry the Sixth) shows how clearly drawn the main +lines of the Constitution had become in his time. When +this stage has been reached, efforts are sometimes made +to give to these constitutional rules, or to certain among +them, an exceptional degree of force and permanence. +Such rules may be embodied in a document of special +sanctity; or they may be protected by oaths. But the +creation of a truly Rigid Constitution comes later, when +some system of representation has appeared. I shall presently +return to examine the causes which produce it.</p> + +<div> + <span class='pageno' id='Page_163'>163</span> + <h3 class='c013'>V. <span class='sc'>The Strength and Weakness of Flexible Constitutions.</span></h3> +</div> + +<p class='c007'>The names ‘Flexible’ or ‘Fluid’ which I have suggested +for Constitutions of this type, seem to suggest +that they are unstable, with no guarantee of solidity +and permanence. They are in a state of perpetual +flux, like the river of Heraclitus, into which a man +cannot step twice. Not only are new laws constantly +passed which more or less affect them, but their +mere working tends to alter them daily. Just as +every man’s character is being every day insensibly +modified by the acts he does, by the thoughts he +cherishes, by the emotions which each new experience of +life brings with it, so every decade saw the Constitution +of Rome, and sees the Constitution of England, slightly +different at the end of even so short a period from what +it was at the beginning. Even a deliberately conservative +policy cannot arrest this process of variation. If the +change does not for a time appear in the laws, it is in progress +in the minds of men, and may have all the more +violent a working when it begins to tell upon legislation. +A reaction, such as that carried through by Lucius +Cornelius Sulla at Rome, or that which followed the +fall of the Cromwellian Protectorate in England, is +almost as fertile in change as a time of revolution. The +past can never be effaced, since the recollection of it is +an element in shaping the future, and the measures +taken to restore a <span lang="la"><i>status quo ante</i></span> always contain much +which was not in that <span lang="la"><i>status quo ante</i></span>, much which is in +itself new, and the source of further novelties. The +only cases in which constitutional development can be +<span class='pageno' id='Page_164'>164</span>said to stop are those where, as at Venice and in some +of the cities of post-mediaeval Switzerland, an oligarchy +gets control of the government, and, in extinguishing +the spirit and the habits of freedom, arrests the natural +processes of movement and development until some +powerful neighbour overthrows the State, or internal +economic changes induce a revolution. Even under a +despotism, the system of government changes insensibly +from century to century, as it did in the old French +monarchy, and as it has recently done among a people +so stagnant as the Turks. But despotic systems, being +scarcely classifiable as Constitutions, do not come within +our present inquiry.</p> + +<p class='c001'>These things being so, it seems natural to assume that +Flexible (the so-called ‘unwritten’) Constitutions, having +been enacted and being alterable by the ordinary legislative +authority, and not being contained in any specially +sacred instrument, will in fact be subject to frequent and +large changes, and will moreover be so readily transgressed +in practice, that they will furnish an insufficient +guarantee for public order and for the protection of +private rights.</p> + +<p class='c001'>The facts, however, do not support this assumption. +Let us take our two typical instances, Rome and England. +The Roman Constitution is an extreme case of +a Frame of Government capable of being changed in +the quickest and simplest way. Nothing was needed +but a vote of the <span lang="la"><i>comitia</i></span>, on the proposition of a competent +magistrate, accompanied by the silence of the +tribunes. No doubt any single tribune could paralyse +the action of the <span lang="la"><i>comitia</i></span>, but in such a community as +Rome became in the later days of the Republic it must +<span class='pageno' id='Page_165'>165</span>often have been easy for those who desired a change +to ‘get at,’ or to remove, an obnoxious tribune. Yet +the Constitution of Rome, regarded on its legal side, +changed comparatively little in the three centuries that +lie between the Licinian laws and the age of Sulla, +for most of those deviations from ancient usage which, +as we can now see, were working towards its fall, were +in form quite legal, being merely occasional resorts to +expedients which the Constitution recognized, though +they had been more rarely and more cautiously used in +older and better days. So in England, the exercise of +the sovereign power is lodged in an assembly which can, +on occasion, act with extraordinary promptitude, as when +some while ago (April 9, 1883) the Explosives Act was +passed through the House of Commons in a few hours +(the standing orders having been suspended), and having +been forthwith passed by the House of Lords also, +received the royal assent next day. So the most sacred +rules and principles of the Constitution might with perfect +legality of form be abolished—Magna Charta and +the Bill of Rights and the Act of Settlement included—just +as quickly as the Explosives Act was passed. Yet +the main lines of the English frame of government have +since 1689 and 1701 remained legally the same; and the +most important changes made since the latter year have +been effected after long and strenuous controversies<a id='r68'></a><a href='#f68' class='c012'><sup>[68]</sup></a>. +We all know how hard it is to secure even small constitutional +improvements, such as the abolition of the +provision, confessedly useless and certainly troublesome, +<span class='pageno' id='Page_166'>166</span>which obliges a member of the House of Commons to +vacate his seat and seek re-election on his being appointed +a Minister of the Crown.</p> + +<p class='c001'>One explanation of this apparent paradox is (though +sometimes neglected) obvious enough. The stability +of any constitution depends not so much on its form as +on the social and economic forces that stand behind and +support it; and if the form of the constitution corresponds +to the balance of those forces, their support +maintains it unchanged. Two other reasons deserve to +be more fully stated.</p> + +<p class='c001'>A Flexible or Common Law Constitution sometimes +owes its stability to the very conditions which have +enabled it to grow out of isolated laws and mere usages +into a firmly settled Frame of Government. There have +no doubt been many cases, such as those of most of the +Greek cities of antiquity, where the eager restless spirit +of the people and the violence of faction never allowed +any system of government to last long enough to strike +deep root. Such constitutions were often enacted all +in one piece, and would have been made Rigid, had the +citizens who enacted them known how to make them so. +They were seldom the growth of long-continued usage. +But the best instances of Flexible Constitutions have +been those which grew up and lived on in nations of +a conservative temper, nations which respected antiquity, +which valued precedents, which liked to go on doing +a thing in the way their fathers had done it before them. +This type of national character is what enables the +Flexible Constitution to develop; this supports and +cherishes it. The very fact that the legal right to make +extensive changes has long existed, and has not been +<span class='pageno' id='Page_167'>167</span>abused, disposes an assembly to be cautious and +moderate in the use of that right. Those who have +always enjoyed power are least likely to abuse it<a id='r69'></a><a href='#f69' class='c012'><sup>[69]</sup></a>. +This truth might be illustrated both from Rome and +from England; and, indeed, from Switzerland also, +though the argument which tries to prove the stupid +conservatism of democracy from the habits of rural +communities in the last-named country has been pressed +too far by Sir H. Maine and others, since in rural +communities, where nearly every one is a citizen, and +well off, and most men about equally well off, the usual +motives for making political changes do not exist.</p> + +<p class='c001'>A further reason may be found in the fact that a constitution +which has come down in the form of a mass of +laws, precedents and customs is not only more mysterious, +and therefore more august, to the minds of the ordinary +citizens than one they can read in a document, but +is not felt by them to lie at their mercy and to live +only by their pleasure. A constitution embodied in a +document which they have seen drafted, and have +enacted by their votes, has no element of antiquity or +mystery. It issues from the sovereignty of the people, +it reminds them of their sovereignty, it suggests to them +nothing more exalted. Perhaps it has been the work of +one party in the State; and if that party becomes discredited, +it may share the discredit. The dignity which +a remote and half mythic origin gives to constitutions, +as it does to royal families, was in the ancient world and +the Middle Ages enhanced by religious associations. +In Greece and Italy the tutelary deities of the city +watched over the oldest laws. In mediaeval countries +<span class='pageno' id='Page_168'>168</span>the order of the State seemed an expression of the Will +of God. Although these sentiments have vanished from +the modern world, the fact that an old constitution +represents a long course of progressive development, +or, to use a somewhat vulgarized term, of evolution, +gives it some claim on the respect of imaginative or +philosophical minds. These sources of moral strength +have been found sufficient in many countries to secure +an enduring life for political institutions which the people, +or a legislative body, had it in their power to change, and +which, in some instances, ought to have been replaced +by other institutions more suited to their altered environment.</p> + +<p class='c001'>It would, therefore, be an error to pronounce Flexible +Constitutions unstable. Their true note, their distinctive +merit, is to be elastic. They can be stretched or bent +so as to meet emergencies, without breaking their framework; +and when the emergency has passed, they slip back +into their old form, like a tree whose outer branches +have been pulled on one side to let a vehicle pass. +Just because their form is not rigidly fixed, a temporary +change is not felt to be a serious change. The sentiment +of respect for the established order is not shaken. +The old habits are maintained, and the machine, modified +perhaps in some detail which the mass of the +people scarcely notice, seems to go on working as before.</p> + +<p class='c001'>Whether the working is really the same is another +matter. During two centuries and a half, from Edward +the Third till James the First, the Constitution of England +remained in its legal aspect scarcely altered. Though +at some moments within that period Parliament seemed +to have mightily gained on the Crown, and at others the +<span class='pageno' id='Page_169'>169</span>Crown seemed to be dominating Parliament, yet it was, +until the Civil War, doubtful whether any permanent +change had been effected. From the days of Queen +Anne to those of William the Fourth the Constitution +preserved a legal character practically the same. But +it had been altered essentially in substance. So we may +say that while the Flexible character of a constitution +sometimes enables it to recover from shocks without +injury, that character sometimes conceals the effects +of a shock, since these effects may take the form of +changes of usage and changes of opinion among the +citizens which have not been expressed, perhaps hardly +can be expressed, in a definite legal form. The relations +to one another of the two Houses of the British +Parliament, and the relations of Parliament to the now +self-governing British Colonies, are instances in point.</p> + +<p class='c001'>No constitution illustrates these phenomena better +than did that of Rome. It was a complicated piece of +work, made of many pieces, firmly attached, yet each +piece playing freely. It had to be bent, twisted, stretched +in many ways, under the pressure of divers exigencies. +But it stood the strain of being bent or stretched, and +when the force that had bent it was withdrawn, could +return so nearly to its original shape as to seem to have +never been disturbed. The change from consuls to +military tribunes, the frequent appointment of a dictator, +the memorable episode of the Decemvirate, the creation +of new magistracies, even the admission of new and +sometimes large masses of persons to citizenship and +voting power, and the adaptation of its old machinery +to the new task of governing conquered provinces, did +not, during several centuries, permanently disturb its +<span class='pageno' id='Page_170'>170</span>balance or seriously shake its main principles. Suspensions +of the ordinary rights of the private citizen, +extensions of the ordinary powers of the magistrate, +which would have ruined most States by setting dangerous +precedents, were at Rome found harmless because +law and custom recognized them as expedients available +in case of need, and, in legalizing them, took away +their revolutionary character. Thus, being parts of the +Constitution, though parts to be used only in emergencies, +they did not shock conservative sentiment nor +encourage attempts pernicious to freedom—did not, that +is to say, until at last the character of the city population +had so completely changed and the dominions of the +Republic had so prodigiously grown that the old Constitution +was obviously out of date, unfit for work +immensely heavier than that for which it had been +constructed.</p> + +<p class='c001'>A Greek city, or an Italian city of the Middle Ages, +which delivered itself into the hands of a dictator when +pressed by its neighbours, almost invariably found that +it had given itself a master who refused to resign his +power when the danger was past, but continued to rule +as a Tyrant or Signore. This happened not merely +because the people were passionate and the leading +men ambitious, for there was plenty both of passion and +of ambition among the Romans, but largely because +in those cities no provision was made for such emergencies; +so that when it became necessary to place +extraordinary powers in one or few hands, the Constitution +received a violent wrench, from which it might +not recover. At Rome the contingency had been foreseen, +and the mode of meeting it was legal. A spirit +<span class='pageno' id='Page_171'>171</span>had been formed among the body of the people as +well as among the leading men which held ambition +in check. The dictator was not intoxicated by his +elevation. The citizens did not lose their faith in the +soundness of their system; and it justified their confidence.</p> + +<p class='c001'>The elasticity of the British Constitution appears +in somewhat different features, less striking perhaps +than those which mark Rome, but not less useful. We +English appoint no dictators, seeing that we have always +fortunately had a permanent head of the Executive, +though latterly one rather nominal than real, and have +seldom been exposed to the dangers which the city-states +of the ancient world had to fear. But we have kept in +reserve a wide and vague prerogative, which, though it +cannot in practice be put in force against the will of the +representative House of Parliament, may be employed +to effect things far more important than many other +things for which express legislative authority is required. +The control of the army and navy and the control +of foreign policy are instances. There are, moreover, +ways in which the normal powers of the Executive +may be immensely increased. When a statute, such +as the Habeas Corpus Act, is suspended, or when +a Vote of Credit for a very large sum of money is +passed, the control of the ordinary law and courts in +the one case, and the control of the House of Commons +in the other case, over the Ministers of the +Crown, is for the time being (especially if Parliament +is not sitting) and for some purposes practically suspended; +and the Sovereign (or rather the Cabinet) of +to-day is almost replaced in the position of the last +<span class='pageno' id='Page_172'>172</span>Tudor or the first Stuart. Stringent measures to repress +disorder may be taken at home, military operations +may be threatened or begun abroad which would be +beyond the legal competence of the Crown in the +former case and its ordinary discretionary powers and +functions, as fixed by custom, in the latter. So too when +it became necessary in view, not of an emergency, but +of the general convenience of administration, to delegate +to inferior authorities the supreme legislative power +of Parliament, advantage was taken of the old royal +prerogative and of that ancient body the Privy Council. +Parliament gave power to the Crown to issue Orders +in Council dealing with large classes of matters which +must otherwise have been dealt with by statute; and +these Orders take effect sometimes at once, sometimes +when a certain period has elapsed during which they +have lain before Parliament and received from it no +disapproval. In this way a vast mass of secondary +legislation is annually enacted which, though it does not +directly issue from Parliament, carries parliamentary +authority, and does not infringe the principle that Parliament +is the only true source of law. And, similarly, +out of the ancient judicial functions of the Crown and +of the Council which advised the Crown, functions which +a century ago seemed to be lapsing into desuetude, +there has been evolved a new system of judicature. A +body called the Judicial Committee of the Privy Council, +somewhat resembling the Consistory of the Roman +Emperors, has been created, and now acts as a Supreme +Court of Appeal for all the transmarine possessions of +Britain, whether Indian or Colonial.</p> + +<p class='c001'>The merit of this elastic quality in such Constitutions +<span class='pageno' id='Page_173'>173</span>as the Roman and the British is that it affords a means +of preventing or minimizing revolutions by meeting +them halfway. Let us note how each kind of Constitution, +the Rigid and the Flexible, behaves when a +serious crisis arrives, in which one section of the nation +is bent on changing the Constitution, and the other on +maintaining it. A Rigid Constitution, if the legal means +provided for altering it cannot be used for the want +of the prescribed legal majority, resists the pressure. +It may of course resist successfully, but if so, probably +after a conflict which has shaken the State and excited +hostility to it in the minds of a large part of the people. +It may, however, if the assailing forces are very strong, +be broken, and if so, broken past mending. A Flexible +Constitution, however, being more easily and promptly +alterable, and being usually a less firmly welded and +cohesive structure, can bend without breaking, can be +modified in such a way as to satisfy popular demands, +can escape revolution by the practical submission of +one of the contending forces in the particular dispute, +that submission being recognized as a precedent which +will be followed, even though it has not been embodied +in any law or other formal document. The extinction +of the right once claimed by the House of Lords to +alter money bills is one instance. Or it may be made +to evolve some organ which, though really new, conceals +its novelty by keeping some of the old colour, and thus +it may continue to work with no palpable breach of continuity. +The knowledge that a constitution can be +changed without any tremendous effort helps to make +a party of revolution less violent and a party of resistance +less stubborn, disposing both to some compromise. +<span class='pageno' id='Page_174'>174</span>At Rome the resort to the appointment of military tribunes +with consular power when the plebs demanded, +and the patricians would not yet consent to the election +of a plebeian Consul, delayed revolution till opinion had +so changed that the danger of revolution had passed +away. So, later, the compromise by which a Praetor +was created with the functions of a Consul but with a +special range of duties appeased conservative feeling and +smoothed the passage from the old order to the new. +The history of the English Constitution is a history +of continual small changes, no single one of which, +hardly even the Bill of Rights at the time of the so-called +Revolution, or the Reform Act of 1832, made +the system look substantially different. Something +no doubt was cut away, and something was added, +but the structure as a whole seemed the same, because +far more of the old was left than there was added of +the new.</p> + +<p class='c001'>The two main processes which have turned the government +of England from the monarchy of the Tudors into +what may be called the plutocratic democracy of to-day +have been the limitation of the royal prerogative and the +transference of the right of suffrage from a few to the +multitude. Both processes have gone on slowly, by +a succession of steps, each comparatively small, but all +in the same direction. Accordingly the strife of parties +has been mitigated by the existence at all, or nearly all, +moments, of a large body of persons who desired reform, +but only a moderate reform. They are the persons who +impose compromise on the extremists to the right and +to the left of them, and they can do so because the Constitution +permits small reforms to be easily effected. +<span class='pageno' id='Page_175'>175</span>The party of change, which would be a party of revolution +if it was obliged to have large changes or none, is +apt to be divided, and its more moderate section is, or +soon passes into, a party only of reform. The English +Chartists of 1840-50 caused some alarm. But between +them and the old Constitutional Whigs there were several +sections of opinion passing by imperceptible gradations +into one another; and when it was seen that the current +was setting towards changes approximating to those +which the Chartists demanded, their less violent men +were by degrees reabsorbed into the general body of +the Whig or Liberal party, the latter at the same time +moving with the times; and some of those changes, in +particular vote by ballot, were ultimately obtained with +no great friction.</p> + +<p class='c001'>It must nevertheless be remembered that in the +history of most States a crisis is apt to arrive when +elasticity becomes a danger, in that it tempts people +to abuse the facility for change. There is no better +sign of strength in a man’s physical constitution than +his being able to make some short, sudden, and violent +effort without suffering afterwards from doing so; and +there is nothing of which the happy possessor of such +strength is more proud. But most men who have +reached middle life are aware that the temptation to +strain one’s strength in this exultant spirit is perilous. +Repeated impunity is apt to encourage a man to go on +trying experiments when the conditions are perhaps +less favourable, or when the reserve of force is less +abundant than it was in youth. The story goes that +the famous Milo of Croton, passing alone through a +forest, saw an oak into which woodmen who were +<span class='pageno' id='Page_176'>176</span>preparing to fell it had driven wedges. Pulling out +the wedges, he tried to rive it asunder. But he had +no longer the fullness of his youthful strength. The returning +tree caught him by the hands and held him fast +till he died. In our own days Captain Webb, stimulated +by his feat in swimming across the English +Channel, sought still bolder exploits, and perished in +the Whirlpool Rapid below Niagara Falls. So the +Romans, having many a time given exceptional powers +for special occasions to their magistrates, found at last +that they had created precedents which enabled the old +free Constitution to be in substance overthrown. Sulla +became a dictator of a new kind. After a while he +resigned his power, but the example showed that +monarchy was not far off. Julius Caesar also received +exceptional authority, and used it to form an army +which extinguished the Republic. The dictatorship +he had held passed under other forms into permanent +absolutism, and what was practically a revolution was +ultimately carried through with a certain deference to +the old constitutional forms. In England, Parliament, +during the sixteenth century, once or twice gave powers +to the Crown which brought the Constitution into danger. +In the seventeenth century the monarchy was abolished, +and a Protectorate set up by revolutionary methods. +This was the result of a war which had destroyed a +vital part of the old machine, much to the regret of +most of those who had in the first instance taken up +arms. We have never since that date (except under +King James the Second) seen the Constitution in +any real danger.</p> + +<p class='c001'>It is, however, often suggested that the enormous +<span class='pageno' id='Page_177'>177</span>power possessed by Parliament might be used to +upset fundamental institutions with reckless haste, +and that it might therefore be prudent to impose +restrictions on parliamentary action. And those who +note the way in which Parliament bends and staggers +under the increasing burden of work laid on it, +coupled with the inadequacy of its rules to secure +the prompt dispatch of business<a id='r70'></a><a href='#f70' class='c012'><sup>[70]</sup></a>, have frequently +predicted that the House of Commons may one +day deliver itself into the hands of the Cabinet, the +power of party organization having grown so strong +that the head of each Cabinet will be deemed a sort +of dictator, drawing his authority, nominally of course, +from the House of Commons, but really from a so-called +direct ‘mandate’ of the electors<a id='r71'></a><a href='#f71' class='c012'><sup>[71]</sup></a>. Others draw a yet +more horrible picture of a party machine, which they +call the Caucus, dictating a policy to the electors on +the one hand, and to the Cabinet on the other, itself +reigning in the spirit of a tyrant, but under the forms +of the Constitution. If the British Constitution, as we +have hitherto known it, should perish, there is little +<span class='pageno' id='Page_178'>178</span>reason to fear it will do so in this eminently ignoble +fashion<a id='r72'></a><a href='#f72' class='c012'><sup>[72]</sup></a>.</p> + +<p class='c001'>When Flexible Constitutions come to an end, they do +so in one of two ways. Sometimes they pass into an +autocracy, either dying a violent death by revolution, +or expiring in a more natural manner through the +extension and development, under legal forms, of one +of their organs, to a point at which it practically supersedes +and replaces the other organs. Sometimes, on +the other hand, they pass into Rigid Constitutions. +The causes which induce this latter change belong, +however, to the examination of that second type of +Constitution; and will be considered when we have +surveyed some further features characteristic of the +Flexible type.</p> + +<h3 class='c013'>VI. <span class='sc'>Aristocracies and Flexible Constitutions.</span></h3> + +<p class='c007'>Flexible Constitutions have a natural affinity for an +aristocratic structure of government. I do not mean +merely that they spring up at times when power is +in the hands of the well-born or rich, for the stage of +society in which constitutions, properly so called, begin +to exist, is nearly always oligarchic, even if there be +a monarch at the head of it. But there is a sort of +natural attraction between an aristocracy and an undefined +and elastic form of government, as there has +begun to be, in most modern countries, a natural +repulsion between such a form and a pure democracy. +It needs a good deal of knowledge, skill and experience +<span class='pageno' id='Page_179'>179</span>to work a Flexible Constitution safely, and it is only in +the educated classes that these qualities can be looked +for. The masses of a modern nation seldom appreciate +the worth of ancient usages and forms, or the methods +of applying precedents. In small democratic communities, +such as are the Forest Cantons of Switzerland, +this attachment to custom may be found, because +there traditions have passed into the life of the +people, and the maintenance of ancient forms has +become a matter of local pride. But in a large nation +it is only educated men who can comprehend the +arrangements of a complicated system with a long +history, who can follow its working, and themselves +apply its principles to practice. The uninstructed like +something plain, simple and direct. The <span lang="la"><i>arcana imperii</i></span> +inspire suspicion, a suspicion seldom groundless, because +the initiated are apt to turn a knowledge of secrets to +selfish purposes. Now a Common Law Constitution +with its long series of precedents, some half obsolete, +some of doubtful interpretation, is full of <span lang="la"><i>arcana</i></span>. Even +to-day, though the process of clarification and simplification +has gone on fast since 1832, dark places are still +left in the British Constitution.</p> + +<p class='c001'>There is, however, a further reason why Common Law +Constitutions accord better with aristocratic than with +democratic sentiment. They allow a comparatively +wide discretion to the chief officials of State, such as +the higher magistrates at Rome and the Ministers of the +Crown in England. The functions of these officials are +not very strictly defined, because legal enactments, +though they limit power in certain directions (far more +rigidly now in England than was the case at Rome), do +<span class='pageno' id='Page_180'>180</span>not draw a completely closed circle round it, but leave +certain gaps, through which tradition and precedent +permit it, so to speak, to shoot out and play freely. +Aristocracies prize this latitude. They prize it because +it is mainly to prominent members of their class that +offices fall, and these persons are then able to act with +freedom, to assert their individual wills, to carry out their +views unchecked by the dread of transgressing a statute. +On the other hand, the less conspicuous members of +the upper class have at any rate little reason to fear +harm from the wide authority of the officials, because +their social position, and the influence of their family +connexions, protect them from arbitrary treatment. +The masses of the people have neither advantage. +Very few of them can hope to enjoy power. Any one +of them may suffer from an exercise of it, which, +because not positively illegal, gives him no claim for +redress. They have, therefore, everything to gain and +nothing to lose if they can restrict it by those definite +and fixed limitations which are congenial to Rigid rather +than to Flexible Constitutions. And in the history of +most peoples a time arrives when, the love of equality +being reinforced by the distrust of authority, there is +a movement to cut down the powers of the rulers to the +lowest point compatible with the safety of the State. +The extent to which this process has gone is in any +nation a fair test of the gains made by the democratic +principle upon the aristocratic. But in this respect the +course things have taken in England has been very +unlike that which they took at Rome. One of the first +events which the authentic history of Rome records is +the effort of the plebeians to secure a limitation of the +<span class='pageno' id='Page_181'>181</span>power of the Consuls by having statutes passed to +define it. The effort failed. It is characteristic of the +Romans that it should have failed. Statutes, known +afterwards as the Laws of the Twelve Tables, were +enacted, statutes which doubtless on the whole improved +the position of the plebeians. But the powers of the +Consuls remained wide and legally indefinite down till +the time when life went out of them under the shadow +of an autocrat who ruled for life. Limited of course +these powers had to be as time went on and the popular +element in the constitution was developed, but the limitations +were imposed, not by narrowing the powers +themselves, but by the introduction of new factors. The +two Consuls, being chosen from a circle less narrow +than in the old days, were more frequently at variance +with one another. Other officials were set up over +against the Consuls, who could (if they pleased) interfere +to restrain the Consuls. And thirdly, the permanent +non-representative Council of Elders (the Senate), +composed mainly of ex-officials, increased its influence, +and could generally hold the magistrates in check. +Things went very differently in England. There the +prerogative of the Crown was the force of which the +nobles as well as the commons stood in dread, and +they united in the effort to restrict it down till a time +when the commons were strong enough to dispense +with the help of more than a section of the landowning +magnates. In steadily reducing the prerogative of the +Crown, in lopping off some parts of it and strictly +defining others, they restricted the powers of the Crown +and its Ministers, until at last they had so firmly +established the right of the representative assembly to +<span class='pageno' id='Page_182'>182</span>prescribe to the Crown what persons it should employ +as Ministers that the old motive for limiting the prerogative +vanished. Those who had been feared as +masters were now trusted as servants. The people no +longer disliked what was left of the royal prerogative, +because their representatives could control the persons +who wielded it, and the members of the ruling assembly +began to feel that it was in the public interest, and not +against their own personal interest, to maintain the powers +of Ministers, because many things could be done more +easily and more promptly through these powers than by +the passing of statutes for dealing with each matter in +detail. There may even be a danger, in this new condition +of things, that the royal prerogative will be used too +freely, because that prerogative now means the will of +the leaders of the parliamentary majority, whose action +might at a moment of excitement be applauded and +sustained by their followers even should it transcend +the limits fixed by constitutional usage.</p> + +<p class='c001'>It has been already remarked that the system of +checks in the Roman Constitution differed essentially +from that employed in the English. Every constitution +must of course have a system of checks, else it will +quickly perish, or, to vary the metaphor, it must so +dispose the ballast as to enable the vessel to recover +her equilibrium after a violent oscillation. At Rome the +checks consisted in the coexistence of various magistrates +who could arrest one another’s action, and in +a permanent Senate with a large though somewhat +ill-defined control, while the popular assembly, in theory +omnipotent, was in fact restrained by a number of +curious features in its procedure which made it much +<span class='pageno' id='Page_183'>183</span>less effective than was the primary popular assembly in +most of the Greek republics. It could act only when +convoked by a magistrate, could have its action stopped +by another magistrate, and was frequently overreached +or circumvented by the Senate. In England, on the +other hand, the Crown, which before the conflicts of the +seventeenth century had been the predominant power +which needed to be checked, and which frequently was +checked, by Parliament, becomes after that time capable +only of occasionally baffling (and that less and less as +time went on) the now predominant Parliament, while +the restraint on hasty or violent action by Parliament +was found, partly in the division of Parliament into +two Houses, and partly, especially after the Upper +House had begun to lose moral weight, and had passed +more and more under the control of one party in +the State, in the fact that an assembly of representatives, +nearly all of whom belonged to the wealthier and +so-called upper classes, was pervaded by a conservative +temper. A representative body, the members of which +are mostly satisfied with the world as it is, and who are +sufficiently instructed to respect the traditions of administration, +is, except where a question arises which stirs +class passions, less prone to ill-considered action than +is an assembly of all the citizens, such as was +the Ecclesia of Athens or Syracuse, where the large +majority were humble folk, and where the sympathy +of numbers made the ascendency of emotion over +reason doubly dangerous. Thus, as compared with the +democracies of the city-states of antiquity, the representative +character of the assemblies of modern Europe +has been a moderating factor. But these assemblies +<span class='pageno' id='Page_184'>184</span>are now changing their character, as the countries in +which they exist have changed. The progress of science +has, through the agency of railways and telegraphs, +of generally diffused education, and of cheap newspapers, +so brought the inhabitants of large countries +into close and constant relations with one another and +with their representatives, that the conditions of a small +city-state are being reproduced. A man living at +Kirkwall knows what happened last night in London, +eight hundred miles away, sooner and more fully than +a man living in Marathon (distant eight hours’ walking) +knew what had happened the day before in Athens. +The same news reaches all the citizens at the same +time, the same emotion affects all simultaneously, and +is intensified by reverberation through the press. The +nation is, so to speak, compressed into a much smaller +space than it filled three centuries ago, and has become +much more like a primary assembly than it was then. +If concurrently with this change there should come, +as some presage, a closer and more constant control +of the members of the representative assembly by their +constituents, the representatives becoming rather delegates +acting under instructions than men chosen to +speak and vote because they are deemed trusty and +intelligent, much of the moderative value which the +representative system has possessed will disappear.</p> + +<p class='c001'>It need not be thought that in England at least there +is any immediate risk of evils to be expected from +the change which has been noted. Representatives +have not yet become delegates, and if they do, it will +be rather their own fault than that of the electors, for +the electors respect courage and value independence. +<span class='pageno' id='Page_185'>185</span>In England the power of party organizations over +constituencies and members, if it grows, grows slowly. +It is, in fact, not so much these organizations as small +sections of opinion or organized ‘interests,’ seeking +some advantage for themselves, that try to terrorize +candidates. There is still a valuable check on possible +recklessness on the part of Parliament in the fact that +it is (unlike some popular assemblies) guided by responsible +Ministers, who have hitherto seldom been mere +demagogues, and who have experience behind them, +prospects of future dignity before them, and the opinion +of their own class around them. All that I wish to point +out is that a change has passed on the conditions under +which representative assemblies act, which in making +them more swiftly responsive to public sentiment, increases +some of the risks always incident to popular +government. History has not spoken her last word +about Flexible Constitutions. Rather may she be +opening a new stage in their development.</p> + +<h3 class='c013'>VII. <span class='sc'>The Influence of Constitutions on the Mind of a Nation.</span></h3> + +<p class='c007'>We have been considering what are the conditions +present in a nation which make it prefer a particular +kind of constitution. Now let us approach the converse +question, and inquire what will be the influence +on the political ideas and habits of a nation of these +Constitutions of the Common Law, or Flexible type, +and what are the features of national character which +will enable such constitutions to live on and prosper.</p> + +<p class='c001'>Forms of government are causes as well as effects, +<span class='pageno' id='Page_186'>186</span>and give an intellectual and moral training to the +peoples that live under them, as the character of a +parent affects the children of the household. Now +the Common Law Constitution, with its complexity, +its delicately adjusted and balanced machinery, its +inconsistencies, its <span lang="fr"><i>nuances</i></span>—one is driven to French +because there is no English word to express the +tendency of a tendency—its abundance of unsettled +points, in which a refined sense can perceive what the +decision ought in each case to be without being able to +lay down a plain and positive rule—such a constitution +must undoubtedly polish and mature in the governing +class a sort of tact and judgement, a subtlety of discrimination +and a skill in applying old principles to new combinations +of facts, which make it safe for a people to +leave wide powers to their magistrates or their governing +assembly. A sense grows up among those who have +to work the constitution as to what is and is not permissible +under it, and that which cannot be expressed +in the stiff phrases of a code is preserved in the +records of precedents and shines through the traditions +which form the minds of the rulers. This kind of +constitution lives by what is called its Spirit. ‘The +letter killeth, but the spirit giveth life.’</p> + +<p class='c001'>Evidently, however, it is only among certain nations +with certain gifts that such a constitution will come to +maturity and become a subject for science as well as +a work of art. Three things seem needful. One +is legal-mindedness, a liking and a talent for law. +Another is a conservative temper, by which I mean +the caution which declines to make changes save when +a proved need for change arises, so that changes are +<span class='pageno' id='Page_187'>187</span>made not suddenly, but slowly and bit by bit. The +third is that intellectual freshness and activity which +refuses to be petrified by respect for law or by aversion +to change. It is only where these three qualities are +fitly mixed or evenly balanced that either a great +system of law or a finely tempered and durable constitution +can grow up. Many otherwise gifted peoples +have, like the Athenians in ancient and, <span lang="es"><i>longo intervallo</i></span>, +the Spaniards in modern times, wanted one or other of +these qualities, and have therefore failed to enrich the +world by law or by constitutions. Perhaps it was +partly owing to their possessing other gifts, scarcely +compatible with these, that the Athenians did fail.</p> + +<p class='c001'>But although, when a nation has reached the point at +which its law begins to be scientific, the law and the +constitution become teachers, it must be remembered +that the training they give is mainly given to the +classes which practise law and administer the State. +For though a nation as a whole may come to understand +and appreciate in outline its constitution, and +may attain to a fairly correct notion of the functions of +each organ of government, only a comparatively small +section comprehends the system well enough to work +it or to criticize its working. For such comprehension +there is needed not only some knowledge of history +but also close and continuous observation of the +machinery in motion, and either participation in the +business of governing or association with those who +are carrying on that business. The mass of the nation +cannot be expected to possess this familiarity. They +are like the passengers on board an ocean steamer, who +hear the clank of the engine and watch the stroke of +<span class='pageno' id='Page_188'>188</span>the piston and admire the revolution of the larger +wheels, and know that steam acts by expansion, but +do not know how the less conspicuous but not less +essential parts of the machinery play into the other parts, +and have little notion of the use of fly-wheels and +connecting-rods and regulators. They can see in what +direction the vessel is moving, and can conjecture the +rate of speed, but they must depend on the engineers +for the management of boilers and engines, as they do +on the captain for the direction of the ship’s course. +In the earlier stages of national life, the masses are +usually as well content to leave governing to a small +upper class as passengers are to trust the captain +and the engineers. But when the masses obtain, and +feel that they have obtained, the sovereignty of the +country, this acquiescence can no longer be counted on. +Men without the requisite knowledge or training, men +who, to revert to our illustration, know no more than +that steam acts by expansion and that a motion in +straight lines has to be turned into a rotary one, +men who are not even aware of the need for knowledge +and training, men with little respect for precedents, +and little capacity for understanding their +bearing, may take command of engines and ship: and +the representative assembly may be filled by those +who have no sense of the dangers to which an abuse of +the vast powers of the assembly may lead. If such +a change arrives, it imposes a severe strain on the +constitution; and that elasticity which has been its +merit may prove its danger.</p> + +<p class='c001'>It may accordingly be said that one of three conditions +is generally necessary for the salvation of a +<span class='pageno' id='Page_189'>189</span>Flexible Constitution. Either (1) the supremacy must +remain in the hands of a politically educated and +politically upright minority, or (2) the bulk of the +people must be continuously and not fitfully interested +in and familiar with politics, or (3) the bulk of the +people, though legally supreme, must remain content, +while prescribing certain general principles, to let +the trained minority manage the details of the business +of governing. Of these conditions the first has +disappeared from nearly all civilized countries. The +second has always been rare, and in large industrial +countries is at present unattainable. The best chance +of success is therefore to be found in the presence of +the third; but it needs to be accompanied by a tone +and taste and sense of public honour among the people +which will recoil from the mere demagogue.</p> + +<p class='c001'>Both the influence of its constitution upon a nation +and the need of certain qualities in order to work a +Flexible Constitution are well illustrated in the history +of the Roman commonwealth. Of all famous constitutions +it was the most flexible. It lived long and +overcame many perils because it grew up among +a people who possessed in an eminent degree the +three qualities of legalmindedness, of conservatism, and +of keen practical intelligence. It trained the national +mind to a respect for order and legality, and had +doubtless much to do with the forming of that constructive +genius which created the whole system of +Roman private law. It fell at last because the mass +of the citizens became unfit to discharge their function +in the scheme. They did not, it is true, press into +the inner circle of the governing class. The success +<span class='pageno' id='Page_190'>190</span>first of the well-born and then of the rich in keeping +the offices in their own hands all through is one of the +most remarkable features of Roman history. But they +were corrupt and reckless in the bestowal of power, and +had really ceased to care for the freedom and welfare of +the State. The ruling classes, on the other hand, were +tempted by the demoralization of the masses to be their +corrupters, and lost their old respect for legality. Even +a conscientious philosopher like Cicero did not scruple +to put prisoners to death without trial, and to justify +himself by citing an act of lawless violence done four +centuries before. The leading Romans of that day +were as fit as ever to work the system, so far as skill +and knowledge went, but they had not the old regard +for its principles, nor the old sense of public duty; +and the prizes which office offered now that Rome was +mistress of the world were too huge for average virtue +to resist. The moral forces which had enabled the +Roman Constitution to work in spite of its extraordinary +complexity, and to live, in spite of the risks to which +its own nature exposed it, were now fatally enfeebled. +These abuses of power on the one hand, and on the +other hand the deadlocks which the system of checks +caused, grew more frequent and serious. Each successive +wrench which the machine received became more +violent, because neither faction had patriotism enough +to try to ease them off, and so break the force of the +shock. From the beginning of the Republic the chief +danger had lain in the immense powers vested in the +magistrates. These powers had been necessary, because +the State was constantly exposed to attacks from without; +and nothing but the sense of devotion to the interests +<span class='pageno' id='Page_191'>191</span>of the State had controlled the party spirit which rages +more fiercely within the walls of a city than it does in +a large and scattered community. Now that Rome +had vast dominions to rule, and now that her frontiers +extended to the very verge of civilization, involving her +in long wars with great monarchies or groups of tribes +on those frontiers, large powers had to be entrusted +to military chiefs, and entrusted for long periods. Thus +the Republican constitution fell through the very faults +which had always lain deep in its bosom, though an +over-mastering patriotism had in earlier days kept them +harmless.</p> + +<p class='c001'>It is never easy, in studying the history of an +institution, to determine how much of its success or its +failure is due to its own character, how much to the +conditions, external and domestic, in the midst of which +it has to work. The fortunes of the Roman Constitution +would doubtless have been different had Rome been less +pressed by foreign enemies in her earlier days, or had +she been less of a conquering power in her later. So +too it is hard to compare States so different as Rome—whose +Constitution was always that of a City, and failed +to widen itself so as to become a Constitution for Italy—and +England, whose Constitution has always since the +days of Ecghbert and Alfred been that of a large and +originally a rural and scattered community. If, however, +the comparison is attempted, we may observe that +England never, after the fourteenth century, recognized +such vast powers in the Crown (whether in the Crown +personally or as exercised by its Ministers) as Rome +granted to her magistrates. In the sphere of public +law England has applied more successfully than Rome +<span class='pageno' id='Page_192'>192</span>did the conception of the inviolability of the rights of +the citizen as against the organs of the State, although +that conception is itself Roman. With all their legal +genius the Romans were too much penetrated by the +idea of the necessary amplitude of State power to fix +just limits to the action of the Executive. When it +was necessary to provide for checking a magistrate, +they set up another magistrate to do it, instead of +limiting magisterial powers by statute. Nor did they +ever succeed as the English have done in disengaging +the judicial from the executive department of government. +In both these respects part of the merits of +the English Constitution may be ascribed to Norman +feudalism, whose precise definition of the respective +rights of lord and vassal—all the lords but one +being also vassals, and the greater vassals being +also lords—helped to form and imprint deep the idea +that powers, however strong within a definite sphere, +may be strictly confined to that sphere, and that the +limits of the sphere are fit matter for judicial determination. +Perhaps the existence in the clergy of a large +class of men enjoying specific immunities the exact +range of which had to be settled, and, where possible, +judicially settled, may have also contributed to train this +habit of mind. The extent to which England, favoured +no doubt by her insular position, was able to secure +domestic freedom while leaving a large discretionary +authority to the Crown, is usually credited to the rise +of the House of Commons and the vigilance of its +control. But much is also to be ascribed to that +precise definition of the rights of the individual which +has made life and property secure from injury on the +<span class='pageno' id='Page_193'>193</span>part of the State, to the habit of holding officials liable +for acts done in excess of their functions, and to that +ultimate detachment of the judiciary from the influence +of the Crown which has enabled the individual to secure +by legal process the enforcement of his rights. These +principles have sunk deep into the mind of the nation, +and have been of the utmost service in forming the habits +of thought and action by which free constitutions have +to be worked. They are just as strong as if they were +embodied in a Rigid Constitution, instead of being +legally at the mercy of Parliament. But that is because +they have centuries of tradition behind them, and +because the English are a people who respect tradition +and have been trained to appreciate the value of the +principles which their ancestors established.</p> + +<h3 class='c013'>VIII. <span class='sc'>Capacity of Constitutions for Territorial Expansion.</span></h3> + +<p class='c007'>One point more remains to be mentioned before we quit +constitutions of the Flexible type, viz. their suitability +to a State which is expanding its territory and taking in +other communities whether by conquest or by treaty.</p> + +<p class='c001'>Such constitutions seem especially well suited to +countries which are passing through periods of change, +whether internal or external. When new classes of the +population have to be admitted to share in political +power, or when the inhabitants of newly-acquired territories +have to be taken in as citizens, this is most quickly +and easily effected by the action of the ordinary legislature. +Both Rome and England availed themselves of +this flexibility in the earlier stages of their growth. +England, itself created as a State by the expansion of +<span class='pageno' id='Page_194'>194</span>the West Saxons, enlarged herself to include Wales +with no disturbance of her former Constitution, and +similarly fused herself with Scotland in 1707 and with +Ireland in 1800, in both cases altering the Constitution +of the enlarged State no further than by the admission +of additional members to the two Houses of Parliament, +and by the suppression of certain offices in the smaller +kingdoms. The ease with which the earlier expansions +were effected may be attributed to the fact that in +mediaeval times the prominence of the king made +the submission of any tribe or territory to him carry +with it the incorporation of that tribe or territory into +his former dominions. The popular assembly of a +community, such as were the South Saxons, for +instance, sank into a secondary place as soon as the +king was head of the South Saxons as well as of +the West Saxons, for the council of the united people +which he summoned and over which he presided +became the national assembly for all his subjects. In +later times, though Scotland and Ireland had their +separate Parliaments, these could be readily united +with that of England, because in all three countries +the popular House was representative. Here, however, +England has stopped. The vast dominions which she +possesses beyond the oceans, while legally subject to +her Crown and Parliament, have not been brought into +the constitutional scheme of the motherland. Indeed +they could hardly be brought in without a reconstruction +of the present frame of government, which would +probably have to be effected by the establishment +of a Rigid Constitution.</p> + +<p class='c001'>Similarly the Roman State had its first beginnings in +<span class='pageno' id='Page_195'>195</span>the union of neighbouring tribes, whose popular assemblies +coalesced into one assembly. As time went on, +the flexibility of the constitution permitted the extension +of political rights to a number of communities which had +lain outside the old Roman territory. But the process +presently stopped (so far as effective political expansion +was concerned), because the representative system had +not yet been invented. When after the great revolt of +the Allies in <span class='fss'>B.C.</span> 90 Rome was compelled to grant full +citizenship to a large number of Italian communities, she +did not take what moderns might think the obvious +course of creating a representative assembly to which +these allied communities might send elected delegates, +but merely distributed the new citizens among her old +tribes, an expedient which so far improved the position +of the Allies that they became legally equal to Roman +citizens, and acquired thereby various privileges and +exemptions, but which extended to them practically no +share in the government, since few could not come to +Rome to give their votes in the assembly of the people. +It may well have been that neither the oligarchs nor the +leaders of the so-called popular party at Rome were +willing to resign a substantial part of the power of the +inhabitants of the City, with the opportunities of bribing +and being bribed, in exchange for the primacy of a +Federal or quasi-Federal Italian republic. But that the +notion of a representative assembly had not crossed +men’s minds appears from the circumstance that the +Italian Allies themselves, when in the course of their +struggle they set up a rival government, merely reproduced +the general lines of the Roman constitution, and +did not create any representative council, excellently as +<span class='pageno' id='Page_196'>196</span>it might have served their purpose. So strong was the +influence of the idea of the city community in the ancient +world, and (it may be added) so little power of invention do +mankind display in the sphere of political institutions.</p> + +<p class='c001'>When an expanding State absorbs by way of treaty +other communities already enjoying a government +more or less constitutional, the process now usually +takes the form of creating a Federation, and a Federation +almost necessarily implies a Rigid Constitution. +Cases where the Flexible Constitution of one State +is stretched to take in another (as the Constitution +of England was stretched to take in Scotland) are rare. +The ancient Romano-Germanic Empire had a Flexible +Constitution, which, already in an advanced stage of +decay, was extinguished by Napoleon. When it was +desired to re-establish a German Empire out of a +number of practically independent States, this had to be +done by the creation of a federal system under a Rigid +Constitution. No similar device was required in the +case of Italy, because the communities which united +themselves to the kingdom of Sardinia between 1859 +and 1871 had not theretofore enjoyed constitutional +government, had just dismissed their whilome sovereigns, +were all eager for union, and in their eagerness for union +cared but little for the maintenance of any local rights.</p> + +<h3 class='c013'>IX. <span class='sc'>The Origin of Rigid Constitutions.</span></h3> + +<p class='c007'>We may now pass on to examine the other type of +constitution, that for which I have suggested the name +Rigid, the specific character whereof resides in the fact +that every constitution belonging to it enjoys an authority +superior to the authority of the other laws of the +<span class='pageno' id='Page_197'>197</span>State, and can be changed only by a method different +from that whereby those other laws are enacted or +repealed. This type is younger than the Flexible +type. The latter goes back to the very beginning of +organized political societies, being the first form which +the organization of such societies took. Rigid Constitutions, +on the other hand, mark a comparatively +advanced stage in political development, when the +idea of separating fundamental laws from other laws +has grown familiar, and when considerable experience +in the business of government and in political affairs +generally has been accumulated. Thus they have +during the last hundred years been far more in favour +than constitutions of the Flexible type.</p> + +<p class='c001'>In Europe they exist in every constitutional country +except the United Kingdom, Hungary, and Italy. +There are none in the Asiatic continent, but Asia, the +cradle of civilization, possesses no constitutional self-governing +State whatever, except Japan, the Constitution +of which, established in 1889, bears some resemblance +to that of the German Empire. America, as a new +continent, is appropriately full of them. The Republic +of the United States has not only presented the most +remarkable instance of this type in the modern world, +but has by its success become a pattern which other +republics have imitated, just as most modern States in +the Old World took England for their model when they +established, during the nineteenth century, governments +more or less free. The Constitutions of all the forty-five +States of the Union are Rigid, being not alterable by +the legislatures of those States respectively. This is +also true of the Constitution of the Dominion of Canada, +<span class='pageno' id='Page_198'>198</span>which is alterable only by the Imperial Parliament. +The Constitutions of the seven Canadian Provinces +might, so far as their legislatures are concerned, be +deemed Flexible, being (except as respects the office +of Lieutenant-Governor) alterable by ordinary provincial +statutes, but as all Provincial statutes are subject to +a Dominion veto, they are not within the sole power +of the legislatures. Mexico and the five republics of +Central America, together with the nine republics +of South America, have all adopted Constitutions which +their legislatures have not received power to change. +Africa is the most backward of the continents, but she +has in the Orange Free State a tiny republic living +under a Rigid Constitution. It has been contended that +the Constitution of the South African Republic (Transvaal) +is referable to the same category, but it is really +<span lang="la"><i>de iure</i></span>, and it has always been treated <span lang="la"><i>de facto</i></span>, as being +a Flexible Constitution<a id='r73'></a><a href='#f73' class='c012'><sup>[73]</sup></a>. The Constitutions of the +Australasian colonies present legal questions of some +difficulty, owing to the way in which the imperial Acts +creating or confirming them have been drawn. So far +as the method of changing these Constitutions has +been prescribed by statutes of the colonies in which +they exist, it would appear that each can also be +changed by the legislature of the colony. Where +those methods, however, are prescribed by the British +Parliament, or by instruments issuing from the Crown, +the point is more doubtful, and would need a fuller discussion +than it can receive here. Questions, however, +touching the relations of a legally subordinate to a +legally supreme legislature lie in a different plane, so +<span class='pageno' id='Page_199'>199</span>to speak, from that with which we are here concerned: +and we may say that if these colonial constitutions +are regarded solely as respects the legislatures of +the colonies themselves, they are referable to the +Flexible type. As to the new Federal Constitution +of Australia there is no doubt at all. It is Rigid<a id='r74'></a><a href='#f74' class='c012'><sup>[74]</sup></a>, for +any alteration in it requires a majority of the States and +a majority of the direct popular vote. All the acts of +every British colony are subject to a power of disallowance +by the Governor or the Crown, but (although it is +sometimes provided that constitutional acts shall be +‘reserved’ for the pleasure of the Crown) this power is +not confined to acts changing the constitution, conformably +to the English habit of drawing little distinction +between constitutional and other enactments.</p> + +<p class='c001'>All the above-mentioned constitutions are products +of the last century and a quarter, and it is doubtful +whether there existed in <span class='fss'>A.D.</span> 1776 any independent +State the constitution of which the ruling authority +of that State could not have changed in the same +way in which it changed its ordinary laws. The Swiss +Confederation does not come into question, for that +Confederation was, until the French laid hands on it +in the last years of the eighteenth century, a League +of States rather than a State, and could not be said to +have any constitution in the proper sense, not to add +that the republics of which the league consisted could +alter the terms of their league in the same way in +which they had formed it. The same remark applies +<span class='pageno' id='Page_200'>200</span>to the confederation of the seven United Provinces of +the Netherlands.</p> + +<p class='c001'>The beginnings of Rigid Constitutions may, however, +be traced back to the seventeenth century. The +first settlers in the British colonies in North America +lived under governments created by royal charters which +the colonial legislatures could not alter, and thus the +idea of an instrument superior to the legislature and +to the laws it passed became familiar<a id='r75'></a><a href='#f75' class='c012'><sup>[75]</sup></a>. In one colony +(Connecticut) the settlers drew up for themselves in +1638 a set of rules for their government, called the +Fundamental Orders. These Orders, developed subsequently +into a royal charter, were really a rudimentary +constitution. And almost contemporaneously the conception +appeared in England during the Civil War. +The Agreement of the People, presented to the Long +Parliament in 1647, contains in outline a Frame of +Government for England which was meant to stand +above Parliament and be not changeable by it. So +Oliver Cromwell sought by his Instrument of Government, +promulgated in 1653, to create a Rigid Constitution, +some at least of whose provisions were to be placed +beyond the reach of Parliament, and indeed apparently +to be altogether unchangeable. But his own Parliament +refused to recognize any part of it as outside their +right of interference<a id='r76'></a><a href='#f76' class='c012'><sup>[76]</sup></a>.</p> + +<p class='c001'>From this rapid geographical survey we may now +return to examine the circumstances under which constitutions +<span class='pageno' id='Page_201'>201</span>of this type arise. Their establishment is +usually due to one or more of the four following +motives:—</p> + +<p class='c001'>(1) The desire of the citizens, that is to say, of the +part of the population which enjoys political rights, to +secure their own rights when threatened, and to restrain +the action of their ruler or rulers.</p> + +<p class='c001'>(2) The desire of the citizens, or of a ruler who wishes +to please the citizens, to set out the form of the pre-existing +system of government in definite and positive +terms precluding further controversy regarding it.</p> + +<p class='c001'>(3) The desire of those who are erecting a new +political community to embody the scheme of polity +under which they propose to be governed, in an instrument +which shall secure its permanence and make it +comprehensible by the people.</p> + +<p class='c001'>(4) The desire of separate communities, or of distinct +groups or sections within a large (and probably loosely +united) community, to settle and set forth the terms +under which their respective rights and interests are +to be safe-guarded, and effective joint action in common +matters secured, through one government.</p> + +<p class='c001'>Of these four cases, the two former arise where an +existing State changes its constitution. The two latter +arise where a new State is created by the gathering of +individuals into a community, or by the union of communities +previously more or less separate into one +larger community, as for instance by the forming of +a Federation.</p> + +<p class='c001'>Note further that Rigid Constitutions arise in some +one of four possible ways.</p> + +<p class='c001'>1. They may be given by a monarch to his subjects +<span class='pageno' id='Page_202'>202</span>in order to pledge himself and his successors to govern +in a regular and constitutional manner, avoiding former +abuses. Several modern European constitutions have +thus come into being, of which that of the Kingdom of +Prussia, granted by King Frederick William the Fourth +in 1850, is a familiar example. The <em>Statuto</em> or Fundamental +Law of the Kingdom of Sardinia, now expanded +into the Kingdom of Italy, was at one time deemed +another instance. It is now, however, held to be a +Flexible Constitution. Magna Charta would have been +a fragment of such a constitution had it been legally +placed out of the possibility of any change being made +in it by the Great Council, then the supreme legislature +of England, but it was enacted by the king in his Great +Council, and has always been alterable by the same +authority. The <span lang="fr"><i>Charte Constitutionnelle</i></span> for France issued +by Louis the Eighteenth in 1814, and renewed in an +altered form on the choice of Louis Philippe as king in +1830, and the Constitutions granted by their respective +kings to Spain and to Portugal, are similar instances.</p> + +<p class='c001'>2. They may be created by a nation for itself when +it has thrown off (or been released from) its old form of +government, and desires to create another entirely <span lang="la"><i>de +novo</i></span>. The various Constitutions of the various French +Republics from 1790 downwards are instances, as is the +Constitution of the Orange Free State<a id='r77'></a><a href='#f77' class='c012'><sup>[77]</sup></a> and the present +(<span class='fss'>A.D.</span> 1901) Constitution of Brazil. To this category also +belong the Constitutions of the original thirteen States +of the American Union. Two of these States, however, +were content to retain the substance of the charter-constitutions +under which they had lived as British Colonies, +<span class='pageno' id='Page_203'>203</span>merely turning them into State constitutions, with +nothing but the Confederation above them, that Confederation +being then a mere League and not a National +Government. The Constitution of the Austrian part of +the Austro-Hungarian monarchy may also be referred to +this category. It consists of five Fundamental Laws, +enacted in 1867, and alterable by the legislature only +in a specially prescribed manner.</p> + +<p class='c001'>3. They may be created by a new community, not +theretofore a nation, when it deliberately and formally +enters upon organized political life as a self-governing +State, whether or no as also a member of any larger +political body. Such are the Constitutions of the States +of the American Union formed since 1790. Such was +the original Constitution of Belgium, a country which +had been previously a part of the Kingdom of Holland. +Such is the Constitution of the Dominion of Canada, +though it is a peculiar feature of this instrument—and +the same is true of the Constitutions of all the self-governing +British Colonies—that it has been created +not by the community which it regulates but by an +external authority, that of the Parliament of the United +Kingdom, in a statute of <span class='fss'>A.D.</span> 1867. Being unchangeable +by the Dominion Legislature, it is a Rigid Constitution +within the terms of our definition, although +changeable, like any other statute, by the British Parliament. +The new Federal Constitution of Australia +belongs to the same class and had a like origin<a id='r78'></a><a href='#f78' class='c012'><sup>[78]</sup></a>.</p> + +<p class='c001'>4. They may arise by the tightening of a looser tie +<span class='pageno' id='Page_204'>204</span>which has theretofore existed between various self-governing +communities. When external dangers or +economic interests have led such communities to desire +a closer union than treaties or federative agreements +have previously created, such communities may unite +themselves into one nation, and give that new nation +a government by means of an instrument which is +thereafter not only to hold them together but to provide +for their action as a single body. This process +of turning a League of States (<span lang="de"><i>Staatenbund</i></span>) into a +Federal State (<span lang="de"><i>Bundesstaat</i></span>) is practically certain to +create a Rigid Constitution, for the component communities +which are so uniting will of course desire that +the rights of each shall be safeguarded by interposing +obstacles and delays to any action tending to change +the terms of their union, and they will therefore place +the constitution out of the reach of amendment by the +ordinary legislature. Cases may, however, be imagined +in which the component communities might be willing +to forgo this safeguard. The Achaean League did so; +and its constitution was therefore a flexible one, but then +the Achaean League can hardly be said to have been +a single State in the strict sense of the word. It was +rather a league, though a close league, of States, like +the Swiss Confederation in the eighteenth century.</p> + +<p class='c001'>The most familiar instances of this fourth kind of +origin are the United States of North America, the +Federation of Mexico (unless it be referred to the +second class), and the present Swiss Confederation. +To this class may also be referred the very peculiar +case of the new German Empire, which by two steps, +in 1866 and in 1871, has created itself out of the +<span class='pageno' id='Page_205'>205</span>pre-existing Germanic Confederation of 1815, that +Confederation having been formed by the decay into +fragments of the ancient East Frankish or German +kingdom, which had, throughout the Middle Ages, a +Flexible Constitution resembling that of the England +or France or Castile of the thirteenth century.</p> + +<h3 class='c013'>X. <span class='sc'>The Enactment and Amendment of Rigid Constitutions.</span></h3> +<p class='c007'>Before proceeding to consider the methods by which +these constitutions may be enacted and changed, it is +worth while to suggest an explanation of their comparative +recent appearance in history. Documentary constitutions, +<i>i.e.</i> those contained in one or several instruments +prepared for the purpose, are old. There were many +of them in the Greek cities; and efforts were sometimes +made when they were enacted to secure their +permanence by declaring them to be unchangeable. But +in the old days when City States (and sometimes also +small Rural States) were ruled by Primary Assemblies, +consisting of all free citizens, there was no authority +higher than the legislature that could be found to +enact a constitution, seeing that the legislature consisted +of the whole body of the citizens. In those +days, accordingly, when it was decided to give peculiar +permanence to some political arrangement, so +that no subsequent assembly of the people should +upset it, two expedients were resorted to. One +was to make all the leading men, perhaps the whole +people, swear solemnly to maintain it, and thereby to +bring in the deities of the States as co-enacting or at +least protecting and guaranteeing parties. Tradition +<span class='pageno' id='Page_206'>206</span>attributed this expedient to Lycurgus at Sparta. The +other was to provide in the law intended to be Fundamental +that no proposal to repeal it should ever be +entertained, or to declare a heavy penalty on the +audacious man who should make the proposal. The +objection to both these expedients was that they debarred +any amendment, however desirable, and however +generally desired. Hence they were in practice little +regarded, though the exceptionally pious or superstitious +Spartans were deemed to be largely deterred +from governmental changes by the fear of divine disapproval. +Moreover, the second of the above-named +devices or barriers could be easily turned by proposing +to repeal, not the Fundamental law itself, but the +prohibition and the penalty. These having been repealed—and +of course the proposal would not be made +unless its success were pretty well assured—the Fundamental +Law would then itself be forthwith repealed. It +must, however, be added that even if the Greek cities +had adopted what seems to us the obvious plan of +requiring a certain majority of votes (say two-thirds) +for a change in the Fundamental Law, or had required +it to be passed by four Assemblies in succession at +intervals of three months, one may doubt whether such +provisions would have restrained a majority in communities +which were small, excitable, and seldom legally-minded.</p> + +<p class='c001'>Those who have suggested that the United Kingdom +ought to embody certain parts of what we call the +British Constitution in a Fundamental Statute (or +Statutes) and to declare such a statute unchangeable +by Parliament, or by Parliament acting under its +<span class='pageno' id='Page_207'>207</span>ordinary forms, seem to forget that the Act declaring +the Fundamental Statute to be Fundamental and unchangeable +by Parliament would itself be an Act like any +other Act, and could be repealed by another ordinary +statute in the ordinary way. All that this contrivance +would obtain would be to interpose an additional stage +in the process of abolition or amendment, and to call the +attention both of the people and the legislature in an +emphatic way to the fact that a very solemn decision was +being reversed. Some may think that such a security, +if imperfect, would be worth having. The restraint +imposed would, however, be a moral not a legal one<a id='r79'></a><a href='#f79' class='c012'><sup>[79]</sup></a>.</p> + +<p class='c001'>A constitution placed out of the power of the legislature +may or may not be susceptible of alteration in +a legal manner. Sometimes no provision has been +made, when it was first established, for any change +whatever. There are instances of this among constitutions +<span class='pageno' id='Page_208'>208</span>granted by a monarch to his subjects—such +seems to be to-day the case in Spain—but in cases of +this kind it might possibly be held that the grantor +implicitly reserved the power to vary his grant, as +there may not have been expressed in the document, +and need not be, any bilateral obligation. As already +observed, the Constitution of the present Kingdom of +Italy was originally granted to the Kingdom of Sardinia +by King Charles Albert in 1848; and it was for +a long time held that the power to change it resided +in the Crown only. It was extended by a succession +of popular votes (1859 to 1871) to the rest of Italy, and +some conceive that this sanction makes at least its +fundamental parts unchangeable. But the view that it +is alterable by legislation has prevailed, and it has in +fact been so altered in some points. The <span lang="fr"><i>Charte Constitutionnelle</i></span> +granted by Louis XVIII, under which the +government of France was carried on for many years, +was intended to create a sort of parliamentary government, +in the first instance by way of gift from the +sovereign, but afterwards, under Louis Philippe, by +way of a compact, or kind of covenant between +monarch and people. The fact that it contained +no provisions for alteration, having apparently been +designed to last for ever, worked against it; and the +discontents of France may have ripened the faster +because no constitutional method had been provided for +appeasing them by changes in the machinery of government. +Nothing human is immortal; and constitution-makers +do well to remember that the less they presume +on the long life of their work the longer it is likely +to live.</p> + +<p class='c001'><span class='pageno' id='Page_209'>209</span>The Constitutions of Norway (created in 1814, but +subsequently altered) and of Greece (created in 1864) +declare that amendments are to be confined to matters +not fundamental, but omit to specify the matters falling +under that description.</p> + +<p class='c001'>The existing Constitution of France is so far legally +unalterable that no proposition for abolishing the republican +form of government can be entertained. If it +be asked, What is a republican form? one may answer +that if ever the question has to be answered, it will +be not so much by the <span lang="la"><i>via iuris</i></span> as by the <span lang="la"><i>via facti</i></span>. So +also the Constitution of the United States is in one +respect virtually, if not technically, unchangeable. No +State can without its own consent be deprived of its +equal representation in the Senate. As no State is +ever likely to consent to such a change, the change +may be deemed legally unattainable; and that any State +against which it was attempted to enforce a reduction of +its representation effected by constitutional amendments +to which it had refused assent would be legally justified +in considering itself out of the Union. In accordance +with this American precedent, the new Constitution of +Australia declares that no State can have its proportionate +representation in the Parliament, or the minimum +number of its representatives in the House of Representatives, +reduced without the approval of a majority of +its electors voting on a constitutional amendment<a id='r80'></a><a href='#f80' class='c012'><sup>[80]</sup></a>.</p> + +<p class='c001'>Among the methods by which constitutions of the +Rigid type make, as they now almost invariably do, +provision for their own amendment, four deserve to be +enumerated.</p> + +<p class='c001'><span class='pageno' id='Page_210'>210</span>The first is to give the function to the Legislature, +but under conditions which oblige it to act in a special +way, different from that by which ordinary statutes +are passed. There may, for instance, be required +a fixed quorum of members for the consideration of +amendments. Belgium fixes this quorum at two-thirds +of each House, while also requiring a two-thirds +majority of each House for a change. Bavaria requires +a quorum of three-fourths of the members of each +House; Rumania one of two-thirds. Or again—and this +is a very frequent provision, found even when that last-mentioned +is wanting—a specified minimum majority +of votes may be required to carry an amendment. +Sometimes this majority is three-fourths (as in Greece +and Saxony, and in the German Empire for a vote of +the Federal Council): more frequently it is two-thirds, +as in the United States Congress, in the Mexican +Chambers, in Norway, Belgium, Rumania, Servia, +Bulgaria. Another plan is to require a dissolution of +the Legislature, so that the amendments carried in one +session may come under the judgement of the electors +at a general election, and be thereafter passed, or rejected, +by the newly chosen Legislature. This arrangement, +often combined with the two-thirds majority +rule, prevails in Holland, Norway, Rumania, Portugal, +Iceland, Sweden (where the amendment must have +been passed in two ordinary successive sessions), +and several other States, including some of the republics +of Spanish America. It is in substance an +appeal to the people as well as to their representatives, +and therefore adds a further guarantee +against hasty change. Finally, the two Houses of the +<span class='pageno' id='Page_211'>211</span>Legislature may sit together as a Constituent Assembly. +Thus in France (Constitution of 1875) when each +Chamber has resolved that the Constitution shall be +revised, the two are for the moment fused, and proceed +to debate and pass amendments. Haiti (Constitution of +1899) has a similar plan, which, oddly enough, was not +borrowed from France, but is as old as 1843. Few +will suspect France of borrowing from Haiti.</p> + +<p class='c001'>A second plan is to create a special body for the work +of revision. In the United States, where a vast deal of +constitution making and revising goes on in the several +States, such a body is called a Convention, and is +usually elected when it is desired to re-draft the whole +constitution, the ultimate approval of the draft being, +however, almost always reserved for the people<a id='r81'></a><a href='#f81' class='c012'><sup>[81]</sup></a>. In +Servia and Bulgaria, after amendments have been twice +passed by the ordinary Legislature, a sort of Special +Assembly, similarly elected, but twice as large, called +the Great Skuptschina (in Servia) or Great Sobranje (in +Bulgaria), receives and finally decides on the proposed +amendments.</p> + +<p class='c001'>The republics of Paraguay, Guatemala, Honduras, +Nicaragua, and Salvador also prescribe Conventions, +preceded in each case by votes of the Legislature, such +votes usually requiring a two-thirds majority<a id='r82'></a><a href='#f82' class='c012'><sup>[82]</sup></a>.</p> + +<p class='c001'>A third plan is to refer the new constitution, or +<span class='pageno' id='Page_212'>212</span>the amendments proposed (if the revision is partial), +to a number of minor or local authorities for approval. +This course is an obviously suitable one in a federation, +and has accordingly been adopted by the United +States, by Mexico, by Colombia, by Switzerland, and +by the new Australian Commonwealth, in all of which +the component States are consulted, the United States +requiring a three-fourths majority of States, Switzerland, +Australia, and Mexico a bare majority. (Switzerland +and Australia also require a majority of the +citizens generally.) It is not, however, invariable in +federal countries, for the Argentine Confederation +entrusts amendment to a Convention, following on a +three-fourths majority vote of the Legislature, and +Brazil (now a federal country) leaves it to the Legislature +alone, acting by a two-thirds majority in three +successive debates. Neither is such a plan necessarily +confined to a federation, for the existing Constitution +of Massachusetts was (in 1780) submitted to the Towns +(<i>i.e.</i> townships) of the State, acting as communities, +and enacted by the majority of them.</p> + +<p class='c001'>The fourth plan is to refer amendments to the direct +vote of the people. Originating in the New England +States of America, where democracy earliest prevailed, +this method has spread to Switzerland and to Australia, +both of which require for alterations in the Fundamental +Instrument a majority of the electors voting +as well as a majority of the States. It prevails now +not only in these two federations, but also in the several +States of the United States (with very rare exceptions). +A bare majority of votes is sufficient, except in Rhode +Island, where three-fifths are required, and in Indiana +<span class='pageno' id='Page_213'>213</span>and Oregon, which require a majority of all the qualified +voters. The popular vote is also in use in the several +Cantons of Switzerland. It was repeatedly employed +in France during the first Revolution, and again (under +the name of <span lang="fr"><i>plébiscite</i></span>) by Louis Napoleon under the +Second Empire.</p> + +<p class='c001'>These variations in the mode of amending are interesting +enough to deserve a few comments.</p> + +<p class='c001'>Broadly speaking, two methods of amendment are +most in use: that which gives the function to the +Legislature, usually requiring something more than +a bare majority, and that which gives it to the People, +<i>i.e.</i> the qualified voters. The former of these methods +often directs a dissolution of the Legislature to precede +the final vote on amendments, and in this way secures +for the people a means of delivering their judgement on +the questions at issue. The latter method is, however, +a more distinct and emphatic, because a more direct, recognition +of Popular Sovereignty; and it has the advantage +of making the constitution appear to be the work +of the Nation as a whole, apart from faction, whereas +in the Legislature it may have been by a party vote that +the amendments have been carried. Thus it supplies +the broadest and firmest basis on which a Frame of +Government can rest. The Convention system is intermediate +between the two others, and has struck no deep +roots in the Old World, while in the United States it +has been virtually superseded (as respects enactment) +by that of the direct Popular Vote.</p> + +<p class='c001'>Geographically regarded, the method of revision by +Legislature prevails over Europe and over most of +Spanish America (being in the latter region sometimes +<span class='pageno' id='Page_214'>214</span>combined with the Convention method). The Constitution +which has most influenced others in Europe and become +a type for them in this respect is that of Holland (1814), +because it was the earliest one established after the revolutionary +period. On the other hand, the United States +(except the Federal Government) and the democratic +governments of the Swiss and Australian Federations +are ruled by the Popular method. The Constitution +which has set the type of this method is that of +Massachusetts of 1780.</p> + +<p class='c001'>As respects facility of change, it is interesting to note +that the Constitutions which are most quickly and easily +altered are those of Prussia, which prescribes no safeguard +save that of two successive votes separated +by an interval of at least twenty-one days, and that of +France, which requires an absolute majority of each +House for a proposal to revise, and an absolute majority +of the two Houses sitting together for the carrying of +any amendment. The omission of the French Chambers +in 1875 to submit to the people the constitution +then framed, or to provide for their sanction to any +future amendments, was due to the doubt which each +party felt of the result of an appeal to the nation. +The Republicans, though able to prevent the establishment +of a monarchical constitution by the Legislature, +were not quite sure that a republican one would be +carried if submitted to a popular vote. Thus it has +come about that France, which went further towards +popular sovereignty in 1793 than any great country has +ever done, has lived since 1875 under an instrument +never ratified by the people, and which was originally +regarded as purely provisional.</p> + +<p class='c001'><span class='pageno' id='Page_215'>215</span>The Constitution which it is most difficult to change +is that of the United States. It has in fact never been +amended since 1809, except thrice between 1865 and +1870, immediately after and in consequence of the Civil +War, and then under conditions entirely abnormal, +because some States were under military duress.</p> + +<p class='c001'>The tendency of recent years has been towards +easier and swifter methods than those which were in +favour during the first half of the nineteenth century: +and in Germany lawyers and publicists are now disposed +to minimize the difference between constitutional +changes and ordinary statutes, partly perhaps because +doctrines of popular sovereignty obtain little sympathy +from the school dominant in the new Empire. That +Empire itself presents quite peculiar phenomena. So +far as the Reichstag or Federal Assembly is concerned, +the constitution can be altered by ordinary legislation. +But in the Federal Council a majority is required large +enough to enable either Prussia on the one hand or +a combination of the smaller States on the other to +prevent any change. This is because the component +members of the Federation are not republics, as in +America, Switzerland, and Australia, but are (except +the three Hanse cities) monarchies, so that the Upper +Federal House represents not the people but the +governments of the several German States.</p> + +<p class='c001'>It is evident that the greater or less stability of any +given constitution will (other things being equal) be +determined by the comparative difficulty or ease of +carrying changes in one or other of the above methods. +As one at least of them, that of committing the function +of revision to a Constitutional Convention not followed +<span class='pageno' id='Page_216'>216</span>by a popular vote, seems to interpose no more, and +possibly even less, difficulty or delay than does the +ordinary process of law-making by a two-chambered +legislature, it may be asked why a constitution changeable +in such a way should be called Rigid at all. +Because inasmuch as the method of changing it is +different from that of passing ordinary statutes, the +people are led to realize the importance of the occasion, +and may be deterred, by the trouble and formalities +involved in creating the special body, from too lightly +or frequently tampering with their fundamental laws. +It seems a more momentous step to create this convention +<span lang="la"><i>ad hoc</i></span> than to carry a measure through a +legislature which already exists, and is daily employed +on legislative work. Experience has, moreover, shown +in the United States, the country in which this method +has been largely used for redrafting, or preparing +amendments to, the Constitutions of the several States<a id='r83'></a><a href='#f83' class='c012'><sup>[83]</sup></a>, +that a set of men can be found for the work of a +Convention better than those who form the ordinary +legislature of the State, and that their proceedings +when assembled excite more attention and evoke +more discussion than do those of a State Legislature, +a body which now receives little respect, though +perhaps as much as it deserves. Nowadays, however, +a draft constitution prepared by a Convention is in an +American State almost always submitted to the people +for their approval.