the ppesence of this Book
thej.m. kelly
has Been made possiBle
thpouqh the qeneposity
Stephen B. Roman
From the Library of Daniel Binchy
37*
fl
et
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
ff
/ *^
OXFORD /*
AT THE CLARENDON PRESS
1901
OXFORD
PRINTED AT THE CLARENDON PRESS
BY HORACE HART, M.A.
PRINTER TO THB 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 FRIEND-
SHIP 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
viii PREFACE
side. Another sketches in outline the early
history of Iceland, and the very peculiar con-
stitution 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 Re-
publics 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 im-
pressed 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
PREFACE ix
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 Professor-
ship 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.
x PREFACE
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 con-
stant 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 (Parlia-
mentary Counsel to the Treasury), Dr. C. L.
Shadwell and Mr. Edward Jenks of Oxford,
Dr. F. Sigel of Warsaw, and Mr. J6n Stefansson
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 advanced races . i
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 territories 4
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
Empire 8
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 frontiers 14
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 India 35
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
religious feeling in ancient and in modern world . . 51
Character of the conquerors as a source of their strength . 58
Contrasts between the two Empires : geographical position of *
the ruling race 61
Fusion of Romans and provincials : no similar fusion of
English and Indians . . .>- * .. . ,.. . . 62
Influence of Climate, of Colour, of Religion .... 63
Languages and literature in Roman Empire and in India . 70
xii CONTENTS
PAGE
Influences which favoured fusion in Roman Empire absent
from India . 74
Retroactive influences of the provinces on Rome and of India
on Britain 76
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 . no
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
general . .154
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
CONTENTS xiii
PAGE
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 Continent 230
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 CONSTITUTIONS . . . .255-311
The influence of aggregative and disjunctive forces on
political societies 255
Tendencies which may act either Centripetallyor 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 senti-
ment may be opposed 269
How Constitutions may use the existing Centripetal and
Centrifugal forces 271
Illustrations from Commerce, Law and Religion . . . 274
Instances of the troubles caused by Racial or Religious
sentiment 281
Methods by which Constitutions may disarm or regulate the
centrifugal forces : illustrations 286*
Difficulties due to differences of colour in races . . . 291
How the Constitutions of the United States and Switzerland
have acted 296
The Centripetal force generally, but not always, dominant
in European history 300
xiv CONTENTS
PAGE
Effects of Conquest and of Dynastic Succession . . . 303
Probable future strength of the centrifugal and centripetal
forces respectively . 37
Present tendency to the enlargement or consolidation of
States is not necessarily permanent ..... 309
ESSAY V
PRIMITIVE ICELAND 312-358
Discovery and Settlement of Iceland 312
Beginnings of a Polity : the Thing . . . " . . . 316
Rise of the Go'Si 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 the Fair 348
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 slightly foreseen 378
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
CONTENTS xv
PAGE
The deficiencies observable in his book scarcely affect its
present value 390
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 of the United States . 458
Relations of Executive and Legislature in these Dutch Re-
publics 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 AUS-
TRALIA . . . . > .- . 9 468-553
Interest attaching to the new Constitution of Australia . . 468
Origin and progress of the movement for federalizing Aus-
tralia . . . . . .^- . . . . . 471
BRYCE i b
xvi CONTENTS
PAGE
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 Canada . . . ... V . . . 487
Two leading types of Federal Government .... 489
Distribution of powers between the Nation and the States in
the Australian Constitution . . 491
Position of the Australian States under the Constitution . 494
Differences from the Federal systems of the United States
and of Canada . 498
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 Govern-
ment yield to Australian sentiment 509
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 the United States 527
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
United States . . . . . . . . . 532
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 may be strengthened by disputes
with foreign powers . ... . . . .;. . . '' . 550
Future relations of Australia to Britain . . . . 551
CONTENTS xvii
VOLUME II
ESSAY IX
PAGE
OBEDIENCE . 1-48
Different Theories of the Nature of Political Obedience . . i
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 theory of Obedience . . . . . . . .44
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
not concerned with obedience 56
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 political power . 73
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
xviii CONTENTS
PAGE
Views of John Austin : illustrations of their unsoundness . 89
Confusion of various questions regarding Sovereignty which
are really distinct . . . *'.'.. . . . 94
Rights in the moral sphere of Sovereignty de iure and
