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Title: Studies in history and jurisprudence, volume I (of 2)
Author: Viscount James Bryce Bryce
Release date: March 26, 2026 [eBook #78300]
Language: English
Original publication: Oxford: Clarendon Press, 1901
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*** START OF THE PROJECT GUTENBERG EBOOK STUDIES IN HISTORY AND JURISPRUDENCE, VOLUME I (OF 2) ***
------------------------------------------------------------------------
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.
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