</p> + +<p class='c001'>The French plan of using the two Houses sitting +<span class='pageno' id='Page_217'>217</span>together as a Constituent Convention has a certain +interest for Englishmen, because the suggestion has +been made that disputes between their House of Lords +and House of Commons might be settled by a vote of +both sitting together, <i>i.e.</i> of the whole of the Great +Council of the Nation<a id='r84'></a><a href='#f84' class='c012'><sup>[84]</sup></a> as it sat in the thirteenth century +before it had formed the habit of debating and voting +in two Houses. It still meets (but does not debate or +vote) as one body when the Sovereign, or a Commission +representing the Sovereign, is present, as happens at +the beginning and at the end of each session.</p> + +<p class='c007'>To examine the distinctive qualities of Rigid Constitutions, +as I must now do, is virtually to traverse +again the same path which was followed in investigating +those of the Flexible type, for the points in +which the latter were found deficient are those in which +Rigid Constitutions excel, while the merits of the +Flexible indicate the faults of the Rigid. The inquiry +may, therefore, be brief.</p> + +<p class='c001'>The two distinctive merits claimed for these Constitutions +are their Definiteness and their Stability.</p> + +<h3 class='c013'>XI. <span class='sc'>The Definiteness of Rigid Constitutions.</span></h3> + +<p class='c007'>We have seen that the distinctive mark of these +Rigid Constitutions is their superiority to ordinary +statutes. They are not the work of the ordinary legislature, +<span class='pageno' id='Page_218'>218</span>and therefore cannot be changed by it. They +are embodied in one written document, or possibly in +a few documents, so that their provisions are ascertainable +without doubt by a reference to the documentary +terms. This feature is a legitimate consequence of the +importance which belongs to a law placed above all +other laws. That which is to be the sheet-anchor of the +State, giving permanent shape to its political scheme, +cannot be left unwritten, and cannot be left to be +gathered from a comparison of a considerable number +of documents which may be confused or inconsistent. +Whether it spring from the agreement of the citizens +or from the free gift of a monarch, it must be embodied +if possible in one, if not, at any rate in only a few solemn +instruments. That which is to be a fundamental law, +limiting the power of the legislature, must be set +forth in specific and unmistakable terms—else how shall +it be known when the legislature is infringing upon +or violating it? A Flexible Constitution, which the +legislature can modify or destroy at its pleasure, +though it might conceivably be embodied in one document +only, is in fact almost always to be collected from +at least several documents, and is often, like the Flexible +Constitution of England, scattered through a multitude +of statutes and collections of precedents. But the +benefits expected from a Rigid Constitution would be +lost were its provisions left in similar confusion.</p> + +<p class='c001'>It is not, however, to be supposed that the citizen of +a country controlled by a Rigid Constitution who +desires to understand the full scope and nature of his +government will find all that he needs in the document +itself. No law ever was so written as to anticipate and +<span class='pageno' id='Page_219'>219</span>cover all the cases that can possibly arise under it<a id='r85'></a><a href='#f85' class='c012'><sup>[85]</sup></a>. +There will always be omissions, some left intentionally, +because the points not specifically covered were deemed +fitter for the legislature to deal with subsequently, some, +again, because the framers of the constitution could +not agree, or knew that the enacting authority would not +agree, regarding them. Other omissions, unnoticed at +the time, will be disclosed by the course of events, for +questions are sure to arise which the imagination or +foresight of those who prepared the constitution never +contemplated. There will also be expressions whose +meaning is obscure, and whose application to unforeseen +cases will be found doubtful when those cases +have to be dealt with. Here let us distinguish three +classes of omissions or obscurities:—</p> + +<p class='c001'>The first class includes matters, passed over in silence +by the written constitution, which cannot be deemed to +have been left to be settled either by the legislature or +by any other organ of government, because they are too +large or grave, as for instance matters by dealing with +which the legislature would disturb the balance of the +constitution and encroach on the province of the Executive, +or the Judiciary, or (in a Federal Government) of +the component States. Matters belonging to this class +can only be dealt with by an amendment of the constitution +itself.</p> + +<p class='c001'>The second class includes gaps or omissions relating +to matters not palpably outside the competence of the +legislature as defined by the constitution. Here the +proper course will be for the legislature to regulate +<span class='pageno' id='Page_220'>220</span>such matters by statute, or else to leave them to be +settled by the action of the several organs of government +each acting within its own sphere. These organs may +by such action create a body of usage which, when well +settled, will practically supplement the defects of the +constitution, as statutes will do in like manner, so far as +they are passed to cover the omitted cases.</p> + +<p class='c001'>The third class consists not of omissions but of +matters which are referred to by the constitution, but +in terms whose meaning is doubtful. Here the question +is what interpretation is to be given to its words by the +authority entitled to interpret, that authority being +in some countries the legislature, in others the judicial +tribunals. To the subject of Interpretation I shall +presently return. Meantime, it must be noted that +both Legislation and Usage in filling up the vacant +spaces in the constitution, and Interpretation in +explaining its application to a series of new cases +as they arise upon points not expressly covered by its +words, expand and develop a constitution, and may +make it after a long interval of time different from +what it seemed to be to those who watched its infancy. +The statutes, usages, and explanations aforesaid will +in fact come to form a sort of fringe to the constitution +cohering with it, and possessing practically the same +legal authority as its express words have. And it thus +may happen that (as in the United States) a large mass +of parasitic law grows up round the document or documents +which contain the Constitution. Nevertheless +there will still remain a distinction between this parasitic +law and usage and the provisions of the constitution +itself. The latter stand unchangeable, save by constitutional +<span class='pageno' id='Page_221'>221</span>amendment. Statutes, on the other hand, can be +changed by the legislature; usage may take a new +direction; the decisions given interpreting the constitution +may be recalled or varied by the authority that +pronounced them. All these are in fact Flexible parasites +growing upon a Rigid stem. Thus it will be seen +that the apparent definiteness and simplicity of Documentary +Constitutions may in any given case be largely +qualified by the growth of a mass of quasi-constitutional +matter which has to be known before the practical +working of the constitution can be understood.</p> + +<h3 class='c013'>XII. <span class='sc'>The Stability of Rigid Constitutions.</span></h3> + +<p class='c007'>The stability of a constitution is an object to be +much desired both because it inspires a sense of +security in the minds of the citizens, encouraging order, +industry and thrift, and because it enables experience +to be accumulated whereby the practical working of the +constitution may be improved. Political institutions +are under all circumstances difficult to work, and when +they are frequently changed, the nation does not +learn how to work them properly. Experiment is the +soul of progress, but experiments must be allowed +a certain measure of time. The plant will not grow if +men frequently uncover the roots to see how they are +striking. Constitutions embodied in one legal document +and unchangeable by the legislature, are intended to be, +and would seem likely to be, peculiarly durable. Being +definite, they do not give that opening to small deviations +and perversions likely to arise from the vagueness of +a Flexible or ‘unwritten’ Constitution, or from the +<span class='pageno' id='Page_222'>222</span>probable discrepancies between the different laws and +traditions of which it consists. They may be battered +down, but they cannot easily (save by a method to be +presently examined) be undermined. When an attack +is made upon them, whether by executive acts violating +their provisions, or by the passing of statutes +inconsistent with those provisions, such an attack can +hardly escape observation. It is a plain notice to the +defenders of the constitution to rally and to stir up +the people by showing the mischief of an insidious +change. The principles on which the government +rests, being set forth in a broad and simple form, +obtain a hold upon the mind of the community, which, +if it has been accustomed to give those principles a +general approval, will be unwilling to see them tampered +with. Moreover the process prescribed for amendment +interposes various delays and formalities before +a change can be carried through, pending which the +people can reconsider the issues involved, and recede, +if they think fit, from projects that may have at first +attracted them. Both in Switzerland and in the States +of the American Union it has repeatedly happened that +constitutional amendments prepared and approved by +the legislature have been rejected by the people, +not merely because the mass of the people are often +more conservative than their representatives, or are +less amenable to the pressure of particular ‘interests’ +or sections of opinion, but because fuller discussion +revealed objections whose weight had not been appreciated +when the proposal first appeared. In these +respects the Rigid Constitution has real elements of +stability.</p> + +<p class='c001'><span class='pageno' id='Page_223'>223</span>Nevertheless it may be really less stable than it appears, +for there is in its rigidity an element of danger.</p> + +<p class='c001'>It has already been noted that a constitution of the +Flexible type finds safety in the elasticity which +enables it to be stretched to meet some passing emergency, +and then to resume its prior shape, and that it +may disarm revolution by meeting revolution halfway. +This is just what the Rigid Constitution cannot do. It +is constructed, if I may borrow a metaphor from +mechanics, like an iron railway-bridge, built solidly +to resist the greatest amount of pressure by wind or +water that is likely to impinge upon it. If the materials +are sound and the workmanship good, the bridge +resists with apparent ease, and perhaps without showing +signs of strain or displacement, up to the highest +degree of pressure provided for. But when that degree +has been passed, it may break suddenly and utterly to +pieces, as the old Tay Bridge did under the storm of +December, 1879. The fact that it is very strong and +all knit tightly into one fabric, while enabling it to stand +firm under small oscillations or disturbances, may aggravate +great ones. For just as the whole bridge collapses +together, so the Rigid Constitution, which has arrested +various proposed changes, may be overthrown by a +popular tempest which has gathered strength from the +very fact that such changes were not and under the +actual conditions of politics could not be made by way +of amendment. When a party grows up clamouring for +some reforms which can be effected only by changing +the constitution, or when a question arises for dealing +with which the constitution provides no means, then, +if the constitution cannot be amended in the legal +<span class='pageno' id='Page_224'>224</span>way, because the legally prescribed majority cannot +be obtained, the discontent that was debarred from +any legal outlet may find vent in a revolution or +a civil war. The history of the Slavery question in +the United States illustrates this danger on so grand +a scale that no other illustration is needed. The +Constitution of 1787, while recognizing the existence +of slavery, left sundry questions, and in particular +that of the extension of slavery into new territories and +States, unsettled. Thirty years later these matters +became a cause of strife, and after another thirty years +this strife became so acute as to threaten the peace of +the country. Both parties claimed that the Constitution +was on their side. Had there been no Constitution +embodied in an instrument difficult of change, or had +it been practicable to amend the Constitution, so that +the majority in Congress could have had, at an earlier +stage, a free hand in dealing with the question, it is +possible—though no one can say that it is certain—that +the War of Secession might have been averted. So +much may at any rate be noted that the Constitution, +which was intended to hold the whole nation together, +failed to do. There might no doubt in any case have +been armed strife, as there was in England under +its Flexible Constitution in 1641. But it is at least +equally probable that the slave-holding party, which saw +its hold on the government slipping away, hardened its +heart because it held that it was the true exponent +of the Constitution, and because the Constitution made +compromise more difficult than it need have been in +a country possessing a fully sovereign legislature.</p> + +<p class='c001'>Two opposing tendencies are always at work in +<span class='pageno' id='Page_225'>225</span>countries ruled by these Constitutions, the one of +which tends to strengthen, the other to weaken them. +The first is the growth of respect for the Constitution +which increasing age brings. The remark is often +made that if husband and wife do not positively dislike +one another, and if their respective characters do +not change under ill-health or misfortune, every year +makes them like one another better. They may not +have been warmly attached at first, but the memories +of past efforts and hardships, as well as of past enjoyments, +endear them more and more to one another, +and even if jars and bickerings should unhappily recur +from time to time, the strength of habit renders each +necessary to the other, and makes that final severance +which, at moments of exasperation, they may +possibly have contemplated with equanimity, a severe +blow when it arrives. So a nation, though not contented +with its Constitution, and vexed by quarrels over +parts of it, may grow fond of it simply because it has +lived with it, has obtained a measure of prosperity +under it, has perhaps been wont to flaunt its merits +before other nations, and to toast it at public festivities. +The magic of self-love and self-complacency turns even +its meaner parts to gold, while imaginative reverence +for the past lends it a higher sanction. This is one way +in which Time may work. But Time also works against +it, for Time, in changing the social and material condition +of a people, makes the old political arrangements as they +descend from one generation to another a less adequate +expression of their political needs. Nobody now discusses +the old problem of the Best Form of Government, +because everybody now admits that the chief merit of +<span class='pageno' id='Page_226'>226</span>any form is to be found in its suitability to the conditions +and ideas of those among whom it prevails. Now if the +conditions of a country change, if the balance of power +among classes, the dominant ideas of reflective men, the +distribution of wealth, the sources whence wealth flows, +the duties expected from the administrative departments +of government, all become different, while the +form and constitutionally-prescribed methods of government +remain unmodified, it is clear that flaws in the +Constitution will be revealed which were previously +unseen, and problems will arise with which its arrangements +cannot cope. The remedy is of course to amend +the Constitution. But that is just what may be impossible, +because the requisite majority may be unattainable; +and the opponents of amendment, entrenched behind +the ramparts of an elaborate procedure, may succeed +in averting changes which the safety of the community +demands. The provisions that were meant to give +security may now be dangerous, because they stand in +the way of natural development.</p> + +<p class='c001'>Even where no strong party interest is involved it +may be hard to pass the amendments needed. The +history of the United States again supplies a case in +point. Two defects in its Constitution are admitted +by most political thinkers. One is the absence of +power to establish a uniform law of marriage and +divorce over the whole Union. The other is the +method of conducting the election of a President, +a method which in 1876 brought the country to the +verge of civil war, and may every four years involve the +gravest risks. Yet it has been found impossible to +procure any amendment on either point, because an +<span class='pageno' id='Page_227'>227</span>enormous force of united public opinion is needed to +ensure the concurrence of two-thirds of both Houses of +Congress and three-fourths of the States. The first of +these two changes excites no sufficient interest among +politicians to make them care to deal with it. The +second is neglected, because no one has a clear view of +what should be substituted, and neither party feels that +it has more to gain than has the other by grappling +with the problem.</p> + +<p class='c001'>A historical comparison of the two types as regards +the smoothness of their working, and the consequent +tendency of one or other to secure a quiet life to the +State, yields few profitable results, because the circumstances +of different nations are too dissimilar +to enable close parallels to be drawn, and because +much depends upon the skill with which the provisions +of each particular instrument have been drawn +and upon the greater or less particularity of those +provisions. The present Constitution of France, for +instance, is contained in two very short and simple +documents, which determine only the general structure +of the government, and are in size not one-twentieth +of the Federal Constitution of Switzerland. +Hence it follows that a far freer play is left to the +legislature and executive in France than in Switzerland; +and that these two authorities have in the former State +more power of meeting any change in the conditions of +the country, and also more power of doing harm by +hasty and unwise action, than is permitted in the latter. +As Adaptability is the characteristic merit and insecurity +the characteristic defect of a Flexible Constitution, so +the drawback which corresponds to the Durability of +<span class='pageno' id='Page_228'>228</span>the Rigid is its smaller capacity for meeting the changes +and chances of economic, social and political conditions. +A provision strictly defining the structure of the government +may prevent the evolution of a needed organ. A +prohibition debarring the legislature from passing certain +kinds of measures may prove unfortunate when +a measure of that kind would be the proper remedy. +Every security has its corresponding disadvantage.</p> + +<h3 class='c013'>XIII. <span class='sc'>The Interpretation of Rigid Constitutions.</span></h3> +<p class='c007'>A well-drawn Rigid Constitution will confine itself +to essentials, and leave many details to be filled in +subsequently by ordinary legislation and by usage. +But (as already observed) even the best-drawn instrument +is sure to have omitted some things which ought +to have been expressly provided for, to have imposed +restrictions which will prove inconvenient in practice, +to contain provisions which turn out to be susceptible +of different interpretations when cases occur raising +a point to which the words of those provisions do not +seem to be directly addressed. When any of these +things happen, the authorities, legislative and executive, +who have to work the Constitution find themselves in a +difficulty. Steps seem called for which the Constitution +either does not give power to do, or forbids to be +done, or leaves in such doubt as to raise scruples and +controversies. The authorities, or the nation itself, +have then three alternative courses open to them. +The first is to submit to the restrictions which the +Constitution imposes, and abandon a contemplated +<span class='pageno' id='Page_229'>229</span>course of action, though the public interest demands +it. This is disagreeable, but if the case is not urgent, +may be the best course, though it tends to the +disparagement of the Constitution itself. The second +course is to amend the Constitution: and it is +obviously the proper one, if it be possible. But it +may be practically impossible, because the procedure +for passing an amendment may be too slow, the +need for action being urgent, or because the majority +that can be secured for amendment, even if large, may +be smaller than the Constitution prescribes. The only +remaining expedient is that which is euphemistically +called Extensive Interpretation, but may really amount +to Evasion. Evasion, pernicious as it is, may give a +slighter shock to public confidence than open violation, +as some have argued that equivocation leaves a man’s +conscience less impaired for future use than does the +telling of a downright falsehood. Cases occur in which +the Executive or the Legislature profess to be acting +under the Constitution, when in reality they are stretching +it, or twisting it, <i>i.e.</i> are putting a forced construction +upon its terms, and affecting to treat that as being lawful +under its terms which the natural sense of the terms does +not justify. The question follows whether such an evasion +will be held legal, <i>i.e.</i> whether acts done in virtue of +such a forced construction as aforesaid will be deemed +constitutional, and will bind the citizens as being legally +done. This will evidently depend on a matter we have +not yet considered, but one of profound importance, +viz. the authority in whom is lodged the right of interpreting +a Rigid Constitution.</p> + +<p class='c001'>On this point there is a remarkable diversity of theory +<span class='pageno' id='Page_230'>230</span>and practice between countries which follow the English +and countries which follow the Roman law. The +English attribute the right to the Judiciary. As a constitutional +instrument is a law, distinguished from other +laws only by its higher rank, principle suggests that +it should, like other laws, be interpreted by the legal +tribunals, the last word resting, as in other matters, +with the final Court of Appeal. This principle of +referring to the Courts all questions of legal interpretation +may be said to be inherent in the English +Common Law, and holds the field in all countries +whose systems are built upon the foundation of that +Common Law. In particular, it holds good in the +United Kingdom and in the United States. As the +British Parliament can alter any part of the British +Constitution at pleasure, the principle is of secondary +political importance in England, for when any really +grave question arises on the construction of a constitutional +law it is dealt with by legislation. However, the +action of the Courts in construing the existing law is +watched with the keenest interest when questions arise +which the Legislature refuses to deal with, such, for +instance, as those that affect the doctrine and discipline of +the Established Church. So in the seventeenth century, +when constitutional questions were at issue between +the King and the House of Commons, which it was +impossible to settle by statute, because the king would +have refused consent to bills passed by the Commons, +the power of the Judges to declare the rules of the +ancient Constitution was of great significance. In the +United States, where Congress cannot alter the Constitution, +the function of the Judiciary to interpret the +<span class='pageno' id='Page_231'>231</span>will of the people as set forth in the Constitution has +attained its highest development. The framers of that +Constitution perhaps scarcely realized what the effect +of their arrangements would be. More than ten years +passed before any case raised the point; and when the +Supreme Court declared that an Act of Congress might +be invalid because in excess of the power granted by +the Constitution, some surprise and more anger were +expressed. The reasoning on which the Court proceeded +was, however, plainly sound, and the right +was therefore soon admitted. Canada and Australia +have followed the English doctrine, so the Bench has +a weighty function under the constitutions of both +those Federations.</p> + +<p class='c001'>On the European Continent a different view prevails, +and the Legislature is held to be the judge of its own +powers under the Constitution, so that no Court of law +may question the authority of a statute passed in due +form. Such is the rule in Switzerland. There, as in +most parts of the European Continent, the separation of +the Judiciary from the other two powers has been less +complete than in England, and the deference to what +Englishmen and Americans call the Rule of Law less +profound. The control over governmental action +which the right of interpretation implies seems to +the Swiss too great, and too political in its nature, +to be fit for a legal tribunal. It is therefore vested +in the National Assembly, which when a question is +raised as to the constitutionality of a Federal Statute or +Executive Act, or as to the transgression of the Federal +Constitution by a Cantonal Statute, is recognized as the +authority competent to decide. The same doctrine +<span class='pageno' id='Page_232'>232</span>seems to prevail in the German Empire, though the +point is there not quite free from doubt, and also in +the Austrian Monarchy, in France, and in Belgium. +In the Orange Free State, living under Roman-Dutch +law, the Bench, basing itself on American precedents, +claimed the right of authoritative interpretation, but the +Legislature hesitated to admit it.</p> + +<p class='c001'>American lawyers conceive that the strength and +value of a Rigid Constitution are greatly reduced when +the Legislature becomes the judge of its own powers, +entitled after passing a statute which really transgresses +the Constitution to declare that the Constitution has in +fact not been transgressed. The Swiss, however, deem +the disadvantages of the American method still more +serious, for they hold that it gives the last word to the +judges, persons not chosen for or fitted for such a function, +and they declare that in point of fact public opinion +and the traditions of their government prevent the +power vested in their National Assembly from being +abused. And it must be added that the Americans +have so far felt the difficulty which the Swiss dwell +on, that the Supreme Court has refused to pronounce +upon the action of Congress in ‘purely political cases,’ +<i>i.e.</i> cases where the arguments used to prove or +disprove the conformity to the Constitution of the +action taken by Congress are of a political nature.</p> + +<p class='c001'>Returning to the question of legislative action alleged +to transgress the Constitution, it is plain that if the Legislature +be, as in Switzerland, the arbiter of its own powers, +so that the validity of its acts cannot be questioned in +a court of law, there is no further difficulty. But where +that validity can be challenged, as in the United States, +<span class='pageno' id='Page_233'>233</span>it might be supposed that every unconstitutional statute +will be held null, and that thus any such stretching +or twisting of the Constitution as has been referred to +will be arrested. But experience has shown that where +public opinion sets strongly in favour of the line of conduct +which the Legislature has followed in stretching +the Constitution, the Courts are themselves affected by +that opinion, and go as far as their legal conscience and +the general sense of the legal profession permits—possibly +sometimes even a little farther—in holding +valid what the Legislature has done. This occurs most +frequently where new problems of an administrative +kind present themselves. The Courts recognize, in +fact, that ‘principle of development’ which is potent in +politics as well as in theology. Human affairs being +what they are, there must be a loophole for expansion or +extension in some part of every scheme of government; +and if the Constitution is Rigid, Flexibility must be +supplied from the minds of the Judges. Instances of +this kind have occurred in the United States, as when +some twenty years ago the Supreme Court recognized +a power in a State Legislature to deal with railway +companies not consistent with the opinions formerly +enounced by the Court, though they disclaimed the +intention of overruling those opinions<a id='r86'></a><a href='#f86' class='c012'><sup>[86]</sup></a>.</p> + +<p class='c001'><span class='pageno' id='Page_234'>234</span>Does not a danger lurk in this? May not a majority +in the Legislature, if and when they have secured the +concurrence, honest or dishonest, of the Judiciary, +practically disregard the Constitution? May not the +Executive conspire with them to manipulate places on +the highest Court of Appeal, so as to procure from it +such declarations of the meaning of the Constitution as +the conspiring parties desire? May not the Constitution +thus be slowly nibbled away? Certainly. Such +things may happen. It is only public opinion and +established tradition that will avail to prevent them. +But it is upon public opinion, moulded by tradition, that +all free governments must in the last resort rely.</p> + +<h3 class='c013'>XIV. <span class='sc'>Democracies and Rigid Constitutions.</span></h3> +<p class='c007'>The mention of traditions, that is to say of the mental +and moral habits of judgement which a nation has +formed, and which guide its political life, as the habits +of each one of us guide his individual life, suggests an +inquiry as to the effect of Documentary Constitutions +on the ideas and habits of those who live under them. +I will not venture on broad generalizations, because it +is hard to know how much should be assigned to the +racial tendencies of a nation, how much to the circumstances +of its history, how much to its institutions. +But the cases of Switzerland and the United States +seem to show that the tendency of these instruments +is to foster a conservative temper. The nation feels +a sense of repose in the settled and permanent form +<span class='pageno' id='Page_235'>235</span>which it has given to its government. It is not alarmed +by the struggles of party in the legislature, because +aware that that body cannot disturb the fundamental +institutions. Accordingly it will often, contracting a +dislike to change, negative the amendments which the +legislature submits to it. This happens in Switzerland, +as already observed; and the people of the United +States, though liable to sudden and violent waves of +political opinion, show so little disposition to innovate +that Congress has not proposed any amendments to the +State Legislatures since 1870<a id='r87'></a><a href='#f87' class='c012'><sup>[87]</sup></a>. I may be reminded +that the Constitutions of the several States of the +Union are frequently recast or amended in detail. This +is true, but the cause lies not so much in a restless +changefulness as in the low opinion entertained of the +State Legislatures. The distrust felt for these bodies +induces the people to take a large part of what is really +ordinary legislation out of their hands, and to enact +themselves, in the form of a Constitution, the laws they +wish. State Constitutions now contain many regulations +on matters of detail, and have thus, in most +States, ceased to be considered fundamental instruments +of government. To revise or amend them has +become merely a convenient method of direct popular +legislation, similar to the Swiss Popular Initiative and +Referendum. But the fundamental parts of these instruments +are but slightly changed.</p> + +<p class='c001'>In estimating the influence of Flexible Constitutions +in forming the political character of a nation, in stimulating +its intelligence and training its judgement, it was +<span class='pageno' id='Page_236'>236</span>remarked that only the governing class, a very small +part of the nation even in democratic countries, are +directly affected. This is less true of a Rigid Constitution. +While a Flexible Constitution like the +Roman or English requires much knowledge, tact and +courage to work it, and develops these qualities in +those who bear a part in the working of it, as legislators +or officials or magistrates, a Rigid Constitution +tends rather to elicit ingenuity, subtlety and logical +acumen among the corresponding class of persons. +It is apt to give a legal cast to most questions, and +sets a high, perhaps too high, premium on legal +knowledge and legal capacity. But it goes further. +It affects a much larger part of the community than +the Flexible Constitution does. Few even of the +governing class can be expected to understand the +latter. The average Roman voter in the <span lang="la"><i>comitia</i></span> in +the days of Cicero, like the average English voter at +the polls to-day, probably knew but little about the legal +structure of the government he lived under. But the +average Swiss voter, like the average native American +voter (for the recent immigrant is a different sort of +creature), understands his government, can explain it, +and has received a great deal of education from it. +Talk to a Swiss peasant in Solothurn or Glarus, and +you will be astonished at his mastery of principles as +well as his knowledge of details. Very likely he has +a copy of the Federal Constitution at home. He has +almost certainly learnt it at school. It disciplines his +mind much as the Shorter Catechism trained the +Presbyterian peasantry of Scotland. As there is no +mystery about a scheme of government so set forth, +<span class='pageno' id='Page_237'>237</span>it may be thought that he will have little reverence +for that which he comprehends. It is, however, his +own. He feels himself a part of the Government, and +seems to be usually imbued with a respect even for +the letter of the instrument, a wholesome feeling, which +helps to form that law-abiding spirit which a democracy +needs.</p> + +<p class='c001'>A documentary Constitution appears to the people as +the immediate outcome of their power, the visible image +of their sovereignty. It is commended by a simplicity +which contrasts favourably with the obscure technicalities +of an old common law Constitution. The taste of +the multitude, and especially of that class which outnumbers +all other classes, the thinly-educated persons +whose book-knowledge is drawn from dry manuals in +mechanically-taught elementary schools, and who in after +life read nothing but newspapers, or penny weeklies, or +cheap novels—the taste of this class, and that not merely +in Europe but perhaps even more in the new countries, +such as Western America and the British Colonies, is +a taste for ideas level with their comprehension, sentiments +which need no subtlety to be appreciated, propositions +which can be expressed in unmistakable +positives and negatives. Thus the democratic man (as +Plato would call him) is pleased to read and know his +Constitution for himself. The more plain and straightforward +it is the better, for so he will not need to ask +explanations from any one more skilled. And a good +reason for this love of plainness and directness may be +found in the fact that the twilight of the older Constitutions +permitted abuses of executive power against +which the express enactments of a Rigid Constitution +<span class='pageno' id='Page_238'>238</span>protect the people. Magna Charta, the Bill of Rights, +the Twelve Tables, were all fragments, or rather instalments, +of such a Constitution, rightly dear to the +commons, for they represented an advance towards +liberty and order<a id='r88'></a><a href='#f88' class='c012'><sup>[88]</sup></a>.</p> + +<p class='c001'>The theory of democracy assumes that the multitude +are both competent and interested; competent to understand +the structure of their government and their own +functions and duties as ultimately sovereign in it, +interested as valuing those functions, and alive to the +responsibility of those duties. A Constitution set out +in black and white, contained in a concise document +which can be expounded and remembered more easily +than a Constitution growing out of a long series of +controversies and compromises, seems specially fitted +for a country where the multitude is called to rule. +Only memory and common sense are needed to master +it. It can lay down general principles in a series of +broad, plain, authoritative propositions, while in the +case of the ‘historical Constitution’ they have to be +gathered from various sources, and expressed, if they +are to be expressed correctly, in a guarded and qualified +form. Now the average man, if intelligent enough to +comprehend politics at all, likes general principles. +Even if, as some think, he overvalues them, yet his +capacity for absorbing them gives him a sort of +comprehension of his government and attachment to it +which are solid advantages in a large democracy.</p> + +<p class='c001'>Constitutions of this type have usually arisen when +<span class='pageno' id='Page_239'>239</span>the mass of the people were anxious to secure their +rights against the invasions of power, and to construct +a frame of government in which their voices should be +sure to prevail. They furnish a valuable protection for +minorities which, if not liable to be overborne by the +tyranny of the mass, are at any rate liable to be disheartened +into silence by superior numbers, and so +need all the protection which legal safeguards can give +them. Thus they have generally been accounted as +institutions characteristic of democracy, though the +cases of Germany and Japan show that this is not +necessarily true.</p> + +<p class='c001'>A change of view has, however, become noticeable +within the last few years. In the new democracies of +the United States and the British self-governing Colonies—and +the same thing is true of popularly governed +countries in Europe—the multitude no longer fears +abuses of power by its rulers. It is itself the ruler, +accustomed to be coaxed and flattered. It feels no +need for the protection which Rigid Constitutions give. +And in the United States it chafes under those restrictions +on legislative power, embodied in the Federal +Constitution or State Constitution (as the case may be), +which have surrounded the rights of property and the +obligation of subsisting contracts with safeguards +obnoxious, not only to the party called Socialist, but +to reformers of other types. As these safeguards are +sometimes thought to prevent the application of needed +remedies and to secure impunity for abuses which have +become entrenched behind them, the aforesaid constitutional +provisions have incurred criticism and censure +from various sections, and many attempts have +<span class='pageno' id='Page_240'>240</span>been made by State Legislatures, acting at the bidding +of those who profess to control the votes of working +men, to disregard or evade the restrictions. These +attempts are usually defeated by the action of the +Courts, whence it happens that both the Federal Constitution +and the functions of the Judiciary are often +attacked in the country which was so extravagantly +proud of both institutions half a century ago. This +strife between the Bench as the defender of old-fashioned +doctrines (embodied in the provisions of a +Rigid Constitution (Federal or State)) and a State Legislature +acting at the bidding of a large section of the +voters is a remarkable feature of contemporary America.</p> + +<p class='c001'>The significance of this change in the tendency of +opinion is enhanced when we find that a similar change +has been operative in the opposite camp. The very +considerations which have made odious to some +American reformers those restrictions on popular +power, behind which the great corporations and the +so-called ‘Trusts’ (and capitalistic interests generally) +have entrenched themselves, have led not a few in +England to applaud the same restrictions as invaluable +safeguards to property. Realizing, a little late in the +day, that political power has in England passed from +the Few to the Many, fearing the use which the Many +may make of it, and alarmed by the precedents which +land legislation in Ireland has set, they are anxious +to tie down the British Legislature, while yet there is +time, by provisions which shall prevent interference +with a man’s control over what he calls his own, +shall restrict the taking of private property for public +uses, shall secure complete liberty of contracting, +<span class='pageno' id='Page_241'>241</span>and forbid interference with contracts already made. +Others in England, in their desire to save political +institutions which they think in danger, propose +to arrest any sudden popular action by placing +those institutions in a class by themselves, out of the +reach of the regular action of Parliament. In other +words, the establishment in Britain of a species of +Rigid Constitution has begun to be advocated, and +advocated by the persons least inclined to trust democracy. +‘Imagine a country’—so they argue—‘with +immense accumulated wealth, and a great inequality of +fortunes, a country which rules a vast and distant +Empire, a country which depends for her prosperity +upon manufactures liable to be injured by bad legislation, +and upon a commerce liable to be imperilled by +unskilful diplomacy, and suppose that such a country +should admit to power a great mass of new and +untrained voters, to whose cupidity demagogues will +appeal, and upon whose ignorance charlatans will +practise. Will not such a country need something +better for her security than a complicated and delicately-poised +Constitution resting largely on mere tradition, +a Constitution which can at any moment be fundamentally +altered by a majority, acting in a revolutionary +transient spirit, yet in a perfectly legal way? Ought not +such a country to place at least the foundations of her +system and the vital principles of her government out +of the reach of an irresponsible parliamentary majority, +making the procedure for altering them so slow and so +difficult that there will be time for the conservative +forces to rally to their defence before any fatal changes +can be carried through?’</p> + +<p class='c001'><span class='pageno' id='Page_242'>242</span>I refer to these arguments, which were frequently +heard in England during some years after the extension +of the suffrage in 1884<a id='r89'></a><a href='#f89' class='c012'><sup>[89]</sup></a>, with no intention of discussing +their soundness, for that belongs to politics, but +solely for the sake of illustrating how different are the +aspects which the same institution may come to wear. +A century ago revolutionists were the apostles, conservatives +the enemies, of Rigid Constitutions. Even +forty years ago it was the Flexibility of the historical +British Constitution that was its glory in the eyes of +admirers of the British system, its Rigidity that was +the glory of the American Constitution in the eyes +of fervent democrats.</p> + +<h3 class='c013'>XV. <span class='sc'>The Future of the Flexible and Rigid Types.</span></h3> + +<p class='c007'>A few concluding reflections may be devoted to the +probable future of the two types that have been occupying +our minds. Are both likely to survive? or if +not, which of the two will prevail and outlast the other?</p> + +<p class='c001'>Two reasons suggest themselves for predicting the +prevalence of the Rigid type. One is that no new +Flexible Constitutions have been born into the world +for many years past, unless we refer to this class those +of some of the British self-governing Colonies<a id='r90'></a><a href='#f90' class='c012'><sup>[90]</sup></a>. The +other is that no country now possessing a Rigid Constitution +<span class='pageno' id='Page_243'>243</span>seems likely to change it for a Flexible one. +The footsteps are all the other way. Flexible Constitutions +have been turned into Rigid ones. No Rigid +one has become Flexible<a id='r91'></a><a href='#f91' class='c012'><sup>[91]</sup></a>. Even those who complain +of the undue conservatism of the American Constitution +do not propose to abolish that Constitution altogether, +nor to place it at the mercy of Congress, but merely to +expunge parts of it, though no doubt parts which (such +as the powers of the Judiciary) have been vital to its +working.</p> + +<p class='c001'>Against these two arguments may be set the fact +that popular power has in most countries made great +advances, and does not need the protection of an instrument +controlling the legislature and the executive, +which are already only too eager to bend to every +breeze of popular opinion. If we lived in a time of +small States, as the ancients did, the people would +themselves legislate in primary assemblies. Why then, +it may be asked, should they care to limit the powers +of legislatures which are completely at their bidding? +The old reasons for holding legislatures and executives +in check have disappeared. Why should the +people, safe and self-confident, impose a check on themselves? +In this there may be some truth. But it must +be remembered that since modern States are larger than +those of former times, and tend to grow larger by the +absorption of the small ones, legislatures are necessary, +for business could not be carried on by primary popular +assemblies, even with the aid of ‘plébiscites.’ Now +legislatures are nowhere rising in the respect and confidence +of the people, and it is therefore improbable +<span class='pageno' id='Page_244'>244</span>that any nation which has a documentary Constitution, +holding its legislature in subjection, will abolish it for +the benefit of the legislature, although it may wish to +do more and more of its legislation by the direct action +of the people, as it does in Switzerland and in some +of the States of the American Union. On the whole, +therefore, it seems probable that Rigid Constitutions +will survive in countries where they already exist.</p> + +<p class='c001'>Two other questions remain. Will existing Flexible +Constitutions remain? Are such new States as may +arise likely to adopt Constitutions of the Rigid or of +the Flexible type?</p> + +<p class='c001'>An inquiry whether countries which, like Hungary +and Britain, now live under ancient Flexible Constitutions +will exchange them for new documentary ones +would resolve itself into a general study of the political +prospects of those countries. All that can be said, apart +from such a study, is that our age shows no such general +tendency to change in this respect as did the revolutionary +and post-revolutionary era of the first sixty +years of the nineteenth century. Still, a few lines may +be given to considering whether any such alteration of +form is likely to pass on the Constitution which has long +had the unquestioned pre-eminence in age and honour, +that, namely, of the United Kingdom, which is really +the ancient Constitution of England so expanded as to +include Scotland and Ireland.</p> + +<p class='c001'>So far as internal causes and forces are concerned, +this seems improbable. The people are not likely, +despite the alarms felt and the advice tendered by the +uneasy persons to whom reference has already been +made, to part with the free play and elastic power of +<span class='pageno' id='Page_245'>245</span>their historical Cabinet and Parliamentary system. +England has never yet made any constitutional change +either on grounds of theory or from a fear of evils +that might arise in the future. All the modifications of +the frame of government have been gradual, and induced +by actually urgent needs.</p> + +<p class='c001'>But there is another set of causes and forces at work +which may, as some think, affect the question. It has +already been noted that Rigid Constitutions have +arisen where States originally independent or semi-independent +have formed Confederations. These States, +finding the kind of connexion which treaties had created +insufficient for their needs, have united themselves into +one Federal State, and expressed their new and closer +relation in the form of a documentary Constitution. +Such a Constitution has invariably been raised above +the legislature it was creating, because the States +which were uniting wished to guard jealously such +autonomy as they respectively retained, and would not +leave those rights at the mercy of the legislature. +This happened in the United States in 1787-9, in +Switzerland after the fall of Napoleon, in Germany +when the North German Confederation and German +Empire were created in 1866 and 1870-71. It has +happened also in Canada and in Australia.</p> + +<p class='c001'>Two proposals of a federalizing nature have recently +been made regarding the United Kingdom, one to split +it up into a Federation of four States, the other to make +it a member of a large Federation. Neither seems +likely to be carried out at present, but both are worth +mentioning, because they illustrate the occasions on +which, and methods by which, constitutions may be +<span class='pageno' id='Page_246'>246</span>transformed. The United Kingdom stands to its self-governing +Colonies in what is practically a permanent +alliance as regards all foreign relations, these relations +being managed by the mother country, with complete +local legislative and administrative autonomy both for +each Colony and for the mother country<a id='r92'></a><a href='#f92' class='c012'><sup>[92]</sup></a>. Many think +that this alliance is not a satisfactory, and cannot well +be a permanent, form of connexion, because at present +almost the whole burden—and it is a heavy one—of +naval and military defence falls upon Britain, while +the Colonies have no share in the control of foreign +relations, and may find themselves engaged in a war, or +bound by a treaty, regarding which they have not been +consulted. Thus the idea has grown up that some sort +of confederation ought to be established, in which there +would be a Federal Assembly, containing representatives +of the (at present seven) component States<a id='r93'></a><a href='#f93' class='c012'><sup>[93]</sup></a>, and +controlling those matters, such as foreign relations and +a system of military and naval armaments, which would +be common to the whole body. If this idea were ever +to take practical shape, it would probably be carried out +by a statute establishing a new Constitution for the desired +Confederation, and creating the Federal Assembly. +Such a statute would be passed by the Parliament of +the United Kingdom, and (being expressed to be +<span class='pageno' id='Page_247'>247</span>operative over the whole Empire) would have full +legal effect for the Colonies as well as for the mother +country. Now if such a statute assigned to the Federal +Assembly certain specified matters, as for instance the +control of imperial defence and expenditure or (let us +say) legislation regarding merchant shipping and copyright, +taking them away from the present and future +British Parliament as well as from the parliaments of +the several Colonies, and therewith debarring the British +Parliament from recalling or varying the grant except +by the consent of the several Colonies (or perhaps of +the Federal Assembly itself), it is clear that the now +unlimited powers of the British Parliament would have +been reduced. A part of the future British Constitution +would have been placed beyond its control: and to +that extent the British Constitution would have ceased +to be a Flexible one within the terms of the definition +already given<a id='r94'></a><a href='#f94' class='c012'><sup>[94]</sup></a>. Parliament would not be fully sovereign; +and if either the British or a Colonial Parliament +passed laws inconsistent with statutes passed by +the Federal Assembly in matters assigned to the latter, the +Courts would have to hold the transgressing laws invalid.</p> + +<p class='c001'>Doubtless, if such a Federal Constitution were established, +a Supreme Court of Appeal on which some +colonial judges should sit would be thought essential +to it, and questions arising under the Federation Act +<span class='pageno' id='Page_248'>248</span>(as to the extent of the powers of the Federal Assembly +and otherwise) would go before it, sometimes in the first +instance, sometimes by way of appeal from inferior Courts.</p> + +<p class='c001'>The other proposal is to turn the United Kingdom +itself into a Federation by erecting England, Scotland, +Ireland, and Wales into four States, each with a local +legislature and ministry controlling local affairs, while +retaining the Imperial Parliament as a Central or +Federal Legislature for such common affairs as belong +in the United States to Congress, and in Canada to +the Dominion Parliament, and in Australia to the +Commonwealth Parliament. If such a scheme provided, +as it probably would provide, for an exclusive +assignment to the local legislatures of local affairs, so +as to debar the Imperial Parliament from interfering +therewith, it would destroy the present Flexible British +Constitution and substitute a Rigid one for it. Care +would have to be taken to use proper legal means of +extinguishing the general sovereign authority of the +present Parliament, as for instance by directing the +elections for the new Federal Legislature to be held +in such a way as to effect a breach of continuity +between it and the old Imperial Parliament, so that the +latter should absolutely cease and determine when the +new Constitution came into force. Upon this scheme +also it would be for the Courts of Law to determine +whether in any given case either the Federal or one +of the Local Legislatures had exceeded its powers.</p> + +<p class='c001'>Some persons have proposed to combine both these +proposals so as to make the four parts of the United +Kingdom each return members, along with the Colonies, +to a Pan-Britannic Federal Legislature, and to place the +<span class='pageno' id='Page_249'>249</span>local legislatures of Scotland, for instance, or Wales, in +a line with those of the Australian Commonwealth or New +Zealand. On this plan also—a highly inconvenient one—the +British Constitution would become Rigid.</p> + +<p class='c001'>The difficulties, both legal and practical, with which +these proposals, taken either separately or in conjunction, +are surrounded, are greater than those who advocate +them have as yet generally perceived.</p> + +<hr class='c014'> + +<h3 class='c013'>XVI. <span class='sc'>Are New Constitutions Likely to Arise?</span></h3> + +<p class='c007'>The remaining question, also somewhat speculative, +relates to the prospects the future holds out to us of +seeing new States with new Constitutions arise.</p> + +<p class='c001'>New States may arise in one of two ways, either by +their establishment in new countries where settled and +civilized government has been hitherto unknown, or by +the breaking up of existing States into smaller ones, +fragments of the old.</p> + +<p class='c001'>The opportunities for the former process have now +been sadly curtailed through the recent appropriation +by a few great civilized States of some two-thirds of the +surface of the globe outside Europe. North America is +in the hands of three such States. Central and South +America, though the States are all weak and most of +them small in population, are so far occupied that no +space is left. The last chance disappeared when the +Argentine Republic asserted a claim to Patagonia, where +it would have been better that some North European +race should have developed a new colony, as the Welsh +settlers were doing on a small scale. Australia is occupied. +Asia, excluding China and Japan in the East, and +<span class='pageno' id='Page_250'>250</span>the two dying Musulman powers in the West, is virtually +partitioned between Britain and Russia, with France +holding a bit of the south-east corner. So Africa has +now been (with trifling exceptions) divided between five +European Powers (Portugal, England, France, Germany, +Italy). Thus there is hardly a spot of earth left on +which a new independent community can establish itself, +as the Greeks founded a multitude of new commonwealths +in the eighth and seventh centuries <span class='fss'>B.C.</span>, and +as the Teutonic invaders founded kingdoms during the +dissolution of the Roman Empire.</p> + +<p class='c001'>If we turn to the possibilities of new States arising +from the ruins of existing ones, whether by revolt or by +peaceful separation, the prospect is not much more +encouraging. There is indeed Turkey. Five out of the +six new States that have arisen in Europe during this +century have been carved out of the territories she +claimed—viz. Greece, Rumania, Servia, Bulgaria, Montenegro: +and there is material for one or two more in +Europe and possibly for one or two in Asia, though it is +more probable that both the Asiatic and European dominions +of the Sultan will be partitioned among existing +States than that new ones will spring out of them. The +ill-compacted fabric of the Austro-Hungarian monarchy +may fall to pieces. Parts of the Asiatic dominions of +Russia may possibly (though in a comparatively distant +future) become independent of the old Muscovite motherland, +and the less civilized among the republics of +Central and South America may be broken into parts or +combined into new States, though the saying <span lang="fr">‘plus cela +change, plus c’est la même chose’</span> is even more true of +those countries than of that to which it was originally +<span class='pageno' id='Page_251'>251</span>applied, and gives little hope of interesting novelties. +But on the whole the tendency of modern times is rather +towards the aggregation of small States than towards +the division of large ones. Commerce and improved +facilities of communication are factors of constantly increasing +importance which work in this direction, and +this general tendency for the larger States to absorb the +smaller forbids us to expect the rise, within the next +few generations, of more than a few new Constitutions +which will provide matter for study to the historian or +lawyer of the future.</p> + +<p class='c001'>What type of Constitution will these new States, whatever +they be and whenever they come, be disposed +to prefer? Upon this point it is relevant to observe +that all the new States that have appeared since 1850 +have adopted Rigid Constitutions, with the solitary exception +of Montenegro, which has no Constitution at +all, but lives under the paternal autocracy of the temporal +ruler who has succeeded the ancient ecclesiastical +Vladika<a id='r95'></a><a href='#f95' class='c012'><sup>[95]</sup></a>. Each of them, on beginning its independent +life, has felt the need of setting out the lines of its +government in a formal instrument which it has consecrated +as fundamental by placing it above ordinary legislation. +Similar conditions are likely to surround the +birth of any new States, similar motives to influence +those who tend their infancy. The only cases in which a +Flexible Constitution is likely to arise would be the +division of a country having such a Constitution into +two or more fragments, each of which should cleave to +the accustomed system; or the revolt of a people or +community among whom, as they grow into a State, +<span class='pageno' id='Page_252'>252</span>usages of government that had naturally sprung up +might, when independence had been established, continue +to be observed and so ripen into a Constitution. +The chance that either of these cases will present itself +is not very great. New States will more probably +adopt documentary Constitutions, as did the insurgent +colonies of England after 1776 and of Spain after 1811, +and as the Christians of South-Eastern Europe did when +they had rid themselves of the Turk. Upon the whole, +therefore, it would seem that the future is rather with +Rigid Constitutions than with those of the Flexible type.</p> + +<p class='c001'>It is hardly necessary to close these speculations by +adding the warning that all prophecies in politics must +be highly conjectural. Circumstances change, opinion +changes; knowledge increases, though the power of +using it wisely may not increase<a id='r96'></a><a href='#f96' class='c012'><sup>[96]</sup></a>.</p> + +<p class='c001'>The subtlety of nature, and especially the intricacy +of the relations she develops between things that +originally seemed to lie wide apart, far surpasses the +calculating or predicting wit of man. Accordingly many +things, both in the political arrangements of the world +and in the beliefs of mankind, which now seem permanent +may prove transitory. Democracy itself, though +most people treat it as a thing likely to grow stronger +and advance further, may suffer an eclipse. Human +nature no doubt remains. But human nature has clothed +itself in the vesture of every sort of institution, and +may change its fashions as freely in the future as it +has done in the past.</p> + +<div> + <span class='pageno' id='Page_253'>253</span> + <h3 class='c013'>NOTE TO ESSAY III <br></h3> +</div> +<p class='c007'>CONSTITUTIONAL AND OTHER GOVERNMENTS</p> + +<div class='quote'> + +<p class='c001'>The races and nations of the world may, as respects the +forms of Government under which they live, be distributed +into four classes:—</p> + +<p class='c001'>I. Nations which have created and maintain permanent +political institutions, allotting special functions to each organ +of Government, and assigning to the citizens some measure +of participation in the business of Government.</p> + +<p class='c001'>In these nations we discover Constitutions in the proper +sense of the term. To this class belong all the States of +Europe except Russia and Montenegro, and, outside Europe, +the British self-governing Colonies, the United States and +Mexico, the two republics of South Africa, Japan and Chili, +possibly also the Argentine Republic.</p> + +<p class='c001'>II. Nations in which the institutions aforesaid exist in +theory, but are seldom in normal action, because they are in +a state of chronic political disturbance and mostly ruled, with +little regard to law, by military adventurers. This class +includes the republics of Central and South America, with +the exception of Chili, and possibly of Argentina, whose +condition has latterly been tolerably stable.</p> + +<p class='c001'>III. Nations in which, although the upper class is educated, +the bulk of the population, being backward, has not begun to +desire such institutions as aforesaid. Such Nations therefore +remain under autocratic monarchies. To this class belong +Russia and Montenegro. Japan has lately emerged from it: +and two or three of the newest European States might, but +for the interposition of other nations, have remained in it.</p> + +<p class='c001'>IV. Nations which are, for one reason or another, below +<span class='pageno' id='Page_254'>254</span>the level of intellectual life and outside the sphere of ideas +which the permanent political institutions aforesaid presuppose +and need for their proper working. This class +includes all the remaining peoples of the world, from intelligent +races like the Chinese, Siamese, and Persians, down +to the barbarous tribes of Africa.</p> + +<p class='c001'>Constitutions, in the sense in which the term is used in +the preceding Essay, belong only to the first class, and in +a qualified sense to the second. In the modern world they are +confined to Europe and her Colonies, adding Japan, which +has imitated Europe. In the ancient world they were confined +to three races, Greeks, Italians, and Phoenicians, to +whom one may perhaps add such races as the Lycians, who +had learnt from the Greeks. Their range is somewhat +narrower than that of law, that is to say, there are peoples +which, like the Musulmans of Turkey, Egypt, and Persia, +have law, but have no Constitutions.</p> + +<p class='c001'>No race that has ever lived under a regular constitutional +Government has permanently lost it, except those parts of +the Roman Empire which now form part of the Turkish +Empire; and the Roman Empire, though its Government +never ceased to be in a certain sense constitutional, ultimately +extinguished the habit of self-government among its +subjects.</p> + +</div> + +<div class='chapter'> + <span class='pageno' id='Page_255'>255</span> + <h2 id='eIV' class='c005'>IV <br> <br> THE ACTION OF CENTRIPETAL<br>AND CENTRIFUGAL FORCES ON<br>POLITICAL CONSTITUTIONS<a id='r97'></a><a href='#f97' class='c012'><sup>[97]</sup></a></h2> +</div> + +<p class='c006'>As every government and every constitution is the +result of certain forces and tendencies which bring men +together in an organized community, so every government +and every constitution tends when formed to hold +men together thenceforth, training them to direct their +efforts to a common end and to sacrifice for that purpose +a certain measure of the exercise of their individual +wills. So strong is the aggregative tendency, that +each community naturally goes on by a sort of law of +nature to expand and draw in others, whether persons +or groups, who have not previously belonged to it: nor +is physical force the prime agent, for the great majority +of mankind prefer some kind of political society, even +one in whose management they have little or no share, +to mere isolation. As this process of expansion and +aggregation continues, the different political groups +which it has called into being come necessarily in contact +with one another. The weaker ones are overcome +or peacefully absorbed by the stronger ones, and thus +the number of groups is continually lessened. Where +two communities of nearly equal strength encounter +each other, each may for a time succeed in resisting the +<span class='pageno' id='Page_256'>256</span>attraction of the other. But in this changeful world it +almost always happens that sooner or later one becomes +so much stronger that the other yields to it: and thus in +course of time the number of detached communities, <i>i.e.</i> +of groups each with its own centre of attraction, becomes +very small, because the weak have been swallowed up +by the strong. This is the general, though, as we shall +see, not the universal course of events. There is also +another force at work, which has at some moments in +history developed great strength.</p> + +<h3 class='c013'>I. <span class='sc'>How the Tendencies to Aggregation and to Disjunction respectively affect Constitutions.</span></h3> + +<p class='c007'>Of the many analogies that have been remarked +between Law in the Physical and Law in the Moral +World, none is more familiar than that derived from +the Newtonian astronomy, which shows us two forces +always operative in our solar system. One force draws +the planets towards the sun as the centre of the system, +the other disposes them to fly off from it into space. +So in politics, we may call the tendency which draws +men or groups of men together into one organized +community and keeps them there a Centripetal force, +and that which makes men, or groups, break away and +disperse, a Centrifugal. A political Constitution or frame +of government, as the complex totality of laws embodying +the principles and rules whereby the community is +organized, governed, and held together, is exposed to +the action of both these forces. The centripetal force +strengthens it, by inducing men (or groups of men) to +maintain, and even to tighten, the bonds by which the +<span class='pageno' id='Page_257'>257</span>members of the community are gathered into one organized +body. The centrifugal assails it, by dragging men +(or groups) apart, so that the bonds of connexion are +strained, and possibly at last loosened or broken. That +no community can be exempt from the former force is +obvious. But neither can any wholly escape the latter. +For every community has been built out of smaller +groups, and the members of such groups have seldom +quite lost the attraction which each had to its own particular +centre, such attraction being of course dissociative +as regards the other groups and their members<a id='r98'></a><a href='#f98' class='c012'><sup>[98]</sup></a>. +Moreover in no large community can there ever be a +complete identity of views and wishes, of interests and +feelings, between all the members. Many must have +something to complain of, something which sets them +against the rest and makes them desire to be, for some +purposes, differently treated, or (in extreme cases) to be +entirely separated. The existence of such a grievance +constitutes a centre round which a group is formed, and +this group is in so far an element of disjunction. +Accordingly the history of every community and every +constitution may be regarded as a struggle between the +action of these two forces, that which draws together +and that which pushes apart, that which unites and that +which dissevers.</p> + +<p class='c001'>This subject, it may be thought, belongs either to +History, in so far as history attempts to draw general +conclusions from the facts she records, or to that +branch of political science which may be called Political +<span class='pageno' id='Page_258'>258</span>Dynamics, and is one with which the constitutional +lawyer is not directly concerned. The constitutional +lawyer, however, must always, if he is to +comprehend his subject and treat it fruitfully, be a historian +as well as a lawyer. His legal institutions and +formulae do not belong to a sphere of abstract theory +but to a concrete world of fact. Their soundness is not +merely a logical but also a practical soundness, that is +to say, institutions and rules must represent and be +suited to the particular phenomena they have to deal +with in a particular country. It is through history +that these phenomena are known. History explains +how they have come to be what they are. History +shows whether they are the result of tendencies still +increasing or of tendencies already beginning to +decline. History explains them by parallel phenomena +in other times and places. Thus the lawyer who +has to consider and advise on any constitutional problem, +and still more the lawyer who has to contrive +a constitutional scheme for grappling with a political +difficulty, must study the matter as a historian, otherwise +he will himself err and mislead those whom he +advises. Great lawyers often have so erred, and with +lamentable results. A lawyer who shall deal with a +constitutional problem as he would deal with a technical +point in the law of real property will be as much +astray as an advocate who should prosecute or defend +a political prisoner with a sole regard to the law of +treason or sedition which he may find in his books, +heedless of the temper and opinion of those from among +whom the jury will be drawn.</p> + +<p class='c001'>An obvious illustration may be found in the fact that +<span class='pageno' id='Page_259'>259</span>when any particular community is studied from the +constitutional point of view, and the inquiry is raised +whether it ought to have a Flexible or a Rigid Constitution, +the question of the comparative actual strength of +these two forces becomes a vital one. Where the +centripetal force is palpably the stronger, either sort of +constitution will do to hold the community together: +and the choice between the two sorts may be made on +other grounds. But where the centrifugal force is potent, +and especially where there are reasons to apprehend +its further development, the establishment of a Rigid +Constitution may become desirable, and yet may be +a matter of much delicacy and difficulty. If the constitution +be framed in the interests of a centralizing policy, +there is a danger that it may assume and require for its +maintenance a greater strength in the centripetal forces +than really exists, and that for the want of such strength +the constitution may be exposed to a strain it cannot +resist. Amid the constant change of phenomena, a +Rigid Constitution necessarily represents the past, +not the present; and if the tendencies actually operative +are towards the dissociation of the component +groups of the community, a frame of government +which fails to provide scope for these tendencies +will soon become out of date and unfit for its work. +Where, on the other hand, the existence of distinct +groups, each desiring some control of its own affairs, +is fully perceived and duly admitted as a factor in the +condition of the community, and where it is desired +to give legal recognition to the fact, and to protect +the other local groups or sub-communities from being +overridden by the largest among the groups, or by the +<span class='pageno' id='Page_260'>260</span>community as a whole, the creation of a Rigid <a id='corr260.1'></a><span class='htmlonly'><ins class='correction' title='Constition'>Constitution</ins></span><span class='epubonly'><a href='#c_260.1'><ins class='correction' title='Constition'>Constitution</ins></a></span> +offers a valuable means of securing these objects. +For such a constitution may be so drawn as to place +the local groups under the protection of a fixed body of +law, making their privileges an integral part of the +frame of government, so that the whole Constitution +must stand or fall with the maintenance of the rights +enjoyed by the groups<a id='r99'></a><a href='#f99' class='c012'><sup>[99]</sup></a>. The familiar instance of such +a form of Rigid Constitution is a Federal Constitution. +It is specially adapted to the case of a country where +the centrifugal forces are so strong that it is clear that +the groups will not consent to be wholly merged and +lost in one community, as under a Flexible Constitution +might befall them, yet where they are sufficiently +sensible of the advantages of combination to be willing +to enter into a qualified and restricted union. And +in these cases it has sometimes proved to be an efficient +engine for further centralization. That is to say, +the best way of strengthening in the long run the +centripetal tendencies has been to give so much recognition +and play to the centrifugal as may disarm them, +and may allow the causes which make for unity to +operate quietly without exciting antagonism.</p> + +<p class='c001'>It appears accordingly that the historian who studies +constitutions, and still more the draftsman who frames +them, must have his eye constantly fixed on these two +forces. They are the matter to which the legislator +has to give form. They create the state of things +which a Constitution has to deal with, so laying down +principles and framing rules as on the one hand to +<span class='pageno' id='Page_261'>261</span>recognize the forces, and on the other hand to provide +safeguards against their too violent action. Their +action will preserve or destroy the Constitution,—preserve +it, if it has given them due recognition and scope, +destroy it, if its provisions turn out to be opposed to the +sweep of irresistible currents. The forces that move +society are to the constructive jurist or legislator what +the forces of nature are (in the famous Baconian phrase) +to man. He is their servant and interpreter. They can +be overcome only by obeying them. If he defies or +misunderstands them, they overthrow his work. If he +knows how to use them, they preserve it. But his +difficulty is greater than that of the physicist, because +these social forces are more complex than those of +inanimate nature, and vary in their working from +generation to generation.</p> + +<h3 class='c013'>II. <span class='sc'>Tendencies which may operate either as Centripetal or as Centrifugal Forces.</span></h3> +<p class='c007'>Now let us see what are the chief among the tendencies +which in political society are capable of playing +the part either of centripetal or of centrifugal forces.</p> + +<p class='c001'>So far as individual men are concerned, all the +tendencies that work on them may be said to be +associative tendencies, that is to say, <a id='corr261.24'></a><span class='htmlonly'><ins class='correction' title='every thing'>everything</ins></span><span class='epubonly'><a href='#c_261.24'><ins class='correction' title='every thing'>everything</ins></a></span> tends +to knit individual men together into a band or group, +and to make them act together. The repulsion of man +from man is so rare that we may ignore it. Even the +keenest individualist desires to convert other men to +his individualism, and forms a league for the purpose +with others who are like-minded.</p> + +<p class='c001'><span class='pageno' id='Page_262'>262</span>As regards political societies, the subject wherewith +we are here concerned, the tendencies I am going to +enumerate may be either associative or dissociative. +Whether in the case of any given State they act as +agglutinative and consolidating forces or as splitting and +rending forces depends upon whether they are at the +moment giving their support to, or are enlisted in the service +of, the State as a whole, or are strengthening the +group or groups inside the State which are seeking to +assert either their rights within the State or their independence +of it. Even obedience, the readiness to submit +and follow, which might seem primarily a centripetal +force, may be centrifugal as against the State if it +leads the partisans of a particular recalcitrant group +to surrender their wills to the leaders of that group. +Even the love of independence, the desire to let each +man’s individuality have full scope, may act as a centripetal +force if it disposes men to revolt against the +tyranny of a faction and maintain the rights and interests +of the whole people against the attempts of that faction +to have its own way. There are always two centres +of attraction and two groupings to be considered, the +larger, which we call the State, and the smaller, which +may be either a subordinate community, such as a +province, district or dependency, or only a party or faction. +And the centripetal force which draws men to the +smaller centre is a centrifugal force as regards the larger.</p> + +<p class='c001'>These two tendencies, which I have referred to as +Obedience and Individualism, are so familiar, and the +former is a disposition of human nature so generally +pervasive, as to need no further discussion. The other +tendencies which may operate either centrifugally or centripetally +<span class='pageno' id='Page_263'>263</span>may be classed under the two heads of Interest +and Sympathy. Under the head of Interest there fall all +those influences which belong to the sphere of Property, +including of course Industry and Commerce as +means of acquiring property. These influences usually +make for consolidation and assimilation. It is a gain +to the trader or the producer that the area of consumers +which he supplies without the hindrance +of an interposed customs tariff should be as wide as +possible. It is a gain that communications by sea +and land should be safe, easy, swift, and cheap, and +these objects are better secured in a large country +under a strong government. It is a gain that coinage, +weights, and measures should be uniform over the +largest possible area and that the standard of the +currency should be upheld. It is a gain that the same +laws and the same system of courts should prevail in +every part of a State—and the larger the State the +better, so far as these matters are concerned—and that +the law should be steadily enforced and complete public +order secured. All these things make not only for the +growth of industry and the spread of trade, but also for +the value of all kinds of property. And all these influences, +derived from the consideration of such gains, +which play upon the citizen’s mind, are usually aggregative +influences, disposing him to desire the extension +of the State and the strength of its central authority. +Considerations of Interest, therefore, usually operate +as a centripetal force. It was through commercial +interests that the States of Germany were, after the fall +of the old Romano-Germanic Empire, drawn into that +Zollverein which became a stage towards, and ultimately +<span class='pageno' id='Page_264'>264</span>the basis of, the present German Empire. It was the +increase of trade, after the union of Scotland and +England, that by degrees reconciled the Scotch to a +measure which was at first most unpopular among them +as threatening to extinguish their national existence. +It is the absence of any strong commercial motives for +political union that has hampered the efforts of those +who have striven, so far successfully, to keep Norway +and Sweden united.</p> + +<p class='c001'>In exceptional cases, however, the influences of Interest +may be centrifugal. A particular group of traders +or landowners, for instance, living in a particular district, +may think they will gain more by having the +power to enact special laws for the conduct of their +own affairs or for the exclusion of competing persons +than they will by entering or by remaining under +the uniform system of a large State<a id='r100'></a><a href='#f100' class='c012'><sup>[100]</sup></a>. Trade considerations +counted for something in making the planters of +the Slave States of America desire to sever themselves +from a government in which the protectionist party was +generally dominant. It is partly on economic grounds +that the various provinces of the Cis-Leithanian part +of the Austro-Hungarian Monarchy have been allowed, +and desire to maintain, each its autonomy. It was +largely a divergence of economic views and interests +<span class='pageno' id='Page_265'>265</span>that so long deterred the free trade colony of New +South Wales from linking its fortunes in a federation +with the protectionist colonies; nor were there wanting +industrial grounds which made the adhesion of +Queensland long doubtful.</p> + +<p class='c001'>To the head of Sympathy we must refer all the +influences which flow not from calculation and the +desire of gain, but from emotion or sentiment. The +sense of community, whether of belief, or of intellectual +conviction, or of taste, or of feeling (be it affection or +aversion towards given persons or things), engenders +sympathy, and draws men together. To the same +class belong the recognition of a common ancestry, the +use of a common speech, the enjoyment of a common +literature. The importance of these factors has often +been exaggerated. Some of the keenest Irish revolutionaries +have been English by blood and Protestants +by faith. The Borderers of Northumberland and those of +Berwickshire did not hate one another less because they +were of the same stock and spoke the same tongue. +The Celts of Inverness-shire and the Teutons of Lothian +are now equally enthusiastic Scotchmen, though they +disliked and despised one another almost down to the +days of Walter Scott<a id='r101'></a><a href='#f101' class='c012'><sup>[101]</sup></a>. Mere identity of origin does +not count for much, as witness the ardent Hungarian +patriotism of most of the Germans and Jews settled in +Hungary, with perhaps no drop of Magyar blood in +their veins. Community of language does not any +more than a common ancestry necessarily make for +<span class='pageno' id='Page_266'>266</span>love, and indeed may increase hatred, because in an +age of newspapers each of two disputant parties +can read the injurious things said of it by the other. +Civil wars are, like family quarrels, proverbially embittered. +Tocqueville wrote, in 1833, that he could imagine +no more venomous hatred than the Americans then +felt for England. So it may be said that though the want +of these elements of community is usually an obstacle +to unity, their presence is no guarantee for its existence. +Somewhat greater value belongs to identity of traditions +and historical recollections, and to the possession +of the materials for a common pride in past achievements. +Most men find a personal satisfaction and take +a personal pride in recalling the feats and the struggles +of the nation, or the tribe, or the party, or the sect, +to which they belong, so the recollection of exploits +or sufferings becomes an effective rallying point for +a group. We all know how powerful a force such +memories have been at various times in stimulating +national feeling in Italy, in Germany, in Hungary, in +Scotland, in Portugal, in Ireland.</p> + +<p class='c001'>Still less necessary is it to dwell upon the influence of +Religion, which, as it touches the deepest chords of +man’s nature, is capable of educing the maximum +of harmony or discord. No force has been more +efficient in knitting factions and States together, or in +breaking them up and setting the parts of a State in +fierce antagonism to one another. Religion held +together the Eastern Empire, originally a congeries +of diverse races, in the midst of dangers threatening it +from every side for eight hundred years. Religion now +holds together the Turkish Empire in spite of the +<span class='pageno' id='Page_267'>267</span>hopeless incompetence of its government. Religion +split up the Romano-Germanic Empire after the time +of Charles the Fifth. The instances of the Jews and +the Armenians are even more familiar.</p> + +<p class='c001'>There remains a large and rather miscellaneous +category of sources of sympathy which we may call by +the general name of Elements of Compatibility. Traits +of character, ideas, social customs, similarity of intellectual +culture, of tastes, and even of the trivial usages +of daily life, all contribute to link men together, and to +assimilate them further to one another, as the absence +of these things tends to differentiation and dissimilation, +because it supplies points in which the members of one +group, racial or local or social, feel themselves out of +touch with the members of another, and possibly inclined +to show contempt, or to think themselves contemned, on +the ground of the divergence. The natural repulsion +which the Germans usually feel for the Slavs, and the +Slavs for the Germans, seems to have its root in a difference +of character and temperament which makes it hard +for either race to do full justice to the other. That repulsion +is powerfully operative to-day in the Austrian +Empire. In the ancient world the obstinate and +passionate Egyptians seem to have displayed, and provoked, +a similar antagonism in their contact with other +races, and particularly with the arrogant Persians.</p> + +<p class='c001'>These influences of Sympathy, like those of Interest, +may figure either as centripetal or centrifugal forces, +according as the centre round which they group and +towards which they draw men is the main centre of +that larger circle represented by the State or the centre +of the smaller circle represented by the tribe, the district, +<span class='pageno' id='Page_268'>268</span>the province, the faith, the sect, the faction. The same +feeling may play the one part or the other according to +the accident of individual view, or taste, or environment. +Thus in a University consisting of a number of autonomous +colleges, one man may be a centralizer, and seek +to bring the colleges into subordination, pecuniary and +administrative, to the University, while another man may +desire to maintain their independence, and yet both may +set a high value on corporate spirit, and be filled with +it themselves. In one man this spirit clings to the +college, in another it glorifies the University. The +patriotism which makes a Magyar desire that Hungary +should absorb Croatia, and that which makes a Croat +desire to sever his country from Hungary, are essentially +the same sentiment, though, as regards the monarchy +of the Hungarian Crown, the sentiment operates +with the Magyar as an attractive, with the Croat as +a repulsive force. This statement is generally true of +that complex feeling, based upon affinities of race, of +speech, of literature, of historic memories, of ideas, +which we call the Sentiment of Nationality, a sentiment +comparatively weak in the ancient world and in the Middle +Ages, and which did not really become a factor of the +first moment in politics till the religious passions of the +sixteenth and seventeenth centuries had almost wholly +subsided, and the gospel of political freedom preached +in the American and French Revolutions had begun to +fire men’s minds. As regards the historical States of +Europe, it is a sentiment which is both aggregative and +segregative. It has contributed to create the German +Empire: yet it is also a sentiment which makes Bavaria +unwilling to merge in that Empire her individual existence. +<span class='pageno' id='Page_269'>269</span>In Bavaria, and still more in the case of Scotland, +which had a long and brilliant national history, +the sentiment of local has been found compatible with +a sentiment of imperial patriotism.</p> + +<p class='c001'>It is a remarkable feature of recent times that the +tendency of a common interest to draw groups together +and make them prize the unity of the State is often +accompanied by the parallel development of an opposite +tendency, based on sentiment, to intensify the life of the +smaller group and in so far to draw it apart, and thereby +weaken the unity of the State. This arises from the +fact that the march of civilization is material on the one +hand, intellectual and moral on the other. So far as it is +material, it generally makes for unity. On its intellectual +and social or moral side it works in two ways. It +tends to break down local prejudices and to create +a uniform type of habits and character over a wide area. +But it also heightens the influence of historical memories. +It is apt to rekindle resentment at old injuries. Filling +men’s minds with the notion of social and political +equality, it disposes them to feel more keenly any social +or political inferiority to which they may be subjected. +Raising the estimate they set upon themselves as individuals +and as a race, it makes them more bold in organizing +themselves and claiming what they deem their +rights. And so one notes the singular phenomenon +that men are stirred to disaffection, or impelled towards +separation, by grievances less acute than those which +their ancestors, sunk in ignorance and despondency, +bore almost without a murmur. The Roman Catholic +Irish since 1782 and the Transylvanian Rumans since +1848 are instances in point.</p> + +<p class='c001'><span class='pageno' id='Page_270'>270</span>All these tendencies, pulling this way and that, are +among the facts which a given Constitution has to deal +with, are forces which it must use in order to secure +its own strength and permanence. Where, in a free +country, the system of government has grown up naturally, +and can be readily modified by the normal action +of the normal sovereign authority, <i>i.e.</i> where the Constitution +is a Flexible one, the presumption is that the +rules and usages of the Constitution conform to and +represent the actual forces, and draw strength therefrom. +Yet even in countries governed on this system +there is a risk that the Constitution which the will of +a majority has established may leave a minority discontented +and unrestful, and that such discontent and +unrest may impede the working of the machinery and +create an element of instability. In such countries, it may +be the part of wisdom for the majority to yield something +to the minority, modifying the Constitution, so far as +it can safely be modified, in order to remove the obstacles +to harmony. A centrifugal force which is not strong +enough to disrupt the State, because the centripetal +forces are on the whole more powerful, may nevertheless +be able to cause a harmful friction, and may +even, if the State be exposed to external attacks, +become a source of peril. Everybody can now see +that Rome ought to have admitted the Italian allies to +the franchise long before the Social War, that Catholic +Emancipation ought to have been enacted by the Irish +Parliament in 1796 or by the British Parliament immediately +after the Union of 1800, that Denmark ought not +to have waited till 1874 before she conceded a qualified +autonomy to Iceland, that the same country might +<span class='pageno' id='Page_271'>271</span>probably have retained Schleswig-Holstein if she had +yielded long before the war of 1864 some of the demands +made by the German inhabitants of those duchies. +And, if we may apply the same principle to despotically +governed countries, most people will agree that Austria +ought to have retired from Lombardy before 1859, and +that the Turks gained nothing by clinging to Bulgaria, +and may be gaining nothing now by clinging to +Macedonia.