Sovereignty de facto . . * . . i . . 98
Sovereignty in International Relations . . "* :, . . 101
Sovereignty in a Federation . . . . - * . . 104
Conclusion : Theoretical Controversies regarding Sovereignty
have mostly had their origin in current politics . . 108
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 (lus 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 lus Gentium and lus Naturae . . 142
Points of difference which remained : Slavery . . . 144
Extension of Roman citizenship removes the need for a lus
Gentium 147
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
Philosophy necessary or serviceable ? . , . . 172
Four Methods employed in Legal Science , . . 174
CONTENTS xix
PAGE
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
treatises with those of English lawyers .... 199
Summary: The Roman Jurists are philosophical in spirit
and in their practical handling of law .... 207
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 Cairo 219
Description of El Azhar and its Teaching .... 220
Course of Instruction : Graduation : Endowments . . . 225
Resemblances of El Azhar to the European Universities of
the Middle Ages . . 229
Causes of the arrested development of Musulman Universities 233
Nature and consequences of the Musulman identification of
Law and Religion 234
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
Political History of a Country . . . . . . 247
Law-making Authorities in general 249
xx CONTENTS
PAGE
Three main sources of Law: the Ruling Authority, the
Magistrate, and the Legal Profession .... 253
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
Emperors 318
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 that of Roman legislation . . , , . . 332
Some branches of law better fitted than others to be
handled by direct legislation . * . . . . . 333
ESSAY XV
THE HISTORY OF LEGAL DEVELOPMENT AT ROME AND
IN ENGLAND . . . . . . . . 339-380
Roman and English Law have both been developed in a com-
paratively independent way ... . . .,.*. . . 339
Conspicuous epochs of legal change at Rome and in England 341
Forces and influences chiefly active in determining legal
changes 344
Roman Legal History during the republican period . . 345
CONTENTS xxi
PAGE
Effect on the law of the establishment of the imperial auto-
cracy . 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
of changes in Roman Law 357
Causes of legal change operative in England : the periods of
Henry II and Edward I 358
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 England 367
Effects of Territorial Expansion on Roman and on English
Law 369
Economic influences more generally potent in England :
political in Rome 371
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
ancient Mediterranean World 383
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
freedom 400
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 Legislation . 427
Personal Liberty of the Wife now well established . . . 430
xxii CONTENTS
PAGE
English law has wavered between different theories of the
relation 431
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
is granted ,' . . 443
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 Modern World . . . , ; . . . 453
Causes now tending to weaken the permanence of the Mar-
riage 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 Eng-
land 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 impress-
ing 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 spread-
ing 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
If* BRYCE I B
2 ROMAN AND BRITISH EMPIRES
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. Everi the United
States has, by occupying the Hawaiian and the Philip-
pine 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 lan-
guages' 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 pro-
cess 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
ROMAN AND BRITISH EMPIRES 3
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 Cale-
donia, 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 intel-
lectual 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
B 2
4 ROMAN AND BRITISH EMPIRES
from the middle of the fifteenth century, when the intel-
lectual 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, how-
ever, 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 terri-
torial groups, the self-governing colonies, the Crown
colonies, and the Indian territories ruled by or depen-
dent 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 AND BRITISH EMPIRES 5
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, repro-
ducing, each in its own way, the features of the con-
stitution 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 sub-
ject 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
6 ROMAN AND BRITISH EMPIRES
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 inhabi-
tants 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 l . Both the Spanish and the Russian Empires,
however, furnish illustrations which we shall have
occasion presently to note.
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 re-
semblance. So when we wish to examine the methods
and the results of British rule in India by the light of any
1 The total area of the Russian Empire exceeds 8,000,000 square miles,
and the population is about 130,000,000.
ROMAN AND BRITISH EMPIRES 7
other dominion exercised under conditions even remotely
similar, it is to the Roman Empire of the centuries be-
tween 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 jcould 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 strong-
hold, 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 administra-
8 ROMAN AND BRITISH EMPIRES
tion, 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 en-
countered, who added to valour some slight tincture of
civilization, were the Mexicans.
