summaryrefslogtreecommitdiff
path: root/78300-0.txt
diff options
context:
space:
mode:
Diffstat (limited to '78300-0.txt')
-rw-r--r--78300-0.txt17550
1 files changed, 17550 insertions, 0 deletions
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 ***
generated by cgit v1.2.3 (git 2.25.1) at 2026-08-18 23:44:42 +0000