</p> + +<h3 class='c013'>III. <span class='sc'>How Constitutions may use the Centripetal Forces to promote National Unity.</span></h3> +<p class='c007'>As we are here dealing with constitutions considered +in their relation to the forces and tendencies +that rule in politics (<i>i.e.</i> as a part of political dynamics), +we may now inquire what it is that Constitutions can +accomplish in the way of regulating or controlling these +forces.</p> + +<p class='c001'>Every political Constitution has three main objects.</p> + +<p class='c001'>One is to establish and maintain a frame of government +under which the work of the State can be efficiently +carried on, the aims of such a frame of government +being on the one hand to associate the people with +the government, and, on the other hand, to preserve +public order, to avoid hasty decisions and to maintain +a tolerable continuity of policy.</p> + +<p class='c001'>Another is to provide due security for the rights of +the individual citizen as respects person, property, and +opinion, so that he shall have nothing to fear from the +executive or from the tyranny of an excited majority. +This object has fallen into the background since these +rights came to be fully recognized. But in earlier times +<span class='pageno' id='Page_272'>272</span>it was the chief purpose of constitutional provisions +from Magna Charta down to the Bill of Rights and the +Declaration of Independence. The safeguard for these +rights which the Constitution of England provided, +was the thing which, more perhaps than anything else, +moved the admiration of foreign observers who studied +that constitution during the eighteenth century.</p> + +<p class='c001'>The third object is to hold the State together, not +only to prevent its disruption by the revolt or secession +of a part of the nation, but to strengthen the cohesiveness +of the country by creating good machinery for +connecting the outlying parts with the centre, and by +appealing to every motive of interest and sentiment +that can lead all sections of the inhabitants to desire +to remain united under one government.</p> + +<p class='c001'>In pursuing these objects, a constitution seeks to +achieve by means of legal provisions that which in ruder +times it was often necessary to accomplish by physical +force. No doubt at all times the natural disposition to +obey (the sources of which I have analysed elsewhere<a id='r102'></a><a href='#f102' class='c012'><sup>[102]</sup></a>) +was an agent more constant and effective than physical +force. Nevertheless, the latter was needed, sometimes +from the side of the government to maintain order and +compel subjects to bear their share of the public burdens, +sometimes from the side of the subjects to abate +the abuses into which the possession of power tempts +rulers. Troops to keep order and quell revolts, and +men handy with their weapons and ready to rise in +insurrection to dethrone bad monarchs or expel bad +ministers, were a necessary part of the equipment of +political societies in the ruder ages.</p> + +<p class='c001'><span class='pageno' id='Page_273'>273</span>A good constitution relieves the government from +the necessity of frequently resorting to military force +by securing that those who govern shall be persons +approved by the bulk of the citizens, as well as by +providing for the purposes of coercion machinery so +promptly and effectively applicable, that the elements of +disturbance either do not break forth or are quickly +suppressed. Similarly it relieves the subjects from the +need of rising in rebellion by providing machinery +whereby the complaints of those who think themselves +aggrieved shall be fully made known, and shall, if well +founded, have due effect on the rulers by warning them +to remove the grievances, or by displacing them if they +fail to do so.</p> + +<p class='c001'>How constitutional machinery should be framed and +worked for the attainment of the two former objects +enumerated above, viz. the establishment of a proper +frame of government and the safeguarding of private +rights, is a matter which does not fall within the scope +of our present inquiry. The third object does, so we +have to ask how a constitution should be framed in +order to enable it to maintain and strengthen the unity +of a State.</p> + +<p class='c001'>It may do this in two ways. One is by setting various +centripetal forces to work. The other is by preventing +all or some of the centrifugal forces from working.</p> + +<p class='c001'>I have already enumerated the tendencies or influences +which operate to draw men together and bind +them into a community, be it greater or smaller, and +have pointed out that these tendencies may in any given +case operate in favour either of the State as a whole, in +which case they preserve it, or in favour of some group +<span class='pageno' id='Page_274'>274</span>or section within it, in which case they sap its unity. +Let us now consider how the constitutional arrangements +of a State may be so devised as to draw together all its +members and all the minor groups within it.</p> + +<p class='c001'>The most generally available of these centripetal +tendencies is trade, that interchange of commodities +which benefits all the producers, by giving them a +market, all the consumers by giving them the means +of getting what they want, all the middlemen by supplying +them with occupation. A Constitution can render +no greater service to the unity as well as to the material +progress of a nation than by enabling the freest interchange +of products to go on within its limits. Nothing +did more to keep the districts of each of the great European +countries divided during the Middle Ages than +the levying of tolls along the rivers and highways by +petty potentates, or than the insecurity of those rivers +and highways, as well as the want of good roads, for +thus the market for the producers of the cheaper +articles was narrowed to the small area immediately +around them, and men were prevented from realizing, +or benefiting by, the greatness of the country they +belonged to. England, with an exceptionally strong +and centralized government, suffered less from these +tolls and this insecurity than did the large States of +the Continent, and England arrived at unity sooner +than they did. And so, conversely, nothing has done +more to unify the vast territories of the United States +than the provisions of the Federal Constitution which +secure perfect freedom of trade within its limits, and +empower the National Government to regulate the +means of communication between the several States of +<span class='pageno' id='Page_275'>275</span>the Union. So the Customs Union of the Germanic +States, formed under the auspices of Prussia in <span class='fss'>A.D.</span> 1829, +did a great work in stimulating industry, while it showed +the people the benefits of united action, and prepared +the way for the formation of the new German Empire.</p> + +<p class='c001'>Another influence of moment is the establishment of +a common law and a common system of courts. It is +not an influence which can be reckoned on so invariably +or confidently as can the influence of commerce, for any +hasty attempt to change the law (whether customary or +statutory) to which men are accustomed may provoke +resistance and retard the growth of unity. Great Britain +has wisely forborne to impose her own law on the +dominions she has acquired by conquest or purchase. +Roman-Dutch law remains in South Africa, in Ceylon, +and in Guiana; Roman-French law in Lower Canada. +So the French Code was left in force not only in Alsace-Lorraine +which Germany took in 1871 but also in the +German country all along the left bank of the Lower +Rhine, when that region was reunited to Germany in +1814. So Roman law has remained in Louisiana, +which was once French. But where one legal system +can, without exciting resentment, be extended over the +whole of a country, it becomes a valuable unifying +force. As respects the substance of law, this happens +by the formation of certain habits of thought and action, +certain ideas of justice and utility. As respects the +administration of law, it happens by giving to the central +executive an engine for making its power felt, and usually +felt for good. In the Middle Ages, the jurisdiction of +the king’s courts was found the most effective means +both in England, from Henry II onward, and (somewhat +<span class='pageno' id='Page_276'>276</span>later) in France, of extending the power of the +central government and accustoming the people to +rally round the Crown as the representative of national +unity as well as of justice. A somewhat similar process +has been in progress during the last thirty years among +those petty principalities which we call the Laos States, +and which lie to the north of the kingdom of Siam. +The princes of these States were practically independent, +living in a country of forests and hills, and +recognizing only a vague titular suzerainty as vested in +the Siamese king at Bangkok. But when foresters +from British Burma had come among them, desiring +to cut down and export the teak trees in those +forests which make their only wealth, and when +disputes had arisen between the Laos chiefs and these +timber traders, the Government of India found it +needful to make treaties with the king of Siam, under +which a Court presided over by Siamese officials was +set up in Chiengmai, the principal State. By means +of this Court the Siamese Government has been able +gradually to obtain complete control of the forest +administration and the revenues thence arising, and +incidentally to strengthen its general authority over +these Laos States.</p> + +<p class='c001'>Similarly, the jurisdiction of the British Privy Council +as a Supreme Court of Appeal from the Colonies and +India, and the action of the Supreme Court of the +United States as the final Court of Appeal for the +whole Union (in certain classes of cases), have done +something to make the members of these vast political +aggregates realize the bond that links them together. +In the case of the United States, respect for the Federal +<span class='pageno' id='Page_277'>277</span>Courts and the keen interest with which their development +of the law by judicial interpretation is followed by +a large and powerful profession has been an important +factor in strengthening the sense of national unity.</p> + +<p class='c001'>After law, religion, not as less potent, for it is more +potent, but as more uncertain, because it has been as +often a dissevering as a unifying influence. There is, +however, a marked distinction between the earlier and +the later forms of religion as regards the energy of the +force they exert. In the earlier stages of civilization, +when tradition and ritual counted for much, and abstract +theology had not yet come into being, the worship of the +gods of the nation or city was a part, a necessary and +sometimes the most deep-rooted part, of the political +constitution and the national life. In Egypt the rise or +fall of a great deity is often the sign of the rise or fall +of a dynasty. Moab, Edom, and Ammon, are each the +people of a peculiar God. After the Captivity, when +the minor Semitic peoples decline or vanish, Israel +continues to be held together by the name of Jehovah, +and by the Law He has given. Every Greek and every +Italian city has its own distinctive public State worship. +A race sometimes pays special honour to one out of its +various deities, and the devotion of the Dorians to +Apollo, of the Athenians to the Virgin Goddess, finds +a mediaeval parallel in that of the Swedes to Odin, +of the Norwegians to Thor. As the Roman Empire +included so many races and cities that no one deity or +group of deities could be worshipped by all, altars were +erected to the Goddess Rome, and the Guardian Spirit +or Genius of the reigning Emperor became a common +object of devotion for the whole mass of his subjects. +<span class='pageno' id='Page_278'>278</span>In modern times the strong religions are (except +Hinduism) World Religions, and therefore not national +or local as were those of antiquity. But they exert +an even greater political power. For monotheistic religions, +however they may develop into elaborate rites +and forms of ceremonial observance, are primarily +philosophical religions, in which abstract ideas and +beliefs take not only a firm but an exclusive grasp +of the mind and heart of whosoever holds them. +Hence they form a closer tie than did the worships +of the ancient Italo-Hellenic world. Christianity created +a new cohesion when the provinces of the Roman Empire +were beginning to fall asunder. Islam formed a prodigious +dominion out of many diverse peoples. The +mutually hostile forms of a World Religion, such as the +Sunnite and Shiite sects in Islam, act as consolidating +or dissevering influences just as the religion itself did +before schisms had arisen. When a faith grounded in +peculiar dogmas or observances is held by one section +of a people and hated by another section, it becomes +a formidably centrifugal force. When the great mass +of a people have embraced such a faith, their political +cohesion is strengthened, and they may attract from +other communities persons or groups who share their +beliefs. The same principle applies to beliefs which +cannot be called religious, but which exert a similar +power over men’s emotions. Even where no question +of the supernatural is involved, the holding in common +of certain ideas deemed supremely valuable whether for +the individual or for society, may operate as a centrifugal +or centripetal force.</p> + +<p class='c001'>A nation with a national religion which all or +<span class='pageno' id='Page_279'>279</span>nearly all citizens cherish possesses a bond of unity +which grows the more powerful the more its traditions +become entwined with the national life. It is +chiefly the influence of the Orthodox Church that has +made a people so low in the scale of civilization as +Russia was three centuries ago, to-day so united, so +strong through its union, and so submissive to its +sovereign, for it is not less as Head of the Church +than as a secular prince that the Czar commands the +reverence of his subjects<a id='r103'></a><a href='#f103' class='c012'><sup>[103]</sup></a>. Accordingly whenever a +State Church can be set up which embraces practically +the whole of the people, and when it can be associated +with the government and the movements of public life, +the cohesion of the nation and the power of the government +which controls the church will be increased. Of +the possibly pernicious influence of such arrangements +on such a church and on religion I do not speak; that +is quite another matter. I am only pointing out that +a Constitution will gain strength, and a nation unity, if +the ecclesiastical arrangements can be linked to those of +the secular government, assuming the people to be all +attached to the same form of faith and worship.</p> + +<p class='c001'>Similarly, in so far as those who frame a Constitution +can make it provide a system of education which will +give the people common ideas and common aspirations, +in so far as they can persuade the inhabitants to use +a common language, if the country is one where more +than one tongue has been spoken, or even to enjoy +and meet for the enjoyment of common festivities and +<span class='pageno' id='Page_280'>280</span>games, they will be availing themselves of influences not +to be despised. The Prussian Government founded +the University of Bonn immediately after the recovery +of the left bank of the Rhine from France in 1814, and +the University of Strassburg immediately after the +recovery of Alsace in 1871, in both cases with the view +of benefiting these territories and of drawing them +closer to the rest of the country by the afflux of +students from other parts of it, an aim which was +realized. Indeed the non-local character of the German +Universities, each serving the whole of the lands +wherein the German tongue was spoken, powerfully +contributed to intensify the sentiment of a common +German nationality throughout the two centuries (1648 +to 1870) during which Germany had virtually ceased to +be a State. The Olympian, Pythian, Isthmian, and +Nemean games had no contemptible effect in fostering +the sentiment of a common national unity, as against +the barbarians, among the Greeks, who had never enjoyed +and did not desire political union. The admission +of the Macedonian king to strive at the Olympian games +was a political event of high significance, for it enabled +his descendants Philip and Alexander the Great to claim +to belong to the Hellenic race.</p> + +<p class='c001'>Some of these various engines for promoting the +cohesion of a nation may seem to lie rather in the +sphere of governmental action than in that of a Constitution. +Commercial freedom, however, as well as +religious compulsion on the one hand, or religious +freedom on the other hand, have been provided for by +some Rigid Constitutions. So too has been the use of +certain languages. Where the Constitution is a Flexible +<span class='pageno' id='Page_281'>281</span>one, the question whether the laws regulating such +matters are to be deemed a part of the Constitution +depends entirely on the practical importance ascribed +to them, since in such a Constitution there is no +distinction of form between fundamental and other +provisions.</p> + +<h3 class='c013'>IV. <span class='sc'>How Constitutions may Reduce or Regulate the Centrifugal Forces.</span></h3> + +<p class='c007'>Now let us see what Constitutions may effect in the +other of the two above specified ways, viz. what they +may do to meet and grapple with, and if possible disarm, +the tendencies which make for disruption, <i>i.e.</i> the +forces which, while drawing men together in minor +groups within the State, are as regards the State +itself centrifugal forces.</p> + +<p class='c001'>What are these tendencies? History tells us that +the chief among them are race feeling, resentment for +past injuries, grievances in respect of real or supposed +ill-treatment in matters of industry, or of trade, or of +education, or of language, or of religion, where these +grievances or any of them press on a part only of the +population. If they press on the whole population, +or on the humbler classes as a whole, they are perturbing, +but not necessarily nor even probably disruptive, +<i>i.e.</i> they threaten disaffection or a general revolt +against the government, rather than the severance of +a particular province or the secession of a particular +section of the people. It is only with grievances which +affect one section or district, and make it desire an +independence to be obtained by separation, that we +have here to deal. There must be in every such case +<span class='pageno' id='Page_282'>282</span>either a sentiment of dislike on the part of the disaffected +section towards the rest of the nation, or else +a belief that great material advantages will be obtained +by separation; and the latter of these causes is almost +sure to produce the former. When two or more of +these tendencies combine in any given case, so much +the stronger does the desire for separation become.</p> + +<p class='c001'>A few illustrations will explain better than a long +abstract statement what I desire to convey. In the +ancient world the thing which we call National Sentiment +was seldom a powerful factor, perhaps because the more +advanced peoples were divided into small city communities, +while the backward peoples, living under +large empires like the Persian or that of the Seleucid +kings, were allowed to retain their own customs and +religion, and often their native princes, feeling the +weight of subjection only in having to pay tribute and +send a contingent in war. The only nations that +gave much trouble to the Achaemenid kings of Persia +were the Egyptians, a race very peculiar and very conceited, +and the Greeks of Asia Minor. Under the +Roman Empire there were wonderfully few national +revolts, probably because the imperial government +pressed equally upon all, conceded rights of citizenship +pretty freely, and gave the subjects in exchange for +their own national sentiment the higher pride of belonging +to the majestic World State which had +engulfed them. The chief source of disruptive attempts +lay in the monotheistic religions. The Jews made more +than one obviously hopeless rebellion. When Christianity +became the religion of the Empire, schisms and +heresies gave trouble. Africa was convulsed by the +<span class='pageno' id='Page_283'>283</span>Donatist movement. Egypt was disaffected owing +to Monophysitism, and no doubt gave herself the more +readily to the Arab conquerors in respect of this disaffection. +The persecuted Montanist sectaries of Phrygia +revolted in the sixth century. It was the religious +persecution of the Fire-worshipping Sassanid kings that +provoked their Armenian vassals to rebellion<a id='r104'></a><a href='#f104' class='c012'><sup>[104]</sup></a>. So in +the fifteenth and sixteenth centuries, the sentiment of +nationality having not yet reached its full strength, it was +chiefly by religious divisions that the unity of States +was threatened. This was what lost the Dutch Netherlands +to Spain. This was what split up the Romano-Germanic +Empire, and made it, after the Thirty Years’ +War, the mere shadow of a State. It contributed to +keep the Highlanders distinct from the Lowland population +of Scotland after the Reformation (though other +causes also were at work), and it was of course a still +more potent force in Ireland. In our own time it nearly +rent Switzerland in two in the war of the Sonderbund. +Conversely, any one who notices how little the unity +of the nation has been threatened in Spain, a country +where the populations and dialects of the different +provinces still present striking contrasts, and are accompanied +by diversities of character, will be disposed to +attribute this fact not merely to the absence of natural +boundaries between the provinces, but also to the +remarkable religious unity which the nation has always +preserved.</p> + +<p class='c001'>In our own time, while religion is a less energetic +factor, what is called national sentiment has begun +<span class='pageno' id='Page_284'>284</span>to threaten loosely compacted States. It compelled +the transformation in 1868 of the so-called Austrian +Empire into the present Dual Monarchy. It shakes +the Austrian half of that monarchy now, so sharp +is the antagonism between the Czechs of Bohemia +and the other Slavic populations of Cis-Leithania and +the Germans of the Western and South-Western Crown +Lands. Iceland differs from Denmark, with which she +has been politically united since 1380 (or 1397), in language, +in character, and in habits, and she has therefore +struggled for autonomy, a large measure of which she +obtained in 1874. She has had some economic grievances, +but sentiment has been an even stronger element +in her discontent, which, however, stopped short of a +wish to separate, as she feels herself too small to stand +alone. A strong party in Norway has desired to be +divorced from Sweden, to which she was unnaturally +yoked in 1814 by the Congress of Vienna, not merely in +respect of specific complaints regarding the Foreign +Office and the consular service, but also because her +people, though Lutherans like the Swedes, are far more +democratic in ideas and temper than the latter, and +because their high national pride makes them unwilling +to appear to be in any way subordinate to the sister +kingdom. The case of Poland is a simple one, because +she has the memory of an independent kingdom destroyed +by force and fraud, and is different in religion, +as well as in speech, from the Russians who have annexed +her. Had the peasant population of the country +shared the patriotism of the upper and middle classes, +Poland might possibly have succeeded in shaking off +the yoke. Even now her disaffection is a source of +<span class='pageno' id='Page_285'>285</span>weakness to Russia. In Ireland several currents of discontent +have joined to produce the passion and prolong +the struggle for autonomy, or, in a very few of the more +ardent minds, for independence. There is the diversity +of faith, which remains, though that of language has +almost vanished, a diversity embittered by recollections +of persecution. There are economic grievances, the +memory of the destruction of an industry in the last +century, the more urgent resentment at the exactions +of landlords, and the peasants’ desire to have a grip of +the soil. There is an incompatibility of character and +temperament, due partly to historical conditions, partly +to the old antagonism of Celt and Teuton. All these +have gone to create a passion among the people to +be recognized as a nation controlling its own affairs, +a passion which is the same in essence among those +who would be content with the possession of a +subordinate legislature, and those, now fewer than +formerly, who would like to go further.</p> + +<p class='c001'>If the sources of the centrifugal force in Ireland are +easily explicable, and indeed so strong that had this force +acted upon the whole nation instead of only upon a +majority which consists mainly of the poorer and weaker +part of the population, it would have before now prevailed, +those which induced the secession of the +Southern States of America are much less evident. +Here there was no religious factor, nor any revengeful +feeling, nor any sense of an unjust or oppressive control. +The South had obtained more than its fair share of +power and influence in the councils of the Union. But +the planters had persuaded themselves that property +in slaves and the whole slave-holding system were +<span class='pageno' id='Page_286'>286</span>threatened by the growing strength in the Northern +and Western States of an aversion to slavery, with +a determination to check its extension; and the irritation +of feeling which a long struggle had engendered, +coupled with a growing dissimilarity of habits and +ideas, enabled the hot-headed oligarchy which controlled +the Southern population to drive it into separation. +Possibly these causes would not have been +strong enough to provoke an armed conflict in a unified +country. It was the existence of State Governments, +and the conviction that the rights of the States, supposed +to be guaranteed by the Constitution, furnished +a legal basis for secession, that spurred the South into +its desperate venture.</p> + +<p class='c001'>What then can the framing, or the manipulation in +working, of a Constitution do to reduce the power of +such disruptive tendencies as we have been considering?</p> + +<p class='c001'>They may of course be resisted by the employment +of physical force. If a government is sufficiently +strong and resolute, and is supported by the great +majority of the nation, it may crush down the discontent +of a province or a section. It is however an +axiom in free governments, and ought to be an axiom in +all governments, that physical force should never be +used when peaceful means will suffice. Coercion usually +seems easier, and naturally commends itself to the dull, +the impatient, and the violent, to imperious princes, +arrogant ministers, and excited majorities. But coercion, +besides being a fatal expedient if it fails, is often +a bad expedient when it appears to succeed, for it +leaves smouldering discontent behind among the vanquished, +and it is apt to inflict a moral injury upon the +<span class='pageno' id='Page_287'>287</span>victors, perhaps to warp for the future their frame of +government and to lower their political traditions. +Accordingly whenever a Constitution can be so drawn +and worked as to give the disjunctive tendencies just +so much recognition as may disarm their violence, and +bring all sections of the nation and all parts of the +country to acquiesce in unity under one government, +this course is to be preferred. It may sometimes fail. +Every expedient may fail. But it has generally more +promise of ultimate success than force has, for in a free +country force is not a remedy, but a confession of past +failures and a postponement of dangers likely to recur.</p> + +<p class='c001'>Among the methods which a Constitution may employ +for the purpose indicated, the following find a place.</p> + +<p class='c001'>It may enact certain securities against oppression, +whether by the executive or by the legislature, giving +to such securities a specially solemn sanction, and thus +reassuring the minds of the citizens. This was done +by Magna Charta, by the Petition of Right, and again +by the American Federal and State Constitutions, and +by the French Declaration of the Rights of Man of +1789. It is usually done for the protection of all subjects +or citizens alike, but of course the benefit of such +a protection enures with special value for any section +of the population, or any province or group of provinces, +likely to be specially exposed at any given time +to the abuses of power, because they are a minority +whom the Government, or the majority, may view with +disfavour.</p> + +<p class='c001'>A Constitution may provide means for varying the +general institutions or laws of the State in such a way +as to exempt particular parts of the State from any legislation +<span class='pageno' id='Page_288'>288</span>that might be opposed to their special interests or +feelings. The retention of Scotland as a distinct kingdom +after the union of the crowns in 1603, and as a distinct +part of the United Kingdom after the Treaty and Act of +Union in 1707, has had most beneficial effects in enabling +Scotland to be treated separately where it is fitting she +should be. Her faith, her laws and judicature, her +system of local government, have remained almost intact, +to the satisfaction of her people, and with no injury +to the cohesion of the united monarchy<a id='r105'></a><a href='#f105' class='c012'><sup>[105]</sup></a>. Similarly +the maintenance of Finland as a separate Grand Duchy, +with her own tongue, religion, laws and privileges, +guaranteed by the coronation oath of the Czar, has +made the Finns loyal and contented subjects, and has in +no wise detracted from the strength of Russia<a id='r106'></a><a href='#f106' class='c012'><sup>[106]</sup></a>. The +cases of Hungary as towards the Austrian Monarchy, +and of Croatia as towards Hungary, are also in point.</p> + +<p class='c001'>It may provide for relegating certain classes of affairs +to local legislatures, such as those of Croatia or Finland, +areas which are not only, like Scotland, political +divisions retaining their old laws, but also, unlike Scotland +since the Union, communities enjoying local autonomy. +All Federations are managed on this system; +and one can see in the case of Canada the advantages +it secures, for the Roman Catholics of Quebec are able to +have legislation diverse from that which the Protestant +majority desires in the other provinces of the Dominion.</p> + +<p class='c001'><span class='pageno' id='Page_289'>289</span>It may assign certain administrative and, within +limits, certain legislative functions also to the inhabitants +of minor local areas, such as counties, empowering +them to regulate their local affairs in their own way. +Provisions of this nature are not usually embodied in +European constitutional instruments. They are, however, +to be found in the State Constitutions of the +American States. And they are really, in substance, parts +of any well-framed Constitution, for nothing contributes +more to the smooth working of a central government and +to the satisfaction of the people under it, than the habit +of leaving to comparatively small local communities +the settlement of as many questions as possible. The +practice of local self-government and the love for it are +not a centrifugal force, but rather tend to ease off any +friction that may exist by giving harmless scope for independent +action, and thus producing local contentment. +It is only where there exist grievances fostering disruptive +sentiments that the existence of local bodies with +a pretty large sphere of activity need excite disquiet.</p> + +<p class='c001'>It may exclude certain matters altogether from the +competence of the central government, and thereby +keep them out of the range of controversy. This principle +has been wisely followed in the American and +Canadian and Swiss Federal Constitutions as regards +religion in its relations to the State. In some federations +it has been similarly found desirable to disable +the several legislatures from dealing with topics likely +to produce dissensions among the members of the +federation, or otherwise to affect the cohesion of the +nation. Thus in the United States no State legislature +can impose any duties on goods brought from +<span class='pageno' id='Page_290'>290</span>one State to another, nor in any wise interfere with +commerce between the States.</p> + +<p class='c001'>By these means a Constitution may prevent the disruptive +forces in a country from threatening the stability +of the central government or the unity of the State. To +remove part of the material on which they might work is +to weaken their working, and to divert into safe channels +the political activity they would evoke. Although a +Flexible Constitution may accomplish this, if those +who work it respect certain fundamental principles +and treat their querulous minorities in a conciliatory +spirit, the work is best done, and usually has been +done, by a Rigid Constitution, because this latter +provides a guarantee to minorities, or to subdivisions +of the country, stronger than they can have under an +omnipotent legislature. In fact the existence of the +grounds of contention and possibilities of disruption +we have been considering is among the chief causes +which have called Federal Governments and Rigid +Constitutions into being.</p> + +<p class='c001'>One further observation should be made before +quitting this part of the subject. Racial differences and +animosities, which have played a large part in threatening +the unity of States, are usually dangerous only when the +unfriendly races occupy different parts of the country. +If they live intermixed, in tolerably equal numbers, +and if in addition they are not of different religions, +and speak the same tongue, the antagonism will disappear +in a generation or two by social intercourse +and especially by intermarriage. When the right of +full legal intermarriage had been established, the fusion +of the patricians and the plebs at Rome began. So +<span class='pageno' id='Page_291'>291</span>the Northmen in the tenth and eleventh centuries, +so the Norman-French in the eleventh and twelfth +centuries, became blent with the English. The Magyars +and Saxons, though generally occupying different +parts of the country, and to some extent retaining each +their own speech, have in Transylvania now begun to +melt into one. It is the fact that they not only speak +a different tongue but also profess a different faith that +keeps the Rumans of that province apart from both +Saxons and Magyars; and even these differences +might in time cease to operate did not these Rumans +look across the mountains to a large Ruman State +into which they would gladly be absorbed. But in +one set of cases no fusion is possible; and this set of +cases forms the despair of the statesman. It presents +a problem which no Constitution has solved. It is +the juxtaposition on the same soil of races of different +colour.</p> + +<p class='c001'>This is a recent phenomenon in history. In the ancient +world, almost all the barbarous tribes whom Rome +subdued and brought into her Empire were sufficiently +near the Italians and Hellenized Asiatics in physical +characteristics for intermarriage to go on freely. The +Carthaginians, who to be sure were not numerous, seem +to have soon lost their distinctive nationality: and that +the Jews remained distinct was their own doing, not that +of the conquerors<a id='r107'></a><a href='#f107' class='c012'><sup>[107]</sup></a>. Even as towards Egyptians and +Numidians, who were certainly dark, one hears of little +repulsion. Besides, both races were intelligent, and +<span class='pageno' id='Page_292'>292</span>the former in their way highly civilized. With the +African slave trade a new and a dolorous chapter in +history opens. In our own time it is the settlement of +Europeans in countries where the native holds his +ground against the settler, as the Kafir does in South +Africa, and the aboriginal Peruvians and Araucanians do +in Western South America, or it is the influx of coloured +immigrants, like that of the Chinese in Western America +and the Hawaiian Isles, that raises, or threatens to raise +in the future, this problem in an acute form. A community +in which there exist two or more race-elements +physically contrasted and socially unsusceptible of amalgamation +cannot grow into a really united State. If the +coloured people are excluded from political rights, there +is created a source of weakness, possibly of danger. If +they are admitted, there is admitted a class who cannot +fully share the political life of the more civilized and +probably smaller element, who will not be consoled by +political equality for social disparagement, and who may +lower the standard of politics by their incompetence or +by their liability to corruption. If the people of colour +are dispersed over the country among the Europeans, +instead of dwelling in masses by themselves, they may +not act as a centrifugal force, threatening secession, +but they are a serious hindrance to the working +of any form of popular government that has been +hitherto devised, for they divide the population, they +complicate political issues, they prevent the growth +of a genuinely national opinion.</p> + +<p class='c001'>The most noteworthy attempts that Constitutions +have made to deal with these cases have been made in +the United States, where the latest amendments to the +<span class='pageno' id='Page_293'>293</span>Federal Constitution provide protection for the negroes +and forbid the States to exclude any person from the +electoral suffrage in respect of race or colour, and where +several recent State Constitutions have devised ingenious +schemes for disfranchising the vast mass of those whom +these very amendments have sought to protect. So far +as political rights are concerned, the problem is very +far from having been solved in the United States. But +as regards private civil rights, it has certainly been an +advantage to the negroes that the Federal Constitution +guarantees such rights to all citizens: and probably in +any country where marked differences, with possible +antagonisms, of race exist, it will be prudent to place the +private civil rights of every class of persons under the +equal protection of the laws, and to make the rights +themselves practically identical. It would lead me too +far from the main subject to describe the ways in which +similar problems have been dealt with in Algeria, in +South Africa, and in some of the other colonies of +European nations. Nowhere has any quite satisfactory +solution been found<a id='r108'></a><a href='#f108' class='c012'><sup>[108]</sup></a>. But the case of New Zealand +deserves to be mentioned as one in which the experiment +has been tried of giving parliamentary representation +to the natives, who mostly live apart on their own +reserved lands. So far, the results have been good. The +conditions are favourable, for the Maoris are a brave +and intelligent race, and they are now too few in number +to excite disquiet.</p> + +<p class='c001'>It was the good fortune of the Roman Empire that +the vast majority of the races whom it conquered and +<span class='pageno' id='Page_294'>294</span>absorbed had no conspicuous physical differences from +the Italians which prevented intermarriage and fusion. +Race and birthplace were no great obstacle to a man +of force. Two or three of the Emperors were of +African or Arab extraction. Moreover, the peoples +of Southern Europe seem to have less repulsion of +sentiment towards the dark-skinned races than the +Teutons have. The Spanish and Portuguese intermarry +not only with the native Indians of Central and +Southern America, but also with the negroes. The +French of Canada intermarried more freely with the +Indians of North America than the English have done.</p> + +<p class='c001'>Summing up, we may say that the aim of a well-framed +Constitution will presumably be to give the +maximum of scope to the centripetal and the minimum +to the centrifugal forces. But this presumption is +subject to two countervailing considerations. One is +that the energy of civic life may be better secured by +giving ample range and sphere of play to local self-government, +which will stimulate and train the political +interest of the members of the State, and relieve the +central authority of some onerous duties. The other +is that the centrifugal forces may, if too closely pent up, +like heated water in the heart of the earth, produce at +untoward moments explosions like those of a volcano. +Hence it is well to provide, in the Constitution, such +means of escape for the steam as can be made compatible +with the general safety of the State. Where +a Constitution, and especially a Rigid Constitution, has +been framed with due regard to these considerations, and +turns to account the methods already discussed, it may +itself become a new centripetal force, a factor making +<span class='pageno' id='Page_295'>295</span>for the unity and coherence of the community which +lives under it. The Rigid Constitution has in this +respect one advantage over the Flexible one, that it is +more easily understood by the mass of the people, and +more capable of coming to form a part of their political +consciousness. When such a Constitution is so contrived +and worked as to satisfy the bulk of the nation—and +it will do so all the more if no single section +dislikes it—it attracts the affection and pride of the +people, their pride because it is their work, their +affection because they enjoy good government under it. +Time, if it does not weaken these feelings, strengthens +them, because reverence comes with age. By providing +a convenient channel or medium through or in which +the centripetal forces may act, the Constitution increases +the effective strength of those forces. It is a reservoir +of energy, an accumulator, if the comparison be permissible, +which has been charged by a dynamo, and +will go on for some time discharging the energy stored +up in it. But, like an accumulator, its energy becomes +exhausted if there is not behind it an engine generating +fresh power, that is to say, if the real social and +political forces which called it into being have become +feebler, and those which oppose it have become +stronger.</p> + +<h3 class='c013'>V. <span class='sc'>Illustrations from Modern History of the Action of Constitutions.</span></h3> +<p class='c007'>The best instance of the capacity of a Constitution to +reinforce and confirm existing centripetal tendencies is +supplied by the history of the Rigid Constitution of the +<span class='pageno' id='Page_296'>296</span>United States. That instrument was at first received +with so little favour by the people that its ratification +was, in many States, obtained with the greatest possible +difficulty, and the original document secured acceptance +only on the understanding, which was loyally +carried out, that it should forthwith receive a number +of amendments. Within fifteen years the party which +had advocated it was overthrown in the country, and +ultimately broke up and vanished. A generation passed +away before it began to be generally popular. But +after a time it secured so widespread a respect that +even during the fierce and protracted struggle which +ushered in the Civil War few attacked the Constitution +itself, nearly all the combatants on one side or the +other claiming that its provisions were really in their +favour. It was not round the merits, but round the +true construction, of the instrument that controversy +raged. Since the Civil War, and the amendments +which embodied the results of the Civil War, it has +been glorified and extolled in all quarters<a id='r109'></a><a href='#f109' class='c012'><sup>[109]</sup></a>, and has +unquestionably been a most potent influence in consolidating +the nation, as well as in extending the range and +the activity of the central government.</p> + +<p class='c001'>To what is this success due? Regarded as a Frame +of Government, <i>i.e.</i> as a piece of mechanism for distributing +powers between the Executive, the Legislature +and the Judiciary, the American system has probably +been praised beyond its deserts. Both the mode of +electing the President and the working of Congress +leave much to be desired. But the Constitution has +<span class='pageno' id='Page_297'>297</span>had two conspicuous merits. It so judiciously estimated +the centripetal and centrifugal forces as they +actually stood at the time when it was framed, frankly +recognizing the latter and leaving free play for them, +and while throwing its own weight into the scale of the +centripetal, doing this only so far as not to provoke +a disjunctive reaction, that it succeeded in winning +respect from the advocates both of States’ Rights and +of National Unity<a id='r110'></a><a href='#f110' class='c012'><sup>[110]</sup></a>. Thus it was able to add more +strength to the centripetal tendency than it could have +done had it been originally drawn on more distinctly +centripetal lines. For—and here comes in the second +merit—its provisions defining the functions of the central +Government were expressed in such wide and +elastic terms as to be susceptible of interpretation +either in a more restricted or in a more liberal way, +<i>i.e.</i> so as to allow either a less wide or a more wide +scope of action for the Central Government. During +the earlier years, when State sentiment was still stronger +than National sentiment, the scope remained limited, +because both the executive and the legislature wished to +keep it so, and such extensions as there were came from +judicial construction. But latterly, and especially since +the prodigious development of internal communications +has stimulated commerce, and since the death blow given +to States’ Rights doctrines by the Civil War, the scope +has been widened, and has widened quite naturally and +gradually, with no violence to the words of the Constitution, +<span class='pageno' id='Page_298'>298</span>but according to that expansive interpretation +of them which changing conditions and a corresponding +change in national sentiment prescribed<a id='r111'></a><a href='#f111' class='c012'><sup>[111]</sup></a>.</p> + +<p class='c001'>Nowadays one hears in the United States less +about the Constitution than about the Flag<a id='r112'></a><a href='#f112' class='c012'><sup>[112]</sup></a>. But that +is partly because the Constitution has done its work, +and made the Flag the popular badge of a Unity which +it took nearly a century to endear to the nation.</p> + +<p class='c001'>One might go on to illustrate the efficiency of a Constitution +in consolidating a people composed of disparate +elements from the parallel case of Switzerland, where +communities speaking three (it might almost be said +four) different languages have been brought much +closer together by the Constitutions of 1848 and 1874 +than they were before, or could have been without +some such arrangement. Switzerland, however, is a +more complicated case, because much has turned on +the external pressure towards unity exerted by the +fear felt for several great bordering Powers. The +formidable neighbours of the Confederation have, so +to speak, squeezed together into a Swiss people +the originally dissimilar Alemannic, Celto-Burgundian, +Italian, and Romansch communities.</p> + +<p class='c001'>The two instances of the United States and Switzerland<a id='r113'></a><a href='#f113' class='c012'><sup>[113]</sup></a>, +compared with those of unitary countries living +<span class='pageno' id='Page_299'>299</span>under Rigid Constitutions, such as France, Belgium, +Holland and Denmark, suggest the observation that +the service which Rigid Constitutions may render in +strengthening the centripetal tendency can best be +rendered where a Federation is to be constructed. For +in these cases what is needed is an arrangement by +which the several rights of the component communities +which are to form the State may be so protected that +they need not fear to give their allegiance to the +State and cordially support its Central Government. +The existence of such communities is an expression +of forces actually operative which are centrifugal +as towards the State as a whole, and therefore need +to be studied. By giving a carefully limited scope to +these forces, and thereby diminishing their possibilities +of danger, the Constitution subserves the cohesion of +the States. In a truly unitary country this service is +not needed. But there are cases in which States +endeavouring to become unitary would have done +better had they sought to apply the federal principle, +placing it under the protection of a Rigid Constitution. +I have already referred to Denmark. Holland might +probably have saved Belgium by a concession of some +such kind. Whether a similar contrivance might not +have been profitably employed within the British Isles +in <span class='fss'>A.D.</span> 1782, or in <span class='fss'>A.D.</span> 1800, or again later, is a question +<span class='pageno' id='Page_300'>300</span>which will already have presented itself to one who has +followed the argument thus far.</p> + +<p class='c001'>In dwelling upon the services which Constitutions +may render, by fostering the centripetal forces, or by +restraining the violence and softening the action of the +centrifugal forces, we must not forget that no scheme of +government can hope permanently to resist the action +of either tendency if either develops much greater +strength than it possessed when the Constitution was +framed. If the centripetal forces grow, the Constitution +whose provisions have recognized and given +scope to the centrifugal will be practically, in some +of those provisions, superseded. If the centrifugal +grow, it may be overthrown. It is where the forces +are nearly balanced, that the weight of the Constitution +may turn the scale, and avert conflicts which +would have rent the community, or caused a violent +subjection of one part of it to the other. And in any +case the Constitution ought, where dissimilative and +disruptive forces are feared, to be so drawn as to enlist +all available motives of interest, to shelter the law behind +popular sentiment where possible, to oppose it to sentiment +as little as possible, and to avoid challenging at the +same time the hostility of several kinds of sentiment.</p> + +<h3 class='c013'>VI. <span class='sc'>The probable Action of the Aggregative and the Disjunctive Tendencies in the Future.</span></h3> +<p class='c007'>Whether in the long run it is the centripetal or the +centrifugal force that will prevail in politics, or, in other +words, whether large States or small States are more +likely to commend themselves to mankind, is a question +<span class='pageno' id='Page_301'>301</span>which belongs rather to history than to the doctrine +of constitutions, and which could be adequately +discussed only after a long investigation. History +shows us first one force dominant, then the other, +though no doubt the centrifugal is usually more +powerful in rude times and in hilly or mountainous +countries, the centripetal in countries comparatively +advanced in civilization, and in level and fertile regions +where wealth is more easily acquired and stored, and +where military operations are easier. When the mists +of antiquity begin to rise sufficiently to show us the +Mediterranean and south-west Asiatic world, we discover +both a few great States and a multitude of small +ones. The former have a low, the latter a high and +intense political vitality. From the time of Menes +down to that of Attila the tendency is generally towards +aggregation: and the history of the ancient nations +shows us, not only an enormous number of petty +monarchies and republics swallowed up in the Empire +of Rome, but that empire itself far more highly centralized +than any preceding one had been. When the +Roman dominion began to break up the process was +reversed, and for seven hundred years or more the +centrifugal forces had it their own way. Europe and +Western Asia were divided up among innumerable +petty potentates, and even the large monarchies, such +as the two Khalifates, the Romano-Germanic Empire, +the kingdoms of France and Hungary, possessed so +feeble a royal authority that the real organs of government +and centres of attraction were to be sought rather +in the vassals than in the nominal sovereign. From +the thirteenth century onwards the tide begins to set +<span class='pageno' id='Page_302'>302</span>the other way. One great State indeed—the Empire—first +decays and then disappears under the action of +centrifugal forces, but all the other chief States expand, +absorbing their smaller neighbours, and giving themselves +a compact and well-knit organization which +makes the central power effective through the whole +sphere of its action. This process culminates in the +despotic monarchies of the eighteenth century, when +the strength of feudal localism has been completely +broken, though the picturesque relics of it still cumber +the ground, and when at the same time the foundations +are laid in the West of a gigantic State which +proceeds to cover the temperate area of North America +between the two oceans, and, in the East, of the +dominion of a European nation which has absorbed +the numerous and populous principalities of India. +Immediately afterwards the doctrine of popular self-government +and the doctrine of nationalities come upon +the scene, threatening a disruption of some existing +political aggregates. In point of fact, however, these +new principles have done as much to unite as to +sever, for though five States—Greece, Rumania, Servia, +Montenegro and Bulgaria—have been cut off from an +effete monarchy, and sixteen republics have been +carved out of the American dominions of Spain and +Portugal, the doctrine of nationality has substituted two +new great States, more important than all the last-mentioned +twenty-one put together, for the multitude +of kingdoms and principalities which so late as 1859 +filled Italy and Germany.</p> + +<p class='c001'>Thus neither Democracy nor the principle of Nationalities +has, on the balance of cases, operated to check +<span class='pageno' id='Page_303'>303</span>the general movement towards aggregation which +marks the last six centuries.</p> + +<p class='c001'>It may, however, be said—and this question should +be faced before we proceed to inquire whether the +aggregative movement is likely to continue—that in all +this inquiry we have been ignoring two potent factors. +One is Conquest—that is to say, military power. +We have been examining the forces of Interest and +Sympathy, which cover a number of influences social +or economic, racial or sentimental. But after all it is +Conquest, <i>i.e.</i> the might of the strongest, which has +created most States as we find them. Is Conquest one +of the centripetal forces? and if so, is it not the greatest +of them?</p> + +<p class='c001'>The other factor is Family Succession, which both +during the Middle Ages and since has done a great deal +to consolidate principalities and kingdoms. The United +Kingdom owes much to this agency, Austria and France +even more.</p> + +<p class='c001'>Conquest and Dynastic Succession are hardly fit +to be classed among the centripetal forces, because +they are not susceptible of scientific treatment like the +other influences. The disposition of the stronger to +subdue and annex the weaker neighbour is of course +a permanent fact in human nature, and therefore in +history. But in each particular instance the success +of one or other combatant depends on what may be +called historical accidents—on the numbers or the discipline +of troops, on the possession of a commander +of military genius, on alliances with other States, on +the internal dissensions of one State as compared with +the unity of another. Physical force belongs to a +<span class='pageno' id='Page_304'>304</span>different sphere from that in which political constitutions +work. Constitutions may result from a conquest +or may be maintained for a time by arms; but if they +are obliged to rely on and have constant recourse to +physical force in order to prevent their overthrow, +they are, considered as Constitutions, failures; because +the very nature and object of a constitutional Frame of +Government is so to express and so to adjust to +existing conditions the wishes and aims of the citizens +as to make the majority, and if possible the vast +majority, of the people desire to support it. According +to the proverb, you can do anything with bayonets +except sit down on them. Physical force is of course +needed to punish occasional infractions of the Constitution +or to quell revolts against it. But the system +of government which <span lang="la"><i>ex hypothesi</i></span> corresponds to the +permanently strongest among the moral forces, else it +has no right to prevail in a free country, ought not to +be surrounded by cannon.</p> + +<p class='c001'>Similarly, the devolution of princedoms or kingdoms +by marriage and inheritance, much as it has done to +bring States originally independent under one government, +lies outside political science in the proper sense +of the term. Like conquest, it brings about a new +state of things by an event with which the ordinary +political and constitutional phenomena of national life +have nothing to do, coming into these phenomena as an +incommensurable and (so to speak) irrational factor<a id='r114'></a><a href='#f114' class='c012'><sup>[114]</sup></a>.</p> + +<p class='c001'><span class='pageno' id='Page_305'>305</span>So soon as either conquest or a union due to hereditary +succession has taken place, the normal centripetal +and centrifugal tendencies resume their action. +Where the territory of one people has been forcibly +acquired by another, as Lombardy was acquired by +Austria in 1815, or has been occupied in virtue of +a title based on succession, as Portugal was claimed +by Spain in 1580, such centripetal forces as may exist +have the advantage of physical force behind them. But +this advantage may be unavailing against the stronger +forces which sentiment sends forth to dissever the +connexion. Austria lost Lombardy after forty-four +years; Spain lost Portugal after sixty. In both cases +there was fighting, but it was not so much the balance +of military strength as the settled hostility of the subjected +people which in both caused the severance. So +the acquisition by the English kings of Aquitaine and +the subsequent conquest of large part of France, the +conquest by the Turks of Transylvania, the union of +Holstein with Denmark, the union of Belgium with +Holland, the union of Alsace with France, all effected +without regard to the will of the people, were all in +time brought to an end. The last-mentioned case is +a peculiar one. It was not because the Alsatians +wished to be reunited to Germany, but because the +Germans wished to be reunited to Alsace that a connexion +which had lasted nearly two centuries was +dissolved in 1871. Military motives, decisive as regards +the annexed part of Lorraine, had something to do +<span class='pageno' id='Page_306'>306</span>with the taking of Alsace also; but if Alsace had not +been German in language and habits, though not in +sentiment, the popular voice of Germany would not +have insisted on recovering it against the will of its +inhabitants.</p> + +<p class='c001'>Speaking broadly, one may say that Conquest and +Inheritance give an opportunity, better in the latter +than in the former case, for centripetal forces to work. +If the peoples on which they operate are backward, +with no pronounced national feeling, that chance may +be a good one, and the influences of free commerce, +joint government (especially if it is good government), +together with the kind of pride which common service +in war often produces, may operate to weld two peoples +together into a united State. Much depends on language, +much on geographical position, much on +external pressure from powerful neighbours. But if +one of the peoples (or both) has already developed +a strong sentiment of nationality, the prospect of fusion +is but slender.</p> + +<p class='c001'>The Roman Empire is the capital instance of a vast +dominion established by conquest. But there it was +the weakness of the centrifugal forces that secured the +cohesion of the Empire. The conquered countries +were either, like Gaul, Spain and Britain, occupied +by tribes between whom there existed so weak a bond +that no general national feeling or combined national +action was possible, or had been, as in the Eastern +Mediterranean World, ruled by dynasties, most of them +sprung from military adventurers<a id='r115'></a><a href='#f115' class='c012'><sup>[115]</sup></a>, so that the sentiment +<span class='pageno' id='Page_307'>307</span>of national life had not centred in the monarchy. +The centrifugal forces of interest—the desire for peace, +good government, facilities for commerce, and so forth—obtained +free play under the imperial administration, +and to these was added after a time the sense of pride +in Roman citizenship, and in the greatness of a State +which included all the highest civilization of the world. +So too during the Middle Ages not a few conquests +ended in an assimilation of the vanquished, which +enlarged without weakening the conquering nation. +But during the last three centuries the experience of +military powers has been that the acquisition of masses +of subjects who, being already civilized, are likely to +resist absorption and to remain disaffected, is a doubtful +gain and may become a danger to the conquering +State. The last conspicuous instance is Poland, +partitioned between three Powers, to all of whom +her provinces have brought trouble. Conquests +continue to be made, but they are now mostly of +barbarous or semi-civilized races, so inferior to the +conquerors in force and in national spirit that the +centrifugal forces are, or at least seem to be, practically +negligible.</p> + +<p class='c001'>Is it possible, then, to arrive at any conclusion regarding +the respective strength which these two sets +of forces are likely to display in the coming centuries? +Will the tendency to aggregation continue, and does +the future belong to great States? Or may new +forces appear which will reverse the process, as it was +<span class='pageno' id='Page_308'>308</span>reversed, though through causes most unlikely to reappear, +at the fall of the Roman Empire?</p> + +<p class='c001'>At first sight the probabilities seem to point to +further aggregation. Although none of the five great +national States—Russia, Germany, France, Italy, +Britain—is in the least likely to be absorbed by any of +the others, there is reason to think that within the next +century some of the smaller states will have disappeared +from the map of Europe. In one or two other +parts of the world—as for instance in South and +in Central America—the process by which the great +States are expanding is not yet complete. The influences +of swifter and cheaper communications by +land and sea, of increasing commerce, and of the +closer intercourse which commerce brings, of the +power exerted by the printing press in extinguishing +the languages which prevail over a small area and +diffusing those spoken by vast masses of men—all +these things make for unity within each of the great +States and add to the attractive power which the +greater have for the smaller. These influences, moreover, +all promise to be permanent.</p> + +<p class='c001'>Against them we must set the fact that Conquest, +so far as civilized peoples are concerned, seems likely +to play a smaller rôle in the future than in the past, +because it begins to be perceived how tenacious is the +sentiment of nationality in a vanquished people, and +how much the maintenance of that sentiment may +endanger the victor State. As was observed in an +earlier page, the progress of a community in civilization +often tends to intensify both its capacity for political +discontent and its peculiar national sentiment, thus +<span class='pageno' id='Page_309'>309</span>counterworking the influences of trade and wealth. +A people, or a nationality included in a large State, +while feeling the centripetal forces of material interest, +may nevertheless feel the repellent instinct of an unquenched +attachment to its national traditions and cling +to the hope of reviving its old national life.</p> + +<p class='c001'>The problem is, however, a far more complex one +than any comparison of the influences of material +interest on the one side and national sentiment on +the other would suggest. Many phenomena may be +imagined which would affect it as the world moves +on. One is a change in the conditions under which +war is waged. Another is a removal of some of the +causes which induce war, or a means, better than now +exists, of averting its outbreak. Another is the growth +of what is called Collectivism and a disposition to apply +its principles in small rather than in large areas, seeing +that there are obviously some things which can be +better managed in the former. We are far from +having exhausted the possibilities of the influence of +scientific discovery upon economic life, and through it +upon social and political life. Both the relations of +Nations and States to one another and the relations of +the groups or communities within each State to each +other may be affected in ways as yet scarcely dreamt of. +Neither can we foresee the modes in which the scientific +way of looking at all questions may come ultimately +to tinge and modify men’s habits of thought +even in social and political matters. No institution was +at one time more generally prevalent over the world, or +seemed more deeply rooted, than Slavery; and slavery, +which has now vanished from civilized communities, +<span class='pageno' id='Page_310'>310</span>will soon have vanished from all countries. There is +indeed hardly any institution for which permanence can +be predicted except—and some will not admit even this +exception—the Family.</p> + +<p class='c001'>Imagine a world in which all the hitherto unappropriated +territories had been allotted to one or other of +the few strongest States. Imagine tariffs abolished and +the principle of equality of trade-facilities among States +established. Imagine a system of international arbitration +created under which the risks of war were so greatly +reduced that the prospect of war did not occupy men’s +minds and give a military and aggressive tinge to their +patriotism. The present relations of centripetal and +centrifugal forces would under such conditions be +greatly altered, as respects both the wide theatre of +the world and the internal conditions of each particular +State.</p> + +<p class='c001'>Imagine also a great advance in the desire to use +governmental agencies for the benefit of the citizens, +and a general conviction that such agencies could +best be used by comparatively small communities +rather than by the State as a whole. A new centrifugal +force, centrifugal at least in respect of each State, +would thereby have been called into action. No one +will venture to foretell any of these things. But none +of them is impossible; and it is plain that they might +produce a set of conditions, and a play of forces, unlike +the present, and unlike any period in the past. We +must not therefore assume that the large States and the +present structure and organization of States will be +permanent.</p> + +<p class='c001'>Of the more remote future, History can venture to say +<span class='pageno' id='Page_311'>311</span>little more than this—that it will never bring back the +past. She recognizes that, as Heraclitus says, one cannot +step twice into the same river. Even when she is able +to declare that certain forces will assuredly be present, +she cannot forecast their relative strength at any given +moment, nor say what hitherto unobserved forces they +may not, in their action upon one another, call into +activity. All she can do for the lawyer, the statesman +and the legislator, when they have to study and use the +forces operative in their own time, is to indicate to +them the nature and the character, the significant +elements of strength and weakness, that belong to each +and every force that has been heretofore conspicuous, +so as to direct and guide them in observing and reflecting +on the present. This is much less than has sometimes +been claimed for history. Nevertheless it is a real +service, for nothing is more difficult than to observe +exactly, and the ripest fruit of historical study is that +detachment of mind, created by the habit of scientific +thinking, which prevents observation from being +coloured by prejudice or passion.</p> + +<div class='chapter'> + <span class='pageno' id='Page_312'>312</span> + <h2 id='eV' class='c005'>V <br> <br> PRIMITIVE ICELAND</h2> +</div> + +<p class='c006'>Iceland is known to most men as a land of volcanoes, +geysers and glaciers. But it ought to be no +less interesting to the student of history as the birthplace +of a brilliant literature in poetry and prose, and as +the home of a people who have maintained for many +centuries a high level of intellectual cultivation. It is an +almost unique instance of a community whose culture +and creative power flourished independently of any +favouring material conditions, and indeed under conditions +in the highest degree unfavourable. Nor +ought it to be less interesting to the student of +politics and laws as having produced a Constitution +unlike any other whereof records remain, and a body +of law so elaborate and complex that it is hard to +believe that it existed among men whose chief occupation +was to kill one another.</p> + +<p class='c001'>With the exception of Madeira and the Azores, +Iceland is the only part of what we call the Old World<a id='r116'></a><a href='#f116' class='c012'><sup>[116]</sup></a> +which was never occupied by a prehistoric race, and in +which, therefore, the racial origin of the population is +historically known to us.</p> + +<p class='c001'>None of those rude tribes who dwell scattered over +<span class='pageno' id='Page_313'>313</span>the north of Asia, Europe and America—Lapps, +Samoyedes or Esquimaux—ever set foot in it. Adamnan, +Abbot of Iona from <span class='fss'>A.D.</span> 679 to 704, reports in his +famous <cite>Life of St. Columba</cite><a id='r117'></a><a href='#f117' class='c012'><sup>[117]</sup></a>, a prophecy of the saint regarding +a holy man named Kormak, who, in Columba’s +days (<span class='fss'>A.D.</span> 521-597), made three long voyages from +Ireland in search of the ‘Desert in the Ocean’ (<span lang="la"><i>eremum in +Oceano</i></span>), a term so happily descriptive of Iceland that +one is tempted to believe it to be the region referred +to. A little later the Venerable Bede (<span class='fss'>A.D.</span> 673-735) +speaks of contemporaries of his own who, coming from +the isle of Thule, declared that in it the sun could +be seen at midnight for a few days<a id='r118'></a><a href='#f118' class='c012'><sup>[118]</sup></a>. Still later the +Irish monk Dicuil (writing about <span class='fss'>A.D.</span> 825) tells<a id='r119'></a><a href='#f119' class='c012'><sup>[119]</sup></a> of an +isle lying far to the North-West where monks known +to him had spent the summer some thirty years before. +And our earliest Icelandic authority, the famous +<span lang="is"><i>Landnámabók</i></span> (Book of the Land-takings), mentions that +when the first Norwegian settlers arrived they found +a few hermits of Irish race already established there, +who soon vanished from the presence of the stronger +heathen, leaving behind books, bells and staves (probably +croziers). The Norse settlers called them Papas +(<i>i.e.</i> priests), or Westmen, a term used to describe +the Scots of Ireland. No doubt, then, the earliest +<span class='pageno' id='Page_314'>314</span>discoverers of the isle were these Celtic hermits, who +had crossed the wide and stormy sea in their light +coracles of wood and leather, consecrating themselves +to prayer and fasting in this inclement wilderness. +But they contributed no element to the population of +the island, and can hardly be said to have a place +in its history, which begins with the great Norwegian +immigration.</p> + +<p class='c001'>The first Teuton to reach Iceland was a Norse +Viking named <a id='corr314.9'></a><span class='htmlonly'><ins class='correction' title='Naddodd or Naddoðr'>Naddođ</ins></span><span class='epubonly'><a href='#c_314.9'><ins class='correction' title='Naddodd or Naddoðr'>Naddođ</ins></a></span>, who was driven to the isle by +a storm in the latter half of the ninth century. He +called it Snæland, or Snowland. A second visitor, +a Swede named Gardar, sailed round it; a third +(Flóki, a Norseman) landed, and gave it the name it +still bears. But though the news of the discovery +soon spread far and wide through the whole Northland, +the isle might possibly have lain unoccupied but +for the events that were passing in Norway. King +Harald the Fairhaired was then in the full career of +his conquests. The great battle of Hafrsfjord had +established his power in Central and Southern Norway, +and he was traversing the fjords with his fleet, compelling +the petty chieftains who stood at the head of +the numerous small independent communities that +filled the country to acknowledge his supremacy, and +imposing a tax upon the land-holding freemen.</p> + +<p class='c001'>The proud spirit of the warriors who for more +than a century had been ravaging the coasts of all +Western Europe could not brook subjection, and, being +unable to offer a united opposition, the boldest and +bravest among them resolved to find freedom in exile. +Some sought the Orkneys, Shetlands and Faeroe isles, +<span class='pageno' id='Page_315'>315</span>already settled by Northmen. Some joined the Norwegian +settlers in Ireland, and drove the Celtic population +out of some districts on its eastern coast. Others, +again, followed Hrolf Ganger (Göngu Hrolfr) (‘the +Walker’), or Rollo as our books call him, a Viking who, +having incurred the wrath of Harald, sailed forth from +his home on the fjords near Bergen to found in Northern +Gaul a dynasty of Norsemen whence came the long line +of Norman dukes and English kings, <span lang="la"><cite>Albanique patres +atque altae moenia Romae</cite></span>. And yet others, hearing +the praises of the lately-discovered isle far off in the +ocean, turned their prows to the west and landed on +the solitary shores of Iceland. They embarked without +any concert or common plan; each chieftain, or head +of a household, taking his own family, and perhaps +a group of friends or dependents; and they settled in +the new land where they pleased, sometimes throwing +overboard as they neared the shore the wooden +columns, adorned with figures of Thor and Oðin, of +the high-seat in their old Norwegian hall, and disembarking +at the point to which these were driven +by the winds and currents. At first each took for +himself as much land as he desired, but those who +came later, when the better pastures had been already +occupied, were obliged to buy land or to fight for it; +and a curious custom grew up by which the extent +of territory to which a settler was entitled was fixed. +A man could claim no more than what he could carry +fire round in a single day; a woman, than that round +which she could lead a two-year-old heifer. So rapid +was the immigration, many colonists from Norwegian +Ireland and the Scottish isles, Orkneys, Shetlands and +<span class='pageno' id='Page_316'>316</span>Hebrides (the two former groups being then Scandinavian) +joining those who came direct from Norway, +that in sixty years the population had risen (so far as +our data enable it to be estimated) to about 50,000, a +number which seems not to have been exceeded down +to the census of <span class='fss'>A.D.</span> 1823. With those who came from +Ireland and the Hebrides there came some small infusion +of Celtic blood, which we note in such names as +Njál, Kjartan, and Kormak, given to men descended +from the daughters of Irish chieftains.</p> + +<p class='c001'>Planting themselves in this irregular way, and in +a country where the good land lay in scattered patches, +and where <a id='corr316.13'></a><span class='htmlonly'><ins class='correction' title='deserts'>deserts,</ins></span><span class='epubonly'><a href='#c_316.13'><ins class='correction' title='deserts'>deserts,</ins></a></span> glaciers and morasses, as well as +torrents, passable only with difficulty or even danger, +cut off one settlement from another, the first settlers +did not create, and indeed felt little need of, any political +or social organization. But after a time a sort of polity +began to shape itself, and the process of its growth is +one of the most interesting phenomena of mediaeval +history. The elements out of which it sprang were +of course those two which the settlers had brought +with them from Norway, and both of which were +part of the common heritage of the Teutonic race—the +habit of joint worship at a temple, and the habit +of holding an assembly of all freemen to discuss and +dispatch matters of common interest, and more especially +lawsuits<a id='r120'></a><a href='#f120' class='c012'><sup>[120]</sup></a>. This assembly resembled the Old English +Folk Mot, and was called the Thing, a name which +survives in our English word Hustings (Husting or +<span class='pageno' id='Page_317'>317</span>House Thing), the platform from whence candidates +spoke at parliamentary elections, which disappeared in +<span class='fss'>A.D.</span> 1872 when written nominations were prescribed by +the statute which introduced vote by ballot. The Þing<a id='r121'></a><a href='#f121' class='c012'><sup>[121]</sup></a> +was held at the temple, usually dedicated to Thor, +the favourite deity of the Norsemen as Oðin was of +the Swedes; since the place of worship was the natural +centre of the neighbourhood, and the Þing was presided +over by the local magnate or chief, who was +usually also the owner or guardian of the local temple, +there being among the Scandinavian peoples no special +sacerdotal caste.</p> + +<p class='c001'>Now when a Norse chief settled himself in Iceland, +one of his first acts was to erect a temple, often with +the sacred pillars which he had brought from the +ancestral temple in the old country. The temple soon +became a place of resort, not only for his own immediate +dependents, but also for those other settlers of the +district who might not be rich enough to build and +maintain a shrine of their own. Of this temple the +chieftain and his descendants were the priests; and as +the meetings of the local Þing were held at it, he was +the natural person to preside over such meetings, both +because he was usually (though not invariably) eminent +by his wealth and power, and also because he offered +the sacrifices and kept the sacred temple-ring on which +judicial oaths were taken, as at Rome men swore at the +Ara Maxima of Hercules. Thus the priest acquired, if +he had not already enjoyed it, the position of a sort of local +chieftain or magnate, not unlike those kings of heroic +<span class='pageno' id='Page_318'>318</span>Greece whom we read of in Homer, or those German +tribe-princes whom Tacitus describes. Although his +title was that of Goði<a id='r122'></a><a href='#f122' class='c012'><sup>[122]</sup></a> (originally Guði) or priest, a word +derived from the name of the Deity, he lost in becoming +the depositary of a certain measure of political power +most of such religious character as his office had +possessed. Nor did any sanctity attach to his person. +In that age at least religion had come to sit rather +lightly upon the Norsemen. Either from inner decay, +or from the influence of the Christian peoples with whom +they came in contact beyond the seas, the old faith was +beginning to disintegrate. Worship was often cold or +careless, and we read of men who regarded neither Þor +nor Oðin, but trusted in their own might and main.</p> + +<p class='c001'>The Goði was therefore much more of a secular than +of an ecclesiastical person, a chieftain rather than a +priest in our sense of the word<a id='r123'></a><a href='#f123' class='c012'><sup>[123]</sup></a>. His powers as +a chieftain were very indefinite, as indeed had been +those of the local chieftains of Norway. He was only +the first among a number of free and warlike landowners, +some of them equal or superior to him in +lineage, with an official dignity which was little more +than formal in the hands of a weak man, but might be +turned to great account by a person of vigour and +ability. As he presided in the Þing, so he was the +appropriate person to see to the regularity of its judicial +proceedings, to preserve order, and to provide for the +<span class='pageno' id='Page_319'>319</span>carrying out of any measures of common concern on +which it might determine. When any unforeseen +danger or difficulty arose, he was looked to to advise +or take the lead in action; the members of his Þing +expected aid and protection from him, while he, like +a thegn among the Teutons of contemporary England, +expected support and deference from them. But he +had no legal powers of coercion. Any one might +oppose him in the Þing or out of it. Any Þing-man +might withdraw at pleasure, join himself to some other +Goði, and become a member of some other Þing<a id='r124'></a><a href='#f124' class='c012'><sup>[124]</sup></a>. +There was, it must be noted, no territorial circumscription +corresponding to the Þing. Land had nothing +to do with the position held by the Goði to the Þingmen, +and herein, as well as in the absence of the relation +of commendation and homage, we see a capital +difference between this system and feudality. Nor +was the post of Goði a place whence much emolument +could be drawn. The Þingmen were indeed +required to pay a sort of tax called the temple +toll (<span lang="is"><cite>hoftollr</cite></span>), but this did no more than meet the +expenses to which the Goði was put in keeping up +the temple, and feasting those who came to the +<span class='pageno' id='Page_320'>320</span>sacrifices; it gave him no revenue which he could use +to extend his authority. Accordingly, the Goðorð was +regarded as implying power rather than property, and +was not (after the introduction of Christianity) liable to +the payment of tithe. A curious feature of the office +was its alienability. Probably because it had arisen +out of the ownership of the temple, it was regarded +as a piece of private property which could be transferred +by way of sale or gift, and could be vested in +several persons jointly. And similarly a number of +Goðorðs might by inheritance or purchase become +vested in the same person.</p> + +<p class='c001'>Thus in the years immediately following the immigration +there sprang up round the coasts of Iceland a great +number of petty, unconnected and loosely aggregated +groups of settlers. We must not venture to call them +states, scarcely even communities, not principalities, +such as those which were beginning to spring up in +Western Europe, not in a strict sense republics, yet +nearer to republics than to principalities, organized, so +far as they were organized at all, chiefly for the purposes +of justice, and particularly for the exaction of fines +for homicide, but with no settled plan of government, no +written laws—if indeed writing was yet in use at all—no +defined territory, and a comparatively weak cohesion +among their own members, the Thingmen. The really +effective tie was, in those ages, the tie of kindred; and +the Þingmen of the same Goði were not kinsfolk, were +not a clan or sept, like the Celtic communities of Scotland +and Ireland. That tie was strong enough to involve +a whole district in the blood-feud of a single man. For +when any member of a family was killed, it was the +<span class='pageno' id='Page_321'>321</span>duty of his nearest relatives to avenge his death, either +by obtaining a full compensation in money, for which, +if the offender refused to pay it, a lawsuit was brought +in the Þing, or else by slaying the murderer or some +member of his family. Thus a feud, like a <em>Vendetta</em> in +Corsica or in Eastern Kentucky, might go on from +generation to generation, each act of revenge drawing +others in its train, and tending to draw more and more +families into the feud, because when fights took place, +the friends of each party often joined, and if some +were killed, their relatives had a new blood-claim to +prosecute.</p> + +<p class='c001'>Between the different communities that had thus +sprung up there was no political tie whatever. There +did not as yet exist any Icelandic nation, much less any +common Icelandic State of which all the communities +felt themselves members. Each was an independent +body; and if a dispute arose between the members of +two different Þings, there was no means of adjusting +it except by voluntary submission to the award of some +other Þing or else by open war. Seeing that slayings and +plunderings and burnings were everyday occurrences +in this fierce race, where Vikingry (<i>i.e.</i> piracy) was the +most honoured pursuit, such cases were very frequent, +especially as to take revenge for a kinsman’s death was +deemed a sacred duty.</p> + +<p class='c001'>Even when the offender belonged to the same Þing +as the injured, it often happened that the influence +of his kindred, or the favour of the Goði of the place, +or some technical error in bringing the suit for compensation, +prevented justice from being done. Accordingly +the need for some remedy, for some further +<span class='pageno' id='Page_322'>322</span>political, or rather judicial, organization of the island +began to be generally felt, for however fond men may +be of killing one another, the Norsemen were always +also fond of money, and would often prefer a blood-fine +to the satisfaction of killing their enemy, could the +blood-fine be secured. Thus it came to pass that, +about fifty years after the first colonization, a chief +named Úlfljót, venerable from his age and abilities, +came forward to propose a scheme. He urged the +creation of one general Þing for the whole country, +where all matters of common interest might be discussed, +and all suits which could not be dispatched, +or had not been fairly dealt with in the local Þings, +might be decided. Travelling round the island, he +brought over to his views the most influential Goðis +and other leading men; and at their request, sailed to +Norway to inquire into the laws prevailing there, and +to draw up regulations for this new general Þing; +somewhat as envoys were, according to the Roman +story, sent from Rome to the Greek cities to bring +back materials and suggestions for the legislation of +the Decemvirs. At the same time Úlfljót’s foster-brother, +Grím Geitskór (‘Goat’s Shoe’), the fleetest +man and nimblest rock-climber in Iceland, was commissioned +to traverse the island in search of a place suitable +for the meeting of the proposed assembly. After long +wanderings, Goat’s Shoe hit upon a spot to which +the name of Þing Vellir<a id='r125'></a><a href='#f125' class='c012'><sup>[125]</sup></a>, ‘the plains of the Þing,’ has +ever since belonged, in the south-west of the island, +<span class='pageno' id='Page_323'>323</span>about eight hours’ riding from where Reykjavík the +present capital now stands, and within the district of +the first temple that had been founded by Ingolf, the +earliest Norwegian settler. This circumstance gave the +place a sort of sacredness. There was plenty of water +and pasture, and the lake which washed the plain of +meeting abounded (as it does to this day) with trout and +wild fowl. (It abounds also with most pernicious small +black flies, whereon the trout grow fat, but which make +fishing not always a pleasure.) Here, accordingly, <a id='corr323.9'></a><span class='htmlonly'><ins class='correction' title='Úlfljot'>Úlfljót</ins></span><span class='epubonly'><a href='#c_323.9'><ins class='correction' title='Úlfljot'>Úlfljót</ins></a></span> +having in the meantime returned from Norway with +his materials for legislation, the first Alþing, or General +Assembly of all Iceland, met in <span class='fss'>A.D.</span> 930, and here it +continued to meet, year after year, for a fortnight in +the latter half of June, till the year 1800<a id='r126'></a><a href='#f126' class='c012'><sup>[126]</sup></a>, one of +the oldest national assemblies in the civilized world, +and one of the very few which did not, like the +English Parliament and the Diet of the Romano-Germanic +Empire, grow up imperceptibly and, so +to speak, naturally, from small beginnings, but was +formally and of set purpose established, by what would +have been called, had paper existed, a paper constitution, +that is to say by the deliberate agreement of +independent groups of men, seeking to attain the +common ends of order and justice.</p> + +<p class='c001'>There was thus created, before the middle of the +tenth century, when Athelstan the Victorious<a id='r127'></a><a href='#f127' class='c012'><sup>[127]</sup></a> was +<span class='pageno' id='Page_324'>324</span>reigning in England and defeating Scots and Northumbrians +at Brunanburh by the help of the Icelandic +warriors Thorolf and Egil, sons of Skallagrim<a id='r128'></a><a href='#f128' class='c012'><sup>[128]</sup></a>, when +the Saxon king Henry the Fowler was repelling the +Magyar hosts and laying the foundations of the German +Kingdom, and when the power of the last Carolingians +was beginning to pale in Gaul before the rising star +of the Capetian line, a sort of republic embracing the +whole isle of Iceland, a republic remarkable not only +from its peculiar political structure, but also, as will +presently appear, from the extremely limited range of +its governmental activity. About thirty years later its +constitution was amended in some important points, +and forty years after that time, about the year 1004, +further alterations were made, the details of which +are too much disputed as well as too intricate to be +explained here. Its general outline, in its completed +shape, was the following. The total number of regular +Þings, and priest-chieftaincies or Goðorðs, was fixed +at thirty-nine, nine for each of the four Quarters into +which the island was divided, except the North Quarter, +which, in order to allay certain local susceptibilities, was +allowed twelve. Each of these thirty-nine local Þings +was presided over by its Goði. Then, for certain purposes, +three of these Þings were united to form a larger +Þing-district (Þingsokn), of which there were therefore +thirteen in all, viz. four for the North Quarter, and +three for each of the other Quarters. There was also +one still larger Þing for each Quarter, called the +Fjórðungsþing. It seems to have grown up before +<span class='pageno' id='Page_325'>325</span>the institution of the Alþing, and to have represented +the first stage in the organization of a larger community +out of the small local Þings. But it tended in course +of time to lose its importance.</p> + +<p class='c001'>Ordinary lawsuits and questions of local interest +were determined in these minor Þings, while graver +suits, or those in which the parties belonged to different +Þings, or where it was sought to reverse the decision +of a local Þing, as well as all proposals for alterations +of the general law, were brought before the Alþing, at +its annual meeting in June. It seems to have been +therefore partly a court of first instance and partly +a court of appeal. Now the Alþing was open, like +other primary Teutonic and Hellenic assemblies, to all +freemen who chose to attend; but its powers were +practically exercised by a limited number of persons, +viz. the Goðis and certain members nominated by +them.</p> + +<p class='c001'>For judicial purposes, the Alþing acted through four +Courts, one for each Quarter. Each Quarter Court +(fjorðungsdómr) consisted, according to one view, of +thirty-six members, viz. the Goðis of the Quarter with +twenty-four nominees, and, according to another view, +of nine persons nominated by the Goðis of the Quarter. +There was also a fifth Court (called the fimtardómr), +instituted later than the others (<span class='fss'>A.D.