Russia has met with practically no resistance in occu-
pying 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 Circas-
sians 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
ROMAN AND BRITISH EMPIRES 9
Alexander the Great, and perhaps Cyrus, had planned
and carried out before them. Just s 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
io ROMAN AND BRITISH EMPIRES
of Dupleix and Lally, in the policy of the Romans when
they entered Sicily to prevent Carthage from establish-
ing 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 con-
quest as did England. Not to speak of the two cen-
turies 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 \ Her Eastern conquests were all the easier
because Alexander the Great's victories, and the
wars waged by his successors, had broken up and de-
nationalized 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 z : 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
1 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.
2 Territorial authority may be said to date from the grant of the Diwani
in 1765.
ROMAN AND BRITISH EMPIRES n
20,000 French troops under Conde or Turenne could
conquer all India *. 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 com-
mander equal, in Hannibal a commander superior to
1 See the admirably clear and thoughtful book of Sir A. C. Lyall, Rtsg of
British Dominion in India, pp. 52 and 126.
12 ROMAN AND BRITISH EMPIRES
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. Occa-
sional 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 Par-
thians 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. Ex-
cept 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
ROMAN AND BRITISH EMPIRES 13
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 l . Eng-
land guards against its risks by having a considerable
force of British troops alongside her native army.
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 mili-
tary character. The Roman administration began with
this character, and never lost it, at least in the frontier
provinces. The governors were pro-consuls or pro-
praetors, or other officials l 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
1 And indeed the employment of these barbarians to resist the outer
barbarians probably prolonged the life of the Empire.
14 ROMAN AND BRITISH EMPIRES
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 him-
self, except perhaps in Bombay, surrounded by an atmo-
sphere of gunpowder all the time he stays in India.
Before we pass from the military aspects of the com-
parison 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)
ROMAN AND BRITISH EMPIRES 15
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
16 ROMAN AND BRITISH EMPIRES
subdued the peoples of Caledonia and lerne, who after-
wards 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, com-
mercial as well as political, of India with Tibet, and with
the Chinese who are suzerains of Tibet, have been, at
ROMAN AND BRITISH EMPIRES 17
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 extra-
ordinarily 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.
i8 ROMAN AND BRITISH EMPIRES
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 conceiv-
ably 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 neigh-
bour 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
ROMAN AND BRITISH EMPIRES 19
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, some-
times 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
C2
20 ROMAN AND BRITISH EMPIRES
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 uncer-
tainty 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
ROMAN AND BRITISH EMPIRES 21
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 sub-
sequently 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 em-
bankments 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
Card 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 construe-
22 ROMAN AND BRITISH EMPIRES
tion has imposed upon the Indian exchequer a
strain all the heavier because some lines, especially
those on the north-west frontier, having been under-
taken 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 pro-
cess 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 par-
ROMAN AND BRITISH EMPIRES 23
ticular 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 main-
tenance 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 land-
lords 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
24 ROMAN AND BRITISH EMPIRES
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 per-
mission 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, how-
ever, 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 confi-
dence with which he finds himself travelling unprotected
across this vast country, through mountains and jungles,
among half savage tribes whose languages he does not
ROMAN AND BRITISH EMPIRES 25
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 percent-
age 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 l .
I have referred to the enclaves within the area of the
1 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 concili-
atory temper.
26 ROMAN AND BRITISH EMPIRES
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 primi-
tive 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 compen-
ROMAN AND BRITISH EMPIRES 27
sations in better administration for the national inde-
pendence she extinguished. Her ideals rose as she
acquired experience, and as she came to feel the mag-
nificence 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 1 .
With the establishment of a monarchy administration
improved. The Emperor had a more definite responsi-
bility 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 punish-
ment. It may indeed be said that the best proof of the
1 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.
28 ROMAN AND BRITISH EMPIRES
incompetence of the Republican system for the task of
governing the world, and of the need for the concentra-
tion 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.
On this point the parallel with the English in India is
interesting, dissimilar as the circumstances were. The
English administration began with extortions and cor-
ruptions. 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 pro-
ceedings before tribunals which could be, and frequently
were, bribed. The first outbreak of greed and corrup-
tion 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, con-
sisting 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
ROMAN AND BRITISH EMPIRES 29
statute of B. c. 149 to try offences committed by Roman
officials against provincials, has never acted, or even been
summoned l . 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 impeach-
ment 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
1 See Sir C. P. Ilbert's Government of India, p. 68. The provision creating
this Court has never been repealed.
3 o ROMAN AND BRITISH EMPIRES
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 respon-
sible. 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.