</span> 1004), on the suggestion +of the famous jurist Njál, son of Thorgeir. +This Court, which exercised jurisdiction in cases where +one of the other Courts had failed, was composed +in a somewhat different way, acted under a more +stringent oath, and gave its decisions by a majority, +whereas in other Courts unanimity was required. It +<span class='pageno' id='Page_326'>326</span>seems to have been intended not only to avert armed +strife by providing a better method for settling disputes, +but also to organize the country as a whole and give it +something approaching to a central authority. This +result, however, was not attained, the social and physical +obstacles proving insuperable.</p> + +<p class='c001'>In these judicial committees of the Alþing lawsuits +were brought and argued with an elaborate formality +and a minute adherence to technical rules far more +strict than is now practised anywhere in Europe, a fact +which will appear the more extraordinary when we +remember that in those days both the law and all the +appropriate forms of words which the parties were +obliged to employ were not written, but preserved +solely by the memory of individual men.</p> + +<p class='c001'>For legislative purposes the Alþing acted through +another committee of 144 persons, only one-third +(forty-eight) of whom, being the thirty-nine Goðis +and nine nominees, had the right of voting. The +nine nominees were persons chosen by the Goðis of +the East, South, and West Quarters, three by each +Quarter, in order to give each of these Quarters the +same strength in the Committee as the North Quarter +had with its twelve Goðis. Each of the forty-eight +appointed two assessors who advised him, sitting one +behind him and the other in front of him, so that he +could readily seek their counsel, and thus the 144 were +made up, the forty-eight being described as the Middle +Bench. This Committee was called the Lögrétta (<i>lit.</i> +‘Law Amending’), and by it all changes in the law +were made, and all matters of common interest discussed. +It was essentially an aristocratic body, as +<span class='pageno' id='Page_327'>327</span>indeed the whole Constitution bore an aristocratic +colour, though there was no such thing as a formal +distinction of rank<a id='r129'></a><a href='#f129' class='c012'><sup>[129]</sup></a>, much less any titled nobility. +After the introduction of Christianity in <span class='fss'>A.D.</span> 1000, the +two bishops were added to the Lögrétta, while at the +head of all, making up the number of members to 147, +stood an elected officer, called the Speaker of the +Law.</p> + +<p class='c001'>This last-named personage, the solitary official of the +republic, is one of the most curious parts of the system. +He was called the Lögsögumaðr, literally ‘Law-say-man,’ +or, as we may render it, Speaker, or Declarer, of the Law, +and was the depositary and organ of the unwritten +common law of the country. It was his duty to recite +aloud, in the hearing of the greater number of those +present at the Þing, the whole law of Iceland, going +through it in the three years during which he held +office; and to recite once in every year the formulas of +actions, this being the part of the law which was of +most practical importance. Besides this, he presided +in the Lögrétta, giving a casting vote where the votes +were equal; and he was bound to answer every one +who asked him what the provisions of the law actually +were, although not required to advise applicants as to +the course they ought to follow in a given case. When +in any suit a question of what was the legal rule arose, +reference was made to him, and his decision was +accepted as final. For these labours he received a +yearly salary of two hundred ells of Vaðmál (the blue +<span class='pageno' id='Page_328'>328</span>woollen cloth which then served as currency, and which +continued to do so, for some purposes, down to our own +time), besides one-half of the fines imposed at the +Alþing. He was of course selected from the most accomplished +lawyers of the time. His declarations of +the law were conclusive, at least during his three years’ +term of office, in all causes and over all persons. Thus +he exercised a kind of quasi-judicial or quasi-legislative +power, and has been fancifully compared to the Roman +Praetor, also an officer elected for a term, also by his +edicts the declarer of the law he had to administer<a id='r130'></a><a href='#f130' class='c012'><sup>[130]</sup></a>. +But the Law-Speaker was in reality neither judge nor +magistrate, nor, indeed, a legislator, except in so far as +the right to enounce and interpret borders on legislation. +He delivered no judgements, he had no power of enforcing +a decision or of punishing an offender. He did +not even open the Alþing and take the responsibility for +keeping order at it, for these functions belonged to the +Goði of the district, called, because the Alþing met +within his jurisdiction, the Allsherjargoði (priest of the +whole host). The Lögsögumaðr was in fact nothing +but the living voice of the law, enunciating those +customary rules which had come down from the foretime, +rules which all accepted, though they were not +preserved in any written form, and though they must +have been practically unknown to the great majority of +the citizens.</p> + +<p class='c001'>The office, although more important in Iceland from +the absence of a king or local prince, was one of which +we find traces among other Scandinavian peoples, or +<span class='pageno' id='Page_329'>329</span>at least among the Norsemen. It appears in Norway, +in the Orkneys, and in the Hebrides (though there the +name is Lögman, which in Iceland means merely one +learned in the law).</p> + +<p class='c001'>Thingvellir, where the Alþing met from the year 930 +down to a time within the memory of living men, is +a spot not less remarkable physically than memorable +for the stirring events of which it was the witness. It +is a slightly undulating plain, some five miles long by +three wide, washed on the south by a broad island-studded +lake, and girdled in at its northern end by +lofty mountains, their black volcanic rocks streaked here +and there with snow-beds. The surface is all of lava, +sometimes bare and rugged, sometimes covered with +thin brushwood, dwarf birches and willows, sometimes +smoothing itself out into sweeps of emerald pasture, but +everywhere intersected by profound chasms, formed +when the whole was a molten mass. East and west it +is hemmed in by two lines of precipices, whose rugged +sides seem to show that the plain between them has, +at some remote period, perhaps when the lava-flood was +cooling, sunk suddenly down, leaving these walls to be the +edges of the plateau which stretches away backwards to +the east and west. Under the western of these two walls, +on the margin of the lake, just where it receives the +stream which has flung itself in a sparkling cascade +over the precipice, the place of meeting was fixed. The +chieftains, who came from every corner of the island +with a following of armed companions and dependents, +because broils were frequent, and armed strife might +interrupt the progress of a lawsuit, built their booths—erections +of stone and turf roofed for the time with cloth or +<span class='pageno' id='Page_330'>330</span>canvas—along the banks of the Öxará river, and turned +out their horses to pasture by the lake. Places were +appointed for the holding of the several courts, while +the Lögrétta or legislative committee sat on a spot +which nature seemed to have herself designed for the +purpose. Two of the extraordinary chasms by which +the plain is seamed, each some eighty feet deep, and filled +for the lower fifty feet by bright green water, enclose +a narrow strip of lava some two hundred yards long, +cutting it off, except at one point where there is a +narrow entrance which three men might hold, from the +surrounding land. The surface is nearly level, covered +by short grass now browsed by a few sheep; and there +is nothing to tell that in this space, in the full sight of +the assembled multitude, the heroes of ancient Iceland +spoke and voted their laws, and gave their verdicts; +while from an eminence in the midst of the enclosure, +still called the Lögberg, or Hill of Laws, the Law-Speaker +recited the law of the nation in the sight and +hearing of the multitude that stood on the further side +of the chasms<a id='r131'></a><a href='#f131' class='c012'><sup>[131]</sup></a>. Not only so: there is all round nothing +whatever to show that the place has ever been different +from what it is now. Between the Lögberg and the +lake stands the little wooden church and its humble +parsonage. No other house is near, nor any sign of +human life. Only the islet is still pointed out in the +river where the solemn duels which the laws of Iceland +<span class='pageno' id='Page_331'>331</span>recognized were fought, and the deep green swirling +pool into which women condemned for witchcraft were +hurled from the brink of the precipice. In most of the +spots to which the traveller is drawn, by memories of +constitutional freedom or of political struggles, his +imagination is aided by the remains of the buildings +where assemblies met or monarchs sat enthroned. Here +man has left nothing to speak of his presence, and it +is hard to realize, when one looks on this silent and +desolate scene, that it was once filled by so much +strenuous life, and so often resounded to the clash of +arms.</p> + +<p class='c001'>For the Alþing was not merely an assembly for the +dispatch of business: it was the great annual gathering +of the whole nation, a gathering all the more needed +in a land where there are no towns, and most men +live miles away from their nearest neighbours. To +it chieftains rode with their wives and daughters and +a band of armed retainers from the furthest corners of +the country, taking perhaps, as those must have done +who came from the East fjords along the northern edge +of the great central desert, a fortnight or more on the +way. Shipmasters from Norway or Ireland brought +their wares for sale. Artisans plied their trades. +We are told that even jugglers’ sheds and drinking-booths +were set up, and games of all kinds carried +on. It was a great opportunity not only for the +renewing of friendships between those who lived in +distant parts of the country, but for the arranging +of adoptions and marriages; and the Sagas mention +numerous instances in which proposals were made +or betrothals entered into at a meeting of the +<span class='pageno' id='Page_332'>332</span>Alþing, in most of which instances the will of the +maiden seems to have prevailed over that of her +parents. It was midsummer, when there is in those +latitudes no night, but the glare of day subsides +for a few hours into an exquisitely rich and tender +twilight, clothing the sky with colours never seen in +our duller air. And we can fancy how those who +followed their fathers to the Alþing found compensation +for all the loneliness and gloom of the long winter in +this one fortnight of vivid mirth and excitement.</p> + +<p class='c001'>The meeting of the Alþing was not only the centre +of the political life of the Republic. It was, so to +speak, the Republic itself, for it was only then that the +Republic became visible before men’s eyes or acted as +a collective whole. During the rest of the year lawsuits +and everything else of public concern were left to +the Quarter Þings and local Þings, and to the local +Goðis. The few laws or resolutions of general concern +which the Alþing passed—they were few, because its +legislative activity was chiefly occupied in regulating its +own judicial proceedings—were probably meant to be +accepted and observed over the whole island, but the +Alþing did not attempt to enforce them, and indeed +had no machinery by which it could do so. Each Goði +was, in a loose way, a sort of executive magistrate +over his own Þingmen; but he did not derive his +authority from the Central or Federal Alþing, and +he was not responsible to the Alþing for its exercise. +The Republic, if we may so call it, had no Executive +whatever. Its sole official was the Law-Speaker (of +whom more anon), but his function was only to declare +the law, and was exercised only while the Alþing was +<span class='pageno' id='Page_333'>333</span>sitting. At other times the constituent Þings and Goðis +were virtually quite independent, and might and often +did carry on war with one another, subject to no +penalty or liability for so doing, save in so far as an +action for compensation might be brought against any +one who had killed another. There was no police, no +militia, no fleet, no army, nor any means, like those +provided in the feudal kingdoms of contemporary +Europe, of raising an army. The isle lay so far away +from all other countries except Greenland, on which +an Icelandic colony had been planted, that it happily +did not need to have a foreign policy. There was +neither public revenue nor public expenditure, neither +exchequer nor budget. No taxes were levied by the +Republic, as indeed no expenses were incurred on +its behalf.</p> + +<p class='c001'>The Icelandic Republic was in fact a government +developed only upon its judicial and (to a much smaller +extent) upon its legislative side, omitting altogether +the executive and international sides, which were in +the Greek and Roman world, and have again in the +modern world, become so important. For a community +to exist with such an absence of administrative +organization was obviously possible only in a region +like Iceland, severed by a wide and stormy sea from +the rest of the world, and with a very thin and scattered +population; possible too only in a simple state of +society where man’s needs are few and every one fends +for himself.</p> + +<p class='c001'>The system whose outlines I have sought to draw is +full of interest and suggestion, as well to the student +of legal theory as to the constitutional historian. +<span class='pageno' id='Page_334'>334</span>Some modern theorists derive law from the State, and +cannot think of law as existing without a State. A few +among them have in England gone so far as to deny that +Customary Law is law at all, and to define all Law as +a Command issued by the State power. But here in +Iceland we find Law, and indeed (as will appear presently) +a complex and highly developed legal system, existing +without the institutions which make a State; for a +community such as has been described, though for +convenience it may perhaps be called a Republic, is +clearly not a State in the usual sense of the word. Of +Iceland, indeed, one may say that so far from the State +creating the Law, the Law created the State—that is +to say, such State organization as existed came into +being for the sake of deciding lawsuits. There it +ended. When the decision had been given, the action +of the Republic stopped. To carry it out was left to +a successful plaintiff; and the only effect a decision +had, so far as the Courts were concerned, was to expose +the person resisting it to the penalties of outlawry—that +is to say, any one might slay him, like Cain, without +incurring in respect of his death any liability on the +footing of which his relatives could sue the slayer. +Law in fact existed without any public responsibility +for enforcing it, the sanction, on which modern jurists so +often dwell as being vital to the conception of law, being +found partly in public opinion, partly in the greater +insecurity which attached to the life of the person who +disregarded a judgement. Yet law was by no means +ineffective. Doubtless it was often defied, and sometimes +successfully defied. That happened everywhere +in the earlier Middle Ages, and happens to-day in +<span class='pageno' id='Page_335'>335</span>semi-civilized peoples. But the facts that the Alþing +maintained so active a judicial life, that the field of +law was cultivated so assiduously, and the details of +procedure worked out with so much pains and art, that +lawsuits were contested so keenly and skilfully—all +these facts seem to prove that law must have in the +main had its course and prevailed, for it is hard +to suppose that all this time and pains would have +been during two centuries or more devoted to a pursuit +which had no practical result. The contemporary +kingdoms and principalities of the earlier Middle Ages +lived by the vigour of the executive. There was in +them very little of a State administration, and the law +was in most or all of them older than the State—that +is to say, it had existed in the form of customs recognized +and obeyed before efficient means were provided +for enforcing it. So far they resembled Iceland; and +the same may be said of the city republics of Italy and +Germany. But Iceland is unique as the example of +a community which had a great deal of law and no +central Executive, a great many Courts and no authority +to carry out their judgements.</p> + +<p class='c001'>The process by which the law of Iceland grew, though +less exceptional than was its political constitution, illustrates +very happily the origin of Customary Law and +the first beginnings of legislation. Law springs out of +usage. The gathering of the neighbours develops into +the Þing or local assembly of Norway and the Folk Mot +of early England. It treats of all matters of common +concern; and as it is the body before whom complaints +of wrong are laid, it adopts by degrees regular set forms +of words for the statements of a grievance, and for the +<span class='pageno' id='Page_336'>336</span>replies to those statements. The usages become recognized +customs, prescribing the cases in which redress +may be claimed and the defences by which the claims +may be repelled. The forms of words grow more +elaborate and come to be considered so essential that +a variation from them vitiates the claim. The body of +rules thus formed becomes so large that only a few +men, devoting themselves to the subject, are able to +carry the whole in their memory. These men, proud of +their knowledge, elaborate the rules, and particularly +the set forms of words, still further, and in their enjoyment +of technicalities attach more and more importance +to formal accuracy. Thus Custom, which was loose +and vague while held in solution in the minds of the +mass, becomes crystallized into precision by the labour +of the few whose special knowledge gives them a sort +of pre-eminence, and even a measure of power. Then +it is found that there are diversities of opinion among +the experts in the law, or instances arise which show +that some custom generally accepted is inconvenient. +By this time Custom has acquired so much authority +that the assembly, which has been also, and perhaps +primarily, a law court, does not venture to transgress it, +the men of legal learning being of course specially +opposed to such a course. It therefore becomes necessary +formally to change the Custom by a resolution of +the body which is at once the Assembly and the Court. +As this body consists of those who use, and whose progenitors +have created, the custom, and as it continues to +settle other matters of common concern affecting the +district, it is the proper and only body to make the change. +This, then, is legislation in its early stage. The law +<span class='pageno' id='Page_337'>337</span>produced, which we may call Statute Law, is for many +generations extremely small in proportion to the mass +of law which rests upon Custom only. But the +Statute Law is important because it is explicit, because +it is sure to be remembered, because it deals with +points comparatively large, since it would not be worth +while to submit small ones to the assembly. Nevertheless +legislation is among all peoples the smallest +part of the work of primitive assemblies, be they Þings +or Folk Mots or Agorai or Comitia. And the growth of +the law of Iceland by custom, preserved and elaborated +by a succession of law-sages, occasionally (though rarely) +altered or added to by the vote of the Alþing, presents +a lively picture of what must have been the similar +process of the construction of early Roman law by the +jurists (<span lang="la"><i>prudentes</i></span>) and assembly (<span lang="la"><i>comitia</i></span>).</p> + +<p class='c001'>Iceland, however, provided a means for the ascertainment +and publicity of her law which Rome lacked. +The Lögsögumaðr is an elegant (using the word in +its strict Roman sense) complement to a system of +Customary Law. His function was well designed to +meet and cure the two chief defects in such a system, the +uncertainty which existed as to what the rules accepted +as law were and the difficulty which an individual desiring +to take or defend legal proceedings found in discovering +what the rule applicable to his case really was. +The solemn recitation of the whole law fixed it in the +recollections of those who busied themselves with such +matters, and gave everybody an opportunity of knowing +what it covered. The right to interrogate the living depositary +of the law as to any special point whereanent +the querist desired to be informed was a great boon +<span class='pageno' id='Page_338'>338</span>to private persons, who, since they might often have +to suffer from the extreme technicality of procedure, +needed all the more to be warned beforehand where +the pitfalls lay. In these respects the Icelandic system +contrasts favourably with those of early Rome and +early England. Till the Twelve Tables were enacted +the private citizen of Rome had no means of ascertaining +the law except by asking some sage, who need not +answer unless he pleased, and whose view had no +authority beyond that which his personal reputation +implied. Even after the Twelve Tables had reduced +much of the ancient Customary Law to shape, and +made it accessible to the citizens at large, many of the +forms of procedure, and the rules as to the days on +which legal proceedings could be taken, were kept +concealed by the patrician men of law till divulged +(at the end of the fourth century <span class='fss'>B.C.</span>) by Cn. Flavius. +In England there was indeed no similar effort to keep +legal knowledge within the hands of a few. But the +customs were numerous, and many of them were uncertain. +There was no way of ascertaining them except +by the judgement of a Court, a tedious and expensive +process, which after all decided only the particular point +that arose in the case that occasioned the judgement. +That means of determining a custom to be valid and +binding which the Icelanders had already secured +through their official in the last half of the tenth century +did not begin to be created by the action of the English +Courts till the end of the twelfth, and centuries were +needed to complete the process.</p> + +<p class='c001'>One of the things that most awakens our surprise in +the Icelandic Constitution is its extreme complexity. +<span class='pageno' id='Page_339'>339</span>In one sense simple and even rude, since it omits so +much we should have expected to find in a constitution, +it is in another sense intricate, and puzzles us by the +artificial character of the arrangements made for the +composition of the various courts and of the legislative +body, while the multiplicity of Þings, and the +distribution of powers among them, has given rise to +many controversies among historians, some still unsettled. +This phenomenon, however, finds a parallel +in some of the constitutions of the Greek republics, not +to speak of the elaborate systems of such cities as +Florence and Venice in the fourteenth century. In +Iceland the strong sense of independence which distinguished +the Norsemen, and the jealousy the chiefs +had of one another, made it necessary to devise means +for securing equality and for preventing the influence +of any group or district from attaining predominance. +Herein the spirit of the Icelandic Constitution is singularly +unlike that of the Roman. There, the intense +realization of the unity of the city and the need for giving +its government the maximum of concentration against +neighbouring enemies caused vast powers to be entrusted +first to the King and then to the Consuls or to a dictator. +In Iceland, where no such need of defence existed, where +there was no foreign enemy, and men lived scattered in +tiny groups round the edges of a vast interior desert, no +executive powers were given to anybody, and elaborate +precautions were taken to secure the rights of the +smaller communities which composed the Republic and +of the priest-chieftains who represented them.</p> + +<p class='c001'>A like intricate character recurs in the system of legal +procedure, but the cause is different and not peculiar to +<span class='pageno' id='Page_340'>340</span>Iceland. The excessive technicality of Icelandic process, +and the stress laid upon exact compliance with its +rules, belong to that stage of the human mind in which +form and matter have not yet been separated, and in +which the respect for usage and tradition outweighs +the sense of substantial justice. Simplicity in legal +matters, instead of characterizing the state of nature, +is the latest legal achievement of a civilized age. In +accounting for the strictness of adherence to the letter, +we must allow something for the dread, natural enough +in such an age, that if deviations from the letter of the +law were overlooked, if what we should call a power of +amendment on matters of form were entrusted to the +Court, such discretion would be abused and confidence +in the Courts destroyed. But the reason is chiefly to be +found, as in the parallel case of those older forms of +Roman procedure which continued terribly technical till +the time of Cicero, and as in the case of our own older law, +to the conservative spirit of the lawyers, attached to the +forms they had received and studied, and taking a professional +pride in working out their methods, a pride +all the greater the more technical those methods were, +because the more intricate the technicalities the higher +the importance of the few who had mastered them. +Substantial justice is all the layman cares for. With +the lawyer it is otherwise. An eminent English judge +used to remark that of the questions argued before him, +counsel showed most interest in points of practice, costs +came next, while the merits of the case were last. The +late Baron Parke (Lord Wensleydale) was a type of the +kind of mind which flourished in Iceland in the eleventh +century; and it was a type useful in its way, a type which +<span class='pageno' id='Page_341'>341</span>ought always to be represented in the legal profession, +for reverence for tradition and an acute interest in the +exactitude of form are hardly less necessary than a +philosophic spirit and a zeal for progress.</p> + +<p class='c001'>How keen was the taste for legal subtleties and intricacies +is shown, not only by the existence of schools +of law in Iceland—young men gathering round sages +like Njál or Skapti Thoroddsson, just as the well-born +youth of Rome frequented the house of Tib. Coruncanius +or Q. Mucius Scaevola—but also by the evident +enjoyment which the authors of the Sagas show, and +which their public must evidently have taken, in the +steps in a lawsuit, or in the telling of some incident +which raises a nice point of procedure. In no other +literature is fiction or history, by whichever name we +describe the Sagas, so permeated by legal lore.</p> + +<p class='c001'>Our knowledge of the substance of early Icelandic +law is derived partly from references or allusions in +the Sagas, partly from some ancient law-books, the +oldest of which belongs to the period of the Republic, +and was compiled, probably about the middle of +the twelfth century, out of materials some of them +much older, and reaching back into the eleventh and +even the tenth. Statutes had been passed during the +course of the tenth century, and the Úlfljótslög of +<span class='fss'>A.D.</span> 930 is spoken of as a body of law prepared by +Úlfljót after his journey to Norway and accepted by the +Alþing, though it was probably a redaction of existing +Norse customs, and does not seem to have been reduced +to writing, as indeed it is improbable that any +laws were written before the beginning of the twelfth +century. The next effort at what has been called a +<span class='pageno' id='Page_342'>342</span>codification of the law was made nearly two centuries +after Úlfljót (about <span class='fss'>A.D.</span> 1117), when a small commission +was appointed which examined the customs, rejected +some, approved or amended others, and created what +is described as a sort of systematic collection. This +is usually known as the Hafliðaskrá, from a prominent +Goði and lawyer Hafliði Mársson, who was a member +of the commission. This law is stated to have been +accepted by the Alþing, and was no doubt preserved in +writing, as the name Skrá (scroll) conveys.</p> + +<p class='c001'>The later book which used to be described as a Code +survives in two MSS., differing a good deal from one +another, and is commonly known as Grágás (‘Grey-Goose’)<a id='r132'></a><a href='#f132' class='c012'><sup>[132]</sup></a>. +It is, however, really not a Code at all, +and not even a single law-book, but a mass of matter +of different dates and origins never reduced to any +sort of unity. There are ordinances of the Alþing, +decisions and declarations delivered by Law-Speakers, +ecclesiastical regulations, formulas of legal procedure +or legal transactions, memoranda of customs which +seemed to those who recorded them to have obtained +recognition and validity. It is full of instruction as +a picture of primitive Teutonic institutions and life; +and it throws a good deal of light both on the law of +early England—English and Anglo-Norman—and upon +some of the most curious features of early Roman law. +Sometimes the references to the deliverances of a Law-Speaker +as originating a rule make us think of the +<span class='pageno' id='Page_343'>343</span>Roman Praetor, sometimes the concisely phrased records +of what was settled by the Lögrétta remind us of our +English reports of the judgements of the King’s Courts +in their early forms; while in one point the collection +as a whole has a character which belongs to the earlier +law-books as well of Rome as of England. Though the +statutes of the Alþing are the most distinctly authoritative +rules it contains, much whose authority would seem +doubtful to a modern is set down in a way which clearly +implies that it did possess authority. The line between +absolutely binding law and all other law is not sharply +drawn; indeed no such line exists. That which is recorded +may be only a single instance of the observance +of an alleged custom. It may be only the expression of +the individual opinion of some learned lögmaðr (Lawman = jurist). +Nevertheless it is a record which has +come down from the past, and by which therefore the +men of the present may seek to be guided.</p> + +<p class='c001'>In the law of Iceland, as it is presented in this ancient +collection, we have, as in the Constitution of the island +and the system of the Courts, a striking contrast +between the rudeness of an extremely archaic society, +in which private war is constantly going on, piracy is +an honourable occupation, slavery exists, and there is +no State administration and very little use of writing, +and the refined intricacy of a system of law which +makes elaborate provision for the definition of legal +rights and their investigation and determination by legal +process. The time of day is fixed by guessing at +the height of the sun above the horizon. The wife is +purchased. A father may deliver his child into slavery, +no doubt (as in early Rome), a qualified slavery, for the +<span class='pageno' id='Page_344'>344</span>payment of his debts, and the insolvent debtor may be +made a slave. But, on the other hand, there are rules, +not unlike those of our modern Courts of Equity, regulating +the guardianship of the property of a minor, and +permitting a portion of it to be applied to the support +of his indigent father, brother or sister<a id='r133'></a><a href='#f133' class='c012'><sup>[133]</sup></a>. There are +careful distinctions as to who may sue for the penalty +for homicide. If the slain man is an Icelander, the +action goes first to the son, then to the nearest blood +relation, then to the local Goði, then to any member of +the same Quarter, then to any citizen (a sort of <span lang="la"><i>actio +popularis</i></span>). If the slain man was not an Icelander, but +one who used the ‘Danish (or northern) tongue,’ <i>i.e.</i> if +he was either a Norseman or a Dane or a Swede, then +any relative may sue; if a stranger of any other +nationality, only a <a id='corr344.16'></a><span class='htmlonly'><ins class='correction' title='father'>father,</ins></span><span class='epubonly'><a href='#c_344.16'><ins class='correction' title='father'>father,</ins></a></span> son or brother may sue. But +for the protection of persons coming in a ship, the +comrade or partner<a id='r134'></a><a href='#f134' class='c012'><sup>[134]</sup></a> of the deceased, whom failing, the +skipper who has the largest share in the ship, is a proper +plaintiff.</p> + +<p class='c001'>It is curious to note that, although homicide and +murder were common, the punishment of death is never +prescribed, even as in two or three of the Southern States +of America the death penalty is seldom inflicted, while +‘shootings at sight’ and lynchings abound. And an +interesting resemblance to early Roman law may be +found in the extreme severity of the law of slander and +libel. The truth of a defamatory statement is no defence. +<span class='pageno' id='Page_345'>345</span>To affix a nickname to a man is punishable by banishment. +No verses are to be made on a man, even in his +praise, without his leave first obtained; and one who +teaches or repeats the verses made by another incurs an +equal penalty, the remedy extending even to verses made +against the memory of the dead. A love poem addressed +to a woman is actionable, the action being brought by +her guardian if she is under twenty years of age<a id='r135'></a><a href='#f135' class='c012'><sup>[135]</sup></a>.</p> + +<p class='c001'>Of the ramifications of the system of procedure into +all sorts of Courts, besides the regular Þings, I have no +space to speak; but one singular illustration of the faith +which the Icelanders had in the efficacy of legal remedies +deserves to be given, because in it these remedies reach +beyond the present life. It comes from the Eyrbyggja +Saga, one of the most striking of the old tales.</p> + +<p class='c001'>A chief named Thorodd, living at Fróðá in Breiðifjörð, +on the west side of Iceland, had just before Yule-tide +been wrecked and drowned with his boat-companions +in the fjord. The boat was washed ashore, but the +bodies were not recovered. Thereupon his wife Thurið +and his eldest son Kjartan bade the neighbours to the +funeral feast; but on the first night of the feast, as soon +as the fire was lighted in the hall, Thorodd and his +companions entered, dripping wet, and took their seats +round it. The guests welcomed them: it was held that +those would fare well with Rán (the goddess of the +deep sea) who attended their own funeral banquet. +The ghosts, however, refused to acknowledge any +greetings, and remained seated in silence till the fire +had burnt out, when they rose and left. Next night +<span class='pageno' id='Page_346'>346</span>they returned at the same time and behaved in the +same way, and did so, not only every night while +the feast lasted, but even afterwards. The servants +at last refused to enter the fire-hall, and no cooking +could be done, for when a fire was lit in another room, +Thorodd and his companions went there instead. At +last Kjartan had a second fire lit in the hall, leaving the +big one to the ghosts, so the cooking could now be +done. But men died in the house, and Thurið herself +fell ill, so Kjartan sought counsel of his uncle Snorri, +an eminent lawyer and the leading Goði of Western +Iceland. By Snorri’s advice Kjartan and seven others +with him went to the hall door and formally summoned +Thorodd and his companions for trespassing within +the house and causing men’s deaths. Then they named +a Door-Court (Dyradómr) and set forth the suits, following +all the regular procedure as at a Þing-Court. Verdicts +were delivered, the cases summed up and judgement +given; and when the judgement word was given on +each ghost, each rose and quitted the hall, and was +never seen thereafter.</p> + +<p class='c001'>Ghosts have given much trouble in many countries, +but it is only the Icelanders who have dealt with them +by an action of ejectment.</p> + +<p class='c001'>Although it is a remarkable evidence of the political +genius of the Norsemen that they should have been +able to work at all a legal system such as has been +described, it need hardly be said that it did not +work smoothly. The Icelanders were a people of +warriors, little accustomed to restrain their passions, +and holding revenge for a sacred duty. The maintenance +of order at the Alþing was entrusted to the +<span class='pageno' id='Page_347'>347</span>Goði of the spot, and it was strictly forbidden to wear +arms while the meeting lasted. The closing of the +Alþing was called Vápnatak (weapon-taking, wapentake), +because the arms that had been laid aside were taken +when men started to ride home from the Þing. But +the arms were after all only left in the booth, and more +than once it happened that the party which found itself +unsuccessful in a lawsuit seized sword and spear and +fought out the issue in a bloody battle, from which +sprang again new blood-feuds and new lawsuits. It is +not very often that the Sagas give us a glimpse of the +conduct of business at the Alþing; but one such lawsuit, +followed by a combat, which arose when the suit +broke down on a technical point, is described with +wonderful force and spirit in the famous Saga of Njál +Thorgeirsson, a masterpiece of literature in the freshness +and brilliance of its narrative.</p> + +<p class='c001'>We hear occasionally of the passing of particular +laws at an Alþing. In <span class='fss'>A.D.</span> 994, for instance, it was +enacted that the suit for compensation for homicide +which was brought, according to the general practice +of the northern nations, by and for the benefit of the +nearest relatives of the slain, a right which has survived +in the law of Scotland under the name of Assythment, +and has been partially introduced into the law of England +by the Act 9 & 10 Vict. c. 93 (commonly called Lord +Campbell’s Act), should in future not be brought by a +woman or by a child under sixteen years of age, but by +the nearest male relative. This provision was suggested +by a case that had occurred just before, when inadequate +compensation had been recovered for the slaughter of +a chieftain named Arnkel, owing to the mismanagement +<span class='pageno' id='Page_348'>348</span>of the suit by his widow. Again, in <span class='fss'>A.D.</span> 1006 we +are told of the abolition of the judicial combat on +the occasion of an indecisive duel between the poet +and Viking Gunnlaug Ormstunga (Snake’s tongue<a id='r136'></a><a href='#f136' class='c012'><sup>[136]</sup></a>) and +another poet named Hrafn, the details of which are +recorded in one of the most beautiful and touching of +the early Sagas. Gunnlaug had been betrothed to +Helga the Fair, one of the most famous heroines of +Icelandic story, but having been detained in England +by King Ethelred II, whose guest he had previously +been in London<a id='r137'></a><a href='#f137' class='c012'><sup>[137]</sup></a> and whose praises he had been +celebrating in verse, had failed to return at the appointed +time, and found Helga, who had yielded to the importunities +of her relatives, already married to Hrafn. +According to the custom of the North, which then +allowed any man to require another either to give +up his wife and all his property or defend her and +it by arms, Gunnlaug came to the Alþing and formally +challenged Hrafn, and they fought, each with his second, +a solemn duel on the island in the Öxará which was +set apart for that purpose. A dispute arose after +the first encounter, and the combatants were separated. +Gunnlaug wished to resume the combat, but the law +already referred to, prohibiting formal duels in future, +was passed next day by the Lögrétta; and he unwillingly +obeyed, for a breach of it would have exposed +him to the penalties of outlawry. Helga, however, +<span class='pageno' id='Page_349'>349</span>refused to live any longer with her husband Hrafn, +and next year the two rivals sailed by agreement to +Norway, just as, fifty years ago, persons fearing to fight +a duel in England used to cross to Calais for the +purpose. Years passed before they met in the wild +country east of Throndhjem. There they fought out +their quarrel. Gunnlaug smote off his enemy’s foot, +and then proposed to stop the combat. Hrafn however, +supporting himself against a tree, wished to fight +on, but as he was tortured by thirst, he besought his +opponent to fetch him a draught of water from a brook +hard by, promising not to deceive him. The chivalric +Gunnlaug brought the water in his helmet, whereupon +Hrafn, taking the water with his left hand, suddenly +raised his sword and, with all his remaining strength, +smote Gunnlaug on his bared head. ‘Thou hast done +ill and deceived me,’ said Gunnlaug, ‘seeing that +I trusted you.’ ‘So is that,’ answered Hrafn, ‘but I +grudged thee the love of Helga the Fair.’ Then they +fought on. Hrafn was slain, and in a few hours +Gunnlaug died of his wounds<a id='r138'></a><a href='#f138' class='c012'><sup>[138]</sup></a>. The news was brought +to Iceland, and after a time Helga, thinking ever of +Gunnlaug, and often spreading out upon her knees +a garment which Gunnlaug had given to her, pined +away and died likewise.</p> + +<p class='c001'>Another striking scene at the Alþing has been preserved +to us in the Saga which relates the introduction +<span class='pageno' id='Page_350'>350</span>of Christianity. King Olaf Tryggvason, the most brilliant +of all the Norwegian sovereigns, who, having been himself +converted some ten years before, was hard at work +converting the stubborn Norwegians by burning their +houses and torturing themselves, had sent two missionaries +to Iceland, one of whom, the priest Thangbrand, +had been obliged to leave Norway on account of his +violent life, and who signalized himself in Iceland by +committing two murders in the course of his five +months’ stay, which was then summarily shortened. +The unworthiness of the minister, however, does not +seem to have injured the cause he championed. Several +men of note embraced the new faith, which was of course +well known to the Icelanders from their intercourse +with Ireland and Britain, and had the promise of the +future to recommend it. These men, and also some +heathen chieftains who thought that acceptance was +the best way of avoiding civil war, supported the +envoys of Olaf, when, at the Alþing of the year 1000, +they urged upon the assembly to decree the abolition +of paganism. A story goes that, while the debate was +at its height, a messenger arrived to tell that a volcano +had broken out thirty miles to the south, and was pouring +a flood of lava over the pastures. The heathen +party accepted the news as an omen, and exclaimed, +‘This is the wrath of the gods at these new rites; see +what you have to expect from their anger!’ ‘With +whom, then,’ said Snorri, a leading Goði who had not +yet declared himself, ‘with whom were the gods angry +when this rock was molten on which we stand?’ (pointing +to the deep lava rifts that lay around the Lögberg). +By the interposition of the Law-Speaker Thorgeir, that +<span class='pageno' id='Page_351'>351</span>which he described as a compromise, but which was in +reality a surrender by the heathen party, was at the +same Alþing accepted. The people were to be baptized +and declare themselves Christians, and the temples and +images of the old gods were to be destroyed; but those +who liked to sacrifice at home might continue to do so; +and two heathen customs, the exposure of new-born +infants and the eating of horse-flesh, were to be +permitted. Some difficulty arose over the reluctance +of those who came from the North and East Quarters +of the island to submit to immersion in cold water; +but this difficulty was happily overcome by the use +of the hot springs at Reykir for the rite.</p> + +<p class='c001'>The century and a half that followed the introduction +of Christianity was the most brilliant period in the +history of the island. It was not indeed a time of +peace, for the old passions and the old superstitions +were but little altered. Slayings and burnings of +houses with their inmates went on pretty much as +before. But there was now added to the stimulus +which their free republican life and their piratical +expeditions gave to the national spirit the influence +of the learning and ideas which came in the train of +the new faith. The use of writing soon spread, and +the magnificent Sagas, which are among the noblest +monuments of Northern genius, were nearly all of +them produced in this age, though some were not +committed to parchment before the end of the twelfth +century.</p> + +<p class='c001'>For many years the Constitution of the Republic +seems to have undergone no great alteration. The +establishment of Christianity did indeed throw considerable +<span class='pageno' id='Page_352'>352</span>power into the hands of the two bishops, and +eventually produced a strife between the Church and +the temporal magnates resembling that which distracted +both the Romano-Germanic Empire and England. +This scarcely affected the position of the Goði, whose +authority had now lost so much as it originally possessed +of a religious character. Snorri, whose appeal +to geology is said to have decided the Alþing against +paganism, was himself the priest of the most famous +heathen sanctuary of the island. But in the beginning +of the thirteenth century the delicately-framed fabric +of the Republican Constitution began to break up. +The tendency of a federation usually is to become less +of a federation and more of a single united state. But +in Iceland the federal bond, if one can use this name, +was always weak, and when a powerful member became +disobedient, there were no legal means of reducing +him to submission. By degrees the number of priest-chieftainships +diminished, the Goðorðs, which passed +not only by inheritance but also by gift or sale, coming +to be accumulated in the hands of a few great families, +who thus acquired a predominant influence at the +Alþing, were virtually masters of large districts of the +country, and marched about like feudal lords attended +by petty armies. Thus the old blood-feuds assumed +more and more the aspect of civil wars. Piracy was +now less practised, because the countries which had +formerly been ravaged were better prepared for defence, +so the energy that used to spend itself upon the coasts +of Scotland and Ireland, of North Germany and Gaul, +was now turned inward, and with fatal results.</p> + +<p class='c001'>I am not writing the history of Iceland, though indeed +<span class='pageno' id='Page_353'>353</span>I wish I were doing so, for the theme is a fascinating +one. But before closing these scattered observations, +intended to stimulate rather than to satisfy curiosity, +I will add three remarks suggested by the sketch that +has been given.</p> + +<p class='c001'>The first remark is that Iceland presents one of the +few instances in history of a breach in the continuity +of institutional development. The settlers were all of +Norse stock; and Norway had in its petty communities +a rudimentary system of institutions not unlike that +described by Tacitus in his account of Germany, or +that which the conquering Angles and Saxons brought +to Britain. Each community was an independent Fylki +(folk). In each Fylki there was a number of nobles, +one of whom stood foremost as hereditary chieftain, +and a body of warlike freemen, as well as a certain +number of slaves. In each there was a popular assembly, +the Þing, corresponding to our Saxon Folk Mot. Now +owing to the way in which the settlers had planted +themselves along the coasts of Iceland, and to the fact +that they were less closely aggregated there than men +had been in Norway, this organization did not reappear +in the new land. There was indeed everywhere a Þing, +for the habit of meeting to deal with lawsuits and other +matters of common interest was cherished as the very +foundation of society. But an Icelandic community was +not a Fylki. It was not an old natural growth, but +rather a group of families whose tie was at first only +that of local proximity and thereafter that also of worship +at a common temple. The Goði, though he became +the centre of this group, was not a chieftain with a +hereditary claim to leadership, and was not necessarily +<span class='pageno' id='Page_354'>354</span>of any higher lineage than some of his þingmen. Such +eminent and high-born men as Njál for instance and +Egil Skallagrimsson were not Goðis. The Goðorð +was really a new institution, due to the special circumstances +of Iceland, and apparently without precedent +among the Teutonic races. Still more plainly was +the organization of the Republic with its scheme of +Courts and its Lögrétta a new creation, due to the +wisdom and public spirit of the leading men of the +nation, and not a purely natural growth.</p> + +<p class='c001'>Secondly, as the Icelandic Republic is a new form +of political society, so the Alþing, in which the unity of +the Republic found visible expression, is a unique body, +which cannot be referred to any one of the familiar types +of assembly. It is not a Primary Assembly, for though +all freemen are present, only a limited number of persons +are entitled to exercise either judicial or legislative +functions. Neither is it a Representative Assembly, +for no one was elected to sit in it as a delegate +from others. The Goðis sat each by his own right, +and the other members as nominees of the Goðis. +Neither again is it a sort of King’s Council, like the +Curia Regis of mediaeval England, consisting of +magnates and official advisers summoned by a monarch. +If parallels to it are to be sought, they are to be sought +rather in bodies such as the Roman Senate may have +been in its earlier form, a sort of council of the heads +of organized communities; yet the differences between +the Roman <span lang="la"><i>gentes</i></span> and the Icelandic Þingmen, and the +absence of an executive magistrate like the Roman +king, make the parallel anything but close. Still more +remote is the resemblance which the Alþing might be +<span class='pageno' id='Page_355'>355</span>deemed to bear to the council of a league, such as was +the Swiss Confederation before 1799, or such as the +Diet of the Romano-Germanic Empire in its later days.</p> + +<p class='c001'>The comparison of Iceland to a federation suggests +a third question. Why did not the Republic develop +into a united State, whether republican or monarchical, +as did most of the nations of mediaeval Europe?</p> + +<p class='c001'>Out of several reasons that might be assigned I will +mention three only, two of them political, the third +physical.</p> + +<p class='c001'>In Iceland there was no single great family with any +hereditary claim to stand above the others, while all +the leading families were animated by a high sense +of pride and a pervading sentiment of equality. This +love of equality remains among the sons of the old +Norsemen both in Iceland and in Norway, and is indeed +stronger there than anywhere else in Europe.</p> + +<p class='c001'>Iceland had not, and could not have, any foreign wars. +There was therefore no external strife to consolidate +her people, no opportunity for any leader to win glory +against an enemy, or to create an army on which to base +his power. All the wars were civil wars, and tended to +disunion.</p> + +<p class='c001'>The third reason is to be found in the nature of the +country. The island, larger than Ireland, has practically +no land fit for tillage, and very little fit even for pasture. +Neither has it any internal trade. The interior is occupied +by snow mountains and glaciers and lava-fields and +wastes of black volcanic sand or pebbles. Iceland +is really one huge desert with some habitable spots +scattered along its coasts. It was the Desert that most +of all destroyed the chances of political unity under +<span class='pageno' id='Page_356'>356</span>a republic by dividing the people into numerous small +groups, far removed from one another, and in many +places severed by rugged and barren wastes, or by +torrents difficult to cross.</p> + +<p class='c001'>Nevertheless, although the Republic was evidently +destined to perish, it is possible that had Iceland +been left to herself the rivalry of the two or three +great factions which divided it, and were usually in +arms against one another, would have ended in +the triumph of one of them, and in the establishment +of a monarchy, or (less probably) of several independent +rival principalities. But a new and more formidable +figure now appeared on the scene. The successors +of King Harald the Fairhaired had always held that +the Icelanders, since their ancestors had come from +Norway, ought to own their supremacy<a id='r139'></a><a href='#f139' class='c012'><sup>[139]</sup></a>, and they +argued that as monarchical government was divinely +appointed, and prevailed everywhere in Continental +Europe, no republic had a right to exist. King Hákon +Hákonsson (Hákon IV), one of the greatest among +the kings of Norway, now found in the distracted state +of the island a better opportunity of carrying out the +plans which his predecessors Olaf Tryggvason and +Olaf the Saint had been obliged, by the watchfulness +of the Alþing, to abandon. By bribes and by threats, +by drawing the leading Icelanders to his Court, and +sending his own emissaries through the island, he +succeeded in gaining over the few chiefs who now +practically controlled the Alþing, and at the meeting +<span class='pageno' id='Page_357'>357</span>of midsummer, <span class='fss'>A.D.</span> 1262 (one year before the battle of +Largs, which saved Scotland from the invasion of this +very Hákon), the Southern, Western and Northern +Quarters accepted the King of Norway as their +sovereign, while in 1264 (the year of the summoning +of the first representative Parliament of England by +Earl Simon de Montfort) the remaining districts which +had not yet recognized the Norwegian Crown, now +held by Magnus son of Hákon, made a like submission. +Thenceforward Iceland has followed the fortunes first +of Norway and then of Denmark. In 1814, when +Norway was severed from the Danish and transferred +to the Swedish Crown, Iceland ought to have gone +with Norway. But nobody at the Congress of Vienna +knew or cared about the matter<a id='r140'></a><a href='#f140' class='c012'><sup>[140]</sup></a>: and so Iceland +remains attached to Denmark, for which she has little +love.</p> + +<p class='c001'>With the free republic the literature which had given +it lustre withered up and disappeared. Only one work +of high merit, the religious poem called <cite>The Lily</cite>, was +produced in the centuries that succeeded down to the +Reformation, when the spirit of the people was again +stirred, and a succession of eminent writers began +which has never failed down to our own day. But +in the darkest times, in the ignorance and gloom of +the fifteenth century, in the pestilences and famine +caused by the terrible volcanic eruptions of the +eighteenth, which are said to have destroyed one-fifth +of the population, the Icelanders never ceased to +<span class='pageno' id='Page_358'>358</span>cherish and enjoy their ancient Sagas. No farmhouse +wanted its tiny store of manuscripts, which were and +still are read aloud in the long nights of winter, while +the women spin and the men make nets and harness. +And it is beyond doubt chiefly owing to the profusion +and the literary splendour of these works of a remote +antiquity—works produced in an age when England +and Germany, Italy and France had nothing better +than dull monkish annalists or the reciters of such a +tedious ballad epic as the <cite>Song of the Nibelungs</cite>—that the +Icelandic language has preserved its ancient strength +and purity, and that the Icelandic nation, a handful of +people scattered round the edge of a vast and dreary +wilderness, has maintained itself, in face of the overwhelming +forces of nature, at so high a level of culture, +virtue and intelligence.</p> + +<div class='chapter'> + <span class='pageno' id='Page_359'>359</span> + <h2 id='eVI' class='c005'>VI <br> <br> THE <br> UNITED STATES CONSTITUTION<br>AS SEEN IN THE PAST</h2> +</div> + +<div class='nf-center-c0'> +<div class='nf-center c015'> + <div><span class='sc'>The Predictions of Hamilton and Tocqueville</span></div> + </div> +</div> + +<p class='c006'>He who desires to discover what have been the +main tendencies ruling and guiding the development of +American institutions, will find it profitable to examine +what were the views held and predictions delivered, +at different epochs in the growth of the Republic, by +acute and well-informed observers. There is a sort of +dramatic interest in this method of inquiry, and it is +calculated to temper our self-confidence in judging the +phenomena of to-day. Besides, it helps us to realize, +better than we can do merely by following the course +of events, what aspect the political landscape wore from +time to time. When we read a narrative, we read into +the events our knowledge of all that actually flowed +from them. When we read what the contemporary +observer expected from them as he saw them happening +we reach a truer comprehension of the time.</p> + +<p class='c001'>To collect and set forth a representative anthology of +political prophecies made at critical epochs in the history +of the United States, would be a laborious undertaking, +for one would have to search through a large number +of writings, some of them fugitive writings, in order to +<span class='pageno' id='Page_360'>360</span>present adequate materials for determining the theories +and beliefs prevalent at any given period. I attempt +nothing so ambitious. I desire merely to indicate, +by a comparatively simple example, how such a method +may be profitably followed, disclaiming any pretensions +to dig deep into even the obvious and familiar materials +which students of American history possess.</p> + +<p class='c001'>For this purpose, then, I will take two famous +books—the one written at the very birth of the Union +by those who watched its cradle, and recording incidentally, +and therefore all the more faithfully, the impressions +and anticipations of the friends and enemies +of the infant Constitution; the other a careful study of +its provisions and practical working by a singularly +fair and penetrating European philosopher. I choose +these books not only because both are specially representative +and of rare literary merit, but because they +are easily accessible to European as well as American +readers, who may, by referring to their pages, supply +the omissions which want of space will compel me to +make, and may thereby obtain a more full and graphic +transcript of contemporary opinion. One of these +books is <cite>The Federalist</cite><a id='r141'></a><a href='#f141' class='c012'><sup>[141]</sup></a>—a series of letters recommending +the proposed Constitution for adoption to +the people of New York, written in 1788 by Alexander +Hamilton, afterwards Secretary of the Treasury, James +Madison, afterwards President from 1809 to 1817, and +John Jay, afterwards Chief Justice from 1789 to 1795. +They were all signed <em>Publius</em>. The other, which falls +<span class='pageno' id='Page_361'>361</span>not quite halfway between 1788 and our own time, is +the <cite>Democracy in America</cite> of Alexis de Tocqueville.</p> + +<h3 class='c013'>I. <span class='sc'>The United States at the Adoption of the Constitution.</span></h3> + +<p class='c007'>I begin by briefly summarizing the record which +<cite>The Federalist</cite> preserves for us of the beliefs of the +opponents and advocates of the Draft Constitution of +1787 regarding the forces then at work in American +politics and the probable future of the nation.</p> + +<p class='c001'>To understand those beliefs, however, we must bear +in mind what the people of the United States then were, +and for that purpose I will recall the reader’s attention +to some of the more salient aspects of the Republic at +the epoch when its national life began.</p> + +<p class='c001'>In 1783 the last British soldier quitted New York, +the last stronghold that was held for King George. In +1787 the present Constitution of the United States was +framed by the Convention at Philadelphia, and in 1788 +accepted by the requisite number of States (nine). In +1789 George Washington entered on his Presidency, +the first Congress met and the machine began to work. +It was a memorable year for Europe as well as for +America—a year which, even after the lapse of more +than a century, we are scarcely yet ripe for judging, so +many sorrows as well as blessings, πολλὰ μὲν ἐσθλlὰ +μεμιγμένα, πολλὰ δὲ λυγρά, were destined to come upon +mankind from those elections of the States-General +which were proceeding in France while Washington +was being installed at Philadelphia.</p> + +<p class='c001'>All of the thirteen United States lay along the +<span class='pageno' id='Page_362'>362</span>Atlantic coast. Their area was 827,844 square miles, +their population 3,929,214, little more than half the +population of New York State in 1900. Settlers had +already begun to cut the woods and build villages +beyond the Alleghanies; but when Kentucky was received +as a State into the Union in 1792, she had a +population of only 80,000. The population was wholly of +English (or Anglo-Scottish) stock, save that a few Dutch +were left in New York, a few persons of Swedish blood +in Delaware, and some isolated German settlements in +Pennsylvania. But in spite of this homogeneity the +cohesion of the States was weak. Communication was +slow, difficult and costly. The jealousies and suspicions +which had almost proved fatal to Washington’s efforts +during the War of Independence were still rife. There +was some real conflict, and a far greater imagined +conflict, of interests between the trading and the purely +agricultural States, even more than between the slave +States and those in which slavery had practically died +out. Many competent observers doubted whether the +new Federal Union, accepted only because the Confederation +had proved a failure and the attitude of +foreign powers was threatening, could maintain itself +in the face of the strong sentiment of local independence +animating the several colonies, each of which, +after throwing off the yoke of Britain, was little inclined +to brook any control but that of its own legislature. The +new Constitution was an experiment, or rather a bundle +of experiments, whose working there were few data for +predicting. It was a compromise, and its own authors +feared for it the common fate of compromises—to satisfy +neither party and to leave open rents which time would +<span class='pageno' id='Page_363'>363</span>widen. In particular, it seemed most doubtful whether +the two branches of the Legislature, drawn from so +wide an area and elected on different plans, would +work harmoniously, and whether general obedience +would be yielded to an executive President who must +necessarily belong to and seem to represent one particular +State and section of the country. Parties did +not yet exist, for there was as yet hardly a nation; but +within a decade they grew to maturity and ferocity. +One of them claimed to defend local self-government, +the rights of the people, democratic equality; the other, +the principle of national unity and the authority of +the Federal power. One sympathized with France, the +other was accused of leaning to an English alliance. +They were, or soon came to be, divided not merely on +burning questions of foreign policy and home policy, +but also—and this was an issue which mixed itself up +with everything else—as to the extent of the powers to +be allowed to the central Government and its relations +to the States—questions which the curt though apparently +clear language of the Constitution had by no +means exhausted.</p> + +<p class='c001'>Slavery was not yet a burning question—indeed it +existed to some slight extent in the Middle as well as in +the Southern States, but the opposition of North and +South was already visible. The Puritanism of New +England, its industries and its maritime commerce, gave +it different sentiments as well as different interests from +those which dominated the inhabitants of the South, +a population wholly agricultural, among whom the influence +of Jefferson was strong, and theories of extreme +democracy had made progress.</p> + +<p class='c001'><span class='pageno' id='Page_364'>364</span>There was great diversity of opinion and feeling on +all political questions in the America of those days, and +the utmost freedom in expressing it. Over against the +extreme democrats stood an illustrious group whose +leader was currently believed to be a monarchist at +heart, and who never concealed his contempt for the +ignorance and folly of the crowd. Among these men, +and to a less extent among the Jeffersonians also, there +existed no small culture and literary power, and though +the masses were all orthodox Christians and, except in +Maryland, orthodox Protestants, there was no lack of +scepticism in the highest circles. One may speak of +highest circles, for social equality, though rapidly +advancing and gladly welcomed, was as yet rather a +doctrine than a fact: and the respect for every kind +of authority was great. There were neither large fortunes +nor abject poverty: but the labouring class, then +far less organized than it is now, deferred to the middle +class, and the middle class to its intellectual chiefs. +The clergy were powerful in New England: the great +colonial families enjoyed high consideration in New +York, in Pennsylvania, and above all in Virginia, whose +landowners seemed to reproduce the later semi-feudal +society of England. Although all the States were +republics of a hue already democratic, every State +constitution required a property qualification for the +holding of office or a seat in the Legislature, and, in +most States, a similar condition was imposed even on +the exercise of the suffrage. Literary men (other than +journalists) were rare, the universities few and old-fashioned +in their methods, science scarcely pursued, +philosophy absorbed in theology and theology dryly +<span class='pageno' id='Page_365'>365</span>dogmatic. But public life was adorned by many striking +figures. Five men at least of that generation, +Washington, Franklin, Hamilton, Jefferson and Marshall, +belong to the history of the world; and a second +rank which included John Adams, Madison, Jay, Patrick +Henry, Gouverneur Morris, Roger Sherman, James +Wilson, Albert Gallatin, and several other gifted figures +less familiar to Europe, must be mentioned with respect.</p> + +<p class='c001'>Everybody professed the principles of the Declaration +of Independence, and therefore held a republican form +of government to be the only proper, or at any rate +the only possible form for the central authority as well +as for the States. But of the actual working of republican +governments there was very little experience, +and of the working of democracies, in our present sense +of the word, there was really none at all beyond that +of the several States since 1776, when they broke +loose from the British Crown. Englishmen are +more likely than other Europeans to forget that in +1788 there was in the Old World only one free and no +democratic nation<a id='r142'></a><a href='#f142' class='c012'><sup>[142]</sup></a>. In Europe there now remain +but two strong monarchies, those of Russia and +Prussia, while the Western hemisphere, scarcely excepting +Dutch and British Guiana and Canada, is +entirely (at least in name) republican. But the world +of 1788 was a world full of monarchs—despotic +monarchs—a world which had to go back for its notions +of popular government to the commonwealths of +classical antiquity. Hence the speculations of those +times about the dangers, and merits, and tendencies +<span class='pageno' id='Page_366'>366</span>characteristic of free governments, were and must +needs be vague and fantastic, because the materials for +a sound induction were wanting. Wise men, when +forced to speculate, recurred to the general principles +of human nature. Ordinary men went off into the +air and talked at large, painting a sovereign people +as reckless, violent, capricious on the one hand, or +virtuous and pacific on the other, according to their +own predilections, whether selfish or emotional, for +authority or for liberty. Though no one has yet +written the natural history of the masses as rulers, +the hundred years since 1788 have given us materials +for such a natural history surpassing those which +Hamilton possessed almost as much as the materials +at the disposal of Darwin exceeded those of Buffon. +Hence in examining the views of the <cite>Federalist</cite> +writers<a id='r143'></a><a href='#f143' class='c012'><sup>[143]</sup></a> and their antagonists, we must expect sometimes +to find the diagnosis inexact and the prognosis +fanciful.</p> + +<h3 class='c013'>II. <span class='sc'>Predictions of the Opponents and Advocates of the Constitution.</span></h3> + +<p class='c007'>Those who opposed the Draft Constitution of 1787, +a party both numerous and influential in nearly every +State, were the men specially democratic and also +specially conservative. They disliked all strengthening +of government, and especially the erection of a central +<span class='pageno' id='Page_367'>367</span>authority. They were satisfied with the system of +sovereign and practically independent States. Hence +they predicted the following as the consequences to be +expected from the creation of an effective Federal +executive and legislature<a id='r144'></a><a href='#f144' class='c012'><sup>[144]</sup></a>.</p> + +<p class='c001'>1. The destruction of the States as commonwealths. +The central government, it was said, would gradually +encroach upon their powers; would use the federal +army to overcome their resistance; would supplant +them in the respect of their citizens; would at last +swallow them up. The phrase ‘consolidation of the +Union,’ which had been used by the Convention +of 1787 to recommend its draft, was laid hold of as +a term of reproach. ‘Consolidation,’ the absorption +of the States by or into one centralized government, +became the popular cry, and carried away the unthinking.</p> + +<p class='c001'>2. The creation of a despot in the person of the +President. His legal authority would be so large as +not only to tempt him, but to enable him, to extend it +further, at the expense of the liberties both of States +and of people. ‘Monarchy,’ it was argued, ‘thrown +off after such efforts, will in substance return with +this copy of King George III, whose command of +the federal army, power over appointments, and opportunities +for intriguing with foreign powers on the one +hand and corrupting the legislature on the other<a id='r145'></a><a href='#f145' class='c012'><sup>[145]</sup></a>, +will render the new tyrant more dangerous than the +old one. Or if he be more open to avarice than to +<span class='pageno' id='Page_368'>368</span>ambition, he will be the tool of foreign sovereigns +and the means whereby they will control or enslave +America<a id='r146'></a><a href='#f146' class='c012'><sup>[146]</sup></a>.’</p> + +<p class='c001'>3. The Senate will become an oligarchy. Sitting +for six years, and not directly elected by the people, +it ‘must gradually acquire a dangerous pre-eminence in +the government, and finally transform it into a tyrannical +aristocracy<a id='r147'></a><a href='#f147' class='c012'><sup>[147]</sup></a>.’</p> + +<p class='c001'>4. The House of Representatives will also, like +every other legislature, aim at supremacy. Elected +only once in two years, it will forget its duty to the +people. It will consist of ‘the wealthy and well-born,’ +and will try to secure the election of such persons only +as its members<a id='r148'></a><a href='#f148' class='c012'><sup>[148]</sup></a>.</p> + +<p class='c001'>5. The larger States will use the greater weight in +the government which the Federal constitution gives +them to overbear the smaller States.</p> + +<p class='c001'><span class='pageno' id='Page_369'>369</span>6. The existence of a strong central government is +not only likely, by multiplying the occasions of diplomatic +intercourse with foreign powers, to give openings +for intrigues by them dangerous to American independence, +but likely also to provoke foreign wars, in which +the republic will perish if defeated, or if victorious +maintain herself only by vast expenditure, with the +additional evil of having created in an army a standing +menace to freedom.</p> + +<p class='c001'>That some of these anticipations were inconsistent +with others of them was no reason why even the +same persons should not resort to both in argument. +Any one who wishes to add to the number, for I have +quoted but a few, being those which turn upon the +main outlines of the Philadelphia draft, may do so by +referring to the record, known as Elliott’s Debates, of +the discussions in the several State Conventions which +deliberated on the new Constitution. It is an eminently +instructive record.</p> + +<p class='c001'>I pass from the opponents of the Constitution to its +advocates. Hamilton and its friends sought in it a +remedy against what they deemed the characteristic +dangers of popular government. It is by dwelling on +these dangers that they recommend it. We can perceive, +however, that, while lauding its remedial power, +they are aware how deep-seated such dangers are, and +how likely to recur even after the adoption of the +Constitution. The language which Hamilton held in +private proves that he desired a more centralized +government, which would have approached nearer to +that British Constitution which he regarded as being, +with all its defects (and partly owing to its corruptions!), +<span class='pageno' id='Page_370'>370</span>the best model for free nations<a id='r149'></a><a href='#f149' class='c012'><sup>[149]</sup></a>. He feared anarchy, +and thought that only a strong national government +could avert it. And in a remarkable letter written in +February, 1802, under the influence of disappointment +with the course events were then taking, he describes, +in his somewhat sweeping way, the Constitution he +was ‘still labouring to prop’ as a ‘frail and worthless +fabric.’</p> + +<p class='c001'>We may therefore legitimately treat his list of evils +to be provided against by the new Federal Government +as indicating the permanently mischievous tendencies +which he foresaw. Some of them, he is obliged to +admit, cannot be wholly averted by any constitutional +devices, but only by the watchful intelligence and +educated virtue of the people.</p> + +<p class='c001'>The evils chiefly feared are the following:—</p> + +<p class='c001'>1. The spirit and power of faction, which is so clearly +the natural and necessary offspring of tendencies always +present in mankind, that wherever liberty exists it must +be looked for<a id='r150'></a><a href='#f150' class='c012'><sup>[150]</sup></a>.</p> + +<p class='c001'>Its causes are irremovable; all you can do is to control +its effects, and the best prospect of overcoming them +is afforded by the representative system and the wide +area of the United States with the diversities among +its population.</p> + +<p class='c001'>2. Sudden impulses, carrying the people away and +inducing hasty and violent measures<a id='r151'></a><a href='#f151' class='c012'><sup>[151]</sup></a>.</p> + +<p class='c001'>3. Instability in foreign policy, due to changes in +<span class='pageno' id='Page_371'>371</span>the executive and in public sentiment, and rendering +necessary the participation of a comparatively small +council or Senate in the management of this department.</p> + +<p class='c001'>4. Ill-considered legislation. ‘Facility and excess of +law-making<a id='r152'></a><a href='#f152' class='c012'><sup>[152]</sup></a>,’ and ‘inconstancy and mutability in the +laws<a id='r153'></a><a href='#f153' class='c012'><sup>[153]</sup></a>,’ form the ‘greatest blemish in the character and +genius of our governments.’</p> + +<p class='c001'>5. The Legislature is usually the strongest power +in free governments. It will seek, as the example of +the English Parliament shows, to encroach upon the +other departments; and this is especially to be feared +from the House of Representatives as holding the +power of the purse<a id='r154'></a><a href='#f154' class='c012'><sup>[154]</sup></a>.</p> + +<p class='c001'>6. The States, and especially the larger States, may +overbear the Federal Government. They have closer +and more constant relations with the citizen, because +they make and administer the ordinary laws he lives +under. His allegiance has hitherto belonged to them, +and may not be readily given to the central authority. +In a struggle, should a struggle come, State power is +likely to prevail against Federal power.</p> + +<p class='c001'>7. There is in republics a danger that the majority +may oppress the minority. Already conspicuous in some +of the State governments, as for instance in Rhode +Island, this danger may be diminished by the application +<span class='pageno' id='Page_372'>372</span>of the federal system to the great area of the Union, +where ‘society will be broken into so many parts, +interests, and classes of citizens, that the rights of +individuals or of the minority will be in little danger +from interested combinations of the majority<a id='r155'></a><a href='#f155' class='c012'><sup>[155]</sup></a>.’</p> + +<p class='c001'>8. Another source of trouble is disclosed by the rash +and foolish experiments which some States have tried +in passing laws which threaten the validity of contracts +and the security of property. There are also signs of +weakness in the difficulty which State Governments +have found in raising revenue by direct taxation<a id='r156'></a><a href='#f156' class='c012'><sup>[156]</sup></a>. +Citizens whose poverty does not excuse their want of +public spirit refuse to pay; and the administration fears +to coerce them.</p> + +<p class='c001'>Not less instructive than the fears of <cite>The Federalist</cite> +writers are their hopes. Some of the perils which have +since been disclosed are not divined. Some institutions +which have conspicuously failed are relied on as full of +promise.</p> + +<p class='c001'>The method of choosing the President is recommended +with a confidence the more remarkable because +it was the point on which the Convention had been +most divided and had been latest in reaching an agreement.</p> + +<p class='c001'>‘If the manner of the appointment of the Chief +Magistrate be not perfect, it is at least excellent. It +unites in an eminent degree all the advantages the +union of which was to be wished for.... The process +of election affords a moral certainty that the office of +President will never fall to the lot of any one who is +not in an eminent degree endowed with the requisite +<span class='pageno' id='Page_373'>373</span>qualifications. Talents for low intrigue, and the little +arts of popularity, may alone suffice to elevate a man +to the first honours in a single State, but it will require +other talents and a different kind of merit to establish +him in the confidence and esteem of the whole Union, +or of so considerable a portion of it as would be +necessary to make him a successful candidate for the +distinguished office of President of the United States. +It will not be too strong to say that there will be +a constant probability of seeing the station filled by +characters pre-eminent for ability and virtue<a id='r157'></a><a href='#f157' class='c012'><sup>[157]</sup></a>.’</p> + +<p class='c001'>It is assumed that America will continue an agricultural +and (to a less extent) a commercial country, +but that she will not develop manufactures; and also +that the fortunes of her citizens will continue to be +small<a id='r158'></a><a href='#f158' class='c012'><sup>[158]</sup></a>. No serious apprehensions regarding the influence +of wealth in elections or in politics generally +are expressed.</p> + +<p class='c001'><span class='pageno' id='Page_374'>374</span>The contingency of a division of the States into two +antagonistic groups is not contemplated. When the +possibility of State combinations is touched on, it is +chiefly with reference to the action of small and of +large States respectively. In particular no hint is +dropped as to the likelihood of the institution of slavery +becoming a bond to unite the Southern States and +a cause of quarrel between them and the Northern. +Yet slavery had given trouble in the Philadelphia +Convention, and an opposition of North and South +grounded upon it soon emerged.</p> + +<p class='c001'>Although the mischiefs of faction are dwelt on, +nothing indicates that its embodiment in highly developed +party systems, whose organizations might overshadow +the legal government, had occurred to any +one’s mind. Still less, of course, is there any anticipation +of the influence to be exerted on politics by the +distribution of offices. Not till long afterwards were +they treated as ‘spoils of war.’</p> + +<h3 class='c013'>III. <span class='sc'>Criticism of the Predictions of 1788.</span></h3> +<p class='c007'>Let us now see which of these views and forecasts +have been verified by the event.</p> + +<p class='c001'>Of those put forth by the opponents of the Constitution +not one has proved true. The States are still strong, +the President is not a despot, though for a time during +the Civil War he came near being one, nor has he +ever fallen under the influence of any European power. +The House does not consist of the ‘wealthy and well-born.’ +The larger States do not combine against nor +press hardly on the smaller. No great country has +had so few wars or indeed so few foreign complications +<span class='pageno' id='Page_375'>375</span>of any kind<a id='r159'></a><a href='#f159' class='c012'><sup>[159]</sup></a>. The Senate is still often called ‘an +oligarchy,’ but this means only that it consists of comparatively +few persons, most of them wealthy, and that +it has a strong corporate feeling in favour of the personal +interests of each of its members. It is really as +dependent on public opinion as the House, perhaps +even more afraid of public opinion, and as directly the +creature of party machinery, though less directly of +popular election.</p> + +<p class='c001'>One is surprised to find that of the many arrows +of accusation levelled at the Constitution, all should +have flown wide of the mark.</p> + +<p class='c001'>The deeper insight and more exact thinking of +Hamilton and Madison fastened upon most of the real +and permanent weaknesses in popular government. +Yet even they could not foresee the particular forms +which those weaknesses would assume in the new +nation. To examine in detail the eight points specified +above would involve an examination of American history +for a century. I shall therefore simply indicate +in a word or two the extent to which, in each case, +the alarms or predictions of <cite>The Federalist</cite> may be +deemed well grounded.</p> + +<p class='c001'>1. The spirit of faction has certainly, as Madison +expected, proved less intense over the large area of +the Union than it did in the Greek republics of antiquity +or in the several States from 1776 to 1789. On the +other hand, the bonds of sympathy created by the +Federal system have at times enabled one State to +<span class='pageno' id='Page_376'>376</span>infect another with its own vehemence. But for South +Carolina, there would have been no secession in 1861. +Since 1880 the ‘demon of faction’ has been less powerful +in the parties than at any previous date since the +so-called ‘Era of Good Feeling’ in 1820.</p> + +<p class='c001'>2. Sudden popular impulses there have been. But +finding a ready and constitutional expression in elections, +they do not induce a resort to arms, while +the elaborate system of checks on legislation seldom +allows them to result in the passing of dangerous +measures by Congress. In some States the risk of bad +laws is serious, but it is lessened by the provisions of +the Federal Constitution as well as by the veto power +of the State Governor and the restrictions of recent +State Constitutions.</p> + +<p class='c001'>3. The early history of the Union furnishes illustrations +of feebleness and inconstancy in foreign policy, +yet not greater than those which mark most monarchies. +Royal caprice, or the influence of successive favourites, +has proved more pernicious in absolute kingdoms or +principalities than popular fickleness in republics. That +the foreign policy of the United States was singularly +consistent down till 1898, when it suddenly took an +entirely ‘new departure’ was not due to the Senate. +It must be credited partly to the good sense of the +people, partly to the fact that the position and interests +of the nation prescribed certain broad and simple lines.</p> + +<p class='c001'>4. Whatever may be thought of its handling of private +bills, Congress was seldom prone to haste or reckless +expenditure in legislation on public matters, until it +passed the amazing Pensions Act of 1890. Nor has it +given the country too many laws. It has been on the +<span class='pageno' id='Page_377'>377</span>whole more blameable for what it neglects or postpones +than for what it enacts. The censure is more true of +the States, especially the newer Western States.</p> + +<p class='c001'>5. The House of Representatives has doubtless +sought to extend its sway at the expense of other +departments. Whether it has succeeded is a question +on which competent observers in America itself differ; +but the fact of their differing proves that the encroachments +have not been considerable. Whenever the +President is weak or unpopular, Congress seems to be +gaining on the Executive Chief. When the latter is +or seems strong, he can keep the Legislature at bay.</p> + +<p class='c001'>6. In the struggle which never quite ceases, though +it is often scarcely noticed, between the States and the +Federal Government, the States have on the whole +lost ground. Nor are the larger States practically +more formidable than the small ones. The largest is +small compared with the immense Union. No State +would now venture to brave the Federal Judiciary as +Georgia did, and for a time did successfully (1832), in +one of the painful cases regarding the Cherokee Indians.</p> + +<p class='c001'>7. The so-called Tyranny of the Majority, a subject +too large to be fully examined here<a id='r160'></a><a href='#f160' class='c012'><sup>[160]</sup></a>, has not hitherto +proved a serious evil in America. This, however, is +due rather to the character and habits of the people +and their institutions generally than to the mere extent +and population of the Union, on which the <cite>Federalist</cite> +writers relied.</p> + +<p class='c001'>8. There has been some unwise Congressional legislation, +especially in currency matters, and, of course, +<span class='pageno' id='Page_378'>378</span>much more of unwise State legislation. But property +is secure, and the sense of civic duty seems, on the +whole, to be improving.</p> + +<p class='c001'>It will appear from this examination, and from the +fact (noted a few pages back) that some remarkable +developments which political life has taken never crossed +the minds of the authors of <cite>The Federalist</cite>, that these +wisest men of their time did not foresee what strike +us to-day as the specially characteristic virtues and +faults of American democracy. Neither the spoils +system nor the system of party nominations by wire-pullers +crossed their minds. They did not foresee the +inordinate multiplication of elections, nor the evils of confining +eligibility for a seat in the legislature to a person +resident in the electing district, nor the disposition to +‘play down’ to the masses by seductive proposals. +That the power which money might come to exert lay +quite out of their view is not to be wondered at, for no +large fortunes then existed. No student of history will +deem that these omissions detract from their greatness, +for history teaches nothing more plainly than the vanity +of predictions in the realm of what we call the moral +and political sciences, in religion, in ethics, in sociology, +in government and politics. Deep thinkers help us +when they unfold those permanent truths of human +nature which come everywhere into play. Historians +help us when, by interpreting the past, they demonstrate +what are the tendencies that have gone to create the +present. Observers keen enough to interpret the +underlying phenomena of their own time may help us +by showing which of the tendencies now at work are +likely to become ruling factors in the near future. But +<span class='pageno' id='Page_379'>379</span>beyond the near future—that is to say, beyond the +lifetime of the generation which already holds power—no +true philosopher will venture. He may indulge his +fancy in picturing the details of the remoter landscape; +but he knows that it is a region fit for fancy, not for +science. In the works of great thinkers there are to +be found some happy guesses about times to come; +but these are few indeed, compared with the prophecies +whose worthlessness was so soon revealed that men +forgot they had ever been made, or the dreams which, +like those of Dante, idealized an impossible future from +an irrevocable past.</p> + +<p class='c001'>As regards the views of Hamilton and Madison, who, +be it remembered, do not present themselves as prophets, +but as the censors of present evils which they +are seeking to remedy, it may be added that the +Constitution which they framed and carried checked +some of these very evils (<i>e.g.</i> the unjust law-making +and reckless currency experiments of the State legislatures); +and that it was obviously impossible till +the Federal government had begun to work to say +how the existing forces could adapt themselves to it. +Hamilton remarks in one of his letters that he holds +with Montesquieu that a nation’s form of government +ought to be fitted to it as a suit of clothes is fitted to +its wearer<a id='r161'></a><a href='#f161' class='c012'><sup>[161]</sup></a>. He would doubtless have added that one +cannot make sure of the fit until the suit has been +tried on.</p> + +<p class='c001'>We must remember, moreover, that the causes which +<span class='pageno' id='Page_380'>380</span>have affected the political growth of America are +largely causes which were in 1788 altogether beyond +human ken. The cotton gin, Napoleon’s willingness +to sell Louisiana, steam communications by water and +land, Irish and German immigration, have swayed the +course of that history; but even the first of these +factors had not risen over the horizon in that year, +and the last did not become potent till halfway +through the nineteenth century<a id='r162'></a><a href='#f162' class='c012'><sup>[162]</sup></a>.</p> + +<p class='c001'>What the sages of the Convention do show us are +certain tendencies they discern in their contemporaries, +viz.:—</p> + +<p class='c001'>Recklessness and unwisdom in the masses, producing +bad laws.</p> + +<p class='c001'>Unwillingness to submit to or support a strong +government.</p> + +<p class='c001'>Abuse by the majority of its legal power over the +minority.</p> + +<p class='c001'>Indifference to national as compared with local and +sectional interests, and consequent preference of State +loyalty to national loyalty.</p> + +<p class='c001'>That each of these tendencies then existed, and might +have been expected to work for evil, admits of no +doubt. But if we ask American history what it has +to say about their subsequent course, the answer will +be that the second and third tendencies have declined, +and do not at present menace the public welfare, while +the first, though never absent and always liable to +marked recrudescence, as the annals of the several +States prove, has done comparatively little harm in the +<span class='pageno' id='Page_381'>381</span>sphere of national government. As to the fourth, +which Hamilton seems to have chiefly feared, it ultimately +took the form, not of a general centrifugal force, +impelling each State to fly off from the system, but of +a scheme for the separation of the Southern or slave-holding +States into a separate Confederacy, and in this +form it received, in 1865, a crushing and apparently +final defeat<a id='r163'></a><a href='#f163' class='c012'><sup>[163]</sup></a>.</p> + +<h3 class='c013'>IV. <span class='sc'>Tocqueville and his Book.</span></h3> + +<p class='c007'>Fifty-one years after the recognition of the independence +of the United States, sixty-seven years before +the beginning of the twentieth century, Alexis de +Tocqueville published his <cite>Democracy in America</cite>, one +of the few treatises on the philosophy of politics +which has risen to the rank of a classic. His +book, therefore, stands rather further than halfway +back between our own days and those first days +of the Republic which we know from the writings +of the Fathers, of Washington, Jefferson, Adams, +Hamilton, Madison. It offers a means of measuring +the changes that had passed on the country during the +half-century from the birth of the Union to the visit +of its most famous European critic, and again from +the days of that critic to our own.</p> + +<p class='c001'>It is a classic, and because it is a classic, one may +venture to canvas it freely without the fear of seeming +to detract from the fame of its author. The more one +<span class='pageno' id='Page_382'>382</span>reads Tocqueville, the more admiration does one feel +for the acuteness of his observation, for the delicacy +of his analysis, for the elegant precision of his reasonings, +for the limpid purity of his style; above all, for +his love of truth and the elevation of his character. +He is not only urbane, but judicial; not only noble, +but edifying. There is perhaps no book of the generation +to which he belonged which contains more solid +wisdom in a more attractive dress.</p> + +<p class='c001'>We have here, however, to regard the treatise, not +as a model of art and a storehouse of ethical maxims, +but as a picture and criticism of the government +and people of the United States. And before using +it as evidence of their condition seventy years ago, +we must appraise the reliance to be placed upon it<a id='r164'></a><a href='#f164' class='c012'><sup>[164]</sup></a>.</p> + +<p class='c001'>First let it be observed that not only are Tocqueville’s +descriptions of democracy as displayed in America no +longer true in many points, but that in certain points +they never were true. That is to say, some were true +of America, but not of democracy in general, while +others were true of democracy in general, but not true +of America. It is worth while to attempt to indicate +the causes of such errors as may be discovered in his +picture, because they are errors which every one +who approaches a similar task has to guard against. +Tocqueville is not widely read in the United States, +where the scientific, historical, and philosophical study +of the institutions of the country, apart from the legal +study of the Constitution, is of comparatively recent +<span class='pageno' id='Page_383'>383</span>growth. He is less read than formerly in England +and even in France. But his views of the American +government and people have so passed into the texture +of our thoughts that we cannot shake off his influence, +and, in order to profit by it, are bound to submit his +conclusions and predictions to a searching though +always respectful examination.</p> + +<p class='c001'>The defects of the book are due to three causes. He +had a strong and penetrating intellect, but it moved by +preference in the <span lang="la"><i>a priori</i></span> or deductive path, and his +power of observation, quick and active as it was, did +not lead but followed the march of his reasonings. It +will be found, when his method is closely scrutinized, +that the facts he cites are rather the illustrations +than the sources of his conclusions. He had studied +America carefully and thoroughly. But he wanted the +necessary preparation for that study. His knowledge +of England, while remarkable in a native of continental +Europe, was not sufficient to show him how much in +American institutions is really English, and explainable +only from English sources.</p> + +<p class='c001'>He wrote about America, and meant to describe it +fully and faithfully. But his heart was in France, and +the thought of France, never absent from him, unconsciously +coloured every picture he drew. It made +him think things abnormal which are merely un-French; +it made him attach undue importance to phenomena +which seemed to explain French events or supply +a warning against French dangers.</p> + +<p class='c001'>He reveals his method in the introduction to his +book. He draws a fancy sketch of a democratic +people, based on a few general principles, passes to +<span class='pageno' id='Page_384'>384</span>the condition of France, and then proceeds to tell +us that in America he went to seek the type of +democracy—democracy pure and simple—in its normal +shape.</p> + +<p class='c001'><span lang="fr">‘J’avoue que dans l’Amérique, j’ai vu plus que l’Amérique; +j’y ai cherché une image de la démocratie elle-même, +de ses penchants, de son caractère, de ses +préjugés, de ses passions.’</span></p> + +<p class='c001'>Like Plato in the <cite>Republic</cite>, he begins by imagining +that there exists somewhere a type or pattern of +democracy, and as the American Republic comes +nearest to this pattern, he selects it for examination. +He is aware, of course, that there must be in every +country and people many features special to the country +which reappear in its government, and repeatedly +observes that this or that is peculiar to America, and +must not be taken as necessarily or generally true of +other democracies. But in practice he underrates the +purely local and special features of America, and often, +forgetting his own scientific cautions, treats it as a +norm for democracy in general. Nor does he, after +finding his norm, proceed simply to examine the facts +and draw inferences from them. In many chapters he +begins by laying down one or two large principles, +he develops conclusions from them, and then he points +out that the phenomena of America conform to these +conclusions. Instead of drawing the character of +democracy from the aspects it presents in America, +he arrives at its character by a sort of intuitive +method, and uses those aspects only to point and +enforce propositions he has already reached. It is +not democracy in America he describes, but his own +<span class='pageno' id='Page_385'>385</span>theoretic view of democracy illustrated from America. +He is admirably honest, never concealing or consciously +evading a fact which he perceives to tell +against his theories. But being already prepossessed +by certain abstract principles, facts do not fall on his +mind like seeds on virgin soil. He is struck by +those which accord with, he is apt to ignore those +which diverge from, his preconceptions. Like all deductive +reasoners, he is peculiarly exposed to the +danger of pressing a principle too far, of seeking to +explain a phenomenon by one principle only when it +is perhaps the result of an accidental concurrence of +several minor causes. The scholasticism we observe +in him is due partly to this deductive habit, partly to +his want of familiarity with the actualities of politics. +An instance of it appears in his tendency to over-estimate +the value of constitutional powers and devices, +and to forget how often they are modified, almost +reversed, in practice by the habits of those who use +them. Though no one has more judiciously warned +us to look to the actual working of institutions and +the ideas of the men who work them rather than to +their letter, he has himself failed to observe that the +American Constitution tends to vary in working from +its legal theory, and the name Legislature has prevented +him, like so many other foreign observers, from +seeing in the English Parliament an executive as well +as a law-making body.</p> + +<p class='c001'>In saying that he did not know England, I fully +admit that his knowledge of that country and its free +government was far beyond the knowledge of most +cultivated foreigners. He had studied its history, +<span class='pageno' id='Page_386'>386</span>and had gathered from his reading the sentiments of +its aristocracy and of its literary men. But he did +not know the ideas and habits of the English middle +class, with whom the Americans of his time might +better have been compared, and he was not familiar—as +how could a stranger be?—with the details of +English politics and the working of the English judicial +system. Hence he has failed to grasp the substantial +identity of the American people with the English. +He perceives that there are many and close resemblances, +and traces much that is American to an English +source. He has seen and described with perfect justness +and clearness the mental habits of the English +and American lawyer as contrasted with those of the +French lawyer. But he has not grasped, as perhaps no +one but an Englishman or an American can grasp, the +truth that the American people of 1830 was a branch +of the English people, modified in some directions +by the circumstances of its colonial life and its more +popular government, but in essentials the same. Hence +much that was merely English appeared to Tocqueville +to be American or democratic. The functions of the +judges, for instance, in expounding the Constitution +(whether of the Federation or of a State) and disregarding +a statute which conflicts therewith, the responsibility +of an official to the ordinary courts of the +land, the co-existence of laws of a higher and lower +degree of authority, seem to him to be novel and +brilliant inventions instead of mere instances of general +doctrines of English law, adapted to the circumstances +of a colony dependent on a home Government, or of +a State partially subordinated to a Federal Government. +<span class='pageno' id='Page_387'>387</span>The absence of what the French call ‘Administration,’ +and the disposition to leave people to themselves, +which strike him, would not surprise an Englishman +accustomed to the like freedom. Much that he remarks +in the mental habits of the ordinary American, his +latent conservatism for instance, his indifference to +amusement as compared with material comfort, his +commercial eagerness and tendency to take a commercial +view of all things, might have been just as +well remarked of the ordinary middle-class Englishman, +and had nothing to do with a democratic government. +Other features, which he ascribes to this last-named +cause, such as habits of easy social intercourse, the +disposition to prize certain particular virtues, the readiness +to give mutual help, are equally attributable to +the conditions of life that existed among settlers in +a wild country where few persons were raised by birth +or wealth above their fellows, and every one had need +of the aid of others—conditions whose results remained +in the temper of the people even when the community +had passed into another phase, a phase in which inequalities +of wealth were already marked, and temptations +had begun to appear which did not beset the +Puritans of the seventeenth century.</p> + +<p class='c001'>It is no reproach to this great author that France +formed to him the background of every picture whose +foreground was the New World. He tells us frankly +in the Introduction that the phenomena of social +equality, as they existed in France, and the political +consequences to be expected from them, filled his mind +when he examined the institutions of America; he +hoped to find there lessons by which France might +<span class='pageno' id='Page_388'>388</span>profit: <span lang="fr">‘J’ai voulu y trouver des enseignements dont +nous puissions profiter.’</span> But with this purpose before +him, he could hardly avoid laying too much stress on +points which seemed to have instruction for his own +countrymen, and from fancying those things to be +abnormal, or at least specially noteworthy, which stood +contrasted with the circumstances of France. Tocqueville +is, among eminent French writers, one of the least +prone to assume the ways and ideas of his own country +to be the rule, and those of another country the exception; +yet even in him the tendency lurks. There +is more than a trace of it in his surprise at the +American habit of using without abusing political +associations, and at the disposition of Legislatures to +try experiments in legislation, a disposition which +struck him chiefly by its contrast with the immutability +which the Code of the First Empire seemed to have +stamped upon the private law of France.</p> + +<p class='c001'>His constant reference to France goes deeper than +the method of the book. It determines his scope +and aim. The <cite>Democracy in America</cite> is not so much +a political study as a work of edification. It is a +warning to France of the need to adjust her political +institutions to her social condition, and above all to +improve the tone of her politics, to create a moral and +religious basis for her national life, to erect a new fabric +of social doctrine, in the place of that which, already +crumbling, the Revolution had overthrown. We must +not, therefore, expect to find in him a complete description +and criticism, such as a German would have given, +of the government of America in all its details and +aspects. To note this is not to complain of the book. +<span class='pageno' id='Page_389'>389</span>What Tocqueville has produced is more artistic, and +possibly more impressive than such a description would +have been, as a landscape gives a juster notion of +scenery than a map. His book is permanently valuable, +because its reflections and exhortations are applicable +not merely to the Frenchmen of sixty-five years ago, +but to mankind generally, since they touch upon failings +and dangers permanently inherent in political society. +Let it only be remembered that, in spite of its scientific +form, it is really a work of art quite as much as a work +of science, and a work suffused with strong, though carefully +repressed, emotion.</p> + +<p class='c001'>The best illustration I can give of these tendencies +in our author will be found in a comparison of the first +part of the book, published in 1834, and now included +in the first and second volumes of recent editions, with +the second part published in 1840, and now forming +the third volume. In the first part the author keeps +near his facts. Even when he has set out on the +<span lang="la"><i>a priori</i></span> road he presently brings his theory into +relation with American phenomena: they give substance +to, and (so to speak) steady the theory, while +the theory connects and illumines them. But in the +second part (third volume) he soars far from the ground, +and is often lost in the clouds of his own sombre +meditation. When this part was written, the direct +impressions of his transatlantic visit had begun to fade +from his mind. With all his finesse and fertility, he +had neither sufficient profundity of thought, nor a +sufficient ample store of facts gathered from history +at large, to enable him to give body and substance to +his reflections on the obscure problems wherewith he +<span class='pageno' id='Page_390'>390</span>attempts to deal<a id='r165'></a><a href='#f165' class='c012'><sup>[165]</sup></a>. Hence, this part of the book is not +so much a study of American democracy as a series +of ingenious and finespun abstract speculations on the +features of equality and its results on modern society +and thought, speculations which, though they have +been singled out for admiration by some high judges, +such as Ampère and Laboulaye, will appear to most +readers overfanciful, overconfident in their effort to +construct a general theory applicable to the infinitely +diversified facts of human society, and occasionally +monotonous in their repetition of distinctions without +differences and generalities too vague, perhaps too +hollow, for practical use.</p> + +<p class='c001'>How far do these defects of Tocqueville’s work +affect its value for our present purpose, that of discovering +from it what was the condition, political, +social, intellectual, of the United States in 1833, and +what the forces that were then at work in determining +the march of the nation and the development of its +institutions?</p> + +<p class='c001'>It is but slightly that they impair its worth as +a record of facts. Tocqueville is so careful and so +unprejudiced an observer that I doubt if there be +a single remark of his which can be dismissed as +either erroneous or superficial. There is always some +basis for every statement he makes. But the basis +is occasionally too small for the superstructure of +inference, speculation, and prediction which he rears +upon it. To borrow an illustration from chemistry, +<span class='pageno' id='Page_391'>391</span>his analysis is always right so far as it is qualitative, +sometimes wrong where it attempts to be quantitative. +The fact is there, but it is perhaps a smaller fact than +he thinks, or a transient fact, or a fact whose importance +is, or shortly will be, diminished by other facts which +he has not adequately recognized.</p> + +<p class='c001'>When we pass from description to argument he is +a less safe guide. By the light of subsequent experience +we can perceive that he mistook transitory for +permanent causes. Many of the phenomena which he +ascribes to democracy were due only to the fact that +large fortunes had not yet grown up in America, others +to the absence, in most parts of the country, of that +higher education and culture which comes with wealth, +leisure, and the settlement of society. I have already +observed that he sometimes supposes features of +American politics to be novel and democratic which +are really old and English; that he does not allow +sufficiently for the imprint which colonial life had left +on the habits and ideas of the people, an imprint which, +though it tends to wear off with time, is yet also +modified into something which, while you may call it +democratic, remains different from the democracy of an +old European country, and is not an index to the +character of democracy in general.</p> + +<p class='c001'>It need hardly be said that the worth of a book like +his is not to be measured by the number of flaws which +can be discovered under the critic’s microscope. Even +a sovereign genius like Aristotle cannot be expected +to foresee which of the influences he discerns will +retain their potency: it is enough if his view is more +piercing and more comprehensive than that of his +<span class='pageno' id='Page_392'>392</span>greatest contemporaries, if his record shows the high-water +mark of the learning and philosophy of the time. +Had history falsified far more of Tocqueville’s predictions +than she has done, his work would still remain +eminently suggestive and stimulating. And it is edificatory +not merely because it contains precepts instinct +with the loftiest morality. It is a model of that spirit +of fairness and justice, that love of pure truth which +is conspicuously necessary, and not less conspicuously +difficult, in the discussion, even the abstract discussion, +of the problems of political philosophy. Few books +inspire a higher respect for their writer.</p> + +<h3 class='c013'>V. <span class='sc'>Tocqueville’s View of the United States.</span></h3> + +<p class='c007'>Before we examine the picture of the social and +political phenomena of America which Tocqueville has +drawn, let us see what were the chief changes that had +passed on the territory of the Union, on its material +resources, on the habits and ideas of the people, during +the forty-six years that elapsed from the publication +of the <cite>Federalist</cite> to that of the <span lang="fr"><cite>Démocratie en Amérique</cite></span>.</p> + +<p class='c001'>The territory of the United States had been extended +to include the whole valley of the Mississippi, while to +the north-west it stretched across the Rocky Mountains +as far as the Pacific. All beyond the Missouri was +still wilderness, much of it wholly unexplored, but +to the east of the Mississippi there were now twenty-four +States with an area of 2,059,043 square miles and +a population of fourteen millions. The new Western +States, though rapidly increasing, were still so raw as +to exercise comparatively little influence on the balance +<span class='pageno' id='Page_393'>393</span>of national power, which vibrated between the free +Northern and the Southern Slave States. Slavery +was not an immediately menacing question, for the +first wound it made had been skinned over, so to speak, +by the Missouri Compromise of 1820; but it was evidently +pregnant with future trouble, for the number +of slaves was rapidly increasing, and the slaveholders +were already resolved to retain their political influence +by the creation of new slave States. The great +Federalist party had vanished, and the Republican-Democratic +party, which had triumphed over it, had +just been split up into several bitterly hostile factions. +Questions of foreign policy were no longer urgent, for +Europe had ceased to menace America, who had now +no neighbours on her own continent except the British +Crown on the north and the Mexican Republic on the +south and west. The protective tariff and the existence +of the United States Bank were the questions most +agitated, but the main dividing party lines were still those +which connected themselves with the stricter or looser +interpretation of the Federal Constitution—that is to say, +they were questions as to the extent of Federal power +on the one hand, as to the rights of the States on the +other. New England was still Puritan and commercial, +with a bias towards protective tariffs, the South +still agricultural, and in favour of free trade. The +rule of the masses had made its greatest strides in +New York, the first, among the older States, which +introduced the new methods of party organization +and which thoroughly democratized her Constitution<a id='r166'></a><a href='#f166' class='c012'><sup>[166]</sup></a>. +<span class='pageno' id='Page_394'>394</span>Everywhere property qualifications for office or the +electoral franchise were being abolished, and even the +judges formerly nominated by the State Governor or +chosen by the State Legislature were beginning to be +elected by manhood suffrage and for terms of years. +In fact a great democratic wave was passing over the +country, sweeping away the old landmarks, destroying +the respect for authority, casting office and power more +and more into the hands of the humbler classes, and +causing the withdrawal from public life of men of +education and refinement. State feeling was still +strong, especially in the South, and perhaps stronger +than national feeling, but the activity of commerce and +the westward movement of population were breaking +down the old local exclusiveness, and those who saw +steamboats plying on the Hudson and heard that locomotive +engines were beginning to be run in England, +might have foreseen that the creation of more easy, +cheap, and rapid communications would bind the +sections of the country together with a new and +irresistible power. The time was one of great commercial +activity and great apparent prosperity; but +large fortunes were still few, while in the general pursuit +of material objects science, learning, and literature had +fallen into the background. Emerson was still a young +Unitarian minister, known only to the circle of his own +friends. Channing was just rising into note; Longfellow +and Hawthorne, Prescott and Ticknor had not +begun to write. Washington Irving was one of the +few authors whose names had reached Europe. How +disagreeable the manners of ordinary people (for one +must of course except the cultivated circles of Boston +<span class='pageno' id='Page_395'>395</span>and Philadelphia) seemed to the European visitor may +be gathered from the diaries of Richard Cobden and +Sir Charles Lyell, who travelled in America a year +or two after Tocqueville. There was a good deal of +ability among the ruling generation of statesmen—the +generation of 1787 was just dying out with Madison—but +only three names can be said to have survived in +the world’s memory, the names of three party leaders +who were also great orators, Clay, Calhoun, and +Webster<a id='r167'></a><a href='#f167' class='c012'><sup>[167]</sup></a>.</p> + +<p class='c001'>In those days America was a month from Europe +and comparatively little affected by Europe. Her +people walked in a vain conceit of their own greatness +and freedom, and scorned instruction from the effete +monarchies of the Old World, which in turn repaid +them with contemptuous indifference. Neither continent +had realized how closely its fortunes were to be +interwoven with those of the other by trade and the +movements of population. No wheat, no cattle were +sent across the Atlantic, nor had the flow of immigration +from Ireland, much less from Central Europe, as +yet begun.</p> + +<p class='c001'>The United States of 1834 had made enormous +advances in material prosperity. Already a great nation, +it could become a great power as soon as it cared to +spend money on fleets and armies. The Federal government +had stood the test of time and of not a few storms. +Its component parts knew their respective functions, +and worked with less friction than might have been +<span class='pageno' id='Page_396'>396</span>expected. The sense of national unity, powerfully +stimulated by the war of 1812, was still growing. But +the level of public life had not risen. It was now rather +below than above that of average private society. Even +in the realm of morality there were strange contrasts. +A puritan strictness in some departments of conduct +and a universal recognition of the sanctions of religion +co-existed in the North with some commercial laxity, +while the semi-civilized South, not less religious and +valuing itself on its high code of honour, was disgraced +by the tolerance accorded to duels and acts of +murderous violence, not to speak of the darker evils +which slavery brought in its train. As respects the +government of States and cities, democratic doctrines +had triumphed all along the line. The masses of the +people had now realized their power, and entered into +the full fruition of it. They had unlimited confidence +in their wisdom and virtue, and had not yet discovered +the dangers incidental to the rule of numbers. The +wise elders, or the philosophic minds who looked on +with distrust, were either afraid to speak out, or deemed +it hopeless to try to stem the flowing tide. They +stood aside (as Plato says) under the wall out of the +storm. The party organizations had just begun to +spread their tough yet flexible network over the whole +country; and the class of professional politicians, at +once the creator and the creature of such organizations, +was already formed. The offices had, three years before, +been proclaimed to belong to the victors as spoils of +war, but few saw to what consequences this doctrine +was to lead. I will not say that it was a period of transition, +for that is true of every period in America, so fast +<span class='pageno' id='Page_397'>397</span>do events move even in the quietest times; but it was +a period when that which had been democratic theory +was passing swiftly into democratic practice, when the +seeds sown long ago by Jefferson had ripened into +a waving crop, when the forces which in every society +react against extreme democracy were unusually weak, +some not yet developed, some afraid to resist the +stream.</p> + +<h3 class='c013'>VI. <span class='sc'>Tocqueville’s Impressions and Prophecies.</span></h3> + +<p class='c007'>Let us see what were the impressions which the +America of 1832 made on the mind of Tocqueville. +I do not pretend to summarize his account, which every +student ought to read for himself, but shall be content +with presenting the more salient points that ought to +be noted in comparing 1832 with 1788 on the one +hand, and 1900 on the other.</p> + +<p class='c001'>He is struck by the thoroughness with which the +principle of the sovereignty of the people is carried +out. Seventy years ago this principle was far from +having obtained its present ascendency in Western +Europe. In America, however, it was not merely +recognized in theory, but consistently applied through +every branch of local, State, and National government.</p> + +<p class='c001'>He is impressed by the greater importance to +ordinary citizens of State government than of Federal +government, and their warmer attachment to the +former than to the latter. The Federal government +seems comparatively weak, and in case of a conflict +<span class='pageno' id='Page_398'>398</span>between the two powers, the loyalty of the people +would be given rather to the State<a id='r168'></a><a href='#f168' class='c012'><sup>[168]</sup></a>.</p> + +<p class='c001'>He finds the basis of all American government +in the ‘commune,’ <i>i.e.</i> in local government, the ultimate +unit of which is in New England the township, +in the Southern and Middle States the county. It +is here that the bulk of the work of administration is +done, here that the citizens learn how to use and love +freedom, here that the wonderful activity they display +in public affairs finds its chief sphere and its constant +stimulus.</p> + +<p class='c001'>The absence of what a European calls ‘the administration’ +is remarkable. Public work is divided +up between a multitude of petty and unrelated local +officials: there is no ‘hierarchy,’ no organized civil +service with a subordination of ranks. The means +employed to keep officials to their work and punish +offences are two—frequent popular election and the +power of invoking the ordinary courts of justice to +obtain damages for negligence or unwarranted action. +But along with the extreme ‘administrative decentralization’ +there exists a no less extreme ‘governmental +centralization,’ that is to say, all the powers of government +are collected into one hand, that of the people, +the majority of the voters. This majority is omnipotent; +and thus authority is strong, capable of great efforts, +capable also of tyranny. Hence the value of local +self-government, which prevents the abuse of power +by a central authority: hence the necessity for this +<span class='pageno' id='Page_399'>399</span>administrative decentralization, which atones for its +want of skill in details by the wholesome influence +it exerts on the character of the people.</p> + +<p class='c001'>The judges enjoy along with the dignity of their +European brethren the singular but most salutary +power of ‘declaring laws to be unconstitutional,’ and +thus they serve to restrain excesses of legislative as +well as of executive authority.</p> + +<p class='c001'>The President appears to our author to be a comparatively +weak official. No person, no group, no +party, has much to hope from the success of a particular +candidate at a Presidential election, because +he has not much to give away[!]. The elective system +unduly weakens executive authority, because a President +who approaches the end of his four years’ term feels +himself feeble, and dares not take any bold step: +while the coming in of a new President may cause +a complete change of policy. His re-eligibility further +weakens and abases him, for he must purchase re-election +by intrigue and an unworthy pandering to the +desires of his party. It intensifies the characteristic +fault of democratic government, the predominance of +a temporary majority.</p> + +<p class='c001'>The Federal Supreme Court is the noblest product +of the wisdom of those who framed the Federal Constitution. +It keeps the whole machine in working order, +protecting the Union against the States, and each part +of the Federal government against the aggressions of +the others. The strength of the Federation, naturally +a weak form of government, lies in the direct authority +which the Federal courts have over the individual +citizen: while the action of these Courts, even against a +<span class='pageno' id='Page_400'>400</span>State, gives less offence than might be expected because +they do not directly attack its statutes, but merely, at the +instance of an individual plaintiff or defendant, secure +to him rights which those statutes may have incidentally +infringed.</p> + +<p class='c001'>The Federal Constitution is much superior to the +State Constitutions; the Federal Legislature, Executive +and Judiciary, are all of them more independent of +the popular majority, and freer in their action than the +corresponding authorities in the several States. Similarly +the Federal government is better than those of the +States, wiser, more skilful, more consistent, more firm.</p> + +<p class='c001'>The day of great parties is past: there is now +a feverish agitation of small parties and a constant +effort to create parties, to grasp at some principle or +watchword under which men may group themselves, +probably for selfish ends. Self-interest is at the bottom +of the parties, yet aristocratic or democratic sentiment +attaches itself to each of them, that is to say, when +a practical issue arises, the old antithesis of faith in +the masses and distrust of the masses reappears in the +view which men and parties take of it. The rich +mix little in politics. Secretly disgusted at the predominance +of the crowd, they treat their shoemaker +as an equal when they meet him on the street, but in +their luxurious homes lament the vulgarity of public +life and predict a bad end for democracy.</p> + +<p class='c001'>Next to the people, the greatest power in the country +is the press: yet it is less powerful than in France, +because the number of journals is so prodigious, +because they are so poorly written, because there is +no centre like Paris. Advertisements and general +<span class='pageno' id='Page_401'>401</span>news occupy far more of their space than does political +argument, and in the midst of a din of opposing voices +the ordinary citizen retains his dull fixity of opinion, +the prejudices of his sect or party.</p> + +<p class='c001'>A European is surprised, not only at the number +of voluntary associations aiming at public objects, +but at the tolerance which the law accords to them. +They are immensely active and powerful, and do not +threaten public security as they would in France, +because they admit themselves, by the very fact of +their existence, to represent a minority of voters, and +seek to prevail by force of argument and not of arms.</p> + +<p class='c001'>Universal suffrage, while it gives admirable stability +to the government, does not, as people in Europe expect +that it will, bring the best men to the top. On the +contrary, the governors are inferior to the governed<a id='r169'></a><a href='#f169' class='c012'><sup>[169]</sup></a>. +The best men do not seek either office or a seat in the +House of Representatives, and the people, without +positively hating the ‘upper classes,’ do not like +them; and carefully keep them out of power. <span lang="fr">‘Il ne +craint point les grands talents, mais il les goûte peu.’</span></p> + +<p class='c001'>The striking inferiority of the House to the Senate +is due to the fact that the latter is a product of double +election, and it is to double election that democracies +must come if they will avoid the evils inseparable from +placing political functions in the hands of every class +of the people<a id='r170'></a><a href='#f170' class='c012'><sup>[170]</sup></a>.</p> + +<p class='c001'><span class='pageno' id='Page_402'>402</span>American magistrates are allowed a wider arbitrary +discretion than is common in Europe, because they +are more constantly watched by the sovereign people, +and are more absolutely at their mercy<a id='r171'></a><a href='#f171' class='c012'><sup>[171]</sup></a>.</p> + +<p class='c001'>Every office is, in America, a salaried office; nor can +anything be more conformable to the spirit of a democracy. +The minor offices are, relatively to Europe, well +paid, the higher ones ill paid. Nobody wears any dress +or displays any insignia of office<a id='r172'></a><a href='#f172' class='c012'><sup>[172]</sup></a>.</p> + +<p class='c001'>Administration has both an unstable and an unscientific +character. Few records are kept of the acts +of departments: little information is accumulated: even +original documents are neglected. Tocqueville was +sometimes given such documents in answer to his +queries, and told that he might keep them. The conduct +of public business is a hand to mouth, rule of thumb +sort of affair<a id='r173'></a><a href='#f173' class='c012'><sup>[173]</sup></a>.</p> + +<p class='c001'>Not less instability reigns in the field of legislation. +Laws are being constantly changed; nothing remains +fixed or certain<a id='r174'></a><a href='#f174' class='c012'><sup>[174]</sup></a>.</p> + +<p class='c001'><span class='pageno' id='Page_403'>403</span>It is a mistake to suppose that democratic governments +are specially economical. They are parsimonious +in salaries, at least to the higher officials, but they spend +freely on objects beneficial to the mass of the people, +such as education, while the want of financial skill +involves a good deal of waste. You must not expect +economy where those who pay the bulk of the taxes +are a mere fraction of those who direct their expenditure. +If ever America finds herself among dangers, +her taxation will be as heavy as that of European +monarchies.</p> + +<p class='c001'>There is little bribery of voters, but many charges +against the integrity of politicians. Now the corruption +of the ‘governors’ is worse than that of the ‘governed,’ +for it lowers the tone of public morals by presenting +the spectacle of prosperous turpitude.</p> + +<p class='c001'>The American democracy is self-indulgent and self-complacent, +slow to recognize, still more slow to correct, +its faults. But it has the unequalled good fortune of +being able to commit reparable errors (<span lang="fr"><i>la faculté de faire +des fautes réparables</i></span>). It can sin with impunity.</p> + +<p class='c001'>It is eminently ill-fitted to conduct foreign policy. +Fortunately it has none.</p> + +<p class='c001'>The benefits which American society derives from its +democratic government are summed up as follows:—</p> + +<p class='c001'>As the majority make the laws, their general tendency, +in spite of many errors in detail, is to benefit +the majority, because though the means may sometimes +<span class='pageno' id='Page_404'>404</span>be ill chosen, the end is always the same. Hence the +country prospers.</p> + +<p class='c001'>Every one is interested in the welfare of the country, +because his own welfare is bound up with it. This +patriotism may be only an enlarged egotism, but it is +powerful nevertheless, for it is a permanent sentiment, +independent of transient enthusiasms. Its character +appears in the childish intolerance of criticism which +the people display. They will not permit you to find +fault with any one of their institutions or habits, not +even if you praise all the rest<a id='r175'></a><a href='#f175' class='c012'><sup>[175]</sup></a>.</p> + +<p class='c001'>There is a profound respect for every political right, +and therefore for every magistrate, and for the authority +of the law, which is the work of the people themselves. +If there be exceptions to this respect, they are to be +found among the rich, who fear that the law may +be made or used to their detriment.</p> + +<p class='c001'>The infinite and incessant activity of public life, the +responsibilities it casts on the citizen, the sense of his +importance which it gives him, have stimulated his whole +nature, and made him enterprising in all private affairs +also. Hence, in great measure, the industrial prosperity +of the country. Democracy effects more for the material +progress of a nation than in the way of rendering it +great in the arts, or in poetry, or in manners, or in +elevation of character, or in the capacity for acting on +other nations and leaving a great name in history.</p> + +<p class='c001'>We now come to the darker side of the picture. In +democracies, the majority is omnipotent, and in America +<span class='pageno' id='Page_405'>405</span>the evils hence flowing are aggravated by the shortness +of the term for which a legislature is chosen, by the +weakness of the Executive, by the incipient disposition to +choose even the judges by popular vote, by the notion +universally accepted that the majority must be right. +The majority in a legislature being unchecked, laws are +hastily made and altered, administration has no permanence, +officials are allowed a dangerously wide range +of arbitrary authority. There is no escape from the +tyranny of the majority. It dominates even thought, forbidding, +not indeed by law, but through social penalties +no less effective than legal ones, the expression of any +opinion displeasing to the ordinary citizen. In theology, +even in philosophy, one must beware of any divergence +from orthodoxy. No one dare tell an unwelcome truth to +the people, for it will receive nothing but incense. Such +repression sufficiently explains the absence of great +writers and of great characters in public life. It is not +therefore of weakness that free government in America +will ever perish, but through excess of strength, the +majority driving the minority to despair and to arms.</p> + +<p class='c001'>There are, however, influences which temper the +despotism of the majority. One is the existence of +a strong system of local self-government, whereby nearly +all administration is decentralized. Another is the +power of the lawyers, a class everywhere disposed to +maintain authority and to defend that which exists, and +specially so disposed in England and America because +the law which they study and practise is founded on +precedents and despises abstract reason. A third exists +in the jury, and particularly the jury in its action in +civil causes, for it teaches the people not only the +<span class='pageno' id='Page_406'>406</span>regular methods of law and justice, but respect for law +and for the judges who administer it.</p> + +<p class='c001'>Next we come to an enumeration of the causes which +maintain republican government. They are, over and +above the constitutional safeguards already discussed, +the following:—</p> + +<p class='c001'>The absence of neighbouring States, and the consequent +absence of great wars, of financial crises<a id='r176'></a><a href='#f176' class='c012'><sup>[176]</sup></a>, of +invasions or conquests. How dangerous to republics +is the passion for military glory is shown by the two +elections of General Jackson to be President, a man +of violent temper and limited capacity, recommended +by nothing but the memory of his victory at New +Orleans twenty years before<a id='r177'></a><a href='#f177' class='c012'><sup>[177]</sup></a>.</p> + +<p class='c001'>The absence of a great capital.</p> + +<p class='c001'>The material prosperity of the country, due to its +immense extent and natural resources, which open a +boundless field in which the desire of gain and the love +of independence may gratify themselves and render the +vices of man almost as useful to society as his virtues. +The passions which really agitate America are commercial, +not political.</p> + +<p class='c001'>The influence of religion. American Protestantism +is republican and democratic; American Catholicism no +less so; for Catholicism itself tends to an equality of +conditions, since it treats all men alike. The Catholic +clergy are as hearty republicans as any others.</p> + +<p class='c001'>The indirect influence of religion on manners and +<span class='pageno' id='Page_407'>407</span>morality. Nowhere is marriage so much respected +and the relations of the sexes so well ordered. The +universal acceptance of Christianity, an acceptance +which imposes silence even on the few sceptics who +may be supposed to exist there as everywhere, steadies +and restrains men’s minds. ‘No one ventures to proclaim +that everything is permissible in the interests of +society. Impious maxim, which seems to have been +invented in an age of liberty in order to give legitimacy +to all tyrants to come.’ The Americans themselves +cannot imagine liberty without Christianity. And the +chief cause why religion is so powerful among them is +because it is entirely separated from the State<a id='r178'></a><a href='#f178' class='c012'><sup>[178]</sup></a>.</p> + +<p class='c001'>The intelligence of the people, and their education, +but especially their practical experience in working +their local politics. However, though everybody has +some education, letters and culture do not flourish. +The Americans regard literature properly so called with +disfavour: they are averse to general ideas. They +have no great historian, not a single poet, legal commentators +but no publicists, good artisans but very few +inventors[!].</p> + +<p class='c001'>Of all these causes, the most important are those +which belong to the character and habits of the people. +These are infinitely more important sources of well-being +than the laws, as the laws are in turn more +important than the physical conditions<a id='r179'></a><a href='#f179' class='c012'><sup>[179]</sup></a>.</p> + +<p class='c001'><span class='pageno' id='Page_408'>408</span>Whether democracy will succeed in other parts of the +world is a question which a study of America does not +enable the observer confidently to <a id='corr408.3'></a><span class='htmlonly'><ins class='correction' title='answer'>answer.</ins></span><span class='epubonly'><a href='#c_408.3'><ins class='correction' title='answer'>answer.</ins></a></span> Her institutions, +however suitable to her position in a world of +her own, could not be transferred bodily to Europe. +But the peace and prosperity which the Union enjoys +under its democratic government do raise a strong presumption +in favour of democracy even in Europe. For +the passions and vices which attack free government +are the same in America as in Europe, and as the legislator +has overcome many of them there, combating +envy by the idea of rights, and the presumptuous +ignorance of the crowd by the practice of local government, +he may overcome them here in Europe likewise.</p> + +<p class='c001'>One may imagine institutions for a democracy other +than those the Americans have adopted, and some of +them better ones. Since it seems probable that the +peoples of Europe will have to choose between democracy +and despotism, they ought at least to try the +former, and may be encouraged by the example of +America.</p> + +<p class='c001'>A concluding chapter is devoted to speculations on +the future of the three races which inhabit the territories +of the United States. I need not transcribe what +he says of the unhappy Indian tribes. Their fate was +then already certain: the process which he saw passing +in Alabama and Michigan afterwards repeated itself in +California and Oregon.</p> + +<p class='c001'>The presence of the blacks is the greatest evil that +threatens the United States. They increase, in the +<span class='pageno' id='Page_409'>409</span>Gulf States, faster than do the whites. They cannot +be kept for ever in slavery, since the tendencies of the +modern world run strongly the other way. They +cannot be absorbed into the white population, for the +whites will not intermarry with them, not even in the +North where they have been free for two generations. +Once freed, they would be more dangerous than now, +because they would not long submit to be debarred +from political rights. A terrible struggle would ensue. +Hence the Southern Americans, even those who regret +slavery, are forced to maintain it, and have enacted +a harsh code which keeps the slave as near as possible +to a beast of burden, forbidding him to be taught +and making it difficult for him to be manumitted. No +one in America seems to see any solution. The North +discusses the problem with noisy inquietude. The +South maintains an ominous silence. Slavery is evidently +economically mischievous, for the free States are +far more prosperous: but the South holds to slavery +as a necessity.</p> + +<p class='c001'>As to the Federal Union, it shows many signs of +weakness. The States have most of the important +powers of government in their hands; they have the +attachment of the people; they act with vigour and +promptitude, while the Federal authority hesitates and +argues. In every struggle that has heretofore arisen +the Federal Government has given way, and it possesses +neither the material force to coerce a rebellious State +nor a clear legal right to retain a member wishing to +dissolve the Federal tie. But although the Union has +no national patriotism to support it (for the professions +of such patriotism one hears in America are but lip-deep), +<span class='pageno' id='Page_410'>410</span>it is maintained by certain interests—those material +interests which each part of the country has in remaining +politically united with the rest. Against these one +finds no strong interests making for material severance, +but one does find diversities, not indeed of opinion—for +opinions and ideas are wonderfully similar over the +whole country—but of character, particularly between +Northern and Southern men, which increase the chances +of discord. And in the rapid growth of the Union there +lies a real source of danger. Its population doubles +every twenty-two years. Before a century has passed +its territory will be covered by more than a hundred +millions of people and divided into forty States<a id='r180'></a><a href='#f180' class='c012'><sup>[180]</sup></a>. Now +all partnerships are more difficult to keep together the +more the number of partners increases<a id='r181'></a><a href='#f181' class='c012'><sup>[181]</sup></a>. Even admitting, +therefore, that this hundred millions of people have +similar interests and are benefited by remaining united, +still the mere fact that they will then form forty nations, +distinct and unequally powerful, will make the maintenance +of the Federal Government only a happy +accident. ‘I cannot believe in the duration of a government +whose task is to hold together forty different +peoples spread over a surface equal to the half of +Europe, to avoid rivalries, ambitions, and struggles +among them, and to unite the action of their independent +wills for the accomplishment of the same plans<a id='r182'></a><a href='#f182' class='c012'><sup>[182]</sup></a>.’</p> + +<p class='c001'>The greatest danger, however, which the Union +<span class='pageno' id='Page_411'>411</span>incurs as it grows is the transference of forces which +goes on within its own body. The Northern States +increase more rapidly than the Southern, those of the +Mississippi Valley more rapidly still. Washington, +which when founded was in the centre of the Union, +is now at one end of it. The disproportionate growth +of some States menaces the independence of others. +Hence the South has become suspicious, jealous, irritable. +It fancies itself oppressed because outstripped +in the race of prosperity and no longer dominant. It +threatens to retire from a partnership whose charges +it bears, but whose profits it does not share<a id='r183'></a><a href='#f183' class='c012'><sup>[183]</sup></a>.</p> + +<p class='c001'>Besides the danger that some States may withdraw +from the Union (in which case there would probably +be formed several federations, for it is highly unlikely +that the original condition of State isolation would +reappear), there is the danger that the central Federal +authority may continue to decline till it has become +no less feeble than was the old Confederation. Although +Americans fear, or pretend to fear, the growth of centralization +and the accumulation of powers in the hands +of the Federal Government, there can be little doubt +that the central authority has been growing steadily +weaker, and is less and less able to face the resistance +of a refractory State. The concessions of public territory +made to the States, the hostility to the United States +Bank, the (virtual) success of South Carolina in the +Nullification struggle, are all proofs of this truth. +General Jackson, now (1832) President, is at this moment +<span class='pageno' id='Page_412'>412</span>strong, but only because he flatters the majority and +lends himself to its passions. His personal power may +increase, but that of the President declines. ‘Unless +I am strangely mistaken, the Federal Government of +the United States tends to become daily weaker; it +draws back from one kind of business after another, +it more and more restricts the sphere of its action. +Naturally feeble, it abandons even the appearance of +force. On the other side, I think I perceive that in the +United States the sentiment of independence becomes +more and more lively in the States, and the love of +provincial government more and more pronounced. +People wish to keep the Union, but to keep it reduced +to a shadow: they would like to have it strong for some +purposes and weak for the rest—strong in war and +almost non-existent in peace—forgetting that such alternations +of strength and weakness are impossible.’</p> + +<p class='c001'>Nevertheless the time when the Federal power will +be extinguished is still distant, for the continuance of +the Union is desired, and when the weakness of the +Government is seen to threaten the life of the Union, +there may be a reaction in its favour.</p> + +<p class='c001'>Whatever may be the future of the Federation, that +of republicanism is well assured. It is deeply rooted +not only in the laws, but in the habits, the ideas, the +sentiments, even the religion of the people. It is +indeed just possible that the extreme instability of +legislation and administration may some day disgust +the Americans with their present government, and +in that case they will pass rapidly from republicanism +to despotism, not stopping by the way in the stage +of limited monarchy. An aristocracy, however, such +<span class='pageno' id='Page_413'>413</span>as that of the old countries of Europe, can never grow +up. Democratic equality will survive, whatever be +the form which government may take.</p> + +<p class='c001'>This brief summary, which conveys no impression of +the elegance and refinement of Tocqueville’s reasonings, +need not be pursued to include his remarks on +the commercial and maritime greatness of the United +States, nor his speculations on the future of the Anglo-American +race. Still less shall I enter on the second +part of the book, for (as has been observed already) +it deals with the ideas of democracy and equality in +a very abstract and sometimes unfruitful way, and it +would need a separate critical study.</p> + +<p class='c001'>But before passing on to consider how far the +United States now differs from the republic which the +French philosopher described, we must pause to ask +ourselves whether his description was complete.</p> + +<p class='c001'>It is a salutary warning to those who think it easy to +get to the bottom of the political and social phenomena +of a nation, to find that so keen and so industrious +an observer as Tocqueville, who seized with unrivalled +acuteness and described with consummate art many +of the minor features of American politics, omitted to +notice several which had already begun to show their +heads in his day, and have since become of the first +importance. Among these are—</p> + +<p class='c001'>The system of party organization. It was full grown +in some States (New York for instance), and spreading +quickly through the rest.</p> + +<p class='c001'>The influence of commercial growth and closer +commercial relations in binding together different +States of the Union and breaking down the power of +<span class='pageno' id='Page_414'>414</span>State sentiment. He does in one passage refer to this +influence, but is far from appreciating the enormous +force it was destined to exercise, and must have +exercised even without railways.</p> + +<p class='c001'>The results of the principle proclaimed definitely +just before his visit, and already operative in some +places, that public office was to be bestowed as a +reward for political service, and held only so long +as the party which bestowed it remained in power.</p> + +<p class='c001'>The assertion by President Monroe of the intention +of the United States to regard as unfriendly (<i>i.e.</i> to do +their best to resist) any extension of the ‘European +system’ to the American Continent, and any further +colonization thereof or intrusion by European powers +thereon.</p> + +<p class='c001'>The rise of the Abolitionists (they had begun to +organize themselves before 1830, and formed a National +Anti-Slavery Society in 1833) and the intense hostility +they aroused in the South.</p> + +<p class='c001'>The growth of the literary spirit, and the beginnings +of literary production. The society which produced +Washington Irving, Fenimore Cooper, Channing, +Hawthorne, Emerson, Longfellow, Thoreau, Prescott, +Ticknor, Margaret Fuller, Holmes, Lowell, Parkman—not +to add some almost equally famous later names—deserved +mention as a soil whence remarkable fruits +might be expected which would affect the whole nation. +Yet it is not once referred to, although one can perceive +that Tocqueville had spent some time in Boston, for +many of his views are evidently due to the conversations +he held with the leading Whigs of that day +there.</p> + +<p class='c001'><span class='pageno' id='Page_415'>415</span>The influence of money on politics. It might surely +have been foretold that in a country with such resources, +and among a people whose restless commercial +activity would be able to act on a vast scale, great +piles of wealth would soon be accumulated, that this +wealth would perceive objects which it might accomplish +by legislative aid, would seek to influence governments, +and would find ample opportunities for doing +so. But of the dangers that must thence arise we do +not hear a word.</p> + +<h3 class='c013'>VII. <span class='sc'>Examination of Tocqueville’s Views.</span></h3> + +<p class='c007'>Such was the aspect of the United States in 1832, +such the predictions which an unusually penetrating +and philosophic mind formed of its future. I will not +attempt to inquire how far the details of the picture +are accurate, because it would be unprofitable to contest +statements without assigning one’s own reasons, +while to assign them would lead me into a historical +disquisition. A shorter and simpler course will be to +inquire in what respects things have changed since his +time, for thus we shall be in a position to discern +which of the tendencies he noted have proved permanent, +what new tendencies have come into being, what +are the main tendencies which are now controlling the +destinies of the Republic.</p> + +<p class='c001'>I have noted at the end of last section the phenomena +which, already existing in Tocqueville’s day, he omitted +to notice or to appraise at their due value. Let us +see what time has brought forward since his day to +alter the conditions of the problem as he saw it.</p> + +<p class='c001'><span class='pageno' id='Page_416'>416</span>The great events that have befallen since 1834 are +these:—</p> + +<p class='c001'>The annexation of Texas in 1845.</p> + +<p class='c001'>The war with Mexico in 1846, leading to the enlargement +of the United States by the vast territories which +are now California, Nevada, Utah, Idaho, Arizona, and +New Mexico.</p> + +<p class='c001'>The making of railways over the whole country, +culminating with the completion of four or five great +Trans-Continental roads (the first in 1869).</p> + +<p class='c001'>The establishment of lines of swift ocean steamers +between America and Europe.</p> + +<p class='c001'>The immigration from Ireland (immensely increased +after the famine of 1846), and from Germany (beginning +somewhat later), and from Scandinavia, Austria-Hungary, +and Russia (later still).</p> + +<p class='c001'>The War of Secession, 1861-65; together with the +extinction of Slavery.</p> + +<p class='c001'>The laying of submarine cables to Europe, and the +extension of telegraphic communication over the whole +Union.</p> + +<p class='c001'>The settlement of the Alabama claims, an event +scarcely less important in American history than in +English, because it greatly diminished the likelihood of +a war between the two countries. In Tocqueville’s time +the hatred of Americans to England was rancorous.</p> + +<p class='c001'>The growth of great cities. In 1830, only two had +a population exceeding 100,000. There are now (census +of 1900) thirty-eight which exceed that population<a id='r184'></a><a href='#f184' class='c012'><sup>[184]</sup></a>.</p> + +<p class='c001'><span class='pageno' id='Page_417'>417</span>The growth of great fortunes, and of wealthy and +powerful trading corporations; the extension of mining, +especially silver and gold mining; the stupendous +development of speculation, not to say gambling, in +stocks and produce.</p> + +<p class='c001'>The growth of the universities and of many kindred +literary and scientific institutions.</p> + +<p class='c001'>The war with Spain in 1898, and consequent annexation +of Hawaii (which might probably not have been taken +but for naval needs supposed to have been disclosed +by the war), of Puerto Rico, and of the Philippine Isles.</p> + +<p class='c001'>These are events which have told directly or indirectly +upon politics. I go on to enumerate the political +changes themselves of the same sixty-seven years.</p> + +<p class='c001'>Democratization of State Constitutions, total abolition +of property qualifications, choice of judges (in most +States) by popular vote and for terms of years, restrictions +on the power of State Legislatures, more frequent +use of the popular vote or so-called Referendum<a id='r185'></a><a href='#f185' class='c012'><sup>[185]</sup></a>.</p> + +<p class='c001'>Development of the Spoils System, consequent degradation +of the increasingly large and important civil +service, both Federal, State, and Municipal.</p> + +<p class='c001'>Perfection and hierarchical consolidation, on nominally +representative but really oligarchic lines, of party +organizations; consequent growth of Rings and Bosses, +and demoralization of city government.</p> + +<p class='c001'>Enfranchisement of the negroes through amendments +to the Constitution.</p> + +<p class='c001'>Intensification of National (as opposed to State) +sentiment consequent on the War of Secession; passion +<span class='pageno' id='Page_418'>418</span>for the national flag; rejection of the dogmas of State +sovereignty and right of nullification.</p> + +<p class='c001'>Increased importance of currency and other financial +problems: emergence of industrial questions as bases +for party organization: efforts to found a Labour Party +and a ‘People’s Party.’</p> + +<p class='c001'>To these I add, as powerfully affecting politics, the +development not only of literary, scientific and historical +studies, but in particular of a new school of publicists, +who discuss constitutional and economic questions in +a philosophic spirit; closer intellectual relations with +Europe, and particularly with England and Germany; +resort of American students to German Universities; +increased interest of the best class of citizens in +politics; improved literary quality of the newspapers +and of periodicals (political and semi-political) generally; +growth of a critical and sceptical spirit in matters of +religion and philosophy; diminished political influence +of the clergy.</p> + +<p class='c001'>We may now ask which of Tocqueville’s observations +have ceased to be true, which of his predictions falsified. +I follow the order in which they were presented in +the last section.</p> + +<p class='c001'>Although the powers of the several States remain in +point of law precisely what they were (except as regards +the Constitutional amendments presently to be noticed) +and the citizen depends as much now as then upon +the State in all that relates to person and property, +to the conduct of family and commercial relations, +the National or Federal Government has become more +important to him than it was then. He watches its +proceedings more closely, and, of course, thanks to +<span class='pageno' id='Page_419'>419</span>the telegraph, knows them sooner and more fully. His +patriotism is far more national, and in case of a conflict +between one or more States and the Federal power, +the sympathies of the other States would probably be +with the latter.</p> + +<p class='c001'>Local government has been maintained in its completeness, +but it seems to excite less interest among +the people. In the larger cities it has fallen into the +hands of professional politicians, who have perverted it +into a grasping and sordid oligarchy.</p> + +<p class='c001'>There is still, as compared with Continental Europe, +little ‘administration,’ though more than in Tocqueville’s +time. But the influence of Federal legislation on the +business of the country is far greater than it was, for +the tariff and the currency, matters of increased consequence +ever since the war, are in its hands.</p> + +<p class='c001'>The dignity of the judicial bench has in most States +suffered seriously from the system of popular election +for comparatively short terms. In those States where +nomination by the Executive has been retained, and +in the case of the Federal Judges (nominated by the +President), the position is perhaps the highest permanent +one open to a citizen.</p> + +<p class='c001'>The President’s authority received a portentous enlargement +during the War of Secession, and although +it has now returned to its normal condition, the sense +of its importance has survived. His election is contested +with increasing excitement, for his immense +patronage and the magnitude of the issues he may +influence by his veto power give individuals and +parties the strongest grounds for hope and fear. +Experience has, on the whole, confirmed the view that +<span class='pageno' id='Page_420'>420</span>the re-eligibility of an acting President (<i>i.e.</i> the power +of electing him for an immediately succeeding term) +might well be dispensed with.</p> + +<p class='c001'>The credit of the Supreme Court suffered somewhat +from its pro-slavery decisions just before the war, +and may possibly have suffered slightly since in respect +of its treatment of the Legal Tender question. Nevertheless +it remains respected and influential.</p> + +<p class='c001'>The State Constitutions, nearly all of which have +been re-enacted or largely amended since 1834, remain +inferior to the Federal Constitution, and the State +legislatures are, of course (possibly with a very few +exceptions in the New England States), still more +inferior to Congress.</p> + +<p class='c001'>Two great parties reappeared immediately after +Tocqueville wrote, and except for a brief interval before +the Civil War when the Whig party had practically +expired before its successor and representative the +Republican party had come to maturity, they have +continued to divide the country, making minor parties +of slight consequence. Now and then an attempt is +made to start a new party as a national organization, +but it rarely becomes strong enough to maintain itself. +The rich and educated renewed their interest in politics +under the impulse of the Slavery and Secession struggle. +After a subsequent interval of apathy they seem to +be again returning to public life. The secret murmurs +against democracy, whereof Tocqueville speaks, are +confined to a handful of fashionable exquisites less +self-complacent now than they were in the days when +they learnt luxury and contempt for the people in the +Paris of Louis Napoleon.</p> + +<p class='c001'><span class='pageno' id='Page_421'>421</span>Although newspapers are better written than formerly +and those of the great cities travel further over the +country, the multitude of discordant voices still prevents +the people from being enslaved by the press, which +however shows an alarming capacity for exciting them. +The habit of association by voluntary societies maintains +itself.</p> + +<p class='c001'>The defects of the professional politicians, a term +which now more precisely describes those whom Tocqueville +calls by the inappropriate European name of ‘the +governors,’ continue at least as marked as in his time.</p> + +<p class='c001'>So, too, the House of Representatives continues less +influential than the Senate, but for other reasons than +those which Tocqueville assigns, and to a less degree +than he describes. The Senate has not, since 1880, +maintained the character he gives it; and the fact that +it is still chosen in the way which he commended shows +that the merits he ascribed to it were not due to its mode +of choice. Indeed in the judgement of most thoughtful +men, popular election in the States would give a better +Senate than election by the State Legislatures now does.</p> + +<p class='c001'>American magistrates never did in general enjoy the +arbitrary power Tocqueville ascribes to them. They +assuredly do not enjoy it now, but in municipalities +there is a growing tendency to concentrate power, +especially the appointing power, in the hands of one +or a few officers in order that the people may have +some one person on whom responsibility can be fixed. +Such power is sometimes very wide, but it cannot be +called arbitrary. A few minor offices are unsalaried; +the salaries of the greater ones have been raised, particularly +in the older States.</p> + +<p class='c001'><span class='pageno' id='Page_422'>422</span>The methods of administration, especially of Federal +administration, have been much improved, but are still +behind those of the most advanced European countries, +one or two departments excepted.</p> + +<p class='c001'>Government is far from economical. The war of the +Rebellion was conducted in the most lavish way: the +high protective tariff raises a vast revenue, and direct +local taxation takes more from the citizen than in most +European countries. An enormous sum is spent upon +pensions to persons who purport to have served in the +Northern armies during the Civil War<a id='r186'></a><a href='#f186' class='c012'><sup>[186]</sup></a>.</p> + +<p class='c001'>Congress does not pass many public statutes, nor +do they greatly alter ordinary law within the sphere +open to federal legislation. Many legislative experiments +are tried in the newer States, but the ordinary +private law is in no such condition of mutability as +Tocqueville describes. The law of England suffered +more changes between 1868 and 1885 than either the +common or statute law of the older States of the +Union.</p> + +<p class='c001'>The respect for the rights of others, for the regular +course of legal process, for the civil magistrate, remains +strong; nor have the rich (although of late years more +threatened) seriously begun to apprehend any attacks +on them, otherwise than as stockholders in great railway +and other corporations.</p> + +<p class='c001'>The tyranny of the majority is not a serious evil in +the America of to-day, though people still sometimes +profess alarm at it. It cannot act through a State +legislature so much as it may have done in Tocqueville’s +<span class='pageno' id='Page_423'>423</span>days, for the wings of these bodies have been +effectively clipped by the newer State constitutions. +Faint are the traces which remain of that intolerance +of heterodoxy in politics, religion or social views whereon +he dilates<a id='r187'></a><a href='#f187' class='c012'><sup>[187]</sup></a>. Politicians on the stump still flatter +the crowd, but many home truths are told to it nevertheless +in other ways and places, and the man who +ventures to tell them need no longer fear social proscription +(at least in time of peace) in the Northern or +Western States, perhaps not even in the Southern.</p> + +<p class='c001'>The Republic came scatheless out of a terrible +civil war, and although the laurels of the general who +concluded that war twice secured for him the Presidency, +they did not make his influence dangerous to +freedom. There is indeed no great capital, but there +are cities greater than most European capitals, and the +Republic has not been imperilled by their growth. The +influence of the clergy on public affairs has declined: +whether or no that of religion has also been weakened +it is more difficult to say. But all Americans are still +agreed that religion gains by its entire detachment +from the State.</p> + +<p class='c001'>The negro problem remains, but it has passed into +a new and for the moment less threatening phase. +Neither Tocqueville nor any one else then living could +have foreseen that manumission would come as a war +measure, and be followed by the grant of political +rights. It is no impeachment of his judgement that he +omitted to contemplate a state of things in which the +<span class='pageno' id='Page_424'>424</span>blacks have been made politically the equals of the +whites, while inferior in most other respects, and destined, +apparently, to remain wholly separate from them. +He was right in perceiving that fusion was not possible, +and that liberation would not solve the problem, because +it would not make the liberated fit for citizenship. Fit—that +is to say, as fit as a considerable part of the white +population—they will probably in the long run become, +but even then the social problem will remain. His +remark that the repulsion between the races in the +South would probably be greater under freedom than +under slavery has so far been strikingly verified by the +result.</p> + +<p class='c001'>All the forces that made for the maintenance of the +Federal Union are now stronger than they were then, +while the chief force that opposed it, viz. the difference +of character and habits between North and South, +largely produced by the existence of slavery, tends to +vanish. Nor does the growth of the Union make the +retention of its parts in one body more difficult. On +the contrary, the United States is a smaller country +now when it stretches from the Bay of Fundy to the +Gulf of California, with its seventy-six millions of people, +than it was then with its thirteen millions, just as the +civilized world was larger in the time of Herodotus +than it is now, for it took twice as many months to +travel from Persepolis or the Caspian Sea to the Pillars +of Hercules as it does now to circumnavigate the globe, +one was obliged to use a greater number of languages, +and the journey was incomparably more dangerous. +Before steamboats plied on rivers, and trains ran on +railways, three or four weeks at least were consumed +<span class='pageno' id='Page_425'>425</span>in reaching Missouri from Maine. Now one goes in +six days of easy travelling right across the continent.</p> + +<p class='c001'>Nor has the increased number of States bred more +dissensions. The forty-five States of to-day are not as +Tocqueville assumes, and this is the error which vitiates +his reasonings, forty-five nations. The differences in +their size and wealth have become greater, but they +work more harmoniously together than ever heretofore, +because neither the lines which divide parties nor the +substantial issues which affect men’s minds coincide +with State boundaries. The Western States are now, +so far as population goes, the dominant section of the +Union, and become daily more so. But their interests +link them more closely than ever to the North Atlantic +States, through which their products pass to Europe, +and the notion once entertained of moving the capital +from Washington to the Mississippi valley has been +quietly dropped.</p> + +<h3 class='c013'>VIII. <span class='sc'>Concluding Summary.</span></h3> + +<p class='c007'>Before bidding farewell to our philosopher, let us +summarize his conclusions.</p> + +<p class='c001'>He sees in the United States by far the most successful +and durable form of democratic government that has +yet appeared in the world.</p> + +<p class='c001'>Its merits are the unequalled measure of freedom, +freedom of action, but not of thought, which it secures +to the ordinary citizen, the material and social benefits +it confers on him, the stimulus it gives to all his practical +faculties.</p> + +<p class='c001'>These benefits are likely to be permanent, for they +rest upon the assured permanence of</p> + +<p class='c001'><span class='pageno' id='Page_426'>426</span>Social equality;</p> + +<p class='c001'>Local self-government;</p> + +<p class='c001'>Republican institutions;</p> + +<p class='c001'>Widely diffused education.</p> + +<p class='c001'>It is true that these benefits would not have been +attained so quickly nor in such ample measure but for +the extraordinary natural advantages of the New World. +Nevertheless, these natural advantages are but subsidiary +causes. The character of the people, trained +to freedom by experience and by religion, is the chief +cause, their institutions the second, their material conditions +only the third; for what have the Spaniards +made of like conditions in Central and South America<a id='r188'></a><a href='#f188' class='c012'><sup>[188]</sup></a>?</p> + +<p class='c001'>Nevertheless, the horizon is not free from clouds.</p> + +<p class='c001'>What are these clouds?</p> + +<p class='c001'>Besides slavery and the existence of a vast negro +population they are—</p> + +<p class='c001'>The conceit and ignorance of the masses, perpetually +flattered by their leaders, and therefore slow to correct +their faults.</p> + +<p class='c001'>The withdrawal from politics of the rich, and inferior +tone of ‘the governors,’ <i>i.e.</i> the politicians.</p> + +<p class='c001'>The tyranny of the majority, which enslaves not only +the legislatures, but individual thought and speech, +checking literary progress, and preventing the emergence +of great men.</p> + +<p class='c001'>The concentration of power in the legislatures (Federal +and State), which weakens the Executive, and makes all +laws unstable.</p> + +<p class='c001'><span class='pageno' id='Page_427'>427</span>The probable dissolution of the Federal Union, either +by the secession of recalcitrant States or by the slow +decline of Federal authority.</p> + +<p class='c001'>There is therefore warning for France in the example +of America. But there is also encouragement—and the +encouragement is greater than the warning.</p> + +<p class='c001'>Of the clouds which Tocqueville saw, one rose till it +covered the whole sky, broke in a thunderstorm, and +disappeared. Others have silently melted into the blue. +Some still hang on the horizon, darkening parts of the +landscape.</p> + +<p class='c001'>Let us cast one glance back at the course which +events have actually taken as compared with that which +Hamilton first, and Tocqueville afterwards, expected.</p> + +<p class='c001'>The Republic fared far otherwise than as Hamilton +and his friends either hoped or feared. In this there +is nothing to impeach their wisdom. They saw the +dangers of their own time, and like wise and patriotic +men provided the best remedies which existing conditions +permitted. Some dangers they overcame so completely, +particularly the financial misdoings of State legislatures, +that these have now passed out of memory. They could +not foresee what the power of money would become, +because there was then little money in the country. They +could not foresee the astonishing development of party +machinery, because it is a perfectly new thing in the +history of the world: and human imagination never +does more, at any rate in the field of politics and +sociology, than body forth things a little bigger than, +or in some other wise a little varying from, what they +have been before. It cannot create something out of +nothing. Least of all could they divine what the results +<span class='pageno' id='Page_428'>428</span>would be of the coexistence of the money power and +the party machine. Nor did even Tocqueville, writing +half a century later, when wealth had already appeared +and the party machine was in places beginning to work, +perceive what both had in store.</p> + +<p class='c001'>How would Tocqueville amend his criticisms were +he surveying the phenomena of to-day?</p> + +<p class='c001'>He would add to his praise of the United States that +its people re-established their government on firm foundations +after a frightful civil war, that their army went +back to its peaceful occupations, that they paid off their +debt, that they have continued to secure a free field for +an unparalleled industrial development and to maintain +a hitherto unattained standard of comfort, that the +level of knowledge and intellectual culture has risen +enormously. He would admit that he had overrated +the dangers to be feared from a tyrannical majority and +had underrated the strength of the Union. But he +would stand aghast, as indeed all the best citizens in the +United States do now, at the mismanagement and corruption +of city governments. He would perceive that +the party organizations have now become the controlling +force in the country, more important than the +Legislature or the Executive. He would recognize +the evils incident to the habit of regarding public office +as a means of private advantage to its holder and the +bestowal of it as a reward for party services. And he +would, while gladly owning that the older forms of +faction had ceased to be alarming, note a new development +which the spirit of faction has taken in the tendency +to look at and deal with both legislation and foreign +affairs from the point of view of party advantage. Want +<span class='pageno' id='Page_429'>429</span>of foresight or insight in those who direct the affairs +of a mighty nation is at all times a misfortune: but +when foresight and insight are set aside for the sake +of some transitory party gain, the results may be even +more serious.</p> + +<p class='c001'>This, however, is a tendency inherent in all schemes +of government by party. It is familiar and formidable +in European countries also.</p> + +<div class='chapter'> + <span class='pageno' id='Page_430'>430</span> + <h2 id='eVII' class='c005'>VII <br> <br> TWO SOUTH AFRICAN CONSTITUTIONS<a id='r189'></a><a href='#f189' class='c012'><sup>[189]</sup></a></h2> +</div> + +<h3 class='c013'>I. <span class='sc'>The Conditions under which these Constitutions arose.</span></h3> + +<p class='c007'>The old Greek saying, ‘Africa is always bringing +something new<a id='r190'></a><a href='#f190' class='c012'><sup>[190]</sup></a>,’ finds an unexpected application in +the fact that there exist in South Africa two Dutch +republics possessing constitutions diverse in type from +any of those which we find subsisting in other modern +States. The system established by these two South +African instruments resembles neither the English, +or so-called ‘Cabinet,’ system of government,—which +has been more or less imitated by the other free +countries of Europe, and has been reproduced in the +self-governing British colonies,—nor the American, or +so-called ‘Presidential,’ system, as it exists in the +United States and the several States of the American +Union. And although it bears some resemblance to +the constitution of the Swiss Confederation and to the +constitutions of the cantons of Switzerland, this resemblance +<span class='pageno' id='Page_431'>431</span>is not a close one, and is evidently not due to conscious +imitation, but to a certain similarity of phenomena +suggesting similar devices. The constitutions of these +two Dutch republics are the product, the pure and +original product, of African conditions, having drawn +comparatively little from the experience of older countries, +or from the models their schemes of government +afford. Moreover, these South African constitutions +grew up upon a perfectly virgin soil. There was no +pre-existing political organization, such as the old feudal +polities supplied in some countries of Europe, out of +which these Republics could develop themselves. There +were no charters of guilds or companies, such as those +which gave their earliest form to the governments of +several of the older American States. Nor was there +any home pattern to be copied, as the British colonies +have, by the aid of statutes of the Imperial Parliament, +copied the constitution of the United Kingdom.</p> + +<p class='c001'>This is one of the most interesting features of these +Constitutions. They are not specifically Dutch. Neither +are they English. Nothing is more uncommon in history +than an institution starting <span lang="la"><i>de novo</i></span>, instead of being +naturally evolved out of some earlier form. The simple +farmers who drafted the documents which I propose to +describe, knew little about the systems either of Europe +or of America. Few possessed any historical, still fewer +any legal, knowledge. Many were uneducated men, +though with plenty of rough sense and mother wit. +They would have liked to get on without any government, +and were resolved to have as little as possible. +Circumstances, however, compelled them to form some +sort of organization; and in setting to work to form +<span class='pageno' id='Page_432'>432</span>one, with little except their recollections of the local +arrangements of Cape Colony to guide or to assist +them, they came as near as any set of men ever have +come to the situation which philosophers have so often +imagined, but which has so rarely in fact occurred—that +of free and independent persons uniting in an +absolutely new social compact for mutual help and +defence, and thereby creating a government whose +authority has had, and can have had, no origin save in +the consent of the governed.</p> + +<p class='c001'>A few preliminary words are needed to explain the +circumstances under which the constitutions of the +Orange Free State and of the South African Republic +(commonly called the Transvaal) were drawn up.</p> + +<p class='c001'>As early as 1820 a certain number of farmers, mostly +of Dutch origin, living in the north-eastern part of Cape +Colony, were in the habit of driving their flocks and +herds into the wilderness north of the Orange River, +where they found good fresh pasture during and after +the summer rains. About 1828 a few of these farmers +established themselves permanently there, still of course +remaining subjects of the British Crown, which had +acquired Cape Colony first by conquest and then by +purchase in 1806 and 1814. In 1835-6, however, a +much greater number of farmers migrated from the +colony; some in larger, some in smaller bodies. They +had various grievances against the British Government, +some dating back as far as 1815: and they desired to +live by themselves in their own way, untroubled by +the Governors whom it sent to rule the country<a id='r191'></a><a href='#f191' class='c012'><sup>[191]</sup></a>. +<span class='pageno' id='Page_433'>433</span>Between 1835 and 1838 a considerable number of these +emigrants moved into the country beyond the Orange +River, some remaining there, others pushing still +further to the north-east into the hitherto unknown +regions beyond the Vaal River, while a third body, +perhaps the largest, moved down into what was then +a thinly peopled Kafir land, and is now the British +colony of Natal. This is not the place in which to +relate the striking story of their battles with the Zulu +king and of their struggle with the British Government +for the possession of Natal. It is enough to say that +this third body ultimately quitted Natal to join the other +emigrants north of the mountains; and that, after many +conflicts between those emigrants and the native tribes, +and some serious difficulties with successive Governors +of Cape Colony, the British Government finally, by a +Convention signed at Sand River in 1852, recognized +the independence of the settlers beyond the Vaal River, +while, by a later Convention signed at Bloemfontein +in 1854, it renounced the sovereignty it had claimed +over the country between the Orange River and the +Vaal River, leaving the inhabitants of both these +territories free to settle their own future form of +government for themselves.</p> + +<p class='c001'>These two Conventions are the legal and formal +starting-points of the two republics in South Africa, +and from them the history of those republics, as self-governing +states, recognized in the community of +nations by international law, takes its beginning. The +emigrant farmers had, however, already been driven +<span class='pageno' id='Page_434'>434</span>by the force of circumstances to establish some sort +of government among themselves. As early as 1836 +an assembly of one of the largest emigrant groups +then dwelling in the Orange River Territory, elected +seven persons to constitute a body with legislative and +judicial power. In 1838 the Natal emigrants established +a Volksraad (council of the people) which consisted of +twenty-four members, elected annually, who met every +three months and had the general direction of the +affairs of the community, acting during the intervals +between the meetings by a small committee called the +Commissie Raad. All important measures were, however, +submitted to a general meeting called the Publiek, +in which every burgher was entitled to speak and vote. +It was a primary assembly, like the Old English Folk +Mot, or the Landesgemeinde of the older Swiss +Cantons. A somewhat similar system prevailed among +the farmers settled in the country beyond the Vaal +River. They too had a Volksraad, or sometimes—for +they were from time to time divided into separate and +practically independent republican communities—several +Volksraads; and each district or petty republic had +a commandant-general. Their organization was really +more military than civil, and the commandant-general +with his Krygsraad (council of war), consisting of the +commandants and field cornets within the district, +formed the nearest approach to a regular executive. +I have unfortunately been unable to obtain proper +materials for the internal political history, if such a +term can be used, of these communities before they +proceeded to enact the constitutions to be presently +described, and fear that such materials as do exist are +<span class='pageno' id='Page_435'>435</span>very scanty. But, speaking broadly, it may be said +that, in all the communities of the emigrant farmers, +supreme power was deemed to be vested in an assembly +of the whole male citizens, usually acting through a +council of delegates, and that the permanent officials +were generally a magistrate, called a landrost, in each +village, a field cornet in each ward, and a commandant +in each district. All these officials were chosen by the +people<a id='r192'></a><a href='#f192' class='c012'><sup>[192]</sup></a>. In these primitive arrangements consisted +the materials out of which a constitutional government +had to be built up.</p> + +<p class='c001'>From this point the history of the Orange River +Territory, which by the Convention of 1854 was recognized +as the Orange Free State, and that of the +Transvaal Territory begin to diverge. In describing +the constitutions of the republics, I take first that of +the Orange Free State, because it dates from 1854, +while the existing constitution of the Transvaal is four +years younger, having been adopted in 1858. The +former is also by far the simpler and shorter document.</p> + +<p class='c001'>When the British Government in 1854 voluntarily +divested itself of its rights over the Orange River +Territory, greatly against the will of some of its +subjects there, the inhabitants of that Territory were +estimated at 15,000 Europeans, most of them of Dutch, +the rest of British origin. (The number of native Kafirs +was much larger, but cannot now be estimated.) The +great majority were farmers, pasturing their sheep and +cattle on large farms, but five small villages already +<span class='pageno' id='Page_436'>436</span>existed, one of which, Bloemfontein, has grown to be +a town of 5,800 people, and is now the capital. The +Volksraad, or assembly of delegates of the people, +framed, and on April 10, 1854, enacted, a constitution +for the new republic. This constitution was revised +and amended in 1866, and again in 1879, but the main +features of the original instrument remain. I proceed +to deal with it as it now stands.</p> + +<h3 class='c013'>II. <span class='sc'>Constitution of the Orange Free State.</span></h3> + +<p class='c007'>This Constitution, which is in the Dutch language, and +is called <span lang="nl"><i>De Constitutie</i></span>, is a terse and straightforward +document of sixty-two articles, most of which are only +a few lines in length<a id='r193'></a><a href='#f193' class='c012'><sup>[193]</sup></a>. It begins by defining the qualifications +for citizenship and the exercise of the suffrage +(articles 1 to 4), and incidentally imposes the obligation +of military service on all citizens between the ages of +sixteen and sixty. Only whites can be citizens. Newcomers +may obtain citizenship if they have resided one +year in the state and have real property to the value +of at least £150 sterling ($750), or if they have resided +three successive years and have made a written promise +of allegiance.</p> + +<p class='c001'>Articles 5 to 27 deal with the composition and functions +of the Volksraad, or ruling assembly, which is declared +to possess the supreme legislative authority. It consists +of representatives (at present fifty-eight in number), one +from each of the wards or Field Cornetcies, and one from +the chief town or village of each of the (at present +<span class='pageno' id='Page_437'>437</span>nineteen) districts. They are elected for four years, +one-half retiring every two years. Twelve constitute +a quorum. Every citizen is eligible who has not been +convicted of crime by a jury or been declared a bankrupt +or insolvent, who has attained the age of twenty-five +years, and who possesses fixed (<i>i.e.