The government of India by the English resembles
that of her provinces by Rome in being thoroughly des-
potic. 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 Par-
liament in which the Indian subjects of the Crown have
ROMAN AND BRITISH EMPIRES 31
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 Commis-
sioners, 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 moun-
taineers 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 common-
wealths, 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
32 ROMAN AND BRITISH EMPIRES
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 introduc-
tion 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 inven-
tions we owe to the ancient world representative govern-
ment 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 1 .
India is ruled despotically by the English, not merely
1 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 con-
sisted 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 mis-
governed 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, Romische Staatsverwaltung,
vol. i, and an article in Eng. Hist. Review for April, 1893, by Mr. E. G.
Hardy.
ROMAN AND BRITISH EMPIRES 33
because they found her so ruled, but because they con-
ceive 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 sub-
missively 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
BRYCE I D
34 ROMAN AND BRITISH EMPIRES
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 sub-
jects 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 pro-
claimed, far more loudly and clearly than the English
have ever done, the principle contained in the Declara-
tion 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.
ROMAN AND BRITISH EMPIRES 35
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 distinc-
tion 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 treat-
ment 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 for-
gotten." 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 peace-
ably 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-
D 2
36 ROMAN AND BRITISH EMPIRES
Regulation. The name ' Province/ one may observe in
passing, a name unknown elsewhere in the dominions
of Britain 1 (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 cove-
nanted 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.
The mention of these protected States suggests
another point of comparison. Rome brought many
principalities or kingdoms under her influence, espe-
cially 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
1 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.
ROMAN AND BRITISH EMPIRES 37
a wider, to some a narrower measure of autonomy l .
Ultimately, however, all these, except a few on the
frontiers, passed under her direct sway : and this fre-
quently 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 incom-
petent, 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 descen-
dants of this person are recognized as rulers 2 . 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.
The differences I have mentioned between the British
provinces are important, not only as respects adminis-
tration, but as respects the system of landholding. All
over India, as in many other Oriental countries, it is
1 For instance, Cappadocia, Pontus, and Commagene were left as subject
kingdoms till 17 A.D., 63 A.D., and 72 A. D. respectively.
2 ' 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.
3 8 ROMAN AND BRITISH EMPIRES
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 culti-
vator, 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 x , and not alwaya 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 im-
perial 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
1 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.
ROMAN AND BRITISH EMPIRES 39
those of State officials. When the English came to
India they found it in force there; and the present land-
lord class in Bengal, called Zemindars, are the repre-
sentatives 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.
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 l . 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 Em-
perors 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.
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
1 Rice, however, is sent from Lower Burma into India proper.
40 ROMAN AND BRITISH EMPIRES
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 diminu-
tion 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 main-
tained. 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 re-
sponsible 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 re-
sources. 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, rela-
tively to the population, very small. Comparing her
ROMAN AND BRITISH EMPIRES 41
total wealth with her population, India is a poor country,
probably poorer than was the Roman Empire in the
time of Constantine l . 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 com-
pared with what the best Native State would be obliged
to offer, or as compared with that which the Roman
Government paid.
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
1 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 ;i 2,000,000.
42 ROMAN AND BRITISH EMPIRES
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 commer-
cial 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 Lug-
dunensis. 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
ROMAN AND BRITISH EMPIRES 43
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 iden-
tifies himself with the power he serves even faster
than does the civilian. So, long before full citizen-
ship 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
44 ROMAN AND BRITISH EMPIRES
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, there-
fore, 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 I .
It is far otherwise in India, though there was among
1 After the fifth century, Armenians, Isaurians, and Northern Macedonians
figure more largely in the Eastern Empire than do natives of the provinces
round the Aegaean.
ROMAN AND BRITISH EMPIRES 45
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 1 . 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 2 . 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 con-
tingents already referred to that natives are found in
the higher grades. These contingents may be com-
pared 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
1 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.
2 The subahdar, however, is rather a non-commissioned than a commis-
sioned officer, and is not a member of the British officers' mess.
46 ROMAN AND BRITISH EMPIRES
Ricimer, formidable menaces to it 1 . 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.
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 examina-
tion 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 Com-
missioner, 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
1 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.
ROMAN AND BRITISH EMPIRES 47
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 com-
parison between the Roman and the English systems.