</i> real) unmortgaged +property of the value of £500 at least.</p> + +<p class='c001'>The Volksraad is to meet annually in May, and may +be summoned to an extra session by its chairman, as +also by the President (§ 34), or by the President and the +Executive Council (§ 45).</p> + +<p class='c001'>The Volksraad has power to depose the President if +insolvent or convicted of crime, and may also itself try +him on a charge of treason, bribery, or other grave +offence; but the whole Volksraad must be present or +have been duly summoned, and a majority of three to +one is required for conviction. The sentence shall in +these cases extend only to deposition from office and +disqualification for public service in future, a President +so deposed being liable to further criminal proceedings +before the regular courts.</p> + +<p class='c001'>The votes of members of the Volksraad shall be +recorded on a demand by one-fifth of those present. +The sittings are to be public, save where a special cause +for a secret sitting exists.</p> + +<p class='c001'>The Volksraad shall make no law restricting the +right of public meeting and petition.</p> + +<p class='c001'>It shall concern itself with the promotion of religion +and education.</p> + +<p class='c001'>It shall promote and support the Dutch Reformed +Church.</p> + +<p class='c001'>It may alter the constitution, but only by a majority +<span class='pageno' id='Page_438'>438</span>of three-fifths of the votes in two consecutive annual +sessions.</p> + +<p class='c001'>It has power to regulate the administration and +finances, levy taxes, borrow money, and provide for +the public defence.</p> + +<p class='c001'>Articles 28 to 41 deal with the choice and functions +of the President of the state.</p> + +<p class='c001'>He is to be elected by the whole body of citizens, +the Volksraad, however, recommending one or more +persons to the citizens<a id='r194'></a><a href='#f194' class='c012'><sup>[194]</sup></a>.</p> + +<p class='c001'>He is chosen for five years and is re-eligible.</p> + +<p class='c001'>He is the head of the executive, charged with the +supervision and regulation of the administrative departments +and public service generally, and is responsible +to the Volksraad, his acts being subject to an appeal to +that body. He is to report annually to the Volksraad, +to assist its deliberations by his advice, but without +the right of voting, and, if necessary, to propose bills. +He makes appointments to public offices, and may fill +vacancies that occur when the Volksraad is not sitting, +but his appointments require its confirmation. (Such +confirmation has been hardly ever, if ever, refused.) +He may also suspend public functionaries, but dismissal +appears to require the consent of the Volksraad.</p> + +<p class='c001'>Articles 42 to 46 deal with the Executive Council. It +consists of five members, besides the State President, who +is <span lang="la"><i>ex-officio</i></span> chairman, with a deciding or overriding vote +(<span lang="la"><i>bestissende stem</i></span>). Of these five, one is the landrost (magistrate) +of Bloemfontein, another the State Secretary, +both these officials being appointed by the President +<span class='pageno' id='Page_439'>439</span>and confirmed by the Volksraad; the remaining three +are elected by the Volksraad. This Council advises the +President, but does not control his action in matters +which the Constitution entrusts to him, reports its proceedings +annually to the Volksraad, and has the rights, +in conjunction with the President, of pardoning offenders +and of declaring martial law.</p> + +<p class='c001'>Regarding the judicial power only two provisions +require mention. Article 48 declares this power to be +exclusively exercisable by the courts of law established +by law. Article 49 secures trial by jury in all criminal +causes in the superior courts.</p> + +<p class='c001'>Local government and military organization, subjects +intimately connected in Dutch South Africa, occupy +articles 50 to 56 inclusive.</p> + +<p class='c001'>A field cornet is elected by the citizens of each ward, +a field commandant by those of each district, in both +cases from among themselves<a id='r195'></a><a href='#f195' class='c012'><sup>[195]</sup></a>. In case of war, all the +commandants and cornets taken together elect a Commandant-General, +who thereupon receives his instructions +from the President. Those who elected him may, +with the consent of the President, dismiss him and +choose another. Every field cornet and commandant +must have landed property, the latter to the value of +£200 at least.</p> + +<p class='c001'>Article 57 declares Roman-Dutch law to be the +common law of the state<a id='r196'></a><a href='#f196' class='c012'><sup>[196]</sup></a>.</p> + +<p class='c001'>Articles 58 and 59 declare that the law shall be +<span class='pageno' id='Page_440'>440</span>administered without respect of persons and that every +resident shall be held bound to obey it, while articles 60, +61, and 62 guarantee the rights of property, of personal +liberty, and of press freedom.</p> + +<p class='c001'>It will be convenient to defer general criticisms upon +the frame of government established by this Constitution +till we have examined that of the sister republic of the +Transvaal, which agrees with it in many respects. But +we may here briefly note, before passing further, a few +remarkable features of the present instrument.</p> + +<p class='c001'>1. It is a Rigid constitution, <i>i.e.</i> one which cannot be +changed in the same way and by the same authority as +that whereby the ordinary law is changed, but which +must be changed in some specially prescribed form—in +this case, by a three-fourths majority of the Volksraad +in two successive sessions<a id='r197'></a><a href='#f197' class='c012'><sup>[197]</sup></a>.</p> + +<p class='c001'>2. The body of the people do not come in as a voting +power, save for the election of the President and +Commandant-General. All other powers, even that of +amending the constitution, belong to the Volksraad.</p> + +<p class='c001'>3. There is only one legislative chamber.</p> + +<p class='c001'>4. The President has no veto on the acts of the +legislature.</p> + +<p class='c001'>5. The President has the right of sitting in and +addressing the legislature.</p> + +<p class='c001'>6. The President’s Council is not of his own choosing, +but is given him by the legislature.</p> + +<p class='c001'>7. The heads of the executive departments sit neither +in the Council nor in the legislature.</p> + +<p class='c001'>8. The legislature may apparently reverse any and +every act of the President, save those (pardon of offences +<span class='pageno' id='Page_441'>441</span>and declaration of martial law) specially given to him +and the Executive Council.</p> + +<p class='c001'>American readers will have noted for themselves some +few points in this Constitution which have been drawn +from that of the United States. Others are said to have +been suggested by the Constitution framed for the +French Republic in 1848. Comparatively few controversies +upon the construction of the Constitution have +been debated with any warmth. One, which gave rise +to a difference of opinion between the Volksraad and +the Supreme Court of the state, arose upon the question +whether the Volksraad has power to punish a citizen +for contempt by committing him to prison for a long +term, and to direct the State Attorney to prosecute him. +The judges disapproved what they deemed an unconstitutional +stretching of authority by the legislature. +Using the opportunities of influencing public opinion +which the delivery of charges to juries gave them, they +ultimately so affected the mind of the people that the +Volksraad tacitly retired from its position, leaving the +question of right undetermined.</p> + +<h3 class='c013'>III. <span class='sc'>Constitution of the South African Republic.</span></h3> + +<p class='c007'>The South African Republic, or Transvaal State as +it is popularly called, is ruled by a much longer, much +less clear, and much less systematically arranged document +than that established by its sister commonwealth<a id='r198'></a><a href='#f198' class='c012'><sup>[198]</sup></a>. +A considerable part of the contents of this constitution +is indeed unfit, as too minute, for a fundamental instrument +<span class='pageno' id='Page_442'>442</span>of government; and, whatever the intention of +its framers may have been, it has not in fact been treated +as a fundamental instrument. Whether it is really +such, in strict contemplation of law, is a question +often discussed in professional circles in Pretoria and +Johannesburg. I shall summarize the more important +of its provisions—they occupy two hundred and thirty-two +articles—and endeavour therewith to present an +outline of the frame of government which they establish.</p> + +<p class='c001'>The Grondwet (Ground-law) or Constitution was +drafted by a committee of an assembly of delegates and +approved by the assembly itself in February, 1858. It +is in Dutch, but has been translated into English more +than once.</p> + +<p class='c001'>Article 6 declares the territory of the republic open to +every stranger who submits himself to the laws—a provision +noteworthy in view of recent events—and declares +all persons within the territory equally entitled to the +protection of person and property.</p> + +<p class='c001'>Article 8 states, <span lang="la"><i>inter alia</i></span>, that the people ‘permit the +spread of the Gospel among the heathen, subject to +prescribed provisions against the practice of fraud and +deception’; a provision upon whose intention light is +thrown by the suspicions felt by the Boers of the +English missionaries.</p> + +<p class='c001'>Article 9 declares that ‘the people will not tolerate +equality between coloured and white inhabitants either +in church or in state<a id='r199'></a><a href='#f199' class='c012'><sup>[199]</sup></a>.’</p> + +<p class='c001'><span class='pageno' id='Page_443'>443</span>Article 10 forbids slavery or dealing in slaves.</p> + +<p class='c001'>Article 19 grants the liberty of the press.</p> + +<p class='c001'>Articles 20 to 23 formerly declared that the people +would maintain the principles of the doctrine of the +Dutch Reformed Church, as fixed by the Synod of Dort +in 1618 and 1619, that the Dutch Reformed Church shall +be the Church of the State, that no persons shall be +elected to the Volksraad who are not members of that +Church, that no ecclesiastical authority shall be acknowledged +save that of the consistories of that Church, and +that no Roman Catholic Churches, nor any Protestant +Churches save those which teach the doctrine of the +Heidelberg Catechism, shall be permitted within the +republic. But these archaic provisions were in the +revised Grondwet of 1889 reduced to a declaration that +only members of a Protestant Church should be elected +to the Volksraad<a id='r200'></a><a href='#f200' class='c012'><sup>[200]</sup></a>.</p> + +<p class='c001'>After these general provisions we come to the frame +of government. Legislation is committed to a Volksraad, +‘the highest authority of the state.’ It is to consist of +at least twelve members (the number is at present +twenty-four) who must be over thirty years of age and +possess landed property. Each district returns an equal +number of members. Residence within the district is +not required of a candidate. The members were +formerly elected for two years, and one-half retired +annually. Their term was afterwards extended to four +years. Every citizen who has reached the age of twenty-one +enjoys the suffrage<a id='r201'></a><a href='#f201' class='c012'><sup>[201]</sup></a> (persons of colour are of course +<span class='pageno' id='Page_444'>444</span>incapable of voting or of being elected). The unworkable +provision of the old Grondwet that ‘any matter discussed +shall be decided by three-fourths of the votes’ +was subsequently repealed.</p> + +<p class='c001'>Three months are to be given to the people for +intimating to the Volksraad their opinion on any proposed +law, ‘except laws which admit of no delay’ (§ 12), +but laws may be discussed whether published three +months before their introduction or introduced during +the session of the Volksraad (§ 43). The sittings are +to open and close with prayer, and are to be public, +unless the chairman or the President of the Executive +Council deems secrecy necessary.</p> + +<p class='c001'>If the high court of justice declares the President, +or any member of the Executive Council, or the Commandant-General, +unfit to fill his office, the Volksraad +shall remove from office the person so declared unfit +and shall provide for filling the vacant office.</p> + +<p class='c001'>The administration, as well as the proposal, of laws +was by the old Grondwet given to an Executive Council +(§ 13). The revised instrument vests it in the State President. +The President is elected for five years by the +citizens voting all over the country. He must have +attained the age of thirty and be a member of a Protestant +(formerly of the Dutch Reformed) Church (§ 56). +He is the highest officer of the state, and appoints all +officials. All public servants, except those who administer +justice, are subordinate to him and under his +<span class='pageno' id='Page_445'>445</span>supervision. In case of his death, dismissal, or inability +to act, his functions devolve on the oldest member of +the Executive Council till a new appointment is made. +The Volksraad shall dismiss him on conviction of any +serious offence. He is to propose laws to the Volksraad—‘whether +emanating from himself or sent in to +him by the people’—and support them in that body +either personally or through a member of the Executive +Council. He has, however, no right to vote in the Volksraad. +He recommends to the Volksraad persons for +appointment to public posts; and may suspend public +servants, saving his responsibility to the Volksraad. He +submits an estimate of revenue and expenditure, reports +on his own action during the past year and on the +condition of the republic, visits annually all towns +and villages where any public office exists to give +due opportunity to the inhabitants of stating their +wishes.</p> + +<p class='c001'>The Executive Council consists of four official members +besides the President, namely, the State Secretary, the +Commandant-General, the Superintendent of Native +Affairs, and the Keeper of Minutes (<span lang="de"><cite>Notulenhouder</cite></span>), and +of two other members. All except the Commandant-General +are elected by the Volksraad; the Secretary for +four years, the two other members for three years. The +Commandant-General is elected by the burghers of the +whole republic for ten years. All, including the President, +are entitled to sit, but not to vote, in the Volksraad, +The President and Council carry on correspondence +with foreign powers, and may commute or remit a penal +sentence. A sentence of death requires the unanimous +confirmation of the Council. The President may, with +<span class='pageno' id='Page_446'>446</span>the unanimous consent of the Council, proclaim war +and publish a war ordinance summoning all persons +to serve (§§ 23, 66, 84).</p> + +<p class='c001'>The provisions relating to the military organization +(§§ 93-114) are interesting chiefly as indicating the +highly militant character of the republic. Express provision +is made not only for foreign war and for the +maintenance of order at home, but also for the cases +of native insurrection and of disaffection or civil war +among the whites. The officers are all elected by the +burghers, the Commandant-General by the whole body +of burghers for ten years, the commandants in each +district for five years, the field cornets and assistant field +cornets in the wards for three years.</p> + +<p class='c001'>The judiciary (§§ 115-135) consists of landrosts (magistrates +who also discharge administrative duties), heemraden +(local councillors or assessors), and jurors. The +provisions regarding the exercise of judicial power are +minute and curious in their way, but have no great +interest for constitutional purposes. Two landrosts are +proposed to the people of the judicial district by the +Executive Council, and the people vote between these +two. Minute provisions regarding the oaths to be taken +by these officials and by jurymen, and regarding the +penalties they may inflict, fill the remaining articles. +A guarantee for the independence of the courts is to +be found in the general statement in article 15 that ‘the +judicial power is vested in landrosts, heemraden, and +jurors,’ and in the declaration (§ 57) that the judicial +officers are ‘left altogether free and independent in the +exercise of their judicial power.’ A High Court and +a Circuit Court, not provided for in the old Grondwet, +<span class='pageno' id='Page_447'>447</span>appear in that of 1889, and are appointed for life. The +High Court consists of a chief justice and four puisne +judges.</p> + +<p class='c001'>The old Grondwet also contained some curious details +relating to civil administration (which was primarily +entrusted to the judicial officers, supported by the commandants +and field cornets), and the revenue of the +State, which was intended to be drawn chiefly from fees +and licences, the people having little disposition to be +directly taxed. The farm tax was not to exceed forty +dollars, and the poll-tax, payable by persons without or +with only one farm, was fixed at five dollars annually. +Five dollars was the payment allowed to each member +of the Volksraad for each day’s attendance. Most of +these provisions have disappeared from the instrument +of 1889. The salary of the President of the Council, +which had been fixed at 5,333 dollars, 2 schellings, and +4 stuivers, to be increased as the revenue increased, +now amounts to £7,000 sterling ($35,000) per annum, +besides allowances.</p> + +<p class='c001'>The most considerable change made since 1889 was +the establishment, in 1890, of a chamber called the +Second Volksraad, which is elected on a more liberal +basis than the First Volksraad, persons who have +resided in the country for two years, have taken an +oath of allegiance and have complied with divers other +requirements, being admissible as voters. This assembly, +however, enjoys little real power, for its competency +is confined to some specified matters, and to such others +as the First Volksraad may refer to it; and its acts may +be overruled by the First Raad, whereas the Second +Raad has no power of passing upon the resolutions or +<span class='pageno' id='Page_448'>448</span>laws enacted by the First Raad. The Second Volksraad +is, therefore, not a second chamber in the ordinary sense +of the term, such as the Senate in American States +or the House of Lords in England, but an appendage +to the old popular House. It was never intended to +exercise much power, and was, in fact, nothing more +than a concession, more apparent than real, to the +demands of the Uitlanders, or recent immigrants excluded +from citizenship.</p> + +<p class='c001'>A few general observations may be made on this +Constitution before we proceed to examine its legal +character and effect.</p> + +<p class='c001'>It was in its older form a crude, untechnical document, +showing little trace on the part of those who +drafted it either of legal skill or of a knowledge of +other constitutions. The language was often vague, +and many of the provisions went into details ill-fitted +for a fundamental law.</p> + +<p class='c001'>Although enacted by and for a pure democracy, it +was based on inequality—inequality of whites and blacks, +inequality of religious creeds. Not only was the Dutch +Reformed Church declared to be established and +endowed by the State, but Roman Catholic churches +were forbidden to exist, and no Roman Catholic nor +Jew nor Protestant of any other than the Dutch +Reformed Church was eligible to the presidency, or to +membership of the legislature or executive council. +In its improved shape (1889) some of these faults have +been corrected, and in particular the religious restrictions +were reduced to a requirement that the President, +the Secretary of State, the Landrosts and the members +of the Volksraad should belong to a Protestant Church. +<span class='pageno' id='Page_449'>449</span>The door, however, remained barred against persons +of colour.</p> + +<p class='c001'>It contained and still contains little in the nature of +a Bill of Rights, partly perhaps from an oversight on the +part of its draftsmen, but partly also owing to the assumption—which +the early history of the republic amply +verified—that the government would be a weak one, +unable to encroach upon the rights of private citizens.</p> + +<p class='c001'>The first legal question which arises upon an examination +of this Constitution relates to its stability and +permanence. Is it a Rigid or a Flexible Constitution? +That is to say, can it, like the constitution of the Orange +Free State and that of the United States, be altered +only in some specially prescribed fashion? Or may it +be altered by the ordinary legislature in the ordinary +way, like any other part of the law?</p> + +<p class='c001'>In favour of the former alternative, that the constitution +is a Rigid one, appeal has been made not only +to the name Grondwet (Ground-law), but, which is of +more consequence, to some of its language. The general +declarations of the power of the people, the form in +which they entrust power to the legislature, to the +Executive Council, and to the judiciary respectively (as +well as to the military authority), look as if meant to +constitute a triad of authorities, similar to that created +by the constitutions of American States, no one of which +authorities may trespass on the province of the others. +Some things seem intended to be secured against any +alteration by the legislature, <i>e.g.</i>, article 9 declares that +‘the people will not allow of any equality between +coloured and white inhabitants’; article 11 declares +that ‘the people reserve to themselves the exclusive +<span class='pageno' id='Page_450'>450</span>right of protecting and defending the independence and +inviolability of Church and State, according to the laws.’</p> + +<p class='c001'>On the other hand, it is argued that the constitution +must be deemed to be a Flexible one, because it did +not in its original form, and does not now, contain any +provision whereby it may be altered, otherwise than by +the regular legislature of the country acting according +to its ordinary legislative methods. One cannot suppose +that no change was intended ever to be made in +the Grondwet. That supposition would be absurd +in view of the very minute provisions on some trivial +subjects which it contains. No distinction is drawn, by +the terms of the instrument, between these minutiae +and the provisions of a more general and apparently +permanent nature. <em>Ergo</em>, all must be alterable, and +alterable by the only legislative authority, that is to say, +the Volksraad. This view, moreover, is the view which +the legislature has in fact taken, and in which the people +have certainly acquiesced. Some changes have been +made—such as the admission to the electoral franchise +of persons not belonging to the Dutch Reformed +Church, the creation of a new supreme court, and the +establishment of a Second Volksraad—which are not +consistent with the Grondwet, but whose validity has +not been contested.</p> + +<p class='c001'>The difficulty which arises from the fact that, whereas +the framers of the Grondwet appear to have desired to +make parts of their work fundamental and unchangeable, +they have nevertheless drawn no distinction between +those parts and the rest, and have provided no +specific security against the heedless change of the +weightiest parts, may be explained by noting that they +<span class='pageno' id='Page_451'>451</span>were not skilled jurists or politicians, alive to the +delicacy of the task they had undertaken. They expected +that the Volksraad would continue to be of the same +mind as they were then, and would respect what they +considered fundamental; they relied on the general +opinion of the nation. They had, moreover, provided +a method whereby the nation should always have an +opportunity of expressing its opinion upon legislation, +namely, the provision (§ 12) that the people should have +a period of three months within which to ‘intimate +to the Volksraad their views on any proposed law,’ it +being assumed that the Volksraad would obey any +such intimation, although no means is provided for +securing that it will do so.</p> + +<p class='c001'>This provision has given rise to a curious question. +It excepts ‘those laws which admit of no delay.’ Now +the Volksraad has in fact neglected the general provision, +and, instead of allowing the three months’ period, +has frequently hastily passed enactments upon which +the people have had no opportunity of expressing their +opinion. Such enactments, which have in some instances +purported to alter parts of the Grondwet itself, +are called ‘resolutions’ (<span lang="de"><cite>besluite</cite></span>) as opposed to laws; +and when objection has been taken to this mode of +legislation, these resolutions seem to have been usually +justified on the ground of urgency, although in fact many +of them, if important, could hardly be called urgent. +They have been treated as equally binding with laws +passed in accordance with the provisions of the Grondwet +(for up to 1895 article 12 seems not to have been +formally altered); and it is only recently that their +validity has been seriously questioned in the courts. +<span class='pageno' id='Page_452'>452</span>Those who support their validity argue that in passing +such resolutions as laws, the Volksraad must be taken +to have implicitly, but decisively, repealed the provision +of article 12; or that, if this be not so, still the Volksraad +is under article 12 the sole judge of urgency, and +can legally treat things as urgent which are, in fact, +not so; a view affirmed by the Chief Justice in a case +(<i>State</i> v. <i>Hess</i>) which arose in 1895. They add that +even apart from both these arguments the unbroken +usage of the Volksraad during a number of years, +tacitly approved by the people, must be deemed to +have established the true construction of the Constitution, +especially as according to Roman-Dutch +law, usage, whether affirmative or negative, can alter +written enactments and could thus annul the directions +of article 12. So it is written in the Digest of +Justinian (I. 3. 32): <span lang="la">‘Inveterata consuetudo pro lege +custoditur ... nam quid interest suffragio populus +voluntatem suam declaret an rebus ipsis et factis? +Quare rectissime etiam illud receptum est ut leges non +solum suffragio legis latoris, sed etiam tacito consensu +omnium per desuetudinem abrogentur.’</span> To this, however, +it is answered that the principle of obsolescence +by contrary practice cannot fitly be applied where a +statute is recent and express.</p> + +<p class='c001'>Until 1897, the High Court of the Transvaal had +held that the resolutions as well as the laws passed by +the Volksraad were fully valid, whether or no they had +been submitted to the people for the period of three +months, nor had the question of their being really +urgent been raised. It had thus declared the Grondwet +to be alterable by the Legislature, and so not a Rigid +<span class='pageno' id='Page_453'>453</span>Constitution. In that year, however, in the case of +<i>Brown</i> v. <i>Leyds</i>, the Court held, by a majority, that a +law which had been passed without having been submitted +to the people during the period prescribed by +the Grondwet was unconstitutional and therefore void, +thus appearing to assert (for the language of the judgement +is not very clear) the view that the Grondwet was +a Rigid Constitution, not alterable by the Legislature. +This action was warmly resented by the Executive and +Legislature: and the latter passed a resolution directing +the President to require from every judge on pain of dismissal +a declaration that he would in future recognize as +valid every law passed by the Volksraad, and not again +assert the so-called ‘testing power’ of inquiring whether +a law conformed to the provisions of the Grondwet. +The Chief Justice refused to make this declaration, and +was accordingly dismissed, much to the regret of those +who remembered his past services to the State.</p> + +<p class='c001'>On a review of the whole matter, apart from the +political passion which has been brought into it, the +true view would appear to be the following, though +I state it with the diffidence becoming a stranger who is +also imperfectly informed as to the constitutional history +of the republic.</p> + +<p class='c001'>The Grondwet of the South African Republic, though +possibly intended by its framers to be treated, in +respect of its most important provisions, as a fundamental +law not to be altered by the Volksraad in the +exercise of its ordinary powers, is not really a Rigid +constitution but a Flexible one. We have to look not +so much at what the framers may have wished as at +what the language employed actually conveys and imports; +<span class='pageno' id='Page_454'>454</span>and the absence of any provision, such as that +contained in the Constitution of the Orange Free State, +for a special and peculiar method of change, is decisive +upon this point. An American lawyer, accustomed to +construe strictly documents which contain or modify +powers, might be inclined to argue that the validity of +laws (not dealing with matters which ‘admit of no delay’) +which had been passed as mere resolutions, ignoring +article 12, may have been doubtful until the Volksraad +modified that article by legislation. But the Transvaal +High Court had held that the question of urgency was +a question for the discretion of the Volksraad; and it +must be added that persons accustomed to other legal +systems do not necessarily proceed upon American +principles. The Swiss, for instance, make their legislature +the interpreter of the Constitution for the purpose +of determining the extent of legislative power<a id='r202'></a><a href='#f202' class='c012'><sup>[202]</sup></a>. Allowing +for this, and remembering that both the law courts and +the whole people had until 1897 treated the Volksraad +as an absolutely sovereign body, the action it took in +asserting its sovereignty need excite no surprise. It +was claiming nothing more than the powers actually +enjoyed by the British Parliament. However, although +the Volksraad was merely enforcing the rights which +it reasonably (and I think correctly) conceived itself to +possess, and could not have permitted the majority of the +High Court to assert a power previously unknown, +a wiser course would have been to amend the Constitution +in some way which would have given to the judiciary +a more assured position than that which had been +secured to them by a confessedly crude and imperfect +<span class='pageno' id='Page_455'>455</span>instrument. It was through the confused language of +the Grondwet that the whole difficulty arose, and while +formally declaring that the Grondwet was not—as it +certainly was not—a Rigid Constitution, the Volksraad +ought to have endeavoured to render it more suited +to the needs of a society which had grown to be different +from that for which it had been originally enacted.</p> + +<h3 class='c013'><span class='sc'>IV. Observations on the character and working<br> of both Constitutions.</span></h3> + +<p class='c007'>The principles of these Constitutions are highly democratic. +They were intended so to be. Among the whites +settled in these wide territories there prevailed a perfect +social equality, a passionate love of independence, and +a strong sense of personal dignity. They were as little +influenced by political theories as it was possible for any +civilized men in this century to be. Their wish for a +government purely popular, and indeed for very little +of any government at all, was due to their personal experience +and to the conditions under which they found +themselves in the wilderness; and one may doubt whether +they would have established a regular government but +for the dangers which threatened them from the warlike +native tribes. Such sentiments as I have described +would have disposed them, had they lived in a city, or +in a small area like the cantons of Uri or Appenzell +in Switzerland, to have kept legislation and the determination +of all grave affairs in the hands of a general +meeting of the citizens. But they lived scattered over +a vast wilderness, with no means of communication save +ox-wagons which travel only some twelve miles a day. +In the Orange River Territory when it became a state +<span class='pageno' id='Page_456'>456</span>there were probably less than three thousand citizens, +though its area was nearly that of England. Hence +primary assemblies were impossible, and power had to +be entrusted to a representative body.</p> + +<p class='c001'>The predominance of the legislature is the most +conspicuous feature of both these constitutions. The +Transvaal Volksraad originally made all the appointments +to the civil service, for the President had only the right +of proposing, and even in the revised Grondwet of 1889 +the Raad retains the right of approving or disapproving +the President’s appointments. In both republics the +Volksraad appoints a majority of the Executive Council +which surrounds the President, to advise, but also to +watch and check him. It has complete control of +revenue and expenditure. It may change the constitution, +though, in the Orange Free State, only by +a prescribed majority. The President has no veto on +its acts; nor is it, as in most modern free countries, +divided into two chambers likely to differ from and +embarrass one another. Its vote, which may, if it +pleases, be a single vote, given under no restrictions +but those of its own making, is decisive.</p> + +<p class='c001'>The comparative feebleness of the other branches of +government corresponds to the overwhelming strength +of the legislature. The authority of the judiciary received +from the first a somewhat vague recognition, and +its independence was at one time, in the South African +Republic, seriously threatened by the executive and +legislature, and saved only by the exertions of the bench +and bar, which aroused public opinion on its behalf. +The later controversy between the Volksraad and the +Chief Justice has been already discussed. In the Free +<span class='pageno' id='Page_457'>457</span>State the Court’s claim to be the proper and authoritative +interpreter of the constitution, which would be clear +upon English or American principles, was never formally +admitted. And though the judges are in both republics +appointed for life, their salaries are at the mercy of +the legislature.</p> + +<p class='c001'>The executive head of the government has no doubt +the advantage, as in an American State, of being directly +chosen by the people, and not, as in France, by the +legislature. But he has no veto on acts of the legislature, +while his acts can be overruled by it, at least in +the Orange Free State, for in the Transvaal this may be +more doubtful. Its approval is required to any appointments +he may suggest. He is hampered by an Executive +Council which he has not himself selected, resembling +in this respect an American State governor rather than +the President of the Union. It may, in the Free State, +try him and depose him if convicted. He has no military +authority, such as that enjoyed by the British Crown +and its ministers, or by the American President, for +that belongs to the Commandant-General (though in the +Orange Free State the Commandant ‘receives instructions’ +from the President).</p> + +<p class='c001'>Against all these sources of weakness there are only +two things to set. The President can speak in the +Volksraad, and he is re-eligible any number of times.</p> + +<p class='c001'>The Executive Council, as already observed, seems +intended to restrain the President, while purporting to +aid and advise him. It may be compared to the Privy +Council of mediaeval England, with the important difference +that it is appointed, not by the executive, but partly +by the legislature, partly by the people. As we shall +<span class='pageno' id='Page_458'>458</span>see presently, it has proved to be an unimportant part +of the machinery of government.</p> + +<p class='c001'>In all these points the two constitutions present a +close likeness. They are also similar in the recognition +which they originally gave, and have not wholly ceased +to give, to a state church—an institution opposed to +democratic ideas in America and in the British Colonies—as +well as in their exclusion of persons of colour from +every kind of political right. It would appear that upon +this point there has never been any substantial difference +of opinion in the two republics. Neither indeed is +there much difference of opinion in the British parts of +South Africa, for although the influence of English +ideas has been so far felt that in Cape Colony persons +of colour are permitted to vote, still the combination of +a property qualification with an educational qualification +greatly restricts their number. A republican form of +government, therefore, does not necessarily appear to +make for ‘human rights’ in the American sense of that +term, any more than it did in the United States in 1788.</p> + +<p class='c001'>Speaking generally, these two Constitutions carry +the principle of the omnipotence of the representative +chamber to a maximum. This will be more clearly +seen if we compare the system they create, first with +the cabinet system of Britain and her self-governing +colonies, and secondly with the presidential system of +the United States.</p> + +<p class='c001'>The main differences between the South African +scheme of government and the British may be briefly +summarized.</p> + +<p class='c001'>The head of the executive is, in the South African +republics, chosen directly by the people, whereas in +<span class='pageno' id='Page_459'>459</span>Britain and her colonies the executive ministry is virtually +chosen by the legislature<a id='r203'></a><a href='#f203' class='c012'><sup>[203]</sup></a>, though nominally by the +Crown or its local representative.</p> + +<p class='c001'>In these republics the executive cannot, as can +ministers under the British system, be dismissed by +a vote of the legislature, nor on the other hand has the +executive the power of dissolving the legislature.</p> + +<p class='c001'>In these republics the nominal is also the real and +acting executive head, whereas in the British system +a responsible ministry is interposed between the nominal +head and the legislature.</p> + +<p class='c001'>In all the above-mentioned points the South African +system bears a close resemblance to the American.</p> + +<p class='c001'>In these republics the President’s Council need not +consist of persons in agreement with his views of +policy. It may even be hostile to him, as part of Warren +Hastings’s council at Calcutta was in permanent opposition +to that governor. Nor does the Executive Council +consist, like the (normal) British cabinet and United +States Federal cabinet, of the heads of the great +administrative departments, though several officials sit +in it.</p> + +<p class='c001'>On the other hand, the South African system agrees +with the British in permitting the head of the working +executive to speak in the legislature, a permission which +has proved to be of the highest importance, and +which in America is given by usage neither to the +Federal President<a id='r204'></a><a href='#f204' class='c012'><sup>[204]</sup></a> nor to a State governor.</p> + +<p class='c001'><span class='pageno' id='Page_460'>460</span>The chief differences between the South African and +the American system are the following:—</p> + +<p class='c001'>The President has, in the South African republics, +far less independence than belongs in the United States +to either a Federal President or to the Governor of a +State. He has no veto on acts of the legislature, and +less indirect power through the patronage at his disposal. +Moreover, the one-chambered legislature is much +stronger as against him than are the two-chambered +legislatures of America, which may, and frequently do, +differ in opinion, so that the President or Governor can +play off one against the other. Further, as already +observed, an American Federal President has a cabinet +of advisers whom he has himself selected, and an +American State governor has usually officials around +him who, being elected by a party vote at the same +election, are probably his political allies; whereas a +South African President might possibly have an Executive +Council of opponents forced on him by the Volksraad. +And even in negotiations with foreign states, he cannot +act apart from this Executive Council.</p> + +<p class='c001'>The distinctive note of both these South African +Constitutions is the kind of relation they create between +the Executive and the Legislature. These powers are +not disjoined, as in the United States, because a South +African President habitually addresses and may even +lead the Volksraad. Neither are they united, as in +Britain and her colonies, where the Executive is at the +same time dependent on the legislature, and also the +leader of the legislature, for the South African President +is elected by the people for a fixed term, and cannot be +displaced by the Volksraad. He combines the independence +<span class='pageno' id='Page_461'>461</span>of an American President with the opportunities +of influencing the legislature enjoyed by a +British, or British colonial, Ministry. For nearly all +practical purposes he is at the mercy of the legislature, +because he has neither a veto, like the American +President, nor a power of dissolution, like the British +Ministry. The Volksraad could take all real power +from him, should it be so minded. But he is strong +by the possession of the two advantages just mentioned. +He can persuade his Volksraad, which has not, by +forming itself into organized parties, become inaccessible +to persuasion. He can influence the opinion of his +people, because he is their choice, and a single man in +a high place fixes the attention and leads the minds of +a people more than does an assembly.</p> + +<p class='c001'>It must, however, be remembered that the features—perhaps +one may say the merits—which I have noted +as shown in the working of the South African system, +belong rather to small than to large communities. The +Free State had in 1895 only some seventeen thousand +voting citizens, the Transvaal not many more. Athens +in the days of Themistocles had about thirty thousand. +In large countries, with large Legislatures, whose size +would engender political parties, things would work out +differently. Furthermore, in a large State, the administrative +departments would be numerous and their work +heavy. The President could not discuss departmental +affairs with the Raad, and could not easily be made +personally responsible for all that his administrative +officers did. And the less knowledge he had of affairs +and of persons, the less influence he exerted over the +Raad, the more would his Executive Council tend to +<span class='pageno' id='Page_462'>462</span>check him. Its members would probably intrigue with the +leaders of parties in the Volksraad, and make themselves +a more important factor in the government than they +have been while overshadowed by his personality.</p> + +<p class='c001'>Any one who, knowing little or nothing about the +social conditions and the history of these two republics, +should try to predict the working of their +governments from a perusal of their constitutions, would +expect to find them producing a supremacy, perhaps +a tyranny, of the representative assembly; for few +checks upon its power are to be found within the four +corners of either instrument. He would be prepared +to see party government develop itself in a pronounced +form. Power would be concentrated in the party +majority and its leaders. The Executive would become +the humble instrument of their will. The courts of +law, especially in the Transvaal with its Flexible constitution, +would be unable to stem the tide of legislative +violence. The President might perhaps attempt to +resist by producing a deadlock over appointments; and +he would have a certain moral advantage in being the +direct choice of the people. But the one-chambered +Legislature would in all probability prevail against him.</p> + +<p class='c001'>Is this what has in fact happened? Far from it. +Party government, in the English and American sense, +has not made its appearance. The Legislature has not +become the predominant power, subjecting all others +to itself. It has, in general, followed the lead of the +Executive. The Courts of law, though (in the Transvaal) +at one moment menaced, have administered justice with +fairness and independence. But in order to describe +what has happened, I must, in a very few sentences, +<span class='pageno' id='Page_463'>463</span>deal separately with the Orange Free State and the +South African Republic, for though their constitutions +are similar and the origin of their respective populations +nearly identical<a id='r205'></a><a href='#f205' class='c012'><sup>[205]</sup></a>, their history has been very different.</p> + +<p class='c001'>The Orange Free State had, for many years prior to +1899, a comparatively tranquil and uneventful career. +One native war inflicted some injury upon it, but the +result of that war was to give it a strip of valuable territory. +It had joined the British colonies in a South +African Customs Union, had placed its railroads under the +management of the Cape Government, had maintained +friendly relations with the two British self-governing +colonies, had extended the franchise to immigrants on +easy terms, and was at all times recognized as absolutely +independent by the British Government. Internally its +development, if not rapid, was both steady and healthful. +There was no poverty among the people, and hardly any +wealth. No exciting questions arose to divide the +citizens, and no political parties grew up. The Legislature, +although too large, has been a sensible, businesslike +body, which wasted no more time than debate +necessarily implies. From 1863 to 1888 it was guided +by the counsels of President Brand, whom the people +elected for five successive terms, and whose power of +sitting in it and addressing it proved of the utmost value, +for his judgement and patriotism inspired perfect confidence. +His successor Mr. Reitz, who was obliged by +ill-health to retire from office in 1895, enjoyed equal +respect and almost equal influence, when he chose to +exert it, with the Volksraad, and things went smoothly +<span class='pageno' id='Page_464'>464</span>under him, as they promised to do under President +Steyn, who was elected in 1896, for the latter also was +believed—so I heard when visiting the Free State in +1895—to possess the qualities which had endeared his +predecessors to the community. The Executive Council +has not proved to be a very valuable part of the scheme +of government; and some judicious observers thought +the constitution ought to be amended by strengthening +the position of the courts and introducing provisions for +a popular vote on constitutional amendments, similar +to those which exist in American States and in Switzerland. +But, on the whole, the system of government +worked smoothly, purely and efficiently; the Legislature +was above suspicion, and the people were content +with their institutions.</p> + +<p class='c001'>Very different had been the annals of the South +African Republic. Soon after the Grondwet was +adopted in 1858, a civil war broke out; and from that +time onward factions and troubles of all kinds were +seldom wanting. In 1877 the country, then threatened +by native enemies, was annexed to the British +dominions against the will of the people: in 1881 its +autonomy was restored, subject to British suzerainty<a id='r206'></a><a href='#f206' class='c012'><sup>[206]</sup></a>. +Its government, however, continued to be pressed by +financial and other difficulties, till the discovery of rich +gold-fields in 1884-6, while suddenly increasing the +revenue, drew in a stream of immigrants which has +steadily continued to flow, and therewith raised that new +crop of political troubles of which all the world has +<span class='pageno' id='Page_465'>465</span>heard<a id='r207'></a><a href='#f207' class='c012'><sup>[207]</sup></a>. The result has been that the Constitution has +never had any period of comparative peace in which +its working could be fairly tested. If it has not worked +as smoothly as that of the Free State, this may be +due not merely to inherent defects but to the strain +which civil and foreign wars have placed upon it. +The Legislature, however, has not played the leading +part. President Burgers, who held office from 1872 +till 1877, was, like President M. W. Pretorius before +him, practically more powerful than the Volksraad; +and since 1881 President Kruger, who has been thrice +re-elected, has been the ruling force in the politics of +the country. By his influence over the people, by his +constant presence and speeches in the Volksraad, he +threw its leaders entirely into the shade, and probably +exerted more actual power than the chief magistrate of +any other republic, though there was scarcely any other +chief magistrate whose legal authority was confined +within such narrow limits. So much may foreign +troubles or economic and social facts, and so much +do the qualities of individual men, affect and modify +and prevail over the formal rules and constitutional +machinery of government. The Legislature therefore +<span class='pageno' id='Page_466'>466</span>has not had in the Transvaal that career of encroachment +upon and triumph over the other authorities in +the State which might have been predicted for it. Its +turn might have come when external relations were +tranquil and domestic controversies arose. When +foreign affairs occupy men’s minds, and call for rapid +decision as well as for continuity of policy, the Legislature +is apt to be, in all countries, dwarfed by the +Executive.</p> + +<div class='nf-center-c0'> +<div class='nf-center c015'> + <div><span class='sc'>Postscript.</span></div> + </div> +</div> + +<p class='c007'>Since the foregoing sketch of these remarkable experiments +in the construction of Frames of Government +was written (in 1896), both the Dutch republics have +become involved in a deplorable war with England, +which has lasted for many months, and still continues +at the time of this writing. It has brought +misery and desolation upon South Africa, and not least +upon that singularly happy, prosperous, peaceful and +well-governed community, the Orange Free State. +While the flames are still raging, no one can conjecture +in what form these two constitutions will emerge +from the furnace, or whether indeed they will survive +at all. In the midst of so terrible a catastrophe, a +catastrophe unredeemed by any prospect of benefit to +any of the combatants, and one whose results must +be fateful in many ways for the future of South Africa, +and possibly also of Britain, the destruction or transformation +of constitutions seems but a small matter. +But had these two republics been suffered to continue +the normal course of their constitutional development, +that development would have been full of interest. +<span class='pageno' id='Page_467'>467</span>It might even have conveyed valuable instruction or +suggested useful examples to other small commonwealths, +for in the scheme of these Constitutions, +and especially in that of the Free State, there are +some merits not to be found either in the American +or in the British system. These simple Free State +farmers were wiser in their simplicity than some of +the philosophers who have at divers times planned +frames of government for nascent communities. But +though Wisdom is justified of all her children, she +cannot secure that her children shall survive the shock +of arms.</p> + +<div class='chapter'> + <span class='pageno' id='Page_468'>468</span> + <h2 id='eVIII' class='c005'>VIII <br> <br> THE CONSTITUTION OF THE <br> COMMONWEALTH OF AUSTRALIA</h2> +</div> + +<h3 class='c013'>I. <span class='sc'>Introductory.</span></h3> + +<p class='c007'>Australia is the first instance in history of a whole +continent whose inhabitants are all (if we exclude the +vanishing aborigines) of one race and all owe one +allegiance. Thus it has supplied the only instance in +which a political constitution has been, or could have +been, framed for a whole continent. It is moreover +one of the very few cases in history in which a number +of communities politically unconnected (save by their +common allegiance to a distant Crown) who had felt +themselves to be practically a nation have suddenly +transformed themselves into a National State, formally +recognizing their unity and expressing it in the national +institutions which they proceeded to create. There +could hardly be a more striking illustration of the +speed with which events have been moving during the +last and the present age than the fact that Australia, +or New Holland as it was then called, was, except as +to part of its coasts, marked as a <span lang="la"><i>Terra Incognita</i></span> upon +our maps so late as the beginning of the eighteenth +century, that the first British settlement was not planted +in it at Sydney (not far from Captain Cook’s Botany +<span class='pageno' id='Page_469'>469</span>Bay) till 1788, that responsible government was not +conferred upon the oldest colony, New South Wales, +until 1855, nor upon West Australia till 1890.</p> + +<p class='c001'>Besides the interest with which every one must see +the birth of a new nation, occupying a vast and rich +territory, the student of political science finds further +matter for inquiry and reflection in the enactment of +an elaborate constitution for the Commonwealth of +Australia. Every creation of a new scheme of government +is a precious addition to the political resources +of mankind. It represents a survey and scrutiny of the +constitutional experience of the past. It embodies an +experiment full of instruction for the future. The +statesmen of the Convention which framed this latest +addition to the world’s stock of Instruments of Government +had passed in review all previous experiments, +had found in them examples to follow and other +examples to shun, had drawn from them the best +essence of the teachings they were fitted to impart. +When the Convention prepared its highly finished +scheme of polity, it delivered its judgement upon the +work of all who had gone before, while contributing +to the materials which will be available for all who +come hereafter to the work of building up a State.</p> + +<p class='c001'>Nearly all the precedents which the Australian Convention +had at its disposal belong to very recent times, +in fact to the last century and a half. Though federal +governments are ancient—the oldest apparently is that +formed by the cities of Lycia in the fourth century <span class='fss'>B.C.</span>—the +ancient federations scarcely got beyond the form of +leagues of small republics for the purpose of common +military defence. Such leagues never quite grew into +<span class='pageno' id='Page_470'>470</span>Federal States, properly so called, <i>i.e.</i> States in which +the central government exercises direct power over the +citizens of the component communities. The same +remark applies to the confederacies of the Middle Ages, +such as that of the Hanse Towns and that of the old +Swiss Cantons, as well as to the United Provinces of +the Netherlands. The first true Federal State founded +on a complete and scientific basis was the United +States, which dates from 1788, when its present Constitution +was substituted for the Articles of Confederation +of 1776. Next came the Constitution of the Swiss +Confederation, enacted in 1848, and replacing a much +looser form of union which had previously joined the +Cantons of Switzerland. Its present amended form +dates from 1874. The third was the Constitution of +Canada, established by the British North America +Act of 1867. Still later came the Constitution of the +North German Confederation (1866) enlarged into that +of the new Germanic Empire (1871), a remarkable +Federal State with a monarch for its head, and including +as its members both large kingdoms, such as Bavaria +and Würtemberg, and the city republics of Lübeck, +Bremen, and Hamburg<a id='r208'></a><a href='#f208' class='c012'><sup>[208]</sup></a>. But this last-named Federation, +instructive as it is, deals with conditions too +dissimilar from those of Australia to furnish many precedents +in point. It was the Constitutions of the United +States and of Canada which the Australians studied +most carefully, and whence they drew as well inspiration +as many useful suggestions. And the student who +<span class='pageno' id='Page_471'>471</span>examines the Australian scheme will find it interesting +to note many points that recall, by way either of likeness +or of contrast, the systems of the United States, of +Switzerland, and of Canada. It is only with these +three that I propose to compare the Australian Constitution +in the pages that follow. As I am writing +not for lawyers but for students of history and of +constitutions, who desire to understand the nature of +this new Government sufficiently to follow with intelligence +the course of political life under it, I shall pass +lightly over its more technical and more purely legal +aspects, and dwell rather upon those general features +which will give to the future Australian polity its +character and spirit.</p> + +<h3 class='c013'>II. <span class='sc'>The Movement for Federation.</span></h3> + +<p class='c007'>Like the settlements of Britain in North America, +the Australian settlements were organized as Colonies +at different dates, and several of them independently of +the others<a id='r209'></a><a href='#f209' class='c012'><sup>[209]</sup></a>. So, again like those of North America, +each remained legally unconnected with the others, +except through the allegiance they all owed to the +British Crown, which sent out Governors to administer +them. These officers were at first practically despotic; +but when self-government was conferred upon a Colony, +they became the nominal heads of an executive which +in fact consisted of ministers responsible to the elective +legislature of that Colony.</p> + +<p class='c001'><span class='pageno' id='Page_472'>472</span>Little as there was in the way of official connexion +between the scattered settlements, their inhabitants +always deemed themselves Australians, giving their +sentimental attachment rather to the country as a whole +than to their respective colonies. They were all +English; they all lived under similar conditions: their +local life had not lasted long enough to form local +traditions with which sentiment could entwine itself. +The very names of some of the colonies did not favour +individualization, for who would call himself a New-southwalesian? +And the idea that the colonies ought +to be united into one political body emerged very early. +As far back as 1849 a Committee in England had recommended +that there should be a Governor-General +for all Australia, with power to convene a General +Assembly to legislate on matters of common colonial +interest, and a bill introduced into Parliament in that +year contained clauses for establishing such a legislature. +These provisions were dropped, for the time was +not ripe, yet the idea continued to occupy the minds of +Australian statesmen from that year onwards; and +it received a certain impulse from the creation of the +Canadian Confederation in 1867. What it wanted was +motive power, that is to say, a sense of actual evils or +dangers to be averted, of actual benefits to be secured, +by the union of the Colonies into one National State. +Democratic communities, occupied by their own party +controversies, are little disposed to deal with questions +which are not urgent, and which hold out no definite +promise either of benefit to the masses or of political +gain to the leaders. However, in 1883 events occurred +which evoked a new Pan-Australian feeling, and indicated +<span class='pageno' id='Page_473'>473</span>objects fit to be secured by a united Australian +government. The late Lord Derby, then Secretary +of State for the Colonies, was the most cautious and +unsentimental of mankind. He belonged to the old +school of English statesmen who deprecated—and in +some cases wisely deprecated—further additions to the +territories and responsibilities of Britain. Disregarding +the representations of the Governments of several +among the Colonies, he neglected to occupy the +northern part of the great neighbouring island of +New Guinea which Australian opinion desired to see +British, and permitted it, to their great vexation, to be +taken by Germany. About the same time the escape +of convicts into Australia from the French penal settlement +in New Caledonia had caused annoyance, and +movements were soon afterwards made by France +which seemed to indicate an intention to appropriate the +New Hebrides group of islands. These occurrences +roused the Australians to desire an authority which +might deliver their common wishes to the Home +Government and take any other steps necessary for +guarding their common interests. Accordingly a conference +of delegates from all the Colonies, including +New Zealand and Fiji, met in 1884, and prepared +a scheme which was transmitted to England, and was +there forthwith enacted by the Imperial Parliament +under the name of The Federal Council of Australasia +Act, 1885. This scheme was, however, (as I observed +when it was under discussion in the House +of Commons) a very scanty, fragmentary and imperfect +sketch of a Federal Constitution. It had no executive +power and no command of money. No colony need +<span class='pageno' id='Page_474'>474</span>join unless it pleased, and each might withdraw when it +pleased. Thus it befell that the plan excited little popular +interest, and gave such faint promise of energetic action +that only four colonies, Victoria, Queensland, Tasmania, +and South Australia, entered into it; and of these +South Australia presently withdrew. Meanwhile the +need for some general military organization for all +the Colonies began to be felt; and further objects +attainable by union floated before men’s minds. With +the increase of trade and industry, the vexation of +tariff barriers between the colonies grew daily less +tolerable. Subjects emerged on which uniformity of +legislation was felt to be needful. The irrigation +question, one of great importance for so arid a +country, brings New South Wales, where some of the +large rivers have their source, into close relation with +Victoria and South Australia, and requires to be treated +on common lines. These and other grounds led to an +Inter-Colonial Conference of Ministers at Melbourne +in 1890, and then to the summoning of a Convention +of Delegates from the Parliaments of all the Colonies, +including Tasmania. This latter body, which included +many leading men, met at Sydney in 1891, debated +the matter with great ability, and produced a Draft +Bill, which became the basis of all subsequent discussions. +The movement, hitherto confined to a group +of political leaders, now began to be taken up by the +people, and became, especially when the financial +troubles of 1893 had begun to pass away, the principal +subject in men’s minds. That crisis had shown all the +Colonies how closely their interests were bound together, +and had made them desire to remove every hindrance +<span class='pageno' id='Page_475'>475</span>to an industrial and financial recovery. A Conference of +Prime Ministers at Hobart in 1895 led to the passing by +the several Colonial Parliaments of enabling Acts under +which delegates were chosen, this time (following recent +American precedents) by popular vote, to a new Convention +which met at Adelaide (in South Australia) in +1897. It produced a second draft constitution, based +on that of 1891, and laid it before the legislatures of the +Colonies for criticism. About seventy-five amendments +were proposed, and were considered by the Convention +at its further sittings, which closed in March, 1898. +The draft Constitution was then submitted to a popular +vote, a new expedient in the British dominions, but one +amply justified by the need for associating the people +with the work. New South Wales alone failed to +adopt it by the prescribed majority, because a large +section of her inhabitants thought that her interests had +not been duly regarded, but after a few amendments +had been inserted at a conference of the Colonial Prime +Ministers, her people ratified it upon a second vote. +On this vote enormous majorities were secured in +Victoria, South Australia and Tasmania, smaller ones +in New South Wales and Queensland. The Constitution +was then sent to England and passed into law +by the Parliament of the United Kingdom under the +title of The Commonwealth of Australia Constitution +Act (63 & 64 Vict. cap. 12). Action by the Imperial +Parliament was not only a convenient way of overriding +all the colonial constitutions by one comprehensive +Act, but was legally necessary, inasmuch as +some provisions of the Constitution transcended the +powers of all the colonial legislatures taken together. +<span class='pageno' id='Page_476'>476</span>Since it had from the first been understood that the +wish of the mother country was not to impose her +own views but simply to carry out the wishes of the +Colonies, only one slight alteration, an alteration rather +of form than substance, was made in the draft as +transmitted from Australia, the ill-considered notion of +introducing a larger change having been eventually +dropped by the British Ministry.</p> + +<p class='c001'>I have mentioned these details in order to emphasize +the time, care and pains bestowed by the Australians—for +the work was entirely their own—upon this latest +effort of constructive statesmanship. The Constitution +of the United States was framed by a Convention which +sat at Philadelphia, with closed doors, for nearly five +months, and was accepted by Conventions in all the +thirteen States without change, though ten amendments +were immediately thereafter passed by general +consent, their adoption having been the price paid for +the ratification of the main instrument by some doubtful +States.</p> + +<p class='c001'>The Constitution of Canada took a little more than +two years to settle. The Resolutions on which it +was based were first of all drafted by a conference +of delegates at Quebec. These were approved after +full debate by the legislatures of the Provinces, and +were, after some modifications, embodied in a Bill +prepared by a small conference of Canadian statesmen +who met in London. The Bill was then passed +by the Imperial Parliament, never having been +submitted to any popular vote. But this Australian +instrument is the fruit of debates in two Conventions, +of a minute examination by legislatures, of a subsequent +<span class='pageno' id='Page_477'>477</span>revision by the second Convention, of further +modifications in a few details by a conference of Prime +Ministers, and has after all this preparation been +sealed by the approval of the peoples of the Colonies +concerned. The process of incubation lasted for +nearly nine years, being all the while conducted in +the full blaze of newspaper reporting and under the +constant oversight of public opinion.</p> + +<h3 class='c013'>III. <span class='sc'>The Causes which brought about<br> Federation.</span></h3> + +<p class='c007'>The reasons and grounds assigned by the advocates +of Federation were more numerous than those urged in +the United States in 1787-9, or in Canada in 1864-6; +but none of them were so imperative, for the Australian +Colonies were far less seriously menaced by actually +insistent evils, due to the want of a common national +Government, than was the welfare either of the +American States in 1787, or of Switzerland in 1848, +or of Canada in 1867. In North America, it was the +growing and indeed hopeless weakness and poverty +of the existing Confederation, coupled with the barriers +to commercial intercourse, the confusion and +depreciation of currency, and the financial demoralization +of some of the States, all of which had +just emerged from an exhausting war, that drew the +wisest minds of the nation to Philadelphia, induced +them to persist in efforts to devise a better union, +and enabled them to force its acceptance upon a +people largely reluctant. In Switzerland it was the +War of Secession (the so-called Sonderbund war) of +1847 that compelled the victorious party to substitute +<span class='pageno' id='Page_478'>478</span>a new and truly federal constitution for the league +which had proved too weak. In Canada the relations +of the French-speaking and English-speaking Provinces +(Lower and Upper Canada) had become so awkward +that constitutional government was being practically +brought to a standstill, and nothing remained but that +the leaders of the two parties should devise some new +system. Australia was in no such straits. Her colonies +might have continued to go on and prosper, as six +unconnected self-governing communities. It is therefore +all the more to the credit of her people that they +forewent the pleasures of local independence which +are so dear to vivacious democracies, perceiving that +although necessity might not dictate a federal union, +reason recommended it.</p> + +<p class='c001'>The grounds which were used in argument to urge +the adoption of the Federal Constitution may be +summed up as follows:—</p> + +<p class='c016'>The gain to trade and the general convenience to be +expected from abolishing the tariffs established on +the frontiers of each colony.</p> + +<p class='c016'>The need for a common system of military defence.</p> + +<p class='c016'>The advantages of a common legislation for the regulation +of railways and the fixing of railway rates.</p> + +<p class='c016'>The advantages of a common control of the larger +rivers for the purposes both of navigation and of +irrigation.</p> + +<p class='c016'>The need for uniform legislation on a number of +commercial and industrial topics.</p> + +<p class='c016'>The importance of finding an authority competent to +provide for old-age pensions and for the settlement +of labour disputes all over the country.</p> + +<p class='c016'><span class='pageno' id='Page_479'>479</span>The need for uniform provisions against the entrance +of coloured races (especially Chinese, Malays, and +Indian coolies).</p> + +<p class='c016'>The gain to suitors from the establishment of a High +Court to entertain appeals and avoid the expense +and delay involved in carrying cases to the Privy +Council in England.</p> + +<p class='c016'>The probability that money could be borrowed more +easily on the credit of an Australian Federation +than by each colony for itself.</p> + +<p class='c016'>The stimulus to be given to industry and trade by +substituting one great community for six smaller +ones.</p> + +<p class='c016'>The possibility of making better arrangements for the +disposal of the unappropriated lands belonging to +some of the colonies than could be made by those +colonies for themselves.</p> + +<p class='c001'>There was in these arguments something to move +every class in the community. To the commercial +classes, the prospect of getting rid of custom-houses +and of finding a large free market close at hand +for all products was attractive; as was also that of +sweeping away the vexation of railway rates planned +in the interests of each colony rather than for the +common benefit of trade. Large-minded men, thinkers +as well as statesmen, hoped that a wider field would +bring a loftier spirit into public life. The working-classes +might expect, not only advantages in the way +of brisker employment, but the establishment of that +provision for old age and sickness which a Government +covering the whole country and commanding ample +resources could make more efficiently and on more +<span class='pageno' id='Page_480'>480</span>uniform lines than even the richest colony could do. +Some of these grounds for union measure the distance +which the world has travelled since 1788. Railways +are far older than was self-government in the oldest +Australian colony, far younger than the youngest of +the original thirteen American States. Even so late as +1867, when Canada was confederated, no one thought +of suggesting that the State should provide old-age +pensions.</p> + +<p class='c001'>The opponents of Australian Federation, although they +came more and more to feel their cause hopeless, were +an active party, including many influential men. Besides +denying that the benefits just enumerated would be +attained, they dwelt upon the additional cost which +a new Government, superadded to the existing ones, +must entail. They fanned the jealousies which naturally +exist between small and large communities, telling the +former that they would be overborne in voting, and the +latter that they would suffer in purse; and they wound +up with the usual and often legitimate appeals to local +sentiment.</p> + +<p class='c001'>The arguments drawn from considerations of expense +and from local jealousies were met by a series of +ingenious compromises and financial devices to which +both the larger and smaller colonies were persuaded +to agree, while the love of each community for its own +political independence was overborne by the rising tide +of national sentiment. An ambition which aspired to +make Australia take its place in the world as a great +nation, mistress of the Southern hemisphere, had been +growing for some time with the growth of a new generation +born in the new home, and was powerfully roused +<span class='pageno' id='Page_481'>481</span>by the vision of a Federal Government which should +resemble that of the United States and warn off intruders +in the Western Pacific, as the American Republic +had announced by the pen of President Monroe that +she would do on the North-American Continent. The +same nationally self-assertive spirit and desire for +expansion which has recently spurred four great +European Powers into a rivalry for new colonial +possessions, and which in 1899 made the United +States forswear its old-established principles of policy, +has been astir in the mind of the Australians. It had +been stimulated by the example of a similar spirit in +the mother country, and by the compliments which the +English had now begun to lavish upon their colonies. +It had gained strength with the growth to manhood +of a generation born in Australia, and nurtured in +Australian patriotism. Such a patriotism, finding no +fit scope in devotion to the particular colonies, longed +for a larger ideal. It supplied the motive force +needed to create a national union. Without it, all +the sober reasonings which counselled confederation +might have failed to prevail. No equally strenuous +or forward-reaching spirit moved the Canadians in 1867, +nor are the traces of such a spirit conspicuous in the +American debates of 1787-9. Some men were then +solicitous for liberty, others for order and good government, +but of imperial greatness in the present sense of +the term little was said. Liberty and peace at home, +not military strength and domination abroad, were +the national ideals of those days.</p> + +<p class='c001'>The history of the Federation movement illustrates +the truth that a great change is seldom effected in +<span class='pageno' id='Page_482'>482</span>politics save by the coincidence of two moving forces—the +prospect of material advantage and the power of +sentiment. In every community there are many who +can be moved only by one or other of these two forces, +and nearly every man responds better to the first if +he can be warmed by the second. In the American +debates of 1788-9 feeling was mostly arrayed against +the proposed federation, though reason was almost +entirely for it. Reason prevailed, but prevailed with +far more difficulty than the cause of Federalism, with +less cogent economic grounds behind it, prevailed in +Australia.</p> + +<p class='c001'>Like America in 1787, Australia was fortunate in +having a group of able statesmen, most of whom were +also lawyers, and so doubly qualified for the task of +preparing a constitution. Their learning, their acuteness, +and their mastery of constitutional principles +can best be appreciated by any one who will peruse +the interesting debates in the two Conventions. They +used the experience of the mother country and of +their predecessors in the work of federation-making, +but they did so in no slavish spirit, choosing from the +doctrines of England and from the rules of America, +Switzerland, and Canada those which seemed best +fitted to the special conditions of their own country. +And like the founders of the American and Canadian +Unions, they were not only guided by a clear practical +sense, but were animated by a spirit of reasonable +compromise, a spirit which promises well for the conduct +of government under the instrument which they have +framed.</p> + +<div> + <span class='pageno' id='Page_483'>483</span> + <h3 class='c013'>IV. <span class='sc'>The Conditions for a Federal Commonwealth.</span></h3> +</div> + +<p class='c007'>Before examining the provisions of the Constitution +which is bringing the hitherto independent colonies into +one political body, it is well to consider for a moment +the territory and the inhabitants that are to be thus +united.</p> + +<p class='c001'>The total area of Australia is nearly 3,000,000 +square miles, not much less than that of Europe. +Of this a comparatively small part is peopled by white +men, for the interior, as well as vast tracts stretching +inland from the south-western and north-western coasts, +is almost rainless, and supplies, even in its better +districts, nothing more than a scanty growth of shrubs. +Much of it is lower than the regions towards the +coast, and parts are but little above sea-level. It has +been hitherto deemed incapable of supporting human +settlement, and unfit even for such ranching as is +practised on arid tracts in western North America +and in South Africa. Modern science has brought +so many unexpected things to pass, that this conclusion +may prove to have been too hasty. Still no +growth of population in the interior can be looked +for corresponding to that which marked the development +of the United States west of the Alleghanies in +the beginning of the nineteenth century.</p> + +<p class='c001'>Of the six Australian colonies, one, Tasmania, occupies +an island of its own, fertile and beautiful, but rather +smaller (26,000 square miles) than Scotland or South +Carolina. It lies 150 miles from the coast of Victoria. +Western Australia covers an enormous area (nearly +<span class='pageno' id='Page_484'>484</span>1,000,000 square miles, between three and four times +the size of Texas), and South Australia, which stretches +right across the Continent to the Gulf of Carpentaria, +is almost as large (a little over 900,000 square miles). +Queensland is smaller, with 668,000 square miles; +New South Wales, on the other hand, has only 310,000 +square miles (<i>i.e.</i> is rather larger than Sweden and +Norway, and about the size of California, Oregon, and +Washington put together); Victoria only 87,000 (<i>i.e.</i> is +as large as Great Britain and a little larger than Idaho). +The country (including Tasmania) stretches from north +to south over 32° of latitude (11° S. to 43° S.), a wider +range than that of the United States (lat. 49° N. to 26° N.). +There are thus even greater contrasts of climate than +in the last-named country, for though the Tasmanian +winters are less cold than those of Montana, the tropical +heats of North Queensland and the shores of the Gulf +of Carpentaria exceed any temperature reached in +Louisiana and Texas. Fortunately, Northern Australia +is, for its latitude, comparatively free from malarial +fevers. But it is too hot for the out-door labour of +white men. In these marked physical differences +between the extremities of the Continent there lie +sources whence may spring divergences not only of +material interests but ultimately even of character, +divergences comparable to those which made the +Gulf States of the American Union find themselves +drawn apart from the States of the North Atlantic +and Great Lakes.</p> + +<p class='c001'>It must also be noted that the great central wilderness +cuts off not only the tropical north and north-west, +but also the more temperate parts of the west from +<span class='pageno' id='Page_485'>485</span>the thickly peopled regions of the south-east. Western +Australia communicates with her Eastern sisters only +by a long sea voyage<a id='r210'></a><a href='#f210' class='c012'><sup>[210]</sup></a>. She is almost in the position +held by California when, before the making of the first +transcontinental railway, people went from New York +to San Francisco via Panama. Nor is there much +prospect that settlements will arise here and there in +the intervening desert.</p> + +<p class='c001'>The population of the Continent, which has now +reached nearly 4,000,000, is very unequally distributed. +The three colonies of widest area, Western Australia, +South Australia, and Queensland, have none of them +500,000 inhabitants. Tasmania has about 170,000. Two +others, New South Wales and Victoria, have each more +than 1,000,000<a id='r211'></a><a href='#f211' class='c012'><sup>[211]</sup></a>. This disparity ranges them for political +purposes into two groups, the large ones with 2,500,000 +people in two colonies, and the small ones with 1,500,000 +in four colonies.</p> + +<p class='c001'>Against these two sets of differences, physical and +social, which might be expected to induce an opposition +of economic and political interests, there is to be placed +the fact that the Australian colonies are singularly +homogeneous in population. British North America +is peopled by a French as well as by an English race, +British South Africa by a Dutch race as well as an +English. But Australia is purely British. Even the +Irish and the Scotch, though both races are specially +prone to emigrate, seem less conspicuous than they are +<span class='pageno' id='Page_486'>486</span>in Canada<a id='r212'></a><a href='#f212' class='c012'><sup>[212]</sup></a>. Australia is to-day almost as purely English +as Massachusetts, Connecticut, and Virginia were in +1776, and probably more English than were the thirteen +original States taken as a whole. In this fact the +colonies found not only an inducement to a closer union, +but a security against the occurrence of one of the +dangers which most frequently threatens the internal +concord of a federation. Race antagonisms have +troubled not only Canada and South Africa but the +United Kingdom itself, and they now constitute the +gravest of the perils that surround the Austro-Hungarian +monarchy.</p> + +<p class='c001'>Among the other favouring conditions may be +enumerated the use of one language only (whereas +in Canada and in South Africa two are spoken), the +existence of one system of law, the experience of the +same form of political institutions, a form modelled on +that which the venerable traditions of the mother +country have endeared to Englishmen in all parts of +the world. It has also been a piece of good fortune +that religion has not interposed any grounds for +jealousy or division. The population of Australia +is divided among various Christian denominations +very much as the population of England is, and the +chief difference between the old and the new country +lies in the greater friendliness to one another of various +communions which exists in the new country, a happy +result due partly to the absence of any State Establishment +<span class='pageno' id='Page_487'>487</span>of religion, and partly to that sense of social +equality which is strong enough to condemn any +attempt on the part of one religious body to claim social +superiority over the others.</p> + +<p class='c001'>Finally, there is the unique position which Australia +occupies. She has a perfect natural frontier, because +she is surrounded by the sea, an island continent, +so far removed from all other civilized nations that +she is not likely to be either threatened by their attacks +or entangled in their alliances. The United States had, +when its career began, British possessions on the +north, French and Spanish on the south. But the +tropical islands which Holland, Germany and France +claim as theirs to the north and east of the Australian +coasts are cut off by a wide stretch of ocean<a id='r213'></a><a href='#f213' class='c012'><sup>[213]</sup></a>. They +are not now, and are not likely at any time we can +foresee, to contain a white population capable of disturbing +the repose of Australia. Such a country seems +made for one nation, though the fact that its settled +regions lie scattered round a vast central wilderness +suggests that it is better fitted for a federation than +for a government of the unified type. But, on the +other hand, this very remoteness might, in removing +the force of external pressure, have weakened the +sense of need for a federal union had there not +existed that homogeneity of race and that aspiring +national sentiment to which I have adverted.</p> + +<p class='c001'>Compare these conditions with those of the three +other Federations. The thirteen colonies which have +grown into the present forty-five States of the American +Union lay, continuous with one another, along the +<span class='pageno' id='Page_488'>488</span>coast of the Atlantic. England held Canada to the +north of them, France held the Mississippi Valley +to the west of them, and, still further to the west, +Spain held the coasts of the Pacific. They had at +that time no natural boundaries on land; and the +forces that drew them together were local contiguity, +race unity, and above all, the sense that they must +combine to protect themselves against powerful neighbours +as well as against the evils which had become +so painfully evident in the governments of the several +States. Nature prescribed union, though few dreamt +that Nature meant that union to cover the whole central +belt of a Continent. In the case of Canada, Nature +spoke with a more doubtful voice. She might rather +have appeared to suggest that this long and narrow +strip of habitable but only partially inhabited land, +stretching from the Gulf of St. Lawrence to Puget +Sound, should either all of it unite with its mighty +neighbour to the south, or should form three or +four separate groups, separated by intervening wildernesses. +Political feelings however, compounded of +attachment to Britain and a proud resolve not to be +merged in a rival power which had done nothing +to conciliate them, led the Canadians to form a confederation +of their own, which Nature has blessed +in this point at least, that its territories are so similar +in climate and in conditions for industrial growth that +few economic antagonisms seem likely to arise among +them. Switzerland, however, is the most remarkable +case of a Federation formed by historical causes in the +very teeth, as it might seem, of ethnological obstacles. +Three races, speaking three languages, have been so +<span class='pageno' id='Page_489'>489</span>squeezed together by formidable neighbours as to +have grown into one. The help of Nature has however +been given in providing them with mountain +fastnesses from which the armies of those neighbours +could be resisted; and the physical character of the +country has joined with the traditions of a splendid +warlike heroism in creating a patriotism perhaps more +intense than any other in the modern world.</p> + +<h3 class='c013'>V. <span class='sc'>The Constitution as a Federal Instrument.</span></h3> + +<p class='c007'>In examining any Federal Constitution, it is convenient +to consider the system it creates first as +a Federation, <i>i.e.</i> a contrivance for holding minor +communities together in a greater one; and then as +a Frame of Government, composed of organs for +discharging the various functions of administration. +Although the former of these influences the latter, +because the federal character of a State prescribes to +some extent the character of that State’s governmental +machinery, it conduces to clearness to deal with these +two aspects separately. Accordingly I begin with the +federal aspect of the Constitution.</p> + +<p class='c001'>Federations are of two kinds. In some, the supreme +power of the Central Government acts upon the communities +which make it up only as communities. In +others this power acts directly, not only upon the +component communities, but also upon the individual +citizens as being citizens of the Nation no less than +of the several communities. The former kind of +Federation may be described as really a mere League +of States; the latter kind is a National as well as +a Federal State.</p> + +<p class='c001'><span class='pageno' id='Page_490'>490</span>The Australian Federation is of this latter type. So +are the United States, the Swiss Confederation, and +the Canadian Federation. It was however to the +former type that both the United States before 1788 +and Switzerland before 1848 belonged. So Germany +was a mere League of States before 1866, but has +been a National as well as Federal State since 1866 +and 1871.</p> + +<p class='c001'>The essential feature of this latter type, with which +alone we are here henceforth concerned, consists in +the existence above every individual citizen of two +authorities, that of the State, or Canton (as in +Switzerland) or Province (as in Canada), to which +he belongs, and that of the Nation, which includes all +the States, and operates with equal force upon all +their citizens alike. Thus each citizen has an allegiance +which is double, being due both to his own +particular State and to the Nation. He lives under +two sets of laws, the laws of his State and the laws +of the Nation. He obeys two sets of officials, those of +his State and those of the Nation, and pays two sets +of taxes, besides whatever local taxes or rates his city +or county may impose.</p> + +<p class='c001'>Accordingly the character of each and every Federation +depends upon the distribution of powers between the +Nation and the several States, since some powers +must be allotted to the larger, some to the smaller +entity. With regard to certain powers there can be +no doubt. The navy, for instance, the post office, the +control of all foreign relations, must obviously be +assigned to the National Government, together with +the levying of customs duties at the frontiers and the +<span class='pageno' id='Page_491'>491</span>raising of revenue for the purposes above mentioned. +On the other hand, matters of an evidently local +nature, such as police, prisons and asylums, the system +of municipal or county administration, with the power +of taxing for these purposes, will be allotted to the +State Governments. But between these two sets there +lies a large field of legislation and administration which +may, according to the circumstances of each particular +country and the wishes of the people who enact their +constitution, be granted either to the Nation or to the +States. The law of marriage and divorce, for instance<a id='r214'></a><a href='#f214' class='c012'><sup>[214]</sup></a>, +criminal law<a href='#f214' class='c012'><sup>[214]</sup></a>, bankruptcy, the traffic in intoxicating +liquors<a id='r215'></a><a href='#f215' class='c012'><sup>[215]</sup></a>, the regulation of railways<a href='#f215' class='c012'><sup>[215]</sup></a>, the provision of +schools or universities<a id='r216'></a><a href='#f216' class='c012'><sup>[216]</sup></a>, are all matters which have +both a national and a local significance, and may be +entrusted either to the National legislature or to the +State legislatures according as one or other aspect of +them predominates in the mind of the people.</p> + +<h3 class='c013'>VI. <span class='sc'>Distribution of Powers between Nation<br> and States.</span></h3> + +<p class='c007'>Now the fundamental question in the distribution of +powers between the Nation and the States is this—To +which authority does the unallotted residue of powers +belong? It has been found that no distribution, however +careful, can exhaust beforehand all the powers +that a legislature or an executive may possibly have to +exercise, and it therefore becomes essential to provide, +<span class='pageno' id='Page_492'>492</span>whenever a power not specifically mentioned needs +to be exercised, whether it should be deemed to be +rightfully exerciseable by the National or by the State +authority. In other words, which of these authorities +is to be deemed general legatee of any undistributed +residue?</p> + +<p class='c001'>This question has been answered differently by +different Federations. The United States and Switzerland +leave to the States (to which they had belonged +previously) the undistributed powers. Canada (whose +Provinces were in a different position) bestows them +upon the National (Dominion) Government<a id='r217'></a><a href='#f217' class='c012'><sup>[217]</sup></a>. The +question is the more important, because it creates in +all sorts of doubtful matters a presumption in favour +of the National Government or the State Governments, +as the case may be. And it is specially important at +the moment of creating a new Federation, because one +of the difficulties always then experienced is to induce +the States to resign powers they have hitherto enjoyed. +Hence it reassures and comforts them to have the +residue of powers not specifically distributed left still +in their hands.</p> + +<p class='c001'>The Australians have followed the example of the +United States and Switzerland rather than that of +Canada; and they have done so for the sake of +appeasing the local sentiment of the several colonies, +and especially of the smaller colonies, who naturally +feared that, as they would have less weight than their +larger neighbours in the national legislature, they +would be in more danger of being subjected to laws +<span class='pageno' id='Page_493'>493</span>which their local opinion did not approve. Section 107 +provides that—</p> + +<p class='c001'>‘Every power of the Parliament of a Colony which +has become or becomes a State shall, unless it is by +this Constitution exclusively vested in the Parliament of +the Commonwealth or withdrawn from the Parliament +of the State, continue as at the establishment of the +Commonwealth, or as at the admission or establishment +of the State<a id='r218'></a><a href='#f218' class='c012'><sup>[218]</sup></a>, as the case may be.’</p> + +<p class='c001'>Comparatively few powers of legislation are ‘exclusively +vested’ in the Commonwealth Parliament; so that +upon subjects other than these the State Parliaments +retain for the present their previous power to legislate. +But as it is also provided that all Acts of the Commonwealth +Parliament, within the range of the powers +granted, shall override laws of any State Parliament, +such laws as the latter may pass upon subjects open +to both legislatures are left at the mercy of the +Commonwealth Parliament, which may, as and when +it finds time or occasion, pass Acts extinguishing, or +modifying the effect of, those enacted by the States.</p> + +<p class='c001'>Now the range of powers granted to the National or +Commonwealth Parliament is very wide, wider than that +of Congress or of the Swiss National Assembly, or even +of the Dominion Parliament in Canada. I need not +enumerate the powers granted, forty-two in number, for +they will be found in sects. 52 and 53 of the Australian +Constitution. Among them are the following, which are +<span class='pageno' id='Page_494'>494</span>not specifically given to, and nearly all of which are not +even claimed by, the United States Congress:—Powers +to take over State railways, and to construct and extend +railways (with the consent of the State in which the +railway lies), to control telegraphs and telephones and +also trading and financial corporations, to take over State +debts<a id='r219'></a><a href='#f219' class='c012'><sup>[219]</sup></a>, to legislate on marriage and divorce, on bills of +exchange and promissory notes, on invalid and old-age +pensions, on arbitration and conciliation in trade disputes +(where these extend beyond one State), on bounties on +the production or export of goods, on the service and +execution throughout the Commonwealth of the civil +and criminal process and judgements of the State +Courts. If these powers come to be all put in force +they may leave for State action a narrower and less +interesting field than it enjoys in the United States, +where nevertheless the State legislatures are bodies of +no great account, seldom enlisting the services of men +of first-rate capacity.</p> + +<h3 class='c013'>VII. <span class='sc'>Constitutional Position of the<br> Australian States.</span></h3> + +<p class='c007'>The Australian Constitution, like that of the United +States, assumes the States to be already organized +communities, and contains nothing regarding their constitutions. +The case of Canada was different, because +there the previous government of the Upper and Lower +Provinces, which had been one, had to be cut in two, +and arrangements made for duly constituting the two +<span class='pageno' id='Page_495'>495</span>halves. But in the case of Australia, the pre-existing +constitutions of the Colonies, granted by the Imperial +Government at various times, go on unchanged, subject +only to the supersession of some of their functions by +the Commonwealth, and to one or two specifically +mentioned restrictions. That these restrictions are +comparatively few may be partly ascribed to that +aversion which the English everywhere show to this +kind of safeguard against the misuse of legislature +power. The omnipotence of the British Parliament +seems to have fostered the notion that all Parliaments +ought to be free to do wrong as well as to do right. +The only things from which a State is disabled are +the keeping of a naval or military force (except with +the consent of the Commonwealth Parliament), coining +money, and making anything but gold and silver coin +legal tender<a id='r220'></a><a href='#f220' class='c012'><sup>[220]</sup></a>. A State is not, as are the American +States, forbidden to grant titles of nobility, or to +pass any <span lang="la"><i>ex post facto</i></span> law or law ‘impairing the obligation +of contracts.’ That no such prohibitions exist +in Canada may be ascribed to the fact that in Canada +the National or Dominion Government has the right +of vetoing laws passed by provincial legislatures, so +that improper legislation can be in this way checked. +The power is not often exercised in Canada, but when +exercised has sometimes led to friction. This plan, +however, is neither so respectful to the Provinces nor +so conformable to general principles as is the American +plan, which leaves the States subject only to the +restrictions imposed by the Constitution, restrictions +<span class='pageno' id='Page_496'>496</span>which <span lang="la"><i>ipso iure</i></span> annul a law attempting to transgress +them. And the Australians have wisely followed the +American rather than the Canadian precedent. The +Australians have, to be sure, in reserve a power to +which nothing similar exists in America, viz. the right +of the British Crown at home to veto legislation. +Rarely as this right is put in force, it might conceivably +be used at the instance of the National +Government to avert an undesirable conflict between +State statutes and National statutes. Note further +that each Australian State is left as free to amend its +own constitution as it was before, subject of course to +the veto of the British Crown, but to no interference +by the Commonwealth, whereas in Canada acts of the +Provincial legislatures amending their constitutions +are subject to the veto of the Dominion Government +as representing the Crown.</p> + +<p class='c001'>The omission of any provision similar to the famous +and much litigated clause which debars an American +State legislature from passing any law impairing the +obligation of contracts is especially noteworthy. That +clause, introduced by the Philadelphia Convention in +order to check the tendency of some reckless States +to get rid of their debts, produced in course of +time unexpectedly far-reaching results, from some of +which American legislatures and courts have made +ingenious attempts to escape. It has indeed been +thought that several subsequent decisions of the +Supreme Court are not easily reconcileable with +the famous judgement in the Dartmouth College Case +(<span class='fss'>A.D.</span> 1818), in which the full effect of this clause was for +the first time displayed. That effect has been to fetter +<span class='pageno' id='Page_497'>497</span>legislation in ways which are found so inconvenient +in practice that they are acquiesced in only because +many State legislatures are in the United States objects +of popular distrust. No corresponding distrust +seems to be felt in the British colonies, and therefore +the Australians have not deemed any such prohibition +needful, following the example of the British House +of Commons, which in 1893 rejected a similar clause +when moved as an amendment to the Irish Home Rule +Bill of that year.</p> + +<p class='c001'>In another point the Australian States have been +treated with respect. In each of them the nominal +executive head has hitherto been a Governor appointed +by the British Crown. This was the case in Canada +prior to 1867: but when the Canadian Federation was +formed, the appointment of the Governors of the several +provinces was entrusted to the Governor-General of +the Dominion, that is to say, to the Dominion Cabinet +by whose advice the Governor-General, being a sort of +constitutional monarch, is guided. In practice, therefore, +these governorships have become rewards bestowed +upon leading party politicians. The Australians wisely +(as most Englishmen will think) avoided this plan. +Neither did they adopt the American method of +letting the people of each State elect the Governor, +a method unsuited to government on the Cabinet +system, because, as the State Governor is under that +system only a nominal head of the Executive (the +Cabinet being the real Executive), there was no good +reason for setting the people to choose him, and good +reasons against doing so, inasmuch as popular elections +are invariably fought on party lines. Accordingly the +<span class='pageno' id='Page_498'>498</span>Australians have preferred to let him continue to be +appointed by the Home Government, and to allow him +to communicate directly with the Colonial Office in +London. His Ministers are indeed described in the +Constitution (sect. 44) as being ‘the Queen’s Ministers.’</p> + +<h3 class='c013'>VIII. <span class='sc'>Differences from the United States and Canadian Federations.</span></h3> + +<p class='c007'>Four other remarkable divergences, from both the +American and the Canadian Federal systems, remain +to be mentioned.</p> + +<p class='c001'>One relates to the judiciary. In the United States +there is a complete system of Federal Courts ramifying +all over the Union and exercising exclusive jurisdiction +in all cases arising under Federal statutes, as +well as in a number of other matters specified in Art. +III. sect. 2 of the Constitution. But the State Courts +remain quite independent in all State matters, and determine +the interpretation of the State Constitutions +and of all State statutes, nor does any appeal lie from +them to the Federal Courts. In Canada this was not +thought necessary, so there the same set of Courts +deals with questions arising under Federal statutes +and with those arising under Provincial Statutes, and +the Supreme Court of Canada receives appeals from +all other Courts. This is less conformable to theory +than the United States plan, but does not seem to +have worked ill. The danger that Courts sitting in +the Provinces would, under the influence of local +feeling, pervert Federal law was not serious in Canada +(though a similar danger was feared in the United +States in 1787), and indeed all the Canadian judges +<span class='pageno' id='Page_499'>499</span>are appointed by the Dominion Government, a further +illustration of the preponderance which the Nation has +over the Provinces. The Australians have taken a middle +course. They have established a Federal Supreme +Court, to be called ‘The High Court of Australia,’ and +have taken power for their Parliament to create other +Federal Courts. So far, they follow the United States +precedent. But they have given power to the Commonwealth +Parliament to invest State Courts with federal +jurisdiction, thereby allowing those Courts to be, as in +Canada, both State and Federal. And they have also +allowed an appeal from all State Courts to the Federal +High Court. By this plan the States are more directly +connected with and subordinate to the National Government +than they are in the United States. The Australian +scheme has one great incidental advantage. In the +United States the law of different States may and +does differ, not only in respect of the difference between +the statutes of one and the statutes of another, +but also in respect of questions of common law untouched +by statutes. The Supreme Court of Massachusetts +may, for instance, take a different view of what +constitutes fraud at common law from that taken by +the Supreme Court of Pennsylvania, and there is no +Court of Appeal above both these Courts to bring their +views into accord. This has not happened to any +great extent in Australia, because the British Privy +Council has entertained appeals from all its Courts, +and it will happen still less in future, because the +Federal High Court will be close at hand to settle +questions on which the Courts of different States may +have been in disaccord.</p> + +<p class='c001'><span class='pageno' id='Page_500'>500</span>A second point shows how much less powerful the +sentiment of State sovereignty has been in Australia +than it was in the United States. By an amendment +(xi) to the American Constitution made in 1798 it is expressly +declared that no State can be sued by a private +plaintiff. But Australia expressly grants jurisdiction +in such cases to its Federal High Court (sect. 75).</p> + +<p class='c001'>A third point is the curious and novel power given +to a State of referring matters to the Commonwealth +Parliament, and to that Parliament of thereupon legislating +on such matters (sect. 51 (xxxvii)). Under this +provision (which is not to be found in the Canadian +Constitution<a id='r221'></a><a href='#f221' class='c012'><sup>[221]</sup></a>) there is no department of State law +wherewith the National legislature may not be rendered +competent to deal. It may be usefully employed to +secure uniformity of legislation over all Australia on +a number of subjects not within the specifically allotted +field of the Commonwealth Parliament.</p> + +<p class='c001'>Finally, the Commonwealth Parliament may grant +financial assistance to any State, and may take over +the whole or a part of its debts as existing at the +establishment of the Commonwealth<a id='r222'></a><a href='#f222' class='c012'><sup>[222]</sup></a>. Provisions such +as these imply, or will involve if put in practice, a relation +between the National Government and the States +closer than that which exists in America.</p> + +<p class='c001'>To complete this account of the relation of the +Nation to the States, let it be noted that a State may +surrender any part of its territory to the Commonwealth, +and that the Commonwealth is bound to protect +each State against invasion or, on the application of the +<span class='pageno' id='Page_501'>501</span>Executive of the State, against domestic violence<a id='r223'></a><a href='#f223' class='c012'><sup>[223]</sup></a>. This +latter provision is drawn from the United States constitution<a id='r224'></a><a href='#f224' class='c012'><sup>[224]</sup></a>, +though in America it is from the State +legislature, if then in session, that the application for +protection ought to come. Australia is right in her +variation, because in her States the Legislature acts +through the Executive. Neither provision occurs in +the Constitution of Canada, which assigns military and +naval defence exclusively to the Dominion Government, +and makes itself responsible for the maintenance of +order everywhere. In Switzerland the management of +the army, in which all citizens are bound to serve, +is divided between Cantons and Confederation, the +supreme control remaining with the latter (Artt. 18-22). +The Confederation is bound to protect a Canton against +invasion and disorders, and may even itself intervene +if the Executive of the Canton cannot ask it on its +own motion (Artt. 16 and 17). Australia, as we have +seen, allows the States to maintain a force with the +consent of the Commonwealth; and this is permitted +by the American Constitution also.</p> + +<h3 class='c013'>IX. <span class='sc'>The Constitution as a Frame of National<br> Government.</span></h3> + +<p class='c007'>We may now pass on to consider the National +Government, the construction whereof occupies by far +the greater part of the Constitution, which, while it left +the States pretty much as they were, had here to build +up a new system from the ground.</p> + +<p class='c001'>The first point to be examined relates to the limitations +<span class='pageno' id='Page_502'>502</span>imposed on the National Government as against +the citizens generally, since I have already dealt with +the limitations on its powers as against the <a id='corr502.3'></a><span class='htmlonly'><ins class='correction' title='States'>States.</ins></span><span class='epubonly'><a href='#c_502.3'><ins class='correction' title='States'>States.</ins></a></span> +Here a remarkable divergence from the American +Constitution is disclosed. When that instrument was +enacted, the keenest suspicion and jealousy was felt of +the action of the Government to be established under it. +It was feared that Congress might become an illiberal +oligarchy and the President a new George the Third. +Accordingly great pains were taken to debar Congress +from doing anything which could infringe the primordial +human rights of the citizen. Some restrictions +are contained in the original Constitution: others fill +the first nine amendments which were passed two or +three years later, as a part of the arrangements by which +the acceptance of the Constitution was secured. And +down till our own time every State Constitution in +America has continued to contain a similar ‘Bill of +Rights’ for the protection of the citizens against abuse +of legislative power. The English, however, have +completely forgotten these old suspicions, which, when +they did exist, attached to the Crown and not to the +Legislature. So when Englishmen in Canada or Australia +enact new Constitutions, they take no heed of +such matters, and make their legislature as like the +omnipotent Parliament of Britain as they can. The +Canadian Constitution leaves the Dominion Parliament +unfettered save by the direction (sect. 54) that money +shall not be appropriated to any purpose that has not +been recommended to the House of Commons by the +Executive, a direction embodying English practice, and +now adopted by Australia also. And the Australian +<span class='pageno' id='Page_503'>503</span>Constitution contains but one provision which recalls +the old-fashioned Bill of Rights, viz. that which forbids +the Commonwealth to ‘make any law for establishing +any religion or for imposing any religious observance +or for prohibiting the free exercise of any religion.’ +The Swiss Constitution, influenced by French and +American models, is in this respect more archaic, for +it imposes a series of disabilities on its Legislature in +the interest of individual freedom (sectt. 39, 49, 54-59). +This diversity of attitude between the English on the +one hand and both the Americans and the Swiss on +the other is a curious instance of the way in which +usage and tradition mould a nation’s mind. Parliament +was for so long a time the protector of Englishmen +against an arbitrary Executive that they did not form +the habit of taking precautions against the abuse of +the powers of the Legislature; and their struggles for +a fuller freedom took the form of making Parliament +a more truly popular and representative body, not that +of restricting its authority.</p> + +<p class='c001'>The point just examined is one which arises in all +Rigid Constitutions, whether Federal or Unitary. But +the next point is one with which only Federations are +concerned; and it is one in which all the great Federations +agree. All have adopted the same method of +providing both for the predominance of the majority +of the people considered as one Nation, and for the +maintenance of the rights of the States considered as +distinct communities. The Americans invented this +method: the Swiss, the Canadians, the Germans, and +now the Australians, have imitated them. This method +is to divide the Legislature into two Houses, using +<span class='pageno' id='Page_504'>504</span>one to represent the whole people on the basis of +numbers, and using the other to represent the several +States on the basis (except in Germany) of their equality +as autonomous communities. It was this device that +made Federation possible in the United States, for +the smaller States would not have foregone their independence +in reliance upon any weaker guarantee.</p> + +<h3 class='c013'>X. <span class='sc'>The Legislature.</span></h3> + +<p class='c007'>The Australian scheme provides (sectt. 7-23) for an +Upper House or Senate of thirty-six members, six from +each State, and a House of Representatives (sectt. +24-40) of seventy-five members, elected on a basis of +population, so that forty-nine members will come from +the two large States, New South Wales and Victoria, +and twenty-six from the four small States. No Original +State is ever to have less than five.</p> + +<p class='c001'>The equal representation of the six Original States is +always to be maintained, but the number of Senators +may be increased, and when new States come to +be formed, the Parliament may allot to them such +number of Senators as it thinks fit. Senators sit for +six years, and do not all retire at the same time. These +features are taken from the Constitution of the United +States, which, as already observed, has been a model +for subsequent Federal Upper Houses. But there are +remarkable variations in the Australian scheme.</p> + +<p class='c001'>1. In the United States each newly-created State +receives as a matter of right its two Senators. In +Australia the Commonwealth may allot such number +as it thinks fit.</p> + +<p class='c001'>In the United States one-third of the Senate +<span class='pageno' id='Page_505'>505</span>retires every two years. In Australia one-half retires +every three years.</p> + +<p class='c001'>3. In the United States the President of the Senate +is the Vice-President of the United States, chosen by the +people<a id='r225'></a><a href='#f225' class='c012'><sup>[225]</sup></a>. In Australia, the Senate is to choose its own +President.</p> + +<p class='c001'>4. In the United States the quorum is one more than +a half of the total number; in Australia one-third of +the total number.</p> + +<p class='c001'>5. In the United States the Legislatures of the several +States elect the Senators. In Australia the Senators +are elected by the people of the State.</p> + +<p class='c001'>This last point is one of great interest. Tocqueville, +writing in 1832, attributed (erroneously, as the sequel +has shown) the excellence of the American Senate to +the method of election by the State Legislatures<a id='r226'></a><a href='#f226' class='c012'><sup>[226]</sup></a>. +Since his days the American Senate has declined; +and so far from this mode of election having tended to +sustain its character, the general, though not unanimous, +opinion of the wise in America deems the Senate to +be injured by it, and desires a change to the method +of election by direct popular vote. It was partly because +the Australian Convention had become aware of this +tendency of American opinion that they rejected the +existing American plan; nor is it impossible that the +Americans themselves may alter their system, which +gives greater opportunities for intrigue and the use of +money than popular election would be likely to afford. +In Australia, the Senators are in the first instance to +be elected by the people, each State voting as one +<span class='pageno' id='Page_506'>506</span>electorate, but this may be altered (<i>e.g.</i> to a system +of district elections) by the Parliament of the Commonwealth, +or failing its action, by the Parliament of a +State. It will be interesting to see what experiments +are tried and how they work. District voting may +give different results from a general State vote, and +a party for the moment dominant may choose the plan +that best suits it.</p> + +<p class='c001'>6. In the United States the Senate is an undying +body, perpetually renewed by fresh elections, never +losing more than one-third of its members at any one +time. In Australia the Senate may be dissolved in +case a deadlock should arise between it and the +House of Representatives.</p> + +<p class='c001'>The Senate is the sheet-anchor of the four small +States. Commanding a majority in it, they have consented +to acquiesce in the great preponderance which +their two larger neighbours possess in the House of +Representatives. The numbers of the latter House are +to be always as nearly as practicable double those of the +Senate, a point whose importance will presently appear.</p> + +<p class='c001'>The House is to continue for three years (subject of +course to dissolution), a term intermediate, though +inclining in the democratic direction, between the two +years of the American Congress and the seven (practically +(six) years of the British House of Commons. The +Canadian term is five years. Until the Commonwealth +Parliament otherwise provides, the electoral suffrage +is to be (as in the United States) the suffrage prescribed +by State law for the election of members of +the more numerous State House, and it is expressly +provided, doubtless with a view to the fact that women’s +<span class='pageno' id='Page_507'>507</span>suffrage already exists in two colonies, that no law +shall prevent a State voter from voting at Commonwealth +elections. So far from securing, as does the +United States Constitution, that no person shall be +excluded on the ground of race from the suffrage<a id='r227'></a><a href='#f227' class='c012'><sup>[227]</sup></a>, +Australia has expressly provided that persons belonging +to a particular race may be excluded, for she declares +(sect. 25) that in such case the excluded race is not +to be reckoned among the population of the State +for the purposes of an allotment of representatives. +Plural voting is forbidden. The quorum of members +is a mean between the inconveniently large quorum +(one-half) of the American, and the very small one +(forty) of the British House. The seat of any Senator +or member of the House becomes <span lang="la"><i>ipso facto</i></span> vacant +if he fails (without permission) to attend any session +for two continuous months. No person having any +pecuniary interest in any agreement with the public +service (except as member of an incorporated company +of at least twenty-five persons), or holding any office of +profit under the Crown, can sit in either House, unless +he be a Minister either of the Commonwealth or of a +State. The exception is noteworthy, not only because +it is framed with a view to the establishment of Cabinet +Government, but also because it implies that a man +may, contrary to American and Canadian usage, be at +the same time both an executive official of a State and +also a member of the Federal Legislature. It would +appear that women are eligible to membership of either +House. Every Senator and Representative is to receive +a salary, fixed for the present at £400 ($2,000) a year.</p> + +<div> + <span class='pageno' id='Page_508'>508</span> + <h3 class='c013'>XI. <span class='sc'>The Executive.</span></h3> +</div> + +<p class='c007'>The Executive is to consist of the Governor-General +and the Ministers. To the great convenience of the +Australian people, the head of the Executive does not +need to be elected either by popular vote (as in the +United States) or by the Chambers, as in France and +Switzerland. He is nominated by the British Crown, +and holds office so long as the Crown pleases, receiving +a salary fixed, for the present, at £10,000 ($50,000) a year +(exactly the salary of the American President). He has +an Executive Council, modelled on the British Privy +Council (though the name Privy Council is not used as +it is in the Canadian Constitution), and from it he chooses +a number of Ministers (fixed for the present at seven) +who are to administer the several departments of the +public service. They must be members of one or other +House of Parliament—a remarkable provision, for though +this is the British practice, that practice has never been +embodied in any positive rule. As the Governor-General +is only a constitutional figure-head, these +Ministers will in fact constitute the ruling executive +of the Commonwealth.</p> + +<h3 class='c013'>XII. <span class='sc'>The Judiciary.</span></h3> + +<p class='c007'>The Judiciary is to consist in the first instance of a +Federal High Court (containing a Chief Justice and at +least two other judges) capable of exercising both original +jurisdiction in certain sets of cases, and also appellate +jurisdiction not only from single Federal Judges and +inferior Federal Courts, but also from the Supreme +Courts of the States. Power is taken both to establish +<span class='pageno' id='Page_509'>509</span>lower Federal Courts and to invest State Courts with +federal jurisdiction. But besides this Judiciary proper, +there is created a second Court for dealing with cases +relating to trade and commerce, under the name of the +Inter-State Commission (sect. 101). This remarkable and +very important institution has doubtless been suggested +by the United States Inter-State Commerce Commission +created by Congress some eighteen years ago in order +to deal with railway and water traffic between the +States. Its functions will be half-administrative, half-judicial, +and in questions of pure law an appeal will lie +from it to the High Court, while a guarantee for its +independence is found in the clause which declares that +its members shall not be removed during their seven +years’ term of office. All Federal Judges are to be +appointed by the Governor-General, that is to say, by +the Executive Ministry. All trials (on indictment) for +any offence against the laws of the Commonwealth +shall be by jury, and held in the State where the +alleged offence was committed. The judicial establishments +of the States remain unaffected, and the judges +thereof will continue to be appointed by the State +Executives.</p> + +<p class='c001'>In determining the functions of the High Court there +arose an important question which seemed for a moment +to threaten the whole scheme of Federation. The draft +Constitution which the Convention had prepared and +which the people had approved by their vote provided +that questions arising on the interpretation of the Constitution +as to the respective limits of the powers of the +Commonwealth and of the States, or as to the respective +limits of the constitutional powers of any two or +<span class='pageno' id='Page_510'>510</span>more States, should be adjudicated upon by the High +Court of the Commonwealth, and that no appeal should +lie from its decision to the Queen in Council (<i>i.e.</i> to the +Judicial Committee of the Privy Council in England, +which is the Supreme Court of Appeal from the British +Colonies and India), ‘unless the public interest of +some part of Her Majesty’s dominions, other than the +Commonwealth or a State, are involved.’ When the draft +reached England to be embodied in a Bill, the British +Government took exception to this provision as tending +to weaken the tie between the mother country and the +colonies. There were many in England who thought +that it was not in the interest of Australia herself that +she should lose, in questions which might involve +political feeling and be complicated with party issues, +the benefit of having a determination of such questions +by an authority absolutely impartial and unconnected +with her domestic interests and passions. How much +better (they argued) would it have been for the United +States at some critical moments could they have had +constitutional disputes adjudicated on by a tribunal +above all suspicion of sectional or party bias, since +it would have represented the pure essence of legal +wisdom, an unimpeachable devotion to legal truth!</p> + +<p class='c001'>To this the Australians replied that the experience +of the United States had shown that in constitutional +questions it was sometimes right and necessary +to have regard to the actual conditions and needs of the +nation; that constitutional questions were in so far +political that where legal considerations were nearly +balanced, the view ought to be preferred which an +enlightened regard for the welfare of the nation +<span class='pageno' id='Page_511'>511</span>suggested; that a Court sitting in England and knowing +little of Australia would be unable to appreciate all +the bearings of a constitutional question, and might, in +taking a purely technical and possibly too literal a view +of the Constitution, give to the Constitution a rigidity +which would check its legitimate expansion and aggravate +internal strife. Australia must—so they pursued—be +mistress of her own destinies, and as it is she that +had framed and procured the enactment of this Constitution, +so by her ought the responsibility to be borne +of working it on its judicial as well as its executive +and legislative side. Not only was this better for +Australia herself, but it would be more conducive +to the maintenance of the connexion between the +Commonwealth and the mother country.</p> + +<p class='c001'>After some wavering, the British Government, perceiving +the risk of offending Australian sentiment, gave +way. They dropped in Committee of the House of +Commons the alteration which they had introduced +into the Australian draft, substituting for it an amendment +which, while slightly varying the original terms +of the draft, practically conceded the point for which +the Australian Delegates, sent to England to assist +in passing the measure, had contended. The Act +as passed provides that no appeal shall lie to the +Crown in Council upon the constitutional questions +above-mentioned unless the High Court itself shall, +being satisfied that the question is one which ought +to be determined by the Privy Council, certify to that +effect. In all other such cases its judgement will be +final.</p> + +<p class='c001'>Appeals to the Privy Council in questions other than +<span class='pageno' id='Page_512'>512</span>constitutional will continue to lie from the Supreme +Courts of the States (with the alternative of an appeal +to the High Court) and from the High Court itself, +when special leave is given by the Privy Council. +The Commonwealth Parliament may limit the matters +in which such leave may be asked, but the laws imposing +such limitations are to be reserved for the +pleasure of the Crown.</p> + +<p class='c001'>The scheme of judicature above outlined follows +in the main the model contained in the American +Constitution. It does not draw the line between State +and Federal matters and courts so sharply, for appeals +are to lie from State Courts in all matters alike, and +State Courts may receive jurisdiction in Federal +matters. On the other hand, it is more conformable +to principle than either the Canadian plan, which +provides no Federal Courts save the Supreme Court +and gives the appointment of all judges alike to the +Dominion Government, or the Swiss plan, which +refers questions of conflict between the Nation and the +Cantons, or as to the constitutionality of Federal laws, +not to the Judiciary at all, but to the Federal Legislature. +Broadly speaking, the Australian High Court will +have to fill such a place and discharge such functions +as have been filled and discharged in America by that +exalted tribunal which Chief Justice John Marshall and +other great legal luminaries have made illustrious. In +working out the provisions of the Constitution by an +expansive interpretation, cautious but large-minded, +it may render to Australia services not unworthy to +be compared with those which America has gratefully +recognized.</p> + +<div> + <span class='pageno' id='Page_513'>513</span> + <h3 class='c013'>XIII. <span class='sc'>Working of the Frame of Government.<br>The Cabinet.</span></h3> +</div> + +<p class='c007'>Now let us see how this Frame of Government, which +I have briefly outlined in its salient features, is intended +to work.</p> + +<p class='c001'>Its essence lies in a matter which is not indicated +by any express provision, the dependence of the +Executive upon the Legislature. Herein it differs +fundamentally from the American and Swiss systems. +It reproduces the English system of what is called +Cabinet or Responsible Government; that is to say, +a Government in which the Executive instead of being, +as in America, an independent authority, directly +created by the people and amenable to the people +only, is created by and responsible to the Legislature. +As and when the British colonies respectively obtained +self-governing institutions, each of them adopted this +scheme, since it was the one familiar to them at home: +and to it they seem all determined to adhere.</p> + +<p class='c001'>Its distinctive features are these.</p> + +<p class='c001'>The nominal head of the Executive, in Britain the +Crown, in Australia the Governor-General as representing +the Crown, is permanent, and is not responsible +to the Legislature, because he acts not on his own +views, but upon the advice of his Ministers.</p> + +<p class='c001'>The Ministers are responsible to the Legislature +which virtually chooses them, and they depend upon +its confidence for their continuance in office.</p> + +<p class='c001'>The Ministers are however not wholly at the mercy +of the Legislature, because they may dissolve it, that is +to say, may appeal to the people, in the hope that the +<span class='pageno' id='Page_514'>514</span>people will elect a new Legislature which will support +them. This kind of government accordingly rests on +a balance of three authorities, the Executive, the +Legislature, and the People, the people being a sort +of arbiter between Ministry and Parliament. As +the Ministry can at any moment appeal to the people, +the threat of appealing puts pressure upon the +Parliament, and keeps a majority cohesive. In the +existence of this power of sudden dissolution there +lies a marked difference from the American scheme, +which some one has called Astronomical, because the +four years’ term of office of the Executive and the +two years’ term of the Legislature are both fixed by +the earth’s course round the sun.</p> + +<p class='c001'>I have spoken of the Legislature as the authority to +which the Ministry is responsible. But what is the +Legislature? In England, although Parliament consists +of two Houses, the Minister-making power resides +solely in the House of Commons. Being elective, the +House of Commons has behind it the moral weight +of the people and the prestige of many victories. Being +the holder of the purse, it has the legal machinery +for giving effect to its will, since without supplies administration +cannot be carried on. Accordingly, though +the existence of two often discordant Houses may arrest +or modify legislation in Britain, it does not affect the +executive conduct of affairs, save on the rare occasions +when immediate legislation is deemed indispensable by +the Executive. The same remark applies to Canada. +There also one finds two Houses, but the Senate, being +a nominated and not a representative body, holds an +entirely secondary place. The Ministry may disregard +<span class='pageno' id='Page_515'>515</span>a vote of want of confidence passed by it, just as in +England they disregard an adverse vote of the House +of Lords. In Australia, however, things will be quite +different. There the Senate has been constituted as +a representative body, elected by the peoples of the +States; and as the protector of the rights and interests +of the States it holds functions of the highest importance. +Its powers (save in one point to be presently +mentioned) are the same as those of the House. +In whom then does the power of making and unmaking +ministries reside? Wherever one finds two +assemblies, one finds them naturally tending to differ; +and this will be particularly likely to occur where, as +in Australia, they are constructed by different modes +of election. Suppose a vote of no confidence in a +particular Ministry is carried in one House and followed +by a vote of confidence passed in the other? +Is the Ministry to resign because one House will +not support it? It retains the confidence of the other; +and if it does resign, and a new Ministry comes in, the +House which supported it may pass a vote of no confidence +in those who have succeeded it.</p> + +<p class='c001'>The problem is one which cannot arise either under +the English or under the American system. Not under +the English, because the two Houses are not co-ordinate, +the House of Commons being much the +stronger. Not under the American, because, although +the Houses are co-ordinate, neither House has the power +of displacing the President or his Ministers. It is therefore +a new problem, and one which directly results +from the attempt to combine features of both schemes, +the Cabinet system of England and the co-ordinate +<span class='pageno' id='Page_516'>516</span>Senate, strong because it represents the States, which +a Federal system prescribes.</p> + +<h3 class='c013'>XIV. <span class='sc'>Provisions against Deadlocks.</span></h3> + +<p class='c007'>This, however, is only one, though perhaps the most +acute, of the difficulties that arise from the existence +of two co-ordinate Houses. Their differences upon +questions of legislation are always liable to produce deadlocks. +These annoying phenomena occur in England, +though there the House of Lords, except upon Irish +questions, usually gives way (even without a dissolution +of Parliament), because it is afraid of incensing the +people and thereby bringing about its own destruction +if it continues to resist the national will. In Irish +questions the Upper House has been apt to assume +that the people of England and Scotland are not +sufficiently interested to resent very keenly its difference +from the Commons. In the United States +there is no remedy for such deadlocks. They have +to be endured, at whatever cost. The resistance of +the Senate to various plans suggested by the House +for dealing with the slavery question may be reckoned +among the causes which brought on the War of +Secession. The Australian colonies themselves have +had frequent experience of deadlocks in matters of +legislation between the two Houses, for in every +colony there have been two Houses, though in every +colony it is the more popular House which has controlled +the Executive.</p> + +<p class='c001'>The difficulties I have indicated were fully before the +minds of the statesmen who sat in the two Conventions. +An ingenious device has been contrived for dealing with +<span class='pageno' id='Page_517'>517</span>them (sect. 57). When the House passes a law and the +Senate disagrees, the House may pass it again after +three months, and if the Senate still disagrees, the +Governor-General may thereupon dissolve both House +and Senate together, unless the Parliament is within +six months of its natural end by effluxion of time. If +after such dissolution the new House again passes the +measure, and the Senate once more disagrees, the +Governor may convene a joint sitting of both Houses. +If the proposed law is then passed by an absolute +majority of the whole Parliament so convened in joint +sitting, it shall be taken to have been duly passed by +both Houses.</p> + +<p class='c001'>This method involves the expenditure of a good deal +of time and the worry of a double general election, one +for the House and one for the Senate. But it may prove +to be the best method of solving a problem which neither +Britain nor the United States has yet attempted to solve, +and which certainly needs solution. The reader who +remembers that the numbers of the House have been +fixed to be always double those of the Senate, will now +see how necessary such a provision was in order to +secure that in this final trial of strength between Senate +and House the principle of State rights and the principle +of population shall each have its due recognition. +Should these two principles come into collision, should, +for instance, all the members from the four small States +be of one mind and all the members from the two +large States of another mind, the principle of population +will prevail, for in the two Houses sitting together, +the large States will have sixty-one votes (twelve +senators and forty-nine representatives), whereas the +<span class='pageno' id='Page_518'>518</span>small States will have only fifty (twenty-four senators +and twenty-six representatives). Such a conjuncture +may however never arise.</p> + +<h3 class='c013'>XV. <span class='sc'>Relations of the Two Houses.</span></h3> + +<p class='c007'>The question remains which of the two Houses will +hold the place of the British House of Commons as +determining the tenure of office by Ministries. Upon +this question light may be cast by the provisions +with regard to money bills. The Constitution enacts +(sect. 53) that all bills appropriating revenue or imposing +taxation must originate in the House, and +that the Senate may not amend taxing bills, or +those ‘appropriating money for the ordinary annual +services of the Government,’ though it may return +such bills to the House suggesting certain amendments +in them. The Senate may however reject such +bills. As this scheme, which somewhat resembles +that of the American Constitution<a id='r228'></a><a href='#f228' class='c012'><sup>[228]</sup></a>, itself suggested by +the practice of England, seems to throw upon the +House the primary function of providing money for +the public service, and thus the primary control of the +national exchequer, it would seem that Ministers, unable +without money to carry on that service, must stand or +fall by a vote of the House and not by a vote of the +Senate. Yet the Senate, though it cannot take the first +steps for granting money, can withhold money; and if +it does so in order to get rid of a Ministry it dislikes, +nothing short of the deadlock provision above described +<span class='pageno' id='Page_519'>519</span>can be invoked. Nor can the expedient of mixing up +a number of different taxing provisions in one Bill, or +inserting other matter in appropriation Bills (‘tacking’), +be resorted to, for these are expressly prohibited by the +Constitution (sectt. 54, 55). Possibly in practice the +Houses will frequently agree to let the accustomed +services of the year be provided for without much +controversy, and will reserve their serious conflicts +for new proposals regarding taxation or appropriation.</p> + +<p class='c001'>Australians evidently expect that the usage hitherto +prevailing in all the Colonies of letting the Ministry +be installed or ejected by the larger House will be +followed. Nevertheless the relations of the Commonwealth +Houses are so novel and peculiar, that the +experience of the new Government in working them +out will deserve to be watched with the closest attention +by all students of politics. Englishmen in particular +have good reason for doing so, because England, +when she has substituted a representative Second +Chamber for her present theoretically indefensible +House of Lords, will have to devise some means for +avoiding or solving deadlocks between such a Chamber +and the House of Commons.</p> + +<p class='c001'>Some high Australian authorities have appeared to +doubt whether two co-ordinate Houses can be made to +work along with Cabinet Government. They observe +that although there may be sometimes a willingness to +make compromises for the sake of the public service, +there is also in all governments, and certainly not least +in those of the United States and the British Colonies, +a tendency to press every legal right to its furthest +limit, even if the machine should be stopped thereby. +<span class='pageno' id='Page_520'>520</span>Were such stoppages to become frequent, Australia +might, they think, be driven to amend her Constitution +by so far disjoining the Executive from the Legislature +as to give it something of the permanence it enjoys +in America and Switzerland<a id='r229'></a><a href='#f229' class='c012'><sup>[229]</sup></a>.</p> + +<p class='c001'>The relations of the Senate to the House may largely +depend on factors still undetermined. One of these is +the growth of population. Should the small Colonies +grow rapidly, their representation in the House would +before long be fairly proportionate to that which they +enjoy in the Senate, so that the balance of parties +might, so far as the size of States is concerned, tend +to be nearly the same in both Houses. Another is +the character of the controversies which will arise. +These may not be such as to set the small States +against the large ones, and the three party organizations, +which are already strong, though they possess no such +Machine System as America enjoys, may find their +support pretty equally in all or most of the States, so +that the balance of parties may in practice be found to +differ but little in the Senate from what it is in the +House. Thus these particular wheels or shafts of the +constitutional machine, which are deemed less able than +others to bear a severe strain, may not for a long while +to come have any severe strain thrown upon them.</p> + +<p class='c001'>Another thing which may affect the relations of the +two Houses is the comparative attractions which each +<span class='pageno' id='Page_521'>521</span>will have for high political capacity. In the United +States the Senate became, within thirty years from the +establishment of the Constitution, an assembly much +stronger, through the eminence of its members, than +was the House of Representatives. As its term of +membership was longer (six years against two years), +and as it had certain quasi-executive functions in connexion +with foreign relations and appointments, men +of ability preferred it to the House, and the House +constantly saw its best talent drawn off to its rival. +The Senate has to-day no such intellectual ascendency +as it had then, but capable men still migrate to it when +they can from the House of Representatives. If the +House establishes in Australia, as it will apparently do, +its sole right to make and unmake Ministries, it will be +the more tempting field for ambition: yet something +will depend upon the amount of genius and character +which the Senate attracts, for the presence of these in +abundant measure will give it weight with the nation.</p> + +<p class='c001'>It has been suggested in Australia that the Senate +with its thirty-six members is too small. The Senate +of the United States however began with twenty-six; +and it has been a great advantage to that body that +its original numbers were small, for traditions more +dignified than those of the tumultuous House were +formed, and a somewhat stronger sense of personal +responsibility was developed just because the individual +was not lost in a crowd.</p> + +<h3 class='c013'>XVI. <span class='sc'>Miscellaneous Provisions.</span></h3> + +<p class='c007'>Questions of trade and finance fill a chapter of the +Constitution (sectt. 81-105); and it was indeed these +<span class='pageno' id='Page_522'>522</span>questions, next to the issue between the large and the +small States, that gave most trouble to those who +framed the instrument. It is provided that the collection +and control of all duties of customs and excise +shall pass to the Commonwealth, but that not more +than one-fourth thereof shall, for ten years at least, +be retained by the Commonwealth, the other three-fourths +being paid over to the several States, or applied +to payment of the interest on their respective debts, +should these debts be assumed by the Commonwealth. +This arrangement was deemed needful to supply the +States with funds for defraying their administrative +expenses and the interest on their debts, seeing +that the chief part of their revenue arose from customs +and excise, the five which prepared the Constitution, +except New South Wales, having adopted a protective +policy. Bounties may be given either by the Commonwealth, +or by the States with its consent. There are +provisions regarding the collection of the customs, the +control of railways and settlement of railway rates, +the use of rivers for irrigation and water storage, and +the State debts, but as these are largely temporary, and +have little special interest for the student of constitutions, +important as they are to Australian industries, +I mention them only to show how elaborately the scheme +of union has been worked out, and on how many perplexing +topics, settled provisionally by the Constitution, +the Commonwealth Parliament will have to legislate.</p> + +<p class='c001'>The question of the spot where the capital should be +placed gave rise, as had happened in the United States +and in Canada, to some controversy. It was adjusted +by providing that the seat of Federal government should +<span class='pageno' id='Page_523'>523</span>be in the colony of New South Wales, but at least +100 miles from Sydney. Here an area is to be set +apart of not less than 100 square miles, which shall be +under the jurisdiction of the Commonwealth, as the +District of Columbia is under the authority of the +National Government in the United States: and here +a stately city will doubtless in time spring up.</p> + +<p class='c001'>Power is taken to admit new States, whether formed +out of existing States or not, upon any terms and +conditions (<i>e.g.</i> as to number of Senators) which the +Parliament may fix, but if the new State is formed out +of an old one, only with the latter’s consent. The +Parliament has also full power to accept and provide +for the administration of any territory transferred to +it by the Crown, so that no constitutional questions +can arise resembling that which has occupied American +lawyers since the annexation of Puerto Rico.</p> + +<h3 class='c013'>XVII. <span class='sc'>Amendment of the Constitution.</span></h3> + +<p class='c007'>Last of all we come to the mode of amending the +Constitution, a mode easier to apply than that prescribed +for the United States, but showing the influence to some +extent of the American though more largely of the Swiss +model in its reference to the popular vote.</p> + +<p class='c001'>Every law proposing to alter the Constitution must +be passed by an absolute majority of each House, and +thereupon (after two but before six months) be submitted +to the voters of every State. If in a majority of States +a majority of the electors voting approve the proposal, +and if these State majorities constitute a majority of all +the electors voting over the whole Commonwealth, the +amendment is passed, and is then to be presented to +<span class='pageno' id='Page_524'>524</span>the Crown for assent. Should the two Houses differ, +one passing the proposed law and the other rejecting +it (or passing it with an amendment which the first-mentioned +House rejects), the House which approves +the proposal may again pass it, and if the dissenting +House again dissents, the amendment may be submitted +to the people as if both Houses had passed it. The +decision of the people is final. To meet the fact that +the suffrage is not in all the States confined to men, it +is further provided that, in any State wherein all adults +are entitled to vote, only one half of the vote shall be +counted<a id='r230'></a><a href='#f230' class='c012'><sup>[230]</sup></a>.</p> + +<p class='c001'>Thus the requirements for the passing of an Amendment +are:—</p> + +<p class='c001'>1. Absolute majority in each House of Parliament, +or else absolute majority in one House given twice, the +second time after three months’ interval, <i>plus</i> submission +on both occasions to the other House.</p> + +<p class='c001'>2. Approval of the people in a majority of States (<i>i.e.</i> +at present in four States at least).</p> + +<p class='c001'>3. Approval of a majority of the people voting over +the whole Commonwealth.</p> + +<p class='c001'>The American Federal Constitution requires a two-thirds’ +majority in each House of Congress and a +three-fourths’ majority of States, or else the proposal +of a Convention by two-thirds of the States and a +three-fourths’ majority of States approving what the +<span class='pageno' id='Page_525'>525</span>Convention has settled, conditions extremely difficult +to secure. The Swiss system permits the Constitution +to be amended by the same process as is applied to +the passing of laws, <em>plus</em> a popular vote which results +in a majority of Cantons and in a majority of the +people voting over the whole Confederation.</p> + +<h3 class='c013'>XVIII. <span class='sc'>Relations of the Australian Commonwealth to the Crown.</span></h3> + +<p class='c007'>It has not seemed necessary to set forth the relations +of the Commonwealth to the British Crown, because +these relations are substantially those which have +heretofore existed between the Crown and each of +the self-governing colonies now united in the Federal +Commonwealth. The chief difference is that the +Commonwealth Parliament receives certain powers (as +to extra-territorial fisheries and relations with the +islands of the Pacific) which were previously exerciseable +only by the (now extinct) Federal Council of +Australasia (mentioned above), that it has a general +power to legislate on ‘external affairs’ (a somewhat +vague term, sect. 51, xxix), and that it may ‘exercise +within the Commonwealth, at the request or with the +concurrence of the Parliaments of all the States directly +concerned, any power which can now be exercised only +by the Parliament of the United Kingdom or by the +Federal Council of Australasia’ (sect. 51, xxxviii). Apart +from these provisions, which may give rise to some +delicate questions, the principles and practice which +have guided the action of the Home Government and +of the Colonial Governors will apparently be preserved. +Though the Imperial Parliament has an +<span class='pageno' id='Page_526'>526</span>unquestioned right to legislate for every part of the +British dominions so as to override all local legislation, +it does not now exercise this power except +for a few purposes of utility common to all, or many, +British possessions, such as for the regulation of +merchant-shipping or copyright, and when it does so, +it secures the assent of the self-governing Colonies. +So again, though the Crown has a legal right to withhold +consent from Colonial Statutes, this right is +rarely exerted, and then only in respect of some general +imperial interest which it is supposed that the statute in +question may prejudicially affect, <i>i.e.</i> the Crown’s right +is not exerted in the interest of any class of persons +in the Colony or in pursuance of any particular view +entertained either by the Governor there or by the +Ministry at home. The new Australian Constitution +provides (sectt. 58-60) that when a measure passed +by the Parliament is presented to the Governor-General, +he may either assent to it in the Queen’s +name (but subject to a power to the Queen to disallow +the same within one year) or he may withhold +assent; or he may reserve it for the Queen’s pleasure, +in which last case it shall not take effect unless he +announces within two years that the Queen has +assented to it. This right of veto, though it looks on +paper larger than that which belongs to the President +of the United States, seeing that the President’s veto +can be overridden by a two-thirds’ majority in each +House of Congress, is in reality far more limited, and +will constitute no check (except where imperial interests +may be affected) upon the practically sovereign power +of the Commonwealth Parliament.</p> + +<div> + <span class='pageno' id='Page_527'>527</span> + <h3 class='c013'>XIX. <span class='sc'>Comparison with the Constitutions of the United States and Canada.</span></h3> +</div> + +<p class='c007'>Before I make some general reflections on the character +of this Australian Constitution, it is worth while +to note summarily the principal points in which it differs +from the two other Federal Constitutions which it most +resembles.</p> + +<p class='c001'>The provisions which it has borrowed from the +American Constitution have been already adverted to. +It differs from that Constitution in the following (among +other) respects:—</p> + +<p class='c001'>1. It is a longer instrument, going into much fuller +detail on many topics.</p> + +<p class='c001'>2. It leaves less power to the States and gives +more power to the Commonwealth; and it enables the +Commonwealth Parliament to legislate for a State upon +the State’s request, a thing which lies quite outside the +functions of Congress.</p> + +<p class='c001'>3. It does not establish a complete system of Federal +Courts covering the whole area of the Commonwealth, +but allows State Courts to be invested with Federal +jurisdiction.</p> + +<p class='c001'>4. It makes the Federal High Court a Court of +appeal from State Courts, whereas in the United States +each State Supreme Court is final in its proper sphere.</p> + +<p class='c001'>5. It contains hardly any restrictions, in the nature of +a ‘Bill of Rights,’ upon the power of the Federal Legislature +over the individual citizen.</p> + +<p class='c001'>6. Instead of disjoining Legislature and Executive, +it unites them closely by the system of Responsible or +Cabinet Government, and so far from excluding every +<span class='pageno' id='Page_528'>528</span>official from Congress, it makes a seat in Parliament +a condition of Ministerial office.</p> + +<p class='c001'>7. It vests the choice of the Head of the Executive, +not in the people, but in an external authority, the +British Crown. To be sure, this Head is nominal and +not responsible either to the people or to the legislature.</p> + +<p class='c001'>8. It vests the election of Senators in the people, not +in State Legislatures, gives the Senate no power of +amending but only of suggesting amendments in +money bills, makes the Senate dissoluble in case of +a deadlock between it and the House, and contemplates +the possibility that new States may have a smaller +representation in the Senate than original States.</p> + +<p class='c001'>9. It gives to the Executive no such veto on legislation +as the President has in the United States. I have +already explained that the veto of the Governor-General +and the Crown is a different thing, and rarely +employed.</p> + +<p class='c001'>10. It makes the amendment of the Constitution +a much less tedious and difficult process.</p> + +<p class='c001'>Thus it may be said that, as compared with the +American Constitution, it vests more power in the +National Government as against the State Governments, +and that, as between the various departments +of the National Government itself, it concentrates +power more fully in the hands of the Legislature and +imposes fewer restrictions upon its action.</p> + +<p class='c001'>The Constitution of Canada seems at first sight +nearer to that of Australia than does the American. +It has a Monarch, represented by a Governor-General, +for the head of its Executive. It contemplates a number +of States small when compared with the forty-five of +<span class='pageno' id='Page_529'>529</span>the American Union. It has adopted the British system +of Cabinet or responsible Government.</p> + +<p class='c001'>But the differences are really so considerable as +to place Australia’s scheme as far from that of her +colonial sister as from the American. Among them +are the following:—</p> + +<p class='c001'>1. The Canadian Constitution prescribes the Constitutions +of the several Provinces, though it permits +the Provincial legislatures to alter them (subject to a +Federal veto). The Australian assumes its State Constitutions +as existing, and makes no change in them, +except so far as the Federation controls or supersedes +them. Hence the antecedent power of changing them +remains, so far as they are not affected by the Federal +Constitution.</p> + +<p class='c001'>2. Australia leaves to the States all residuary powers +(<i>i.e.</i> powers not expressly granted). Canada withholds +them from the Provinces and vests them in the Dominion.</p> + +<p class='c001'>3. Australia leaves the State Governors to be appointed, +as now, by the Home Government, apart from +Federal interference. Canada gives the appointment of +them to the Federal Ministry. And whereas in Canada +a Provincial Governor cannot communicate directly +with home but only with the Governor-General, in +Australia the State Governor and his Ministers are +in direct touch with the British Government in London.</p> + +<p class='c001'>4. Australia gives to the Federal Government no +right whatever to interfere with State Statutes. Canada +invests the Dominion Government with a veto on Provincial +legislation by placing the Governor-General as +regards such legislation in the place which the Queen +holds as regards Dominion legislation.</p> + +<p class='c001'><span class='pageno' id='Page_530'>530</span>5. Australia distinguishes Federal from State jurisdiction, +taking power to establish Federal Courts other +than her High Court, and to invest State Courts with +Federal jurisdiction. Canada has no special Federal +Courts other than the Supreme Court of the Dominion.</p> + +<p class='c001'>6. Australia makes her Senate an elective assembly. +In Canada the Senate is nominated by the Dominion +Government, and is therefore a weak body, quite unfit +to try conclusions with the House which has the people +behind it.</p> + +<p class='c001'>7. Australia provides a method whereby the Commonwealth +may amend its Constitution. Canada has +no such method, and thereby leaves amendment to the +Imperial Parliament of the United Kingdom.</p> + +<p class='c001'>This comparison shows that the Australian scheme +of Federal Government stands intermediate between +that of the United States and that of Canada. In the +United States, the Federal Government has less power +as against the States than in Australia. In Canada, the +Federal Government has more power, or at least a +wider range of action. In other words, the Australian +system approaches nearer, in point of form, to a Unitary +Government than does the United States, but not so +near as does Canada. I am speaking merely of form, +that is, of the institutions as they stand on paper, for +it does not necessarily follow that the spirit in which +institutions are worked will precisely correspond to +their form. The old Romano-Germanic Empire, for +instance (1638-1806), was less unitary in practice than +would have been collected from its form; the new +German Empire (since 1871) is more unitary in spirit +and working than its form would necessarily convey.</p> + +<div> + <span class='pageno' id='Page_531'>531</span> + <h3 class='c013'>XX. <span class='sc'>General Observations on the Constitution.</span></h3> +</div> + +<p class='c007'>Technically regarded, the Constitution is an excellent +piece of work. Its arrangement is logical. Its language +is for the most part clear and precise. The occasional, +and perhaps regrettable, vagueness of some expressions +appears due, not to any carelessness of the draftsmen, +but to the nature of the subject-matter. The cumbrousness +of the provisions regarding customs, duties, and +the control of railways is the almost inevitable result of +an effort to meet the claims and appease the apprehensions +of neighbouring communities with interests +that have been deemed opposed. Although it is much +longer, as well as less terse, than the Constitution of +the United States, going into fuller detail, and with +more of the flavour of an English statute about it, it +nevertheless, like that Constitution, leaves much to be +subsequently filled up by the action of the legislature. +A very large field of legislation remains common to the +States and the Commonwealth Parliament; and though +statutes passed by the latter will of course override or +supersede those which may have been passed by the +former, it may be many years before the higher Parliament +finds leisure to cultivate all the ground which +lies open before it. A further range of activity for that +Parliament may disclose itself if the State legislatures +should exert the power they possess of asking the +Commonwealth to take over part of their work. And +apart from both these lines of legislative action, the +Parliament will find a very large number of matters +which the Constitution has expressly directed it to +<span class='pageno' id='Page_532'>532</span>settle by statutes. Till such statutes have been enacted, +many points material to the working of the system will +remain undetermined.</p> + +<p class='c001'>In two points the experience of the United States +has been, consciously or unconsciously, turned to +account. The complaint has often been made in +America that the Constitution contains no recognition +of the Supreme Being. The Australians have introduced +such a recognition in the preamble of the Imperial +Act establishing the Constitution, which runs as +follows: ‘Whereas the people of New South Wales, +Victoria, South Australia, Queensland, and Tasmania, +humbly relying on the blessing of Almighty God, have +agreed to unite in one indissoluble Federal Commonwealth +under the Crown of the United Kingdom,’ &c. +And they have also solemnly enounced in the same +preamble that indissolubility of their union which the +Americans did not enounce in 1788, and the absence of +which from the instrument gave rise to endless argumentation +on the part of those who maintained the right +of a State to retire from the Federation.</p> + +<p class='c001'>The perfection of any Federal system may be tested +by the degree of thoroughness with which the Federal +principle is worked out in its application, not only to +the legislative, but also to the executive and judicial +branches of government. In this respect the Australian +scheme is less perfect than the American; for the +Commonwealth has received power to legislate, no +doubt at the request of the State, on purely State +matters, to return to the States part of the revenue it +collects, and to assume the pecuniary liabilities of the +States. There is also, as already noted, no such +<span class='pageno' id='Page_533'>533</span>effort as in America to secure that questions of +State law shall be determined solely by State Courts, +for such cases may be appealed from State Courts to +the Federal High Court. Thus the Nation looms large +over the whole instrument, overshadowing the States. +There are indeed many provisions for safeguarding the +interests of the States, yet these are not so much recognitions +of States’ rights as stipulations made to secure +material advantages, industrial or commercial or financial. +An explanation of this remarkable feature of the scheme +may be found in the phenomena of Australian as compared +with those of American history. The thirteen +States which united in 1788-9 had each of them a long +history. The two oldest dated back to the beginning +of the seventeenth century. The youngest had nearly +sixty years of political life behind it. All were animated +by a strong sentiment of local independence, and by +a passion for liberty which had become associated with +local independence. Their notions of a Unitary Government +were formed from England, whose monarch +they had latterly learned to hate as their oppressor. +Hence their love for their States was largely sentimental. +Their minds were filled, not by the mere +sense of what they gained from their States as business +men, but by the loyalty they bore to their States as +protectors of their civic rights and embodiments of their +historical traditions.</p> + +<p class='c001'>Very different were the feelings of the Australians. +The oldest colony dated back scarcely more than a +hundred years, and had enjoyed responsible government +for less than fifty. Proud as each colony was of its +progress, there had not been time for those political +<span class='pageno' id='Page_534'>534</span>traditions to be formed in which the love of local +independence roots itself. Neither were there between +the several colonies such differences of origin or of +usages and ways of life as separated the New Englanders +from the men of Virginia and the Carolinas, for the +Australians had emigrated so recently from Britain +that no local types had yet been formed. Still less +was there that aversion to a Unitary system of government +which the strife with England had evoked among +the Americans. The only political model which the +Australians knew at first hand was the government +of Britain by its Parliament, a government which had +ceased in 1832 to be oligarchic, and had since 1867 +begun to be democratic. Accordingly, among the +Australians, State feeling had a thoroughly practical +and business character. It took in each man the +form of a resolve to secure the agricultural and +trading interests of his own part of the country. It +was in fact the wish to make a good bargain for his +community and himself. Sentiment there was and is. +But the sentiment gathered round the Commonwealth +of the future rather than the Colony of the past. The +same kind of feeling which attached the sons of the +Cavaliers to Virginia and the Puritans of Massachusetts +to the old ‘Bay State’ made the Australians desire to +found a great nation which should be the mistress of +the Southern seas. Hence the absence of any jealousy +of the central power beyond that which is suggested +by the fear that local industrial or commercial interests +might be unfairly dealt with.</p> + +<p class='c001'>This attitude of Australian feeling will therefore (if +the view here presented be correct) work towards the +<span class='pageno' id='Page_535'>535</span>development of those centralizing tendencies in the +Constitution for which its terms give ample scope. In +all forms of polity the influences which draw the members +of a composite political community together and those +which thrust them asunder are partly material, partly +sentimental<a id='r231'></a><a href='#f231' class='c012'><sup>[231]</sup></a>. How the influences of material interest +will work in Australia I will not attempt to predict. +Some of them may prove centrifugal; others, such as +those of trade, are clearly centripetal. The Constitution +frankly recognizes that economic conditions prescribe +a federal rather than a unitary government. +But it is a significant fact that the influences of +sentiment were arrayed on the side of the Nation +rather than on that of the States. One can read this +between the lines of the Constitution; and it explains +why the Frame of Government is less consistently +Federal than is that of the United States.</p> + +<h3 class='c013'>XXI. <span class='sc'>Modern and Democratic Character of<br> the Australian Constitution.</span></h3> + +<p class='c007'>The Australian instrument is the true child of its +era, the latest birth of Time. Compared with it, the +American Constitution seems old-fashioned, and parts +of the Swiss Constitution positively archaic. Cabinet +Government, whose fully developed form is scarcely +a century old, is taken for its basis. Ideas and enterprises, +problems and proposals, so new that they are +only just beginning to be seriously discussed, figure +in it. As slavery, an institution almost coeval with +the human race, but essentially barbarous, survived to +be mentioned (under a transparent euphemism) in the +<span class='pageno' id='Page_536'>536</span>Constitution of the United States, so a new industrial +question—viz. the struggle between white labour and +free coloured labour—makes its appearance in this +Australian document. Here too are the new products +and new methods of science, telegraphs and telephones +and the keeping of meteorological observations; here +is the extension of the suffrage to women; here are +the new troubles which spring from contests between +employers and workmen; here the new proposals for +throwing on the State the function of providing for its +members in sickness and old age; here an express +recognition of the right of a State to control the traffic +in intoxicating liquors. And above all these one perceives +through the whole instrument that dominant +factor of our age, the ever-present and all-pervading +influence of economic forces, of industrial production, +of commerce, of finance. The increased and increasing +importance of these influences in the life of the modern +world, stimulated as they have been by the amazing +progress of scientific discovery, finds a fuller expression +in this Constitution than in any other yet framed.</p> + +<p class='c001'>As in these points this Constitution is at least +abreast of European and American theory, and ahead +of European or American practice, so also it represents +the high-water mark of popular government. It is +penetrated by the spirit of democracy. The actual everyday +working of government in the Australian Colonies +is more democratic than in Britain, because Britain +has retained certain oligarchical habits, political as well +as social. It is more democratic than in the United +States, because there both the States and the Union are +fettered by many constitutional restrictions, and because +<span class='pageno' id='Page_537'>537</span>wealth has there (as indeed in Britain also) been able +to exert a control none the less potent because half-concealed. +But the Constitution of this Federal Commonwealth +is more democratic than are the Constitutions +of the several Australian colonies, in some of which +property qualifications and nominated second chambers +have survived till now. It prescribes no qualification +for a Senator or Representative beyond his having attained +the age of twenty-one and being himself qualified +to become an elector. He need not even be a resident +in the State where he seeks election. The Senate +as well as the House is elective; both are chosen directly +by the people, and on the basis of the suffrage +which each State prescribes for the election of its more +popular House. The duration of the House is only +three years. The direct popular vote, an institution +specially characteristic of advanced democracy, which +has been developed independently in the United States +and in Switzerland (where it has taken the double +form of a Referendum to the people and an Initiative +proceeding from the people), is here applied to the +enactment of amendments to the Constitution, and, in +the form of a general election of both Houses simultaneously, +to the settlement of deadlocks between the +Houses. There is no veto on the acts of the Legislature, +for that vested in the Governor-General and in +the Crown is not intended to be used except in the +rare cases where imperial interests may be touched. +In fact all those checks and balances in the English +and American Constitutions by which the censors of +democracy used to set such store, have here dwindled +down to one only, viz. the existence of two Chambers. +<span class='pageno' id='Page_538'>538</span>These two will be elected on the same franchise and +composed of similar men, but the tendency to dissension +so natural to rival bodies may sometimes interpose +delays and ought certainly to make the criticism of proposals +more searching. If the principle of popular sovereignty +is expressed with equal clearness in the Constitutions +of America and Switzerland, it assumes in +this Australian Constitution a more direct and effective +form, because many of the restrictions which the two +former constitutions (and especially that of America) +impose on the legislature in the supposed interests +of the people are absent from the Australian instrument. +In Australia the people, through their legislature +with its short term, are not only supreme, but can, by +the legislature’s control of the Executive, give effect +to their wishes with incomparable promptitude. For this +purpose, the expression ‘people’ practically means the +leader who for the time being commands the popular +majority. Holding in his hand both the Executive +power of the Cabinet and the legislative power of +Parliament, he has opportunities of effecting more than +any one man can effect under the constitutions either +of America or of Switzerland.</p> + +<p class='c001'>The solitary restraint which Australia provides is +the co-ordinate authority of the Senate, a hostile +majority in which may check or at least delay his legislative +projects. Yet if his party in the country be well +organized and his programme alluring to the masses +he may control the Senate as well as the House, +for it does not follow that because the smaller States +have prudently placed their interests under the protection +of the Senate, they will on the great issues of +<span class='pageno' id='Page_539'>539</span>politics be usually found opposed to their larger +neighbours<a id='r232'></a><a href='#f232' class='c012'><sup>[232]</sup></a>.</p> + +<p class='c001'>This highly democratic character of their Constitution +has been fully appreciated by Australian statesmen. +The effusiveness with which they dwell upon it is probably +more sincere than even that which is displayed +by politicians in England, America, or France, when +they chant the praises of the multitude. Australians +are as sanguine in their temper now as Americans were +in the days before the clouds of Slavery and Secession +had begun to darken their sky.</p> + +<h3 class='c013'>XXII. <span class='sc'>Political Party in Australia.</span></h3> + +<p class='c007'>Although the Constitution says no word about political +parties, the fact that it contemplates a party system is +written over it in bold characters. The sages of the +Philadelphia Convention of 1787 neither intended nor +expected that the scheme they devised would fall into +the hands of parties. Indeed they had a touching +faith, dispelled as soon as Washington retired from +the scene, that the electors who were to be chosen +to elect the President would select the best man in the +nation irrespective of his political ties. The Swiss, +strange as it may seem to men of English or Anglo-American +race, have succeeded in keeping their Executive, +elected though it is by the Chambers, out of +party politics altogether, nor do parties dominate the +<span class='pageno' id='Page_540'>540</span>legislature and colour the public life of the nation as +in America and England. But Government of the +English ‘Cabinet type’ is essentially party Government, +that is to say, it has been so hitherto both in England +and wherever else it has been tried, and no one has +yet shown how it can be made to work otherwise.</p> + +<p class='c001'>In America the great parties are younger than the +Constitution, which may be said to have created them. +In England they are older than Cabinet Government +proper, being practically contemporaneous in their rise +with that very rudimentary form of the Cabinet which +began to emerge in the time of King Charles II. In +Australia every colony has had such active and skilfully-organized +parties that no one doubts but what the +Federal Legislature will find its first Ministry forthwith +provided with a competent Opposition. It is generally +believed that the tariff will furnish the first, and for +some time the main, ground of party division, for the +new Government must begin by providing itself with +an adequate revenue; the chief part of that revenue +must be raised by indirect taxation, and the issue of +Free Trade <span lang="la"><i>versus</i></span> Protection has for years past been +a burning one in the largest Colonies.</p> + +<p class='c001'>I have observed that the Australian scheme contemplates +a party system to work it. But what sort of +a party system? Obviously one in which there are +two parties only, each cohesive, each prepared to +replace its antagonist in the Executive. Such was +the party system of England till the present generation. +Such has been the party system of the United +States. Exceptions indeed there have been, such as +the Know-Nothing party in 1852, the Greenback party +<span class='pageno' id='Page_541'>541</span>in 1876, the Populist party which arose in 1889, and is +not quite extinct now (February 1901). In the United +States the power of the two great organizations is so +vast, and the cost of creating a new party so deterrent, that +a third organization seldom appears, and if it appears, +presently disappears. But in France there have been +and are several parliamentary groups, which frequently +change their attitude towards one another, sometimes +combining to support a Ministry, sometimes falling +asunder and leaving it to perish, because one group +alone was not sufficient to sustain it. Hence the lives +of Cabinets have been short, and would have been still +shorter but for the fact that an imminent peril to +republican government itself has sometimes compelled +the various republican groups to hold together. In +Britain the same difficulty became acute from 1880 +onwards, as the Irish Nationalists consolidated themselves +in a distinct Third Party; and it may at any +moment create serious embarrassment. It exists in +Germany also, and in the Reichsrath of the Austrian half +of the Austro-Hungarian Monarchy. Now in several of +the Australian Colonial Parliaments a Labour party has +recently arisen, which, keeping itself independent of the +two older parties, can throw its weight on one or +the other side and endanger the stability of Cabinets. +Should this phenomenon reappear in the Parliament +of the Commonwealth, it will complicate still further +a position which the co-ordinate powers of Senate and +House make complicated enough already<a id='r233'></a><a href='#f233' class='c012'><sup>[233]</sup></a>.</p> + +<div> + <span class='pageno' id='Page_542'>542</span> + <h3 class='c013'>XXIII. <span class='sc'>Political Issues likely to arise<br> in Australia.</span></h3> +</div> + +<p class='c007'>The mention of parties suggests another question, +the last I shall attempt to discuss, viz. the lines on +which the political life of Australia is likely to move +under her new Constitution. It is a topic on which +little will be said by any one who remembers how +seldom great constitutional changes have been followed +by the results prophesied at the time. The Reform Bill +of 1832 in Britain, the Civil War in the United States, +the union of Italy under the dynasty of Savoy, not to +speak of the French Revolutions of 1789 and 1848, all +brought forth fruits very different from those predicted +by some of the most judicious and unbiassed contemporary +observers. Even the extension of the +suffrage and redistribution of seats effected in Britain +in 1884-5 were followed by a shifting of the balance +of party strength exactly the opposite of that which +the shrewdest party politicians had expected. But +without attempting forecasts, one may try to indicate +certain conditions likely to affect the development of +Australian national and political life under the new +form which this Constitution gives it.</p> + +<p class='c001'>First let us ask what are the controversies likely to +occupy the nation and to supply a basis for national +parties?</p> + +<p class='c001'>Taking one country with another, it will be found +that the questions on which men have grouped themselves +into parties may be classed under five heads, +viz.:—</p> + +<p class='c001'>1. Questions of Race, such as those which have +<span class='pageno' id='Page_543'>543</span>contributed to distract Ireland, which to-day trouble +the Austrian Monarchy and (as respects the Poles) the +Prussian Monarchy, which exist, though at present not +acute, in Canada, and which are painfully acute in South +Africa.</p> + +<p class='c001'>2. Questions of religion, now generally less formidable +than they once were, yet embittering disputes +regarding education in many modern countries.</p> + +<p class='c001'>3. Questions relating to foreign policy, whether as +to the general lines on which it should be conducted, +or as to the attitude to be held towards particular States +at any given moment.</p> + +<p class='c001'>4. Questions regarding the distribution of political +power within the nation itself.</p> + +<p class='c001'>5. Questions of an economic or economico-social +kind, <i>e.g.</i> regarding the disposal of land in public hands +or its tenure in private hands, regarding the conditions +of labour, regarding taxation and finance, the policy of +Protection or Free Trade, the policy of progressive +imposts, the propriety of assisting particular industries or +particular classes out of public funds, whether national +or local. Some of these may seem to be rather social +than economic, but it will be found upon scrutiny that +it is their economic aspect, <i>i.e.</i> their tendency to take +money from or give money to some class in the community, +that makes them bases for party combination. +A purely social question seldom assumes great political +significance.</p> + +<p class='c001'>(1, 2) Applying this classification to Australia we shall +find that the first two sets of questions are absent. All +the people are of practically the same race. None are +animated by any religious passion, although controversies +<span class='pageno' id='Page_544'>544</span>have sometimes arisen over theological teaching +in State schools.</p> + +<p class='c001'>(3) Questions of foreign policy do not, strictly speaking, +come within the scope of the Commonwealth Parliament, +because they belong to the mother country. +Nevertheless, it cannot be doubted that the Parliament +will from time to time interest itself in them, especially +as regards the isles of the Pacific and of the Eastern +Archipelago, and will give forcible expression to its +views should any crisis arrive. One can well imagine +that the question of the attitude which the Commonwealth +should assume, or urge the mother country to +assume, towards Germany or France, or Holland, or +even towards China or Japan or the United States, +when any of these Powers may be taking action in the +Western Pacific, might give rise to political contention.</p> + +<p class='c001'>(4) As respects the distribution of political power +and the structure of the Federal Government, Australia +is so democratic already that it cannot go much further. +It will doubtless, however, be proposed to extend to +women in all the States that right of voting at Commonwealth +elections which they already enjoy in South +Australia and Western Australia, under the local law, +or to apply more widely the institution of the direct +popular vote; or to amend the Constitution in some +point which will raise an issue between the more radical +and the more conservative sections of opinion. That +questions of constitutional amendment have played so +small a part in American politics may be attributed to +the extreme difficulty of securing the majorities required +for altering the Constitution. In Australia the +process will be far easier. The history of the United +<span class='pageno' id='Page_545'>545</span>States during the first seventy years of the Constitution +suggests that the question of the respective rights of +the Federation and of the States may furnish a prominent +and persistent issue. This is quite possible, for +in Federations there is a tendency for many controversies +of various kinds to connect themselves with, or +to raise afresh, controversies regarding the true construction +of the Federal instrument as respects the +powers which it assigns to the Nation and to the component +communities.</p> + +<p class='c001'>(5) It is however questions of the economic order +that are likely to occupy, more than any others, the +minds and energies of Australian statesmen. The +tariff is a practically inexhaustible topic, because apart +from the general issue between a Protective and Free +Trade policy, the particular imports to be taxed and +the particular duties to be imposed will furnish matter +for debates that can hardly have finality, seeing that +circumstances change, and that the financial needs +of the Government will increase. It need hardly be +said that in a new country like Australia direct taxation +is difficult to collect and highly unpopular, so that larger +recourse will be had to customs and excise than orthodox +economists could justify in Europe. The financial +relations between the Commonwealth and the States +will be another fertile source of controversy. So may +the regulation of the railways, which the Commonwealth +seems likely to take over. So will the arrangements +for securing the respective rights of different +States as regards both irrigation and the navigation of +the rivers, practically the only rivers of the Continent, +which intersect the three south-eastern colonies. +<span class='pageno' id='Page_546'>546</span>Among the labour questions likely to arise, one problem, +much before the minds of Australians, may be found +to cause difficulties in its details if not in its general +principle, viz. the exclusion of immigrants of coloured +race, Chinese, Japanese, Malays, and Indian coolies. +The white labourers of the temperate colonies have been +strongly opposed to the admission of such strangers, +but the planters of the tropical north, who have used +the labour of Pacific islanders on their sugar estates, +take a different view of the case.