Both nations, when they started on their career of con-
quest, had already built up at home elaborate constitu-
tional 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 citizen-
ship which was sometimes incomplete, including only
48 ROMAN AND BRITISH EMPIRES
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. Citizen-
ship, complete or partial (*. 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, en-
joyed 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 ex-
tension, 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 con-
ferred 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 seven-
ROMAN AND BRITISH EMPIRES 49
teenth 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 neces-
sarily 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 parliamen-
tary election because he was not resident in any Eng-
lish constituency ; and the same rule became applicable
to a French Canadian after the cession of Canada to
the British Crown.
BRYCB I E
50 ROMAN AND BRITISH EMPIRES
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 consti-
tuency 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 con-
stitutes any legal disqualification. This was expressly
declared as regards India by the India Act of 1833, and
ROMAN AND BRITISH EMPIRES 51
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 con-
stitutional 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 nomi-
nated 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 Govern-
ment 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 any-
thing but a boon had it meant the suppression and
E 2
52 ROMAN AND BRITISH EMPIRES
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 con-
querors, and the intellectual influences which literature
called into play, did bring about a considerable measure
of assimilation between Romans and provincials, espe-
cially 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
ROMAN AND BRITISH EMPIRES 53
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 indi-
vidual 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 1 .
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 2 .
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.
Neither, broadly speaking, was religious propagandism
known to the ancient world. There were no missions,
1 Constantine prohibited the immoral excesses practised by the Syrians
of Heliopolis.
2 ' Druidarum religionem apud Gallos dirae immanitatis et tantum civibus
sub Augusto interdictam penitus abolevit.' Sueton. Vita Claud, c. 25.
54 ROMAN AND BRITISH EMPIRES
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 there-
fore 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
ROMAN AND BRITISH EMPIRES 55
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 accord-
ingly 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 supersti-
tions 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 1 . 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 inter-
fere 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
1 I owe this fact to Sir A. C. Lyall (op. tit. p. 66).
56 ROMAN AND BRITISH EMPIRES
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 sup-
ported 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.
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 con-
quest as well as religious eclecticism served the Romans,
ROMAN AND BRITISH EMPIRES 57
so that religious sentiment, though it sometimes stimu-
lated the valour of their native enemies, has not really
furnished any obstacle to the pacification of a con-
quered 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 educa-
tion 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 1 , witnesses
to the spirit which has animated them in seeking to
extend to the conquered the opportunities of progress
which they value for themselves.
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 ,
1 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.
5 8 ROMAN AND BRITISH EMPIRES
policy hardly to be -expected from a democracy, a con-
stant 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 doc-
trine 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 back-
ward 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 direc-
ROMAN AND BRITISH EMPIRES 59
tion 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 suc-
cession of bloody civil wars among themselves without
giving those peoples any chance of recovering their
freedom. The Roman armies, though superior in disci-
pline 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 ad-
vanced 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 succes-
sion 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.
60 ROMAN AND BRITISH EMPIRES
And after the inhabitants of the City had ceased to be
the heart of the Empire, this consciousness of great-
ness passed to the whole population of the Roman
world when they compared themselves with the bar-
barians 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 dis-
membered 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 Eng-
lish 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 formid-
able 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
ROMAN AND BRITISH EMPIRES 61
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 resis-
tance. 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 adminis-
tration 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 extra-
ordinary fact. The English have impressed the imagina-
tion 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
62 ROMAN AND BRITISH EMPIRES
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 Con-
stantinople), stood not far from the centre of their domi-
nions, 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
ROMAN AND BRITISH EMPIRES 63
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 popula-
tion 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 con-
quered 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 com-
plained 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
64 ROMAN AND BRITISH EMPIRES
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 condi-
tions 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 condi-
tions 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 repul-
sion. 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
ROMAN AND BRITISH EMPIRES 65
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
BRYCE I P
66 ROMAN AND BRITISH EMPIRES
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 sym-
pathies 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 com-
plain, 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 unfortu-
nate 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
ROMAN AND BRITISH EMPIRES 67
arrogance, they contemplated the usages and institu-
tions of the natives, and for their frequent disregard of
justice and humanity in their dealings with the people
of India V And the Act of 1833 requires the Govern-
ment of India 'to provide for the protection of the
natives from insult and outrage in their persons, reli-
gions, and opinions 2 /
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 com-
plete. Still it is true that the difference of religion does
constitute in India a further barrier not merely to inter-
marriage 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 3 .
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
1 See Ilbert's Government of India, p. 77. a Ibid. p. 91.
s 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.
F 2
68 ROMAN AND BRITISH EMPIRES
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 profes-
sors 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 out-
side 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
ROMAN AND BRITISH EMPIRES 69
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 Euro-
pean 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 demarca-
tion ! 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 convert-
ing 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
7 o ROMAN AND BRITISH EMPIRES
all the other religions were false and pernicious, draw-
ing 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 ortho-
doxy 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 in-
vaders 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 con-
quests 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
ROMAN AND BRITISH EMPIRES 71
Asia Minor and Syria, though the native languages
continued to be spoken in the cities as late as the
time of Tiberius l , 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 2 . 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 unifi-
cation 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
1 As in Lycaonia; cf. Actsxiv.
2 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.
72 ROMAN AND BRITISH EMPIRES
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.
Very different have been the conditions of India.
When the British came, they found no national litera-
ture, 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 Musul-
man 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 suf-
ficiently 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 1 ,
branches of the Aryan family, divide between them
Northern, North-Western and Middle India, and four
others 2 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
1 Hindi, Bengali, Marathi, Punjabi, and Gujarati.
a Telugu, Tamil, Kanarese, Malayalam.
ROMAN AND BRITISH EMPIRES 73
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 forma-
tion 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 instruc-
tion on the model not so much of Oxford and Cam-
bridge 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
74 ROMAN AND BRITISH EMPIRES
generation or two. When they come they may prove
far from happy.
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 l . 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.
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 be-
come 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
1 It is estimated that English is at present spoken by about 1 15 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.
ROMAN AND BRITISH EMPIRES 75
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 antago-
nisms 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 Transcau-
76 ROMAN AND BRITISH EMPIRES
casia, 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 pro-
vinces 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
ROMAN AND BRITISH EMPIRES 77
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 his-
tory, 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 ques- *
tions 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 Eng-
78 ROMAN AND BRITISH EMPIRES
land, efforts are usually made and made most wisely
to prevent questions of Indian administration from be-
coming 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 \
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 intellec-
tual culture of Europe to a group of Asiatic peoples,
1 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.
ROMAN AND BRITISH EMPIRES 79
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 pro-
fesses 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 rail-
ways, 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 Eng-
lish 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 pro-
pensity 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
8o ROMAN AND BRITISH EMPIRES
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 restrain-
ing hand withdrawn.
The third fact is that the existence of a system
securing these benefits is compatible with an abso-
lute 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 Euro-
pean 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
ROMAN AND BRITISH EMPIRES 81
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
BRYCE I G
82 ROMAN AND BRITISH EMPIRES
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
ROMAN AND BRITISH EMPIRES 83
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.
G 2
84 ROMAN AND BRITISH EMPIRES
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 belong-
ing 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 par-
ticular 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 Musul-
mans 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-
86 ROMAN AND ENGLISH LAW
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 1 .
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 2 . The
rest, including Australia, New Zealand, and all Canada
except Quebec, follow English ; as does also the United
1 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.
a In these West Indian islands, however, that which remains of Spanish
law, as in Trinidad and Tobago, and of French law, as in St. Vincent, is now
comparatively slight ; and before long the West Indies (except Cuba and
Puerto Rico, Guadeloupe and Martinique) will be entirely under English
law. See as to the British colonies generally, Sir C. P. Ilbert's Legislative
Methods and Forms, chap. ix.
ROMAN AND ENGLISH LAW 87
States, except Louisiana, but with the Hawaiian Islands,
and India, though in India, as we shall see, native law
is also administered.
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 out-
side 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 coloniza-
tion 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
88 ROMAN AND ENGLISH LAW
hardly be added that the Roman law has been far more
changed in descending to the modern world and becom-
ing 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 con-
tinued 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 annexa-
ROMAN AND ENGLISH LAW 89
tion of part of Sicily in X.p! 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 1 . 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 2 . 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.
1 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.
* 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.
90 ROMAN AND ENGLISH 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 1 . This was a large class, and
went on rapidly increasing. To it pure Roman law
was applicable, subject of course to any local customs.
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 un-
familiar, 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 com-
munity 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 dis-
abused 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
1 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 com-
nterciutn}, 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.