</p> + +<p class='c001'>Some may think that the obvious line of party +division will be found to be that which ranges the +four smaller and the two larger States into opposite +camps. If this should happen, which may well be +doubted, it will be owing to a coincidence of economic +interests, and not to the mere fact that the strength +of one set of States lies in the House, that of the other +in the Senate. The two largest States, New South +Wales and Victoria, have hitherto been conspicuously +divergent in their financial policy. In America, though +the small States fought hard against the large ones in +the Convention of 1787, the distinction has never since +that date possessed any permanent political significance.</p> + +<p class='c001'>If parties form themselves on any geographical lines, +the line will more probably be one between the tropical +and the temperate regions. These tropical regions +are at present much less populous and wealthy than +is the temperate south-east corner of the Continent. +They will doubtless increase both in wealth and in +population, but as the strong sun forbids out-door +labour to white men, the population enjoying political +rights cannot, for generations to come, be a large one.</p> + +<div> + <span class='pageno' id='Page_547'>547</span> + <h3 class='c013'>XXIV. <span class='sc'>Possible Entrance of New States.</span></h3> +</div> + +<p class='c007'>The existing situation may be so materially affected +by the entrance of new States that one naturally asks +what are the prospects that new States will be admitted. +As the whole Continent is already divided +among the five existing States, new ones can come +into being only by carving up the three larger of +these. There has already been talk of dividing Queensland +into two or perhaps three States. Others +might be formed out of the now sparsely peopled +regions of the north and north-west, when they +have become more thickly inhabited. How fast the +process of colonization will advance in these regions +will depend upon what engineering science may be +found able to do for the more arid tracts in the way +of storing rain-water and raising it from deep wells, +while something will depend on the disposition of the +Federal Government to spend money for that purpose. +Nor is another element to be overlooked. Vast as is +the mineral wealth already known to exist in the +explored parts of Australia, it may be equalled by +that which exists in regions which have received no +thorough geological examination. Should mines begin +to be worked in the arid tracts, an additional motive +would be given for the provision of water supplies +there, for the existence of a population furnishing +markets would stimulate men to develop the capacities +of the soil for ranching and even for tillage. These +possibilities show how many factors hitherto undetermined +may go to moulding the political future of the +country. The increase of population in regions now +<span class='pageno' id='Page_548'>548</span>thinly peopled would either make the four smaller +States, or some of them, the equals of the larger, or +would, more probably, lead to the creation of new +States, some of them with a character different from +that of the two which now command a decisive majority +in the House of Representatives. As the settlement of +the Mississippi Valley changed American politics, so +a filling up of large parts of the interior and north of +Australia, unlikely as this now appears, might affect +her constitutional growth in ways at which we can now +only guess.</p> + +<p class='c001'>At present not only these tropical regions, but also +the settled parts of Western Australia are separated by +vast uninhabited spaces from the populous south-east +corner of the continent. Hence just as in Canada an +Intercolonial Railway to connect Nova Scotia and New +Brunswick with Quebec and Ontario was provided for +in the Constitution of 1867, and just as the construction +of the great transcontinental Canadian Pacific line +enabled Manitoba and British Columbia to become +effective members of the Federation, so a line of +railway from east to west across Australia, as well as +the completion of the line, already partly constructed, +from the south to the north, are among the political +needs of the Commonwealth, and might do much to +weld its people into an even more united nation.</p> + +<p class='c001'>One community remains to be mentioned whose +geographical position towards Australia recalls the +saying of Grattan that while the Ocean forbade Ireland +to be politically severed from Britain, the Sea forbade +an incorporating union. It has been hoped that New +Zealand would enter the Federation, and she has herself +<span class='pageno' id='Page_549'>549</span>seriously considered whether she ought to do so. With +a healthy climate, a soil generally well watered, and an +area not much less than that of the British Isles, New +Zealand has evidently a great future before her. The +population, now between 700,000 and 800,000, has tripled +within the last thirty years; and the level of personal +comfort and well-being is as high as anywhere in the +world. Her accession would give further strength to +the Federal Commonwealth. But New Zealand, as one +of her statesmen observed, has twelve hundred reasons +against union with Australia, for she is separated from +the nearest part of Australia by twelve hundred miles of +stormy sea, a distance more than half of that which +divides Ireland from Newfoundland. She may therefore +think that some sort of permanent league with +Australia, for the purposes of combined naval defence +and joint action in external questions of common +concern, would conform better to her outlying position +than would participation in a Legislature which must +be mainly occupied with the affairs of Australia. Of +the subjects assigned by the Constitution to the +Commonwealth Parliament, there are several in which, +because purely Australian, New Zealand would have +no interest, some also with regard to which she could +legislate better for herself than the Commonwealth could +legislate for her, inasmuch as her economic and social +conditions are not the same as those of Australia. An +illustration is furnished by the difference between the +native races in the two countries. The Australian +aborigines, one of the most backward branches of the +human family, are obviously unfit for the exercise of +any political functions. They are not permitted to vote +<span class='pageno' id='Page_550'>550</span>in any colony, and the Constitution provides that in +determining the number of representatives to be allotted +to a State they shall not be reckoned among its population. +But the Maoris of New Zealand are an intelligent +folk, to whom New Zealand has given the suffrage, +and who are now on excellent terms with their white +neighbours. It would no doubt be possible for the +Commonwealth Parliament to legislate differently for +them and for the ‘black fellows’ of Australia; but their +dissimilar character shows the difference of the problems +which arise in the two countries. New Zealand +has however an interest in obtaining free access to +the Australian markets, and her final decision as to +entering the Federation may be influenced by the +commercial policy which the larger country pursues<a id='r234'></a><a href='#f234' class='c012'><sup>[234]</sup></a>.</p> + +<p class='c001'>In this changeful world, no form of government ever +remains the same during a long series of years, and no +Federation, however strictly the rights of its members +may be secured by a Rigid Constitution, can continue to +maintain exactly the same balance of powers between +the Nation and the States. I have already expressed +the opinion that the tendency is in Australia likely to be +rather towards consolidation than towards a relaxation +of the Federal bond, because not only national sentiment +but economic influences also will work in that +direction. Much however may depend on a factor still +unpredictable, the relations between Australia, together +with the British Empire generally, and the other Powers +which are interested in the Western Pacific. Nothing +<span class='pageno' id='Page_551'>551</span>does so much to draw together a people already homogeneous +as the emergence of issues which threaten, or +result in, a struggle against foreign States. The sentiment +of internal unity is accentuated. Public attention +is diverted from domestic controversies. Powers are +willingly yielded to the Executive which would in days +of peace be refused. The consequences may be good +or evil—they have sometimes been in the long run +evil—but either way they alter the character of the +government. They may even give a new direction to +its policy, as the United States has recently, and quite +unexpectedly, discovered.</p> + +<h3 class='c013'>XXV. <span class='sc'>Future Relations of the Australian<br> Commonwealth to Britain.</span></h3> + +<p class='c007'>Australia however is not a State standing alone in +the world, but a member of the British Empire, so we +cannot close an examination of her Constitution without +asking whether the union of her Colonies will affect her +relations to the mother country.</p> + +<p class='c001'>When the first Convention to frame a Federal Constitution +assembled in 1891, most Englishmen supposed +that a Federated Australia would soon aspire to complete +independence. Australian statesmen saw deeper, +and predicted that the formation from the several +Colonies of an Australian Nation would tend not to +loosen, but rather to draw closer the ties that unite the +people to Great Britain. So far as can be judged from +the course of Australian opinion during the past ten +years, this has been the result. There were at first +some who advocated Federation as a means to independence. +But they soon desisted, overborne by a different +<span class='pageno' id='Page_552'>552</span>current. The same National feeling through which +Federalism triumphed seems to have deepened the sense +of unity with other members of the British race. And +possibly that suspicion which colonies are apt to feel +of a sort of patronage on the part of the mother +country, and which sometimes disposes them to be self-assertive, +may have vanished as they came to realize +that the old country was proud of them and wished to +treat them not only as a daughter but as an equal. +Neither do they, democrats as they are, harbour distrust +of a monarchy, or deem their freedom in any way +hampered by it. The love for republicanism in the +abstract, though far stronger in Continental Europe +than in England, was everywhere a force in the first +half of the nineteenth century. It has faded away in the +second half throughout the British world, because the +solid substance of freedom has been secured, because +the old mischiefs of monarchical government have +reappeared in republics, because men’s minds have +begun to be occupied with economic and social rather +than with purely political questions. The fact that +the British Crown is titular head of the Australian +Commonwealth will not render the working of the +Constitution less truly popular, any more than has +befallen in Canada, a somewhat less democratic +country. So far as the internal politics of Australia +are concerned, she will take her own course, scarcely +affected by her connexion with England. But the fact +that she is, and seems likely to remain, a part of the +British Empire, sharing in the enterprises and conflicts +and responsibilities of that vast body, is a fact of the +highest moment for her future and for the future of +<span class='pageno' id='Page_553'>553</span>the world. Still more momentous might her relation +to the Empire become should any scheme be devised +for giving the self-governing Colonies of Britain a share +in the financial liability for common defence, together +with a voice in the determination of a common foreign +policy. The difficulties of constructing any constitutional +machinery for this purpose are obvious, yet +perhaps not insurmountable. Should any such arrangement +be ever reached, it will probably be reached +through some crisis in the history of the Empire itself.</p> + +<p class='c001'>Sixty years ago it was generally believed that as +soon as each British self-governing colony had become +conscious of its strength, it would naturally desire, and +could not be refused, its independence. But the last +sixty years have brought with them many favouring +conditions; and among these, one of which no one then +thought, the long reign of a sovereign whose personal +character, by its purity, simplicity and kindliness, won +such reverence and affection, not only for herself, +but also for the ancient institutions at the head of +which she stood, that the prolongation of her life may +be reckoned among the causes which have kept these +far-off lands a part of the British realm and have given +its actual form to the Commonwealth of Australia.</p> + +<div class='nf-center-c0'> +<div class='nf-center c003'> + <div>END OF VOL. 1</div> + </div> +</div> + +<div class='nf-center-c0'> + <div class='nf-center'> + <div><span class='pageno' id='Page_554'>554</span>OXFORD</div> + <div>PRINTED AT THE CLARENDON PRESS</div> + <div>BY HORACE HART, M.A.</div> + <div>PRINTER TO THE UNIVERSITY</div> + </div> +</div> + +<div class='pbb'> + <hr class='pb c000'> +</div> + +<hr class='c014'> +<div class='footnote' id='f1'> +<p class='c001'><a href='#r1'>1</a>. The total area of the Russian Empire exceeds 8,000,000 square miles, +and the population is about 130,000,000.</p> +</div> +<div class='footnote' id='f2'> +<p class='c001'><a href='#r2'>2</a>. Dacia was taken by Trajan in <span class='fss'>A.D.</span> 107, and lost in <span class='fss'>A.D.</span> 251. +Mesopotamia and Arabia Petraea were annexed by Trajan about the same +time, but the former was renounced so soon afterwards that its conquest +can hardly be considered a part of the regular process of expansion.</p> +</div> +<div class='footnote' id='f3'> +<p class='c001'><a href='#r3'>3</a>. Territorial authority may be said to date from the grant of the Diwani +in 1765.</p> +</div> +<div class='footnote' id='f4'> +<p class='c001'><a href='#r4'>4</a>. See the admirably clear and thoughtful book of Sir A. C. Lyall, <cite>Rise of +British Dominion in India</cite>, pp. 52 and 126.</p> +</div> +<div class='footnote' id='f5'> +<p class='c001'><a href='#r5'>5</a>. And indeed the employment of these barbarians to resist the outer +barbarians probably prolonged the life of the Empire.</p> +</div> +<div class='footnote' id='f6'> +<p class='c001'><a href='#r6'>6</a>. An incident like the murder in 1889 of the British Resident at Manipur, +a small Protected State in the hill country between Assam and Burma, is +so rare and excites so much surprise and horror as to be the best proof of +the general tranquillity. In that case there had been some provocation, +though not on the part of the Resident himself, an excellent man of conciliatory +temper.</p> +</div> +<div class='footnote' id='f7'> +<p class='c001'><a href='#r7'>7</a>. Poems x and xxviii. It is some comfort to know that Catullus +obtained in Bithynia only themes for some of his most charming verses +(see poems iv and xlvi). Gains would probably have been ill-gotten.</p> +</div> +<div class='footnote' id='f8'> +<p class='c001'><a href='#r8'>8</a>. See Sir C. P. Ilbert’s <cite>Government of India</cite>, p. 68. The provision creating +this Court has never been repealed.</p> +</div> +<div class='footnote' id='f9'> +<p class='c001'><a href='#r9'>9</a>. The nearest approach to any kind of provincial self-government and +also the nearest approach to a representative system was made in the +Provincial Councils which seem from the time of Augustus down to the +fifth century to have existed in all or nearly all the provinces. They consisted +of delegates from the cities of each province, and met annually in +some central place, where stood the temple or altar to Rome and Augustus. +They were presided over by the priest of these divinities, and their primary +functions were to offer sacrifices, provide for the expense of the annual games, +and elect the priest for next year. However they seem to have also passed +resolutions, such as votes of thanks to the outgoing priest or to a departing +governor, and to have transmitted requests or inquiries to the Emperor. +Sometimes they arranged for the prosecution of a governor who had misgoverned +them: but on the whole their functions were more ceremonial +and ornamental than practically important; nor would the emperors have +suffered them to exert any real power, though they were valued as useful +vehicles of provincial opinion (see Marquardt, <span lang="de"><cite>Römische Staatsverwaltung</cite></span>, +vol. i, and an article in <cite>Eng. Hist. Review</cite> for April, 1893, by Mr. E. G. +<a id='corr32.32'></a><span class='htmlonly'><ins class='correction' title='Hardy.'>Hardy.)</ins></span><span class='epubonly'><a href='#c_32.32'><ins class='correction' title='Hardy.'>Hardy.)</ins></a></span></p> +</div> +<div class='footnote' id='f10'> +<p class='c001'><a href='#r10'>10</a>. The use of the word to denote the two great ecclesiastical divisions of +England (Province of Canterbury and Province of York) is a relic of the +Roman imperial system.</p> +</div> +<div class='footnote' id='f11'> +<p class='c001'><a href='#r11'>11</a>. For instance, Cappadocia, Pontus, and Commagene were left as subject +kingdoms till 17 <span class='fss'>A.D.</span>, 63 <span class='fss'>A.D.</span>, and 72 <span class='fss'>A.D.</span> respectively.</p> +</div> +<div class='footnote' id='f12'> +<p class='c001'><a href='#r12'>12</a>. ‘The extent to which confidence has been restored by Lord Canning’s +edict is shown by the curious fact that since its promulgation a childless +ruler very rarely adopts in his own lifetime. An heir presumptive, who +knows that he is to succeed and who may possibly grow restive if his +inheritance is delayed, is for various obscure reasons not the kind of person +whom an Oriental ruler cares to see idling about his palace, so that a politic +chief often prefers leaving the duty of nominating a successor to his widows, +who know his mind and have every reason for wishing him long life.’—Sir +A. C. Lyall in <cite>Law Quarterly Review</cite> for October, 1893.</p> +</div> +<div class='footnote' id='f13'> +<p class='c001'><a href='#r13'>13</a>. One finds something similar to this Land-settlement in the Roman plan +of determining the land revenue of a province by what was called the <span lang="la"><i>lex +provinciae</i></span>.</p> +</div> +<div class='footnote' id='f14'> +<p class='c001'><a href='#r14'>14</a>. Rice, however, is sent from Lower Burma into India proper.</p> +</div> +<div class='footnote' id='f15'> +<p class='c001'><a href='#r15'>15</a>. The total revenue of British India was, in <span class='fss'>A.D.</span> 1840, 200,000,000 of +rupees, and in 1898-9, 1,014,427,000 rupees, more than a fourth of which +was land revenue and less than one-fourth from railways. (The exchange +value of the rupee, formerly about two shillings, is now about one shilling +and four pence.) £190,000,000 has been expended upon railways in British +India and the Native States. The land revenue is somewhat increasing with +the bringing of additional land under cultivation. It is estimated that forty-two +per cent. of the cultivable area is available for further cultivation. The +funded debt of India is now £195,000,000, the unfunded about £12,000,000.</p> +</div> +<div class='footnote' id='f16'> +<p class='c001'><a href='#r16'>16</a>. After the fifth century, Armenians, Isaurians, and Northern Macedonians +figure more largely in the Eastern Empire than do natives of the provinces +round the <a id='corr44.32'></a><span class='htmlonly'><ins class='correction' title='Aegaean'>Aegean</ins></span><span class='epubonly'><a href='#c_44.32'><ins class='correction' title='Aegaean'>Aegean</ins></a></span>.</p> +</div> +<div class='footnote' id='f17'> +<p class='c001'><a href='#r17'>17</a>. Among these exceptions may be mentioned Sir Syed Ahmed of Aligurh, +and the late Mr. Justice Trimbak Telang of Bombay, both men of remarkable +force and elevation of character.</p> +</div> +<div class='footnote' id='f18'> +<p class='c001'><a href='#r18'>18</a>. The subahdar, however, is rather a non-commissioned than a commissioned +officer, and is not a member of the British officers’ mess.</p> +</div> +<div class='footnote' id='f19'> +<p class='c001'><a href='#r19'>19</a>. Russia places Musulmans from the Caucasian provinces in high military +posts. But she has no army corresponding to the native army in India, and +as she has a number of Musulman subjects in European Russia it is all the +more natural for her to have a Colonel Temirhan Shipsheff at Aralykh and +a General Alikhanoff at Merv.</p> +</div> +<div class='footnote' id='f20'> +<p class='c001'><a href='#r20'>20</a>. Constantine prohibited the immoral excesses practised by the Syrians +of Heliopolis.</p> +</div> +<div class='footnote' id='f21'> +<p class='c001'><a href='#r21'>21</a>. <span lang="la">‘Druidarum religionem apud Gallos dirae immanitatis et tantum civibus +sub Augusto interdictam penitus abolevit.’</span>—Sueton. <span lang="la"><cite>Vita Claud.</cite></span> c. 25.</p> +</div> +<div class='footnote' id='f22'> +<p class='c001'><a href='#r22'>22</a>. I owe this fact to Sir A. C. Lyall (<i>op. cit.</i> p. 66).</p> +</div> +<div class='footnote' id='f23'> +<p class='c001'><a href='#r23'>23</a>. There are in India five examining and degree-granting Universities, +with about 8,000 matriculated students, nearly all of them taught in the +numerous affiliated colleges. The total number of persons returned as +receiving instruction in India is 4,357,000, of whom 402,000 are girls.</p> +</div> +<div class='footnote' id='f24'> +<p class='c001'><a href='#r24'>24</a>. See Ilbert’s <cite>Government of India</cite>, p. 77.</p> +</div> +<div class='footnote' id='f25'> +<p class='c001'><a href='#r25'>25</a>. Ibid. p. 91.</p> +</div> +<div class='footnote' id='f26'> +<p class='c001'><a href='#r26'>26</a>. The number of Hindus in all India is estimated at 207 millions, that of +Musulmans at fifty-seven millions, aboriginal races nine millions, Christians +two millions.</p> +</div> +<div class='footnote' id='f27'> +<p class='c001'><a href='#r27'>27</a>. As in Lycaonia; cf. Acts xiv.</p> +</div> +<div class='footnote' id='f28'> +<p class='c001'><a href='#r28'>28</a>. There is a curious story that when the head of Crassus was brought to +the Parthian king a passage from the <span lang="la"><i>Bacchae</i></span> of Euripides was recited by a +Greek who was at the Court.</p> +</div> +<div class='footnote' id='f29'> +<p class='c001'><a href='#r29'>29</a>. Hindi, Bengali, Marathi, Punjabi, and Gujarati.</p> +</div> +<div class='footnote' id='f30'> +<p class='c001'><a href='#r30'>30</a>. Telugu, Tamil, Kanarese, Malayalam.</p> +</div> +<div class='footnote' id='f31'> +<p class='c001'><a href='#r31'>31</a>. It is estimated that English is at present spoken by about 115 millions +of persons, Russian by 80 millions, German by 70, Spanish by 50, French +by 45. Of these English is increasing the most swiftly, Russian next, and +then German.</p> +</div> +<div class='footnote' id='f32'> +<p class='c001'><a href='#r32'>32</a>. The absence of slavery and the existence of Christianity will of course +present themselves to every one’s mind as other factors in differentiating +the conditions of the modern from those of the Roman world.</p> +</div> +<div class='footnote' id='f33'> +<p class='c001'><a href='#r33'>33</a>. There is scarcely a trace of Celtic custom in modern Scottish law. The +law of land, however, is largely of feudal origin; and commercial law has +latterly been influenced by that of England.</p> +</div> +<div class='footnote' id='f34'> +<p class='c001'><a href='#r34'>34</a>. In these West Indian islands, however, that which remains of Spanish +law, as in Trinidad and Tobago, and of French law, as in St. Vincent, is now +comparatively slight; and before long the West Indies (except Cuba and +Puerto Rico, Guadeloupe and Martinique) will be entirely under English +law. See as to the British colonies generally, Sir C. P. Ilbert’s <cite>Legislative +Methods and Forms</cite>, chap. ix.</p> +</div> +<div class='footnote' id='f35'> +<p class='c001'><a href='#r35'>35</a>. Cicero says of Sicily, <span lang="la">‘Siculi hoc iure sunt ut, quod civis cum cive agat, +domi certet suis legibus; quod Siculus cum Siculo non eiusdem civitatis, ut +de eo praetor iudices sortiatur’</span>; <span lang="la"><cite>In Verrem</cite></span>, ii. 13, 32.</p> +</div> +<div class='footnote' id='f36'> +<p class='c001'><a href='#r36'>36</a>. The laws of Gortyn in Crete, recently published from an inscription +discovered there, apparently of about 500 <span class='fss'>B.C.</span>, are a remarkable instance. +Though not a complete code, they cover large parts of the field of law.</p> +</div> +<div class='footnote' id='f37'> +<p class='c001'><a href='#r37'>37</a>. When I speak of citizenship, it is not necessarily or generally political +citizenship that is to be understood, but the citizenship which carried with it +private civil rights (those rights which the Romans call <span lang="la"><i>connubium</i></span> and <span lang="la"><i>commercium</i></span>), +including Roman family and inheritance law and Roman contract +and property law. Not only the civilized Spaniards but the bulk of the +upper class in Greece seem to have become citizens by the time of the +Antonines.</p> +</div> +<div class='footnote' id='f38'> +<p class='c001'><a href='#r38'>38</a>. As to this see Essay XIV, vol. ii. p. v2.274 sqq.</p> +</div> +<div class='footnote' id='f39'> +<p class='c001'><a href='#r39'>39</a>. In St. Paul’s time, however, the Athenian Areopagus would seem to +have retained its jurisdiction; cf. Acts xvii. 19. The Romans treated +Athens with special consideration.</p> +</div> +<div class='footnote' id='f40'> +<p class='c001'><a href='#r40'>40</a>. One of the charges against Verres was that he disregarded all kinds of +law alike. Under him, says Cicero, the Sicilians <span lang="la">‘neque suas leges neque +nostra senatus consulta neque communia iura tenuerunt’</span>; <span lang="la"><cite>In Verr.</cite></span> i. 4, 13.</p> +</div> +<div class='footnote' id='f41'> +<p class='c001'><a href='#r41'>41</a>. The <span lang="la"><cite>Lex Sempronia</cite></span> mentioned by Livy, xxxv. 7, seems to be an exception, +due to very special circumstances.</p> +</div> +<div class='footnote' id='f42'> +<p class='c001'><a href='#r42'>42</a>. See <a href='https://www.gutenberg.org/files/78301/pg78301-images.html#eIX'>Essay XI</a>, vol. ii., and Essay XIV, vol. ii. p. v2.291.</p> +</div> +<div class='footnote' id='f43'> +<p class='c001'><a href='#r43'>43</a>. Such as the technical peculiarities of the Roman <span lang="la"><i>stipulatio</i></span>, and the +Greek <i>syngraphe</i>.</p> +</div> +<div class='footnote' id='f44'> +<p class='c001'><a href='#r44'>44</a>. These <span lang="la"><i>decreta</i></span> of the Emperor were reckoned among his <span lang="la"><cite>Constitutiones</cite></span> (as to +which see Essay XIV, vol. ii. p. 308 sqq.). There does not seem to have been +any public record kept and published of them, but many of them would doubtless +become diffused through the law schools and otherwise. The first regular +collections of imperial constitutions known to us belong to a later time.</p> +</div> +<div class='footnote' id='f45'> +<p class='c001'><a href='#r45'>45</a>. See upon this subject the learned and acute treatise (by which I have +been much aided) of Dr. L. Mitteis, <span lang="de"><cite>Reichsrecht und Volksrecht in den östlichen +Provinzen des Römischen Kaiserreichs</cite></span>, chap. vi.</p> +</div> +<div class='footnote' id='f46'> +<p class='c001'><a href='#r46'>46</a>. This is carefully worked out both as to Syria and to Egypt by Dr. +Mitteis, <i>op. cit.</i> He thinks (pp. 30-33) that the law of the Syrian book, +where it departs from pure Roman law as we find it in the <span lang="la"><cite>Corpus Iuris</cite></span>, is +mainly of Greek origin, though with traces of Eastern custom. He also +suggests that the opposition, undoubtedly strong, of the Eastern Monophysites +to the Orthodox Emperors at Constantinople may have contributed +to make the Easterns cling the closer to their own customary law. The +Syrian book belongs to the fifth century <span class='fss'>A.D.</span>, and is therefore earlier than +Justinian (Bruns und Sachau, <span lang="de"><cite>Syrisch-römisches Rechtsbuch aus dem fünften +Jahrhundert</cite></span>).</p> +</div> +<div class='footnote' id='f47'> +<p class='c001'><a href='#r47'>47</a>. Other parts were added later.</p> +</div> +<div class='footnote' id='f48'> +<p class='c001'><a href='#r48'>48</a>. Among the States in which the French Code has been taken as a model +are Belgium, Italy, Spain, Portugal, Mexico, and Chili. See an article by +Mr. E. Schuster in the <cite>Law Quarterly Review</cite> for January, 1896.</p> +</div> +<div class='footnote' id='f49'> +<p class='c001'><a href='#r49'>49</a>. An interesting sketch of the ‘reception’ of Roman law in Germany (by +Dr. Erwin Grüber) may be found in the Introduction to Mr. Ledlie’s translation +of Sohm’s <span lang="de"><cite>Institutionen</cite></span> (1st edition).</p> +</div> +<div class='footnote' id='f50'> +<p class='c001'><a href='#r50'>50</a>. In Lithuania the rule was that where no express provision could be +found governing a case, recourse should be had to ‘the Christian laws.’ +Speaking generally, one may say that it was by and with Christianity that +Roman law made its way in the countries to the east of Germany and +to the north of the Eastern Empire.</p> +</div> +<div class='footnote' id='f51'> +<p class='c001'><a href='#r51'>51</a>. It has undergone little or no change in the process. The Celtic customs +disappeared in Wales; the Brehon law, though it was contained in many +written texts and was followed over the larger part of Ireland till the days +of the Tudors, has left practically no trace in the existing law of Ireland, +which is, <a id='corr111.34'></a><span class='htmlonly'><ins class='correction' title='excepts as respect'>except as respects</ins></span><span class='epubonly'><a href='#c_111.34'><ins class='correction' title='excepts as respect'>except as respects</ins></a></span> land, some penal matters, and marriage, virtually +identical with the law of England.</p> +</div> +<div class='footnote' id='f52'> +<p class='c001'><a href='#r52'>52</a>. It is related that a hill tribe of Kols, in Central India, had a dispute +with the Government of India over some question of forest rights. The +case having gone in their favour, the Government appealed to the Judicial +Committee. Shortly afterwards a passing traveller found the elders of +the tribe assembled at the sacrifice of a kid. He inquired what deity was +being propitiated, and was told that it was a deity powerful but remote, +whose name was Privy Council.</p> +</div> +<div class='footnote' id='f53'> +<p class='c001'><a href='#r53'>53</a>. For the facts given in the following pages I am much indebted to the +singularly lucid and useful treatise of Sir C. P. Ilbert (formerly Legal Member +of the Viceroy’s Council) entitled <cite>The Government of India</cite>.</p> +</div> +<div class='footnote' id='f54'> +<p class='c001'><a href='#r54'>54</a>. The merits of this Code are discussed in an interesting and suggestive +manner by Mr. H. Speyer in an article entitled <span lang="fr"><cite>Le Droit Pénal Anglo-indien</cite></span>, +which appeared in the <span lang="fr"><cite>Revue de l’Université de Bruxelles</cite></span> in April, 1900.</p> +</div> +<div class='footnote' id='f55'> +<p class='c001'><a href='#r55'>55</a>. Among the ‘less advanced races’ one must not now include the +Japanese, but one may include the Turks and the Persians. The fate of +China still hangs in the balance. It is not to be assumed that she will be +ruled, though she must come to be influenced, and probably more and more +influenced, by Europeans.</p> +</div> +<div class='footnote' id='f56'> +<p class='c001'><a href='#r56'>56</a>. This Essay was delivered, in the form of two lectures, in 1884, and the +names Flexible and Rigid were then suggested for the two types of Constitution +here described. It has been enlarged and revised and brought up +to date, but the substance remains the same.</p> +</div> +<div class='footnote' id='f57'> +<p class='c001'><a href='#r57'>57</a>. The interest which the English Constitution excited in Montesquieu +may be compared with that which the Roman excited in Polybius.</p> +</div> +<div class='footnote' id='f58'> +<p class='c001'><a href='#r58'>58</a>. As to the countries or peoples in which Constitutions in the proper sense +can be said to exist, see Note at the end of this Essay.</p> +</div> +<div class='footnote' id='f59'> +<p class='c001'><a href='#r59'>59</a>. It is unnecessary for the present purpose to call attention to the complication +introduced in Switzerland by the application of the Referendum plan +to ordinary laws.</p> +</div> +<div class='footnote' id='f60'> +<p class='c001'><a href='#r60'>60</a>. <i>I.e.</i> to change mechanically, not necessarily chemically.</p> +</div> +<div class='footnote' id='f61'> +<p class='c001'><a href='#r61'>61</a>. Except that of the late South African Republic (Transvaal). The cases +of the British self-governing colonies will be presently referred to.</p> +</div> +<div class='footnote' id='f62'> +<p class='c001'><a href='#r62'>62</a>. This point has been brought out with admirable force in Mr. Dicey’s +<cite>Law of the Constitution</cite>.</p> +</div> +<div class='footnote' id='f63'> +<p class='c001'><a href='#r63'>63</a>. See as to this, Essay XIV, vol. ii. p. v2.304.</p> +</div> +<div class='footnote' id='f64'> +<p class='c001'><a href='#r64'>64</a>. I have allowed these lines to remain, though they were more applicable +in 1884 than they are in 1901, when so many changes have been effected +that arguments about the danger of changing the Constitution are less +frequently heard.</p> +</div> +<div class='footnote' id='f65'> +<p class='c001'><a href='#r65'>65</a>. Ulpian in <cite>Digest</cite>, i. 1, 2.</p> +</div> +<div class='footnote' id='f66'> +<p class='c001'><a href='#r66'>66</a>. I use the term ‘despotism’ for convenience, but of course no monarchy is +absolutely despotic, and least of all perhaps in the ruder ages; for monarchs +are always amenable to public opinion, and most so when they are the +leaders of a tribe or people in arms. The real distinction is between +a government checked by religious sentiment consecrating ancient usage +and by the fear of insurrection, and a government checked by well-established +institutions and legal rules. As to Russia, it may be noted that +though she has no Constitution in the proper sense, there are said to exist +three Fundamental Laws of the Empire—that declaring the sovereign’s +autocratic power, that requiring him (or her) to be a member of the Orthodox +Church of the East, and that fixing the rule of succession to the throne.</p> +</div> +<div class='footnote' id='f67'> +<p class='c001'><a href='#r67'>67</a>. The history of England illustrates what is here said regarding small +and large communities. The Folk Mot of the West Saxons when it passed +into the Magnum Concilium of all England, though it remained in theory +a Primary Assembly, was practically no longer a meeting of all freemen. It +could not have continued to embody and safeguard the constitutional rights +of the people but for the later invention of Representation, which made it +again a virtually Popular though no longer a Primary Assembly.</p> +</div> +<div class='footnote' id='f68'> +<p class='c001'><a href='#r68'>68</a>. The two most important changes, the Union with Scotland and the +Union with Ireland, were, however, among those most quickly carried +through.</p> +</div> +<div class='footnote' id='f69'> +<p class='c001'><a href='#r69'>69</a>. <a id='corr167.32'></a><span class='htmlonly'><ins class='correction' title='Ἀ χαιοπλούτων'>Ἀρχαιοπλούτων</ins></span><span class='epubonly'><a href='#c_167.32'><ins class='correction' title='Ἀ χαιοπλούτων'>Ἀρχαιοπλούτων</ins></a></span> δεσποτῶν πολλὴ χάρις, Aesch. <cite>Agam.</cite> 1002.</p> +</div> +<div class='footnote' id='f70'> +<p class='c001'><a href='#r70'>70</a>. This was written in 1884. Since that year sweeping changes have been +made in the procedure of the House of Commons which have greatly curtailed +the rights and opportunities of private members while increasing the +powers of the Ministry of the day. They have not, however, made that +House able to discharge all or nearly all the work that falls on it; and it is +becoming (under the new rules) less and less careful in the exercise of its +powers of voting money.</p> +</div> +<div class='footnote' id='f71'> +<p class='c001'><a href='#r71'>71</a>. This apprehension was often expressed between 1880 and 1885. +Nothing has occurred since to justify it so far as the dictatorship of any single +person is concerned; and it may have in great part arisen from the fact that +from 1867 to 1885 the headships of both the two great parties had been +vested in exceptionally vigorous and influential leaders. There can however +be no doubt that the power of the Cabinet as against the House of +Commons has grown steadily and rapidly: and it appears (1901) to be still +growing.</p> +</div> +<div class='footnote' id='f72'> +<p class='c001'><a href='#r72'>72</a>. Of this supposed danger also much less is heard now than in 1884. +The thing that was then called the ‘Birmingham Caucus’ has ceased to be +used to terrify the timid.</p> +</div> +<div class='footnote' id='f73'> +<p class='c001'><a href='#r73'>73</a>. See Essay VII, p. <a href='#Page_453'>453</a>.</p> +</div> +<div class='footnote' id='f74'> +<p class='c001'><a href='#r74'>74</a>. See as to this Constitution Essay VIII, p. <a href='#Page_523'>523</a>. As to the Constitutions of +the several Australian and other British colonies, reference may be made to +the book of the late Sir Henry Jenkyns, entitled <cite>British Rule and Jurisdiction +beyond the Seas</cite>, the publication of which is announced for a very early date.</p> +</div> +<div class='footnote' id='f75'> +<p class='c001'><a href='#r75'>75</a>. Observations on this topic may be found in the author’s <cite>American +Commonwealth</cite>, chap. xxxvii.</p> +</div> +<div class='footnote' id='f76'> +<p class='c001'><a href='#r76'>76</a>. These documents are printed in Dr. S. R. Gardiner’s <cite>Constitutional +Documents of the Puritan Revolution</cite>. A concise account of the Instrument +may be found in Mr. Goldwin Smith’s <cite>United Kingdom</cite>, vol. i. pp. 605-8.</p> +</div> +<div class='footnote' id='f77'> +<p class='c001'><a href='#r77'>77</a>. See Essay VII, p. <a href='#Page_432'>432</a>.</p> +</div> +<div class='footnote' id='f78'> +<p class='c001'><a href='#r78'>78</a>. As to this Constitution see <a href='#eVIII'>Essay VIII</a>. Unlike the Constitution of +Canada, it can be amended by the people of Australia without the aid of +the Imperial Parliament.</p> +</div> +<div class='footnote' id='f79'> +<p class='c001'><a href='#r79'>79</a>. Soon after the above lines were written, the point they deal with came +up in Parliament in a practical form. In the debate on the Irish Home Rule +Bill of 1886 the question emerged whether Parliament could in constituting +a legislature for Ireland and assigning to that legislature a certain sphere of +action legally debar itself from recalling its grant or from legislating, upon +matters falling within that sphere, over the head of the Irish legislature. It +was generally agreed by lawyers that Parliament could not so limit its own +powers, and that no statute it might pass could be made unchangeable, or +indeed could in any way restrict the powers of future Parliaments.</p> + +<p class='c001'>Upon the general question whether Parliament could so enact any new +Constitution for the United Kingdom as to debar itself from subsequently +repealing that Constitution, it may be suggested, for the consideration of +those who relish technicalities, that Parliament could, if so disposed, divest +itself of its present authority by a sort of suicide, <i>i.e.</i> by repealing all the +statutes under which it is now summoned, and abolishing the common-law +right of the Crown to summon it, and thereupon causing itself to be forthwith +dissolved, having of course first provided means for summoning such +an assembly, or assemblies, as the new Constitution created. There would +then be no legal means of summoning another Parliament of the old kind, +and the new Constitution, whatever it was, would therefore not be liable +to be altered save in such manner as its own terms provided.</p> +</div> +<div class='footnote' id='f80'> +<p class='c001'><a href='#r80'>80</a>. See Essay VIII, p. <a href='#Page_524'>524</a>.</p> +</div> +<div class='footnote' id='f81'> +<p class='c001'><a href='#r81'>81</a>. But the Constitution of Mississippi of 1890 was enacted by a Convention +only and never submitted to the people. See as to the United States the +author’s <cite>American Commonwealth</cite>, ch. xxxvii.</p> +</div> +<div class='footnote' id='f82'> +<p class='c001'><a href='#r82'>82</a>. On the whole subject of the modes of amending constitutions reference +may be made to the valuable book of my friend M. Charles Borgeaud, +Professor at Geneva, <span lang="fr"><cite>Établissement et Revision des Constitutions</cite></span>. See also +Dareste, <span lang="fr"><cite>Les Constitutions Modernes</cite></span>. I owe to these books, and especially +to the former, most of the facts here given regarding the minor States.</p> +</div> +<div class='footnote' id='f83'> +<p class='c001'><a href='#r83'>83</a>. No Constitutional Convention has ever been held for revising the Federal +Constitution of 1787-9, which was drafted by a Convention and adopted by +the thirteen States in succession.</p> +</div> +<div class='footnote' id='f84'> +<p class='c001'><a href='#r84'>84</a>. This plan would have more chance of being favourably entertained were +the Upper House now, as it was in 1760, less than two hundred strong. +As it is now nearly as large as the House of Commons, with a majority of +about fourteen to one belonging to one political party, the party which is +in a permanent minority might feel that the chances are not equal.</p> +</div> +<div class='footnote' id='f85'> +<p class='c001'><a href='#r85'>85</a>. <span lang="la">‘Neque leges neque senatus consulta ita scribi possunt, ut omnes casus +qui quandoque inciderint comprehendantur.’</span>—Iulianus in <cite>Digest</cite> i. 3, 10.</p> +</div> +<div class='footnote' id='f86'> +<p class='c001'><a href='#r86'>86</a>. A still more remarkable instance has been furnished, while these pages +are passing through the press (June, 1901), by the decisions of the Supreme +Court of the United States in the group of cases which arose out of questions +relating to the applicability of the Federal Constitution to the island of +Puerto Rico, recently ceded by Spain to the United States. The Court +had to deal with a constitutional question raising large issues of national +policy regarding the application of the Federal Constitution to territories +acquired by conquest and treaty: and its judgements in these cases (given +in every case by majorities only) have expanded the Constitution, <i>i.e.</i> have +declared it to have a meaning which may well be its true meaning, but +which was not previously ascertained, and certainly by many lawyers not +admitted, to be its true meaning.</p> +</div> +<div class='footnote' id='f87'> +<p class='c001'><a href='#r87'>87</a>. Something must, however, be allowed for the provisions which require +large majorities for any amendment of the Constitution.</p> +</div> +<div class='footnote' id='f88'> +<p class='c001'><a href='#r88'>88</a>. The ‘People’s Charter’ of 1848 was called for as another such onward +step. Its Six Points were to be the basis of a democratic reconstruction of +the government.</p> +</div> +<div class='footnote' id='f89'> +<p class='c001'><a href='#r89'>89</a>. They are much less heard now (1900), partly because the public mind is +occupied with matters of a different order, partly because the political party +which professes to be opposed to innovation has latterly commanded a large +majority in the British Legislature.</p> +</div> +<div class='footnote' id='f90'> +<p class='c001'><a href='#r90'>90</a>. The British self-governing Colonies (except the two great federations, +see ante, pp. 198-9) have constitutions which may be changed in all or +nearly all points by their respective legislatures, but they are not independent +States, and the power of the legislatures to alter the constitutions is therefore +not complete.</p> +</div> +<div class='footnote' id='f91'> +<p class='c001'><a href='#r91'>91</a>. The Constitution of Italy, already referred to, is scarcely an exception.</p> +</div> +<div class='footnote' id='f92'> +<p class='c001'><a href='#r92'>92</a>. This autonomy is, however, not legally complete as regards the +Colonies, for the mother country may, though she rarely does, disallow +colonial legislation. In Canada the Dominion Legislature cannot affect the +rights of the several Provinces, the power to do so remaining with the +Imperial Parliament which passed the Confederation Act of 1867. So too +under the Constitution of the Australian Commonwealth the rights of each +colony are protected by the instrument of federation.</p> +</div> +<div class='footnote' id='f93'> +<p class='c001'><a href='#r93'>93</a>. Viz. the United Kingdom, the two great Colonial Federations (Canada +and Australia), and four comparatively small self-governing Colonies, viz. +New Zealand, Cape Colony, Natal, and Newfoundland.</p> +</div> +<div class='footnote' id='f94'> +<p class='c001'><a href='#r94'>94</a>. It may of course be observed (see p. 207, ante) that the British Parliament, +while it continues to be elected as now, may be unable to divest itself +of its general power of legislating for the whole Empire, and might therefore +repeal the Act by which it had resigned certain matters to the Federal +Assembly and resume them for itself. This is one of those <span lang="la"><i>apices iuris</i></span> of +which the Romans say <span lang="la"><i>non sunt iura</i></span>; and in point of fact no Parliament +can be supposed capable of the breach of faith which such a repeal would +involve. The supposed legal difficulty might, however, be avoided by some +such expedient as that previously suggested.</p> +</div> +<div class='footnote' id='f95'> +<p class='c001'><a href='#r95'>95</a>. As to Italy, however, see above, pp. 202 and 208.</p> +</div> +<div class='footnote' id='f96'> +<p class='c001'><a href='#r96'>96</a>. </p> +<div class='lg-container-b c017'> + <div class='linegroup'> + <div class='group'> + <div class='line'>Ἅπανθ’ ὁ μακρὸς κἀναρίθμητος χρόνος</div> + <div class='line'>φύει τ’ ἄδηλα καὶ φανέντα κρύπτεται.</div> + <div class='line in30'>Soph. <cite>Ajax</cite>, 646.</div> + </div> + </div> +</div> + +</div> +<div class='footnote' id='f97'> +<p class='c001'><a href='#r97'>97</a>. This Essay was composed in the early part of 1885. It has been revised +throughout, but the substance remains the same.</p> +</div> +<div class='footnote' id='f98'> +<p class='c001'><a href='#r98'>98</a>. In the pages that follow the word Group is used to denote the section +of persons within a larger community who maybe held together by some tie, +whether of interest or sentiment or race or local habitation, which makes +them a sort of minor community inside the larger one.</p> +</div> +<div class='footnote' id='f99'> +<p class='c001'><a href='#r99'>99</a>. Subject of course to any provisions for amending the Constitution which +may have been inserted. See Essay III, p. <a href='#Page_207'>207</a> sqq.</p> +</div> +<div class='footnote' id='f100'> +<p class='c001'><a href='#r100'>100</a>. The case of Ireland shows the same forces of industrial or commercial +interest, real or supposed, operating partly as centripetal, partly as centrifugal. +The Nationalist party conceive that economic benefits would result +from a local legislature, which could aid local industries. The mercantile +class, especially in the north-eastern part of the island, fear commercial loss +from anything which could hamper their trade intercourse with Scotland and +England, or which might be deemed prejudicial to commercial credit. With +the soundness of either view I am not concerned; it is sufficient to note the +facts.</p> +</div> +<div class='footnote' id='f101'> +<p class='c001'><a href='#r101'>101</a>. A curious survival of the dislike of the Lowlander to the Highlander +may be found in Carlyle’s comments upon the Highland wife of his friend +Thomas Campbell the poet.</p> +</div> +<div class='footnote' id='f102'> +<p class='c001'><a href='#r102'>102</a>. See Essay IX, vol. ii. p. v2.6 sqq.</p> +</div> +<div class='footnote' id='f103'> +<p class='c001'><a href='#r103'>103</a>. There are of course dissenting sects in Russia, some of them counting +many adherents, but they have seldom, and in no large measure, affected +the political unity of the nation.</p> +</div> +<div class='footnote' id='f104'> +<p class='c001'><a href='#r104'>104</a>. The dualistic Zoroastrianism of Persia seems to have taken many of the +characteristics of a monotheistic religion.</p> +</div> +<div class='footnote' id='f105'> +<p class='c001'><a href='#r105'>105</a>. Though it must be admitted that the passing of legislation disapproved +by the majority of Scotch representatives, or the omission to pass legislation +which they demand, often elicits murmurs.</p> +</div> +<div class='footnote' id='f106'> +<p class='c001'><a href='#r106'>106</a>. This wise policy seems unfortunately to be now (1900) on the point of +being abandoned, with results which every lover of freedom and progress +must regret.</p> +</div> +<div class='footnote' id='f107'> +<p class='c001'><a href='#r107'>107</a>. In two respects the Jews under the early Empire would seem to have +been above the average level of the civilized subjects of Rome. There was +apparently very little slavery among them; and there must have been an +exceptionally large proportion of persons able to read.</p> +</div> +<div class='footnote' id='f108'> +<p class='c001'><a href='#r108'>108</a>. In Algeria the electoral suffrage is limited; but in some of the French +tropical colonies it seems to have been granted irrespective of colour.</p> +</div> +<div class='footnote' id='f109'> +<p class='c001'><a href='#r109'>109</a>. Only since 1890 have complaints begun to be made: see Essay III, +p. 239, <i>ante</i>.</p> +</div> +<div class='footnote' id='f110'> +<p class='c001'><a href='#r110'>110</a>. It has been accused of having caused a civil war by omitting to deal with +the questions out of which the Civil War arose, and by failing to negative the +right of secession. But to this it may be answered that an attempt to deal +with those questions or to negative that right might possibly have prevented +it from having ever been accepted.</p> +</div> +<div class='footnote' id='f111'> +<p class='c001'><a href='#r111'>111</a>. This interpretation has sometimes been at variance with the views of the +older interpreters, but no instance occurs to me in which an impartial jurist +could have pronounced it inadmissible.</p> +</div> +<div class='footnote' id='f112'> +<p class='c001'><a href='#r112'>112</a>. This is still more so to-day (1900) than it was when this Essay was first +composed.</p> +</div> +<div class='footnote' id='f113'> +<p class='c001'><a href='#r113'>113</a>. One would like to refer to the cases of the numerous so-called republics, +most of them federal, of Spanish America. But apart from the difficulty of +ascertaining their constitutional history, little of which has been written, +some of these republics seem to pay so little regard to their constitutions, +living generally in a state of revolution, whether subsiding, or actually +raging, or apprehended, like the Atlantic during a series of cyclones following +one another along the same track from the Bermudas to the Fastnet, +that it is hard to draw any conclusions of value from them. They are in +fact republics only in name: and it is surprising that Sir H. Maine in his +<cite>Popular Government</cite> condescended to go to them for arguments to discredit +democracy. They are military tyrannies, the product of peculiar historical, +territorial and racial conditions.</p> +</div> +<div class='footnote' id='f114'> +<p class='c001'><a href='#r114'>114</a>. The fact that the custom of a country permits or forbids succession +through females makes a great difference in the importance of succession. +The union of Castile with Aragon, like the union of England with Scotland, +would not have occurred under a different rule of succession. So it may +make a difference whether the throne of the larger country passes to the +dynasty of the smaller, or vice versa. Had a king of England inherited +the throne of Scotland, Scotland might have been more hostile to England. +Had a king of Portugal inherited the throne of Spain, the two countries +might have remained united.</p> +</div> +<div class='footnote' id='f115'> +<p class='c001'><a href='#r115'>115</a>. There were of course also a certain number of city republics, or leagues +of republics, but these were too small to have developed national feeling +in the modern sense; and the Roman system left most of them a certain +measure of self-government which modified their regret for an independence +the delight in which had been (in many cases) reduced by domestic +disorders.</p> +</div> +<div class='footnote' id='f116'> +<p class='c001'><a href='#r116'>116</a>. Though geographically Iceland belongs rather to North America than +to Europe, geologically its affinities are with the Cape Verde Islands, the +Canaries, Madeira, and possibly the Azores to the South, with Jan Mayen +to the North, as it seems to owe its origin to a line of volcanic action +stretching from the Cape Verde Islands to far beyond the Arctic Circle.</p> +</div> +<div class='footnote' id='f117'> +<p class='c001'><a href='#r117'>117</a>. <span lang="la"><cite>Vita S. Columbae</cite></span>, cap. vi.</p> +</div> +<div class='footnote' id='f118'> +<p class='c001'><a href='#r118'>118</a>. Comment. on 2 Kings xx. 9. The extreme northernmost point of +Iceland just touches the Arctic Circle.</p> +</div> +<div class='footnote' id='f119'> +<p class='c001'><a href='#r119'>119</a>. In his book <span lang="la"><cite>De Mensura Orbis Terrae</cite></span>, cap. 7, he identifies the isle with +Thule; and the reports of the monks point rather to Iceland than to the +Faeroe Isles, a group which Dicuil mentions elsewhere, and which therefore +he cannot mean by his Thule. The name Thule has of course been +applied by different writers to different lands. When Tacitus says that +it was seen in the distance by the fleet of Agricola, he probably means +either Shetland or the Fair Isle between the Shetlands and the Orkneys.</p> +</div> +<div class='footnote' id='f120'> +<p class='c001'><a href='#r120'>120</a>. Not but what the habit of holding such an assembly has existed among +peoples of very diverse race in many parts of the world. It existed among +the Greeks. It exists among the Kafirs of South Africa.</p> +</div> +<div class='footnote' id='f121'> +<p class='c001'><a href='#r121'>121</a>. I use the Icelandic and Anglo-Saxon letter þ in this word to distinguish +it from the common English word.</p> +</div> +<div class='footnote' id='f122'> +<p class='c001'><a href='#r122'>122</a>. The term goði does not seem to have been used in Norway, but Ulfila, +in his translation of the Bible into Gothic (in the fourth century <span class='fss'>A.D.</span>), +renders ἱερεύς by <em>gudja</em>. The ð is pronounced like th in ‘then.’</p> +</div> +<div class='footnote' id='f123'> +<p class='c001'><a href='#r123'>123</a>. It is true that as the Sagas whence we draw our knowledge of the +Goði were all written down at a time when heathenism had vanished, it is +possible that they may not fully represent the original character of the office.</p> +</div> +<div class='footnote' id='f124'> +<p class='c001'><a href='#r124'>124</a>. The illustrious Konrad Maurer, to whose learned researches and sound +judgement every one who writes about the constitutional antiquities of +Iceland must feel infinitely indebted, thinks that the name of Goði was used +in Norway before the emigration to Iceland, though probably the priest +was there a less important person than he became in Iceland, where his +custody of the temple put him to some extent in the position held in +the Norwegian motherland by the hereditary chieftain, who was in Norway +the natural president of the local Thing.</p> + +<p class='c001'>Those who desire to study the early history of Iceland may be referred +to the writings of Dr. Maurer, and especially to his <span lang="de"><cite>Island bis zum Untergange +des Freistaats</cite></span> (Munich, 1874), and his <span lang="de"><cite>Beiträge zur Rechtsgeschichte des +Germanischen Nordens</cite></span> (Munich, 1852).</p> +</div> +<div class='footnote' id='f125'> +<p class='c001'><a href='#r125'>125</a>. Thing Vellir is the nominative plural, Thing Valla—the form in which +the word has become more familiar to Englishmen, and which remains in +Thingwall (near Liverpool), Tynwald (in the Isle of Man), and Dingwall (in +Rosshire)—is the genitive plural.</p> +</div> +<div class='footnote' id='f126'> +<p class='c001'><a href='#r126'>126</a>. Since this lecture was delivered the Alþing which since 1843 had led +a feeble life at Reykjavík as a sort of advisory council, has been re-established +as a representative governing assembly under a new constitution granted +to Iceland in 1874. It now meets every second year at Reykjavík.</p> +</div> +<div class='footnote' id='f127'> +<p class='c001'><a href='#r127'>127</a>. The Saga of Egil calls him Aðalsteinn hinn Sigrsæli (<i>lit.</i> ‘blessed with +victory’). It is curious that this title should have been preserved in Iceland +and apparently have been forgotten in England.</p> +</div> +<div class='footnote' id='f128'> +<p class='c001'><a href='#r128'>128</a>. See <span lang="is"><cite>Egils Saga Skallagrimssonar</cite></span>, chap. 54.</p> +</div> +<div class='footnote' id='f129'> +<p class='c001'><a href='#r129'>129</a>. Although the penalty for killing a man of high lineage was heavier than +that for an ordinary freeman; and one perceives from the Sagas how carefully +genealogies were preserved and what great respect was paid to long +descent.</p> +</div> +<div class='footnote' id='f130'> +<p class='c001'><a href='#r130'>130</a>. <span lang="la"><i>Viva vox iuris civilis</i></span> was the description which the Romans used to +give of their Praetor, as to whom see Essay XIV, vol. ii. p. 274.</p> +</div> +<div class='footnote' id='f131'> +<p class='c001'><a href='#r131'>131</a>. Since this was written, some eminent antiquaries, including my lamented +friend Dr. Guðbrand Vigfússon, have argued that the true Lögberg is to be +sought not in this spot which tradition indicates, but on the edge of the +great lava rift called the Almannagjá to the west of the river. See <cite>The +Saga Steads of Iceland</cite>, by W. G. Collingwood and Jón Stefánsson, 1899, +pp. 14-17.</p> +</div> +<div class='footnote' id='f132'> +<p class='c001'><a href='#r132'>132</a>. The name Grágás (probably drawn from the binding in which a copy of +it was preserved) seems to have originally belonged to a MS. of the +Frostaþingslög, the law which prevailed round Throndhjem in Norway, and +to have been applied by mistake in the seventeenth century to this Icelandic +collection of customs, first published by the Arnamagnaean foundation in 1829.</p> +</div> +<div class='footnote' id='f133'> +<p class='c001'><a href='#r133'>133</a>. This rule is ascribed to Guðmund Thorgeirsson, who was Law-Speaker +from 1123 to 1135 <span class='fss'>A.D.</span></p> +</div> +<div class='footnote' id='f134'> +<p class='c001'><a href='#r134'>134</a>. Partner is félagi (English ‘fellow’). Many further rules on this point +are contained in the passage, Grágás, chap. xxxvii (vol. ii. pp. 71-73 of the +Arnamagnaean edition).</p> +</div> +<div class='footnote' id='f135'> +<p class='c001'><a href='#r135'>135</a>. See Grágás, chaps. civ-cviii, pp. 143-156 of vol. ii. in the Arnamagnaean +edition.</p> +</div> +<div class='footnote' id='f136'> +<p class='c001'><a href='#r136'>136</a>. So called from his satirical powers.</p> +</div> +<div class='footnote' id='f137'> +<p class='c001'><a href='#r137'>137</a>. The Saga says (<span lang="is"><cite>Gunnlaugs Saga Ormstungu</cite></span>, chap. vii) that in the +days of Ethelred son of Edgar (Aðalráðr Játgeirsson) the same tongue +was spoken in England and Denmark as in Norway, and that this continued +in England till William the Bastard won England, after whom Welsh (Valsk += French) was spoken.</p> +</div> +<div class='footnote' id='f138'> +<p class='c001'><a href='#r138'>138</a>. The Saga adds that very shortly after the combat, and long before the +news of it could have reached Iceland, the ghosts both of Gunnlaug and +of Hrafn appeared in dreams to their respective fathers in Iceland, and +recited poems describing their deaths. Illugi the Black, Gunnlaug’s father, +remembered the poem he heard and repeated it aloud next day. The Saga +gives both poems. This is one of the earliest Teutonic instances of a death-apparition.</p> +</div> +<div class='footnote' id='f139'> +<p class='c001'><a href='#r139'>139</a>. This claim of a Crown to the allegiance of emigrants who had passed +into new lands reminds one of that made by the British Government, down +to 1852 and 1854, as respects the Dutch farmers who had gone forth into the +wilderness of South Africa in 1836.</p> +</div> +<div class='footnote' id='f140'> +<p class='c001'><a href='#r140'>140</a>. The preliminaries to the Treaty of Kiel by which Norway was severed +from the Danish Crown to be attached to the Swedish refer to Iceland, the +Faeroe Isles, and Greenland as having ‘never belonged to Norway.’</p> +</div> +<div class='footnote' id='f141'> +<p class='c001'><a href='#r141'>141</a>. There are several good editions of <cite>The Federalist</cite>. The latest and one of +the best known to me is that edited by Mr. Paul Leicester Ford (New York, +1898).</p> +</div> +<div class='footnote' id='f142'> +<p class='c001'><a href='#r142'>142</a>. The Swiss Confederation was hardly yet a nation, and few of the cantons +were governed democratically.</p> +</div> +<div class='footnote' id='f143'> +<p class='c001'><a href='#r143'>143</a>. Of these writers Hamilton must be deemed the leading spirit, not merely +because he wrote by far the larger number of letters, but because his mind +was more penetrating and commanding than either Madison’s or Jay’s. +Madison rendered admirable service in the Philadelphia Convention of 1787, +but afterwards yielded to the influence of Jefferson, a character with less +balance but more force and more intellectual fertility.</p> +</div> +<div class='footnote' id='f144'> +<p class='c001'><a href='#r144'>144</a>. I take no account of those objections to the Constitution which may be +deemed to have been removed by the first eleven amendments.</p> +</div> +<div class='footnote' id='f145'> +<p class='c001'><a href='#r145'>145</a>. See <cite>The Federalist</cite>, No. LIV.</p> +</div> +<div class='footnote' id='f146'> +<p class='c001'><a href='#r146'>146</a>. <cite>The Federalist</cite>, No. LXVI, p. 667. ‘Calculating upon the aversion of the +people to monarchy, the writers against the Constitution have endeavoured +to enlist all their jealousies and apprehensions in opposition to the intended +President of the United States, not merely as the embryo but as the full-grown +progeny of that detested parent. They have to establish the pretended +affinity, not scrupled to draw resources even from the regions of +fiction. The authority of a magistrate in few instances greater, in some +instances less, than those of a Governor of New York, have been magnified +into more than royal prerogatives. He has been decorated with attributes +superior in dignity and splendour to those of a King of Great Britain. He +has been shown to us with the diadem sparkling on his brow and the +imperial purple flowing in his train. He has been seated on a throne +surrounded with minions and mistresses, giving audience to the envoys of +foreign potentates in all the supercilious pomp of majesty. The images of +Asiatic despotism and voluptuousness have scarcely been wanting to crown +the exaggerated scene. We have been taught to tremble at the terrific +visages of murdering janizaries, and to blush at the unveiled mysteries of +a future seraglio.’</p> + +<p class='c001'>These were the days when Johnson and Gibbon ruled English style.</p> +</div> +<div class='footnote' id='f147'> +<p class='c001'><a href='#r147'>147</a>. <cite>The Federalist</cite>, No. LXII.</p> +</div> +<div class='footnote' id='f148'> +<p class='c001'><a href='#r148'>148</a>. <cite>The Federalist</cite>, Nos. LVI and LIX.</p> +</div> +<div class='footnote' id='f149'> +<p class='c001'><a href='#r149'>149</a>. Though he, like other observers of that time, had not realized, and might +not have relished, the supremacy, now become omnipotence, which the +House of Commons had already won.</p> +</div> +<div class='footnote' id='f150'> +<p class='c001'><a href='#r150'>150</a>. <cite>The Federalist</cite>, No. X (written by Madison), and in other letters.</p> +</div> +<div class='footnote' id='f151'> +<p class='c001'><a href='#r151'>151</a>. <cite>The Federalist</cite>, No. LXII.</p> +</div> +<div class='footnote' id='f152'> +<p class='c001'><a href='#r152'>152</a>. <cite>The Federalist</cite>, No. LXI.</p> +</div> +<div class='footnote' id='f153'> +<p class='c001'><a href='#r153'>153</a>. <cite>The Federalist</cite>, No. LXXII.</p> +</div> +<div class='footnote' id='f154'> +<p class='c001'><a href='#r154'>154</a>. ‘The Legislative Department is everywhere (<i>i.e.</i> in all the States) extending +the sphere of its activity and drawing all power into its impetuous +vortex.... It is against the enterprising ambition of this department that +the People ought to indulge all their jealousy and exhaust all their precautions’ +(<cite>The Federalist</cite>, No. XLVII). The people have now begun to +resort to precautions; but it is not the ambition of State legislatures that is +feared, it is their subserviency to private interests or the party machine.</p> +</div> +<div class='footnote' id='f155'> +<p class='c001'><a href='#r155'>155</a>. <cite>The Federalist</cite>, No. L.</p> +</div> +<div class='footnote' id='f156'> +<p class='c001'><a href='#r156'>156</a>. <cite>The Federalist</cite>, No. XII.</p> +</div> +<div class='footnote' id='f157'> +<p class='c001'><a href='#r157'>157</a>. <cite>The Federalist</cite>, No. LXVII. In <span class='fss'>A.D.</span> 1800, twelve years after Hamilton +wrote this passage, the contest for the Presidency lay between Jefferson and +Aaron Burr, and Hamilton was compelled by his sense of Burr’s demerits to +urge his party to vote (when the choice came before the House of Representatives) +for Jefferson, his own bitter enemy. What he thought of Burr, +who, but for his intervention, would certainly have obtained the chief magistracy +of the nation (and by whose hand he ultimately died), may be inferred +from the fact that he preferred as President the man of whom he thus +writes: ‘I admit that his (Jefferson’s) politics are tinctured with fanaticism; +that he is too much in earnest in his democracy; that he has been a mischievous +enemy to the principal measures of our past administration; that he +is crafty and persevering in his objects; that he is not scrupulous about the +means of success, nor very mindful of truth; and that he is a contemptible +hypocrite. But, &c.’ (Letter to James A. Bayard, Jan. 16, 1801.)</p> + +<p class='c001'>After this it is superfluous, as it would be invidious, to dwell on the deficiencies +of some recent Presidents or Presidential candidates.</p> +</div> +<div class='footnote' id='f158'> +<p class='c001'><a href='#r158'>158</a>. ‘The private fortunes of the President and Senators, as they must all +be American citizens, cannot possibly be sources of danger’ (<cite>The Federalist</cite>, +No. LIV).</p> +</div> +<div class='footnote' id='f159'> +<p class='c001'><a href='#r159'>159</a>. Three wars since 1789: that of 1812, that of 1845, and that of 1898. +Every one of these might no doubt have been avoided with honour, and +two of them savoured of aggression, but the same may be said of nearly +all the wars of European States.</p> +</div> +<div class='footnote' id='f160'> +<p class='c001'><a href='#r160'>160</a>. The subject is discussed in the author’s <cite>American Commonwealth</cite>, chaps. +lxxxiv and lxxxv.</p> +</div> +<div class='footnote' id='f161'> +<p class='c001'><a href='#r161'>161</a>. ‘I hold with Montesquieu that a government must be fitted to a nation +as much as a coat to the individual; and consequently that what may be +good at Philadelphia may be bad at Paris and ridiculous at Petersburgh.’ +To Lafayette, Jan. 6, 1799.</p> +</div> +<div class='footnote' id='f162'> +<p class='c001'><a href='#r162'>162</a>. The first cargo of cotton was sent from America to Europe in 1791, and +the cotton gin invented in 1793.</p> +</div> +<div class='footnote' id='f163'> +<p class='c001'><a href='#r163'>163</a>. When we come to Tocqueville, we shall find him touching but lightly on +the two first of the above tendencies (partly, perhaps, because he attends +too little to the State governments), but emphasizing the third and fearing +from the fourth the dissolution of the Union.</p> +</div> +<div class='footnote' id='f164'> +<p class='c001'><a href='#r164'>164</a>. Some interesting remarks upon Tocqueville’s tour in America and upon +his views of American affairs may be found in President Gilman’s Introduction +to a recent edition (1898) of the English translation of Tocqueville’s +book.</p> +</div> +<div class='footnote' id='f165'> +<p class='c001'><a href='#r165'>165</a>. Sainte-Beuve remarks of him, <span lang="fr">‘Il a commencé à penser avant d’avoir rien +appris: ce qui fait qu’il a quelquefois pensé creux.’</span> Thiers once said, in +the Chamber, <span lang="fr">‘Quand je considère intuitivement, comme dirait M. de +Tocqueville.’</span></p> +</div> +<div class='footnote' id='f166'> +<p class='c001'><a href='#r166'>166</a>. The process of democratization was completed by the Constitution of +1846.</p> +</div> +<div class='footnote' id='f167'> +<p class='c001'><a href='#r167'>167</a>. To none of whom, oddly enough, does Tocqueville refer. He is +singularly sparing in his references to individuals, mentioning no one except +President Jackson for blame and Livingston (author of the Louisiana Code and +Secretary of State, 1831-3) for praise.</p> +</div> +<div class='footnote' id='f168'> +<p class='c001'><a href='#r168'>168</a>. His insistence on this point makes it all the more strange that he does +not give any description of a State as a commonwealth, nor characterize +the general features of its government.</p> +</div> +<div class='footnote' id='f169'> +<p class='c001'><a href='#r169'>169</a>. This is a common remark of visitors to America, but it arises from their +mistaking the people they see in society for ‘the governed’ in general. +They go carrying introductions to rich or educated people: if they mixed +with the masses they would form a different notion of ‘the governed,’ as +Tocqueville rather oddly calls the ordinary citizens.</p> +</div> +<div class='footnote' id='f170'> +<p class='c001'><a href='#r170'>170</a>. It is surprising that Tocqueville should have supposed this to be the +cause of the excellence he ascribes to the Senate, considering that the +more obvious, as well as the true, explanation is to be found in the fact that +the wider powers and longer term of the Senate made the ablest men +seek entrance to it.</p> +</div> +<div class='footnote' id='f171'> +<p class='c001'><a href='#r171'>171</a>. The only instance given of this is in the discretion allowed to the officers +of the New England townships, whose functions are, however, unimportant. +The statement cannot have been generally true.</p> +</div> +<div class='footnote' id='f172'> +<p class='c001'><a href='#r172'>172</a>. This remained true till very recent years as regards public officials, save +and except the Judges of the Supreme Court when sitting at Washington. +But lately the Supreme Court Judges of some States have begun to wear +gowns.</p> +</div> +<div class='footnote' id='f173'> +<p class='c001'><a href='#r173'>173</a>. This has ceased to be true in Federal administration, and in that of the +more advanced States.</p> +</div> +<div class='footnote' id='f174'> +<p class='c001'><a href='#r174'>174</a>. Tocqueville does not say whether he intends this remark to apply to +State legislation only or to Federal legislation also. He quotes dicta of +Hamilton, Madison, and Jefferson to the same effect, but these testimonies, +or most of them, refer to a time anterior to the creation of the Federal +Constitution. If it is true that State laws were being constantly changed +in 1832, this can have been true only of administrative statutes, not of +private law generally. One is tempted to believe that Tocqueville was +unconsciously comparing America with France, where the Code has +arrested legislation to an extent surprising to an English observer.</p> +</div> +<div class='footnote' id='f175'> +<p class='c001'><a href='#r175'>175</a>. Every one knows how frequently European visitors used to comment +upon this American trait. It is now much less noticeable than formerly. +I can even say from experience that it has sensibly diminished since 1870.</p> +</div> +<div class='footnote' id='f176'> +<p class='c001'><a href='#r176'>176</a>. This observation seems strange indeed to any one who remembers the +commercial history of the United States since the great crisis of 1838.</p> +</div> +<div class='footnote' id='f177'> +<p class='c001'><a href='#r177'>177</a>. Jackson’s popularity began with his military exploit: but his hold on +the people was due to other causes also. His election coincided with the +rise of the great democratic wave already referred to.</p> +</div> +<div class='footnote' id='f178'> +<p class='c001'><a href='#r178'>178</a>. I do not profess to summarize in these few lines all that Tocqueville says +of the character and influence of Christianity in the United States, for he +devotes many pages to it, and they are among the wisest and most permanently +true that he has written.</p> +</div> +<div class='footnote' id='f179'> +<p class='c001'><a href='#r179'>179</a>. Like most of his contemporaries, Tocqueville failed to appreciate the +enormous influence of physical environment, which has, however, doubtless +increased, so far as America is concerned, through the scientific discoveries +made since the date of his journey.</p> +</div> +<div class='footnote' id='f180'> +<p class='c001'><a href='#r180'>180</a>. There are now forty-five, with a population of nearly eighty millions.</p> +</div> +<div class='footnote' id='f181'> +<p class='c001'><a href='#r181'>181</a>. No proof is given of this proposition, which is by no means self-evident, +and which has indeed all the air of a premiss laid down by a schoolman of +the thirteenth century.</p> +</div> +<div class='footnote' id='f182'> +<p class='c001'><a href='#r182'>182</a>. He has, however, nowhere attempted to prove that the States deserve to +be called ‘nations’ or ‘peoples.’</p> +</div> +<div class='footnote' id='f183'> +<p class='c001'><a href='#r183'>183</a>. The protective tariff was felt as a grievance by the South, being imposed +in the interest of the Northern and Middle States. No doubt, the +North got more pecuniary gain out of the Union than the South did.</p> +</div> +<div class='footnote' id='f184'> +<p class='c001'><a href='#r184'>184</a>. In 1790 there were only six cities with populations of at least 8,000. +There are now 545. The percentage of urban to rural population (taking +urban as that of a city of 8,000) was then 3·4 and is now 33·1.</p> +</div> +<div class='footnote' id='f185'> +<p class='c001'><a href='#r185'>185</a>. Especially in the form of the amendment of particular provisions of +State Constitutions.</p> +</div> +<div class='footnote' id='f186'> +<p class='c001'><a href='#r186'>186</a>. In 1892 the expenditure on this head was $155,000,000: in 1901 it was +estimated at $142,000,000.</p> +</div> +<div class='footnote' id='f187'> +<p class='c001'><a href='#r187'>187</a>. Competent American observers in Tocqueville’s own time thought he +greatly exaggerated this danger. See a letter from Jared Sparks printed in +Professor Herbert B. Adams’ interesting monograph <cite>Jared Sparks and Alexis +de Tocqueville</cite>, in Johns Hopkins University Studies, 1898.</p> +</div> +<div class='footnote' id='f188'> +<p class='c001'><a href='#r188'>188</a>. The conditions of most parts of the tropical regions of South and Central +America are in reality quite different from those of the American Union +taken as a whole.</p> +</div> +<div class='footnote' id='f189'> +<p class='c001'><a href='#r189'>189</a>. This Essay was composed early in 1896, and describes the Constitutions of +the Orange Free State and South African Republic as they stood in December +1895, the month when the fatal invasion of the latter Republic by the police +of the British S. Africa Company took place. I have left it, for obvious +reasons, substantially unchanged, save that here and there I have corrected +what seemed to be errors, have added one or two references to recent events, +and have explained some constitutional points with more fullness. In its +original form, the Essay appeared in the <cite>Forum</cite> in April 1896.</p> +</div> +<div class='footnote' id='f190'> +<p class='c001'><a href='#r190'>190</a>. Λέγεταί τις παροιμία ὅτι ἀεὶ φέρει Λιβύη τι καινόν. Arist. <cite>Hist. Anim.</cite> viii. 28.</p> +</div> +<div class='footnote' id='f191'> +<p class='c001'><a href='#r191'>191</a>. A concise account of these grievances and a sketch of the subsequent +history of the emigrants may be found in Dr. Theal’s <cite>Story of South Africa</cite> +(published by Messrs. Putnam), and in my <cite>Impressions of South Africa</cite>, chaps. +xi and xii. See also Dr. Theal’s larger <cite>History of the Boers in South Africa</cite>.</p> +</div> +<div class='footnote' id='f192'> +<p class='c001'><a href='#r192'>192</a>. I am indebted for most of these facts regarding the early organization +of the emigrants to Dr. G. M. Theal’s <cite>History of the Boers in South Africa</cite>, +a book of considerable merit and interest, which, however, carries its narrative +down only to 1854.</p> +</div> +<div class='footnote' id='f193'> +<p class='c001'><a href='#r193'>193</a>. My thanks are due to the distinguished Chief Justice of the Free State +(Mr. Melius de Villiers) for much information kindly furnished to me regarding +this Constitution.</p> +</div> +<div class='footnote' id='f194'> +<p class='c001'><a href='#r194'>194</a>. In practice, the recommendation of the majority of the Volksraad is +looked upon as likely to ensure the election of the person so recommended.</p> +</div> +<div class='footnote' id='f195'> +<p class='c001'><a href='#r195'>195</a>. In the earlier days of Rome the army elected its subordinate officers.</p> +</div> +<div class='footnote' id='f196'> +<p class='c001'><a href='#r196'>196</a>. Roman-Dutch law is the common law all over South Africa, even in the +almost purely English colony of Natal (though of course not in Portuguese or +German territory). It has been largely affected, especially in the British +colonies, by recent legislation.</p> +</div> +<div class='footnote' id='f197'> +<p class='c001'><a href='#r197'>197</a>. As to Rigid Constitutions, see Essay III.</p> +</div> +<div class='footnote' id='f198'> +<p class='c001'><a href='#r198'>198</a>. I have to thank my friend Mr. J. G. Kotzé, late Chief Justice of the South +African Republic, for information kindly supplied to me regarding certain +points in this Constitution.</p> +</div> +<div class='footnote' id='f199'> +<p class='c001'><a href='#r199'>199</a>. The Boers are a genuinely religious people, and read their Bibles. But +they have shown little regard to 1 Corinthians xii. 13; Galatians iii. 28; +and Colossians iii. 11. The same may be said of the people of the Southern +States of America; and is indeed also true of the less religious English +both in South Africa and in the West Indies.</p> +</div> +<div class='footnote' id='f200'> +<p class='c001'><a href='#r200'>200</a>. I am informed that even this restriction was abolished subsequently to +1895.</p> +</div> +<div class='footnote' id='f201'> +<p class='c001'><a href='#r201'>201</a>. The suffrage was by subsequent enactments restricted as respects +immigrants and the sons of immigrants; and in 1895 a person coming into +the country could not obtain full electoral rights till after a period of twelve +years. In July 1899, three months before the war which broke out in that +year, the period was shortened to seven years owing to pressure by the British +Government.</p> +</div> +<div class='footnote' id='f202'> +<p class='c001'><a href='#r202'>202</a>. See Essay III, p. <a href='#Page_231'>231</a>.</p> +</div> +<div class='footnote' id='f203'> +<p class='c001'><a href='#r203'>203</a>. Using the expression which Bagehot has made familiar, though of course +Parliament is far from determining the entire composition of a ministry, +which may occasionally contain persons it would not have selected.</p> +</div> +<div class='footnote' id='f204'> +<p class='c001'><a href='#r204'>204</a>. Although there is nothing in the federal constitution to prevent a President +from addressing either House of Congress.</p> +</div> +<div class='footnote' id='f205'> +<p class='c001'><a href='#r205'>205</a>. The British element is larger among the citizens of the Orange Free +State than it is in the burgher population of the Transvaal.</p> +</div> +<div class='footnote' id='f206'> +<p class='c001'><a href='#r206'>206</a>. A further convention was made in 1884, whose articles, omitting all +reference to ‘suzerainty,’ conceded an independence qualified only in respect +of the veto retained by Britain over treaties with foreign powers.</p> +</div> +<div class='footnote' id='f207'> +<p class='c001'><a href='#r207'>207</a>. When these immigrants from all parts of the world swarmed into the +country, admission to the franchise was made more difficult, because the +conservative section of the citizens naturally feared that the newcomers, +many of whom did not intend to make the country their home, might, if +they forthwith acquired voting power, soon secure a majority and overturn +the existing system of the republic, including the official use of the +Dutch language and the relations of Church and State. These non-burgher +immigrants have been absurdly described as ‘helots.’ A closer parallel to +them is to be found not in the semi-serfs of Sparta but in the class of resident +aliens known at Athens as metics (μέτοικοι). But they were indeed far +better off than that class, since they enjoyed full civic rights in all matters of +private law, wanting only the right of sharing in the government.</p> +</div> +<div class='footnote' id='f208'> +<p class='c001'><a href='#r208'>208</a>. One might add the Constitution of the Austro-Hungarian Monarchy, +which is a sort of double federation. But it is too peculiar to serve as an +example to other peoples proposing to federalize.</p> +</div> +<div class='footnote' id='f209'> +<p class='c001'><a href='#r209'>209</a>. New South Wales in 1788, Tasmania in 1825, Western Australia in +1829, South Australia in 1836, Victoria in 1851, Queensland in 1859. +Victoria and Queensland had however been originally settled (1836 and +1826), and for some time administered, from New South Wales, while +Tasmania had been made a penal settlement as early as 1804.</p> +</div> +<div class='footnote' id='f210'> +<p class='c001'><a href='#r210'>210</a>. It is four days’ voyage from Adelaide, the capital of S. Australia, to +Perth, the capital of W. Australia.</p> +</div> +<div class='footnote' id='f211'> +<p class='c001'><a href='#r211'>211</a>. Two-fifths of the population of Victoria live in Melbourne, one-fourth of +the population of New South Wales in Sydney.</p> +</div> +<div class='footnote' id='f212'> +<p class='c001'><a href='#r212'>212</a>. In 1891, out of that part of the total population of Australia which had +been born in the United Kingdom, about one-fourth had been born in +Ireland and one-sixth in Scotland. Of the whole population of Australia, +95 per cent. are of British stock.</p> +</div> +<div class='footnote' id='f213'> +<p class='c001'><a href='#r213'>213</a>. The nearest point of Dutch New Guinea is about 150 miles from Australia.</p> +</div> +<div class='footnote' id='f214'> +<p class='c001'><a href='#r214'>214</a>. In the U.S.A. a State, in Canada a Federal matter.</p> +</div> +<div class='footnote' id='f215'> +<p class='c001'><a href='#r215'>215</a>. In Switzerland a Federal matter, in the U.S.A. partly a Federal, partly +a State matter.</p> +</div> +<div class='footnote' id='f216'> +<p class='c001'><a href='#r216'>216</a>. In the U.S.A. and Germany a State Matter, in Switzerland and Canada +partly a Federal Matter.</p> +</div> +<div class='footnote' id='f217'> +<p class='c001'><a href='#r217'>217</a>. See U.S.A. Constitution, Amendment X: Constitution of Swiss Confederation, +Art. 3: British North American Act (1867), sect. 91.</p> +</div> +<div class='footnote' id='f218'> +<p class='c001'><a href='#r218'>218</a>. These words are used to cover the case of the creation and admission of +future States.</p> + +<p class='c001'>The name ‘State,’ which the Australians have substituted for ‘Colonies,’ +is significant. It imports a slightly greater independence and has a more +imposing sound than the Canadian term ‘Province.’</p> +</div> +<div class='footnote' id='f219'> +<p class='c001'><a href='#r219'>219</a>. Canada directs the Dominion to take over the Provincial debts existing +at the time of the Union. In the U.S.A. the war debts of the States were +taken over by the first Congress of the Union.</p> +</div> +<div class='footnote' id='f220'> +<p class='c001'><a href='#r220'>220</a>. See sections 114 and 115 of Constitution, and compare Art. I. sect. 10 of +Constitution of U.S.A.</p> +</div> +<div class='footnote' id='f221'> +<p class='c001'><a href='#r221'>221</a>. But see section 94 of the Canadian Constitution.</p> +</div> +<div class='footnote' id='f222'> +<p class='c001'><a href='#r222'>222</a>. Sect. 105.</p> +</div> +<div class='footnote' id='f223'> +<p class='c001'><a href='#r223'>223</a>. Sect. 119.</p> +</div> +<div class='footnote' id='f224'> +<p class='c001'><a href='#r224'>224</a>. Art. II. sect. 3, and Art. IV. sect. 4.</p> +</div> +<div class='footnote' id='f225'> +<p class='c001'><a href='#r225'>225</a>. <i>i.e.</i> practically by the people, though formally by a body of electors +elected for that purpose.</p> +</div> +<div class='footnote' id='f226'> +<p class='c001'><a href='#r226'>226</a>. See as to this, Essay VI, pp. 401, 421.</p> +</div> +<div class='footnote' id='f227'> +<p class='c001'><a href='#r227'>227</a>. See Amendment XV to the Constitution.</p> +</div> +<div class='footnote' id='f228'> +<p class='c001'><a href='#r228'>228</a>. In the U.S.A., however, the Senate may and does amend both revenue-raising +and appropriation bills, and indeed frequently prevails against the +House in the quarrels which arise over these matters.</p> +</div> +<div class='footnote' id='f229'> +<p class='c001'><a href='#r229'>229</a>. It was suggested in the Convention by Mr. Playford (then Prime +Minister of South Australia) that the two Houses sitting together might +appoint the Executive Ministry, but this plan deviated too far from British +Colonial practice to find acceptance. A similar suggestion was made by +Sir John Cockburn in the Sydney Convention in 1891. See his speech in +an interesting volume published by him entitled <cite>Australian Federation</cite> +(p. 139).</p> +</div> +<div class='footnote' id='f230'> +<p class='c001'><a href='#r230'>230</a>. But ‘no alteration diminishing the proportionate representation of any +State in either House of the Parliament, or the minimum number of representatives +of a State in the House of Representatives, or increasing, +diminishing or otherwise altering the limits of the State, shall become law +unless the majority of the electors voting in that State approve the proposed +law’ (sect. 128).</p> +</div> +<div class='footnote' id='f231'> +<p class='c001'><a href='#r231'>231</a>. See <a href='#eIV'>Essay IV</a>.</p> +</div> +<div class='footnote' id='f232'> +<p class='c001'><a href='#r232'>232</a>. In the first election of members of the two Houses, which took place +while these pages were passing through the press, every State was divided +upon the issue of Free Trade <span lang="la"><i>versus</i></span> Protection, though the Protectionist (or +high-tariff) party secured more seats, in proportion, in the House than it did +in the Senate.</p> +</div> +<div class='footnote' id='f233'> +<p class='c001'><a href='#r233'>233</a>. Since these lines were written, the phenomenon has reappeared, for +at the first elections, held in the spring of 1901, of the Senate and House, +the Labour party obtained more than one-fifth of the seats in each House.</p> +</div> +<div class='footnote' id='f234'> +<p class='c001'><a href='#r234'>234</a>. While these pages were passing through the press, a Commission +appointed in New Zealand to consider the question has reported strongly +against her entrance into the Australian Federation.</p> +</div> + +<div class='pbb'> + <hr class='pb c000'> +</div> +<p class='c001'><a id='endnote'></a></p> +<div class='tnotes'> + +<div class='nf-center-c0'> + <div class='nf-center'> + <div><span class='large'>Transcriber’s Note</span></div> + </div> +</div> + +<p class='c001'>At <a id='c_314.9'></a><a href='#corr314.9'>314.9</a>, the Norse discoverer of Iceland, Naddodd (or Naddoðr in Old Norse), +is referred to as ‘Naddođ’. This is only occurence of the barred d in +this text, the Norse letter eth (ð) was probably intended.</p> + +<p class='c001'>Other errors deemed most likely to be the printer’s have been corrected, and +are noted here. The references are to the page and line in the original.</p> + +<table class='table1'> +<colgroup> +<col class='colwidth12'> +<col class='colwidth69'> +<col class='colwidth18'> +</colgroup> + <tr> + <td class='c018'><a id='c_32.32'></a><a href='#corr32.32'>32.32</a></td> + <td class='c018'>by Mr. E. G. Hardy.[)]</td> + <td class='c019'>Added.</td> + </tr> + <tr> + <td class='c018'><a id='c_44.32'></a><a href='#corr44.32'>44.32</a></td> + <td class='c018'>round the Aeg[a]ean.</td> + <td class='c019'>Removed.</td> + </tr> + <tr> + <td class='c018'><a id='c_94.30'></a><a href='#corr94.30'>94.30</a></td> + <td class='c018'>receptive rather than [resistent]</td> + <td class='c019'><i>sic</i></td> + </tr> + <tr> + <td class='c018'><a id='c_111.34'></a><a href='#corr111.34'>111.34</a></td> + <td class='c018'>except[s] as respect[s] land</td> + <td class='c019'>Removed/Added.</td> + </tr> + <tr> + <td class='c018'><a id='c_167.32'></a><a href='#corr167.32'>167.32</a></td> + <td class='c018'>Ἀ[ρ]χαιοπλούτων</td> + <td class='c019'>Restored.</td> + </tr> + <tr> + <td class='c018'><a id='c_260.1'></a><a href='#corr260.1'>260.1</a></td> + <td class='c018'>the creation of a Rigid Constit[ut]ion</td> + <td class='c019'>Inserted.</td> + </tr> + <tr> + <td class='c018'><a id='c_261.24'></a><a href='#corr261.24'>261.24</a></td> + <td class='c018'>every[ ]thing tends to knit individual men together</td> + <td class='c019'>Removed.</td> + </tr> + <tr> + <td class='c018'><a id='c_316.13'></a><a href='#corr316.13'>316.13</a></td> + <td class='c018'>where deserts[,] glaciers and morasses</td> + <td class='c019'>Added.</td> + </tr> + <tr> + <td class='c018'><a id='c_323.9'></a><a href='#corr323.9'>323.9</a></td> + <td class='c018'>Úlflj[o/ó]t having in the meantime returned</td> + <td class='c019'>Replaced.</td> + </tr> + <tr> + <td class='c018'><a id='c_344.16'></a><a href='#corr344.16'>344.16</a></td> + <td class='c018'>only a father[,] son or brother</td> + <td class='c019'>Added.</td> + </tr> + <tr> + <td class='c018'><a id='c_408.3'></a><a href='#corr408.3'>408.3</a></td> + <td class='c018'>confidently to answer[.]</td> + <td class='c019'>Added.</td> + </tr> + <tr> + <td class='c018'><a id='c_502.3'></a><a href='#corr502.3'>502.3</a></td> + <td class='c018'>as against the States[.]</td> + <td class='c019'>Added.</td> + </tr> +</table> + +</div> + +<div style='text-align:center'>*** END OF THE PROJECT GUTENBERG EBOOK 78300 ***</div> + </body> + <!-- created with ppgen.py 3.57e on 2026-03-26 14:27:44 GMT --> +</html> diff --git a/78300-h/images/cover.jpg b/78300-h/images/cover.jpg Binary files differnew file mode 100644 index 0000000..60e0812 --- /dev/null +++ b/78300-h/images/cover.jpg diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6c72794 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This book, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..d3f093b --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for eBook #78300 +(https://www.gutenberg.org/ebooks/78300) |