ROMAN AND ENGLISH LAW 91
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 cari 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 autho-
rity. 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 im-
portant 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
92 ROMAN AND ENGLISH LAW
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 J . 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 them-
selves. 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 2 . Thus the governor's court was
1 As to this see Essay XIV, vol. ii. p. 274 sqq.
2 In St. Paul's time, however, the Athenian Areopagus would seem to
ROMAN AND ENGLISH LAW 93
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 remem-
bered 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.
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 mer-
have retained its jurisdiction ; cf. Acts xvii. 19. The Romans treated
Athens with special consideration.
94 ROMAN AND ENGLISH LAW
cantile 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 \ 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 feted 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.
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
1 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.
ROMAN AND ENGLISH LAW 95
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 per-
sons 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, pro-
vincial 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 pro-
vincial 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 uni-
form 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.
96 ROMAN AND ENGLISH LAW
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 1 . The necessity was not felt,
because any alterations made in Roman law proper
altered it for Roman citizens who dwelt in the pro-
vinces 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.
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
1 The Lex Setnpronia mentioned by Livy, xxxv. 7, seems to be an exception,
due to very special circumstances.
ROMAN AND ENGLISH LAW 97
this process will be found described in other parts of
these volumes 1 . 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.
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 pro-
vinces. 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
1 See Essay XI, vol. ii., and Essay XIV, vol. ii. p. 291.
BRYCB i H
98 ROMAN AND ENGLISH LAW
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 com-
plete 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 1 , 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 dissimi-
larities were still significant ; and we shall find this
phenomenon reappearing in the history of English and
Native Law in India.
Two influences which I have not yet dwelt upon had
been, during the second century, furthering the assimi-
lation. 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
1 Such as the technical peculiarities of the Roman stipulatio, and the
Greek syngraphe.
ROMAN AND ENGLISH LAW 99
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 pre-
side 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 1 .
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 citizen-
ship 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
1 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 doubt-
less become diffused through the law schools and otherwise. The first regular
collections of imperial constitutions known to us belong to a later time.
H 2
ioo ROMAN AND ENGLISH LAW
rights of citizens and those of aliens had become mere
matters of antiquarian curiosity. These compilers there-
fore 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 incom-
plete 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 pro-
vinces 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 l . 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.
1 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 ostlichen
Provinzen dcs Rotnischen Kaisetretchs, chap. vi.
ROMAN AND ENGLISH LAW 101
\
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 English-
men 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 citizen-
ship, 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
102 ROMAN AND ENGLISH LAW
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 1 .
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.
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 pro-
vinces 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
1 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 luris, is
mainly of Greek origin, though with traces of Eastern custom. He also
suggests that the opposition, undoubtedly strong, of the Eastern Mono-
physites 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-romisches Rechtsbuch aus dem fiinften
Jahrhunderf).
ROMAN AND ENGLISH LAW 103
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 suit-
able 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
io 4 ROMAN AND ENGLISH LAW
as possible, arrangements were made for the transmis-
sion 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 col-
lection 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 recog-
nized 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
ROMAN AND ENGLISH LAW 105
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 univer-
sities 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
106 ROMAN AND ENGLISH LAW
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 l . 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.
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 suc-
cessor 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 luris
in Germany is usually assigned to the foundation by
the Emperor Maximilian I, in 1495, of the Imperial
Court of Justice (Reichskammergericht). As Holland
1 Other parts were added later.
ROMAN AND ENGLISH LAW 107
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 ecrif] 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 iSio 1 .
Others reproducing them with more or less divergence
have been enacted in other Romance countries.
1 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.
io8 ROMAN AND ENGLISH LAW
In Prussia, Frederick the Second directed the pre-
paration 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 1 . Some German jurists com-
plain 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.
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 con-
ceptions is Roman. Just as the character and genius
of a language are determined by its grammar, irre-
spective 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.
1 An interesting sketch of the ' reception ' of Roman law in Germany (by
Dr. Erwin Grtiber) may be found in the Introduction to Mr. Ledlie's trans-
lation of Sohm's Institutionen (ist edition).
ROMAN AND ENGLISH LAW 109
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 Loui-
siana, 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 Napoleon
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
no ROMAN AND ENGLISH LAW
more of Roman doctrine than Russia did 1 . 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.
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
1 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.
ROMAN AND ENGLISH LAW in
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 1 . In others, such as Malta, Cyprus,
Singapore, and India, English law is applied to English-
men 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
1 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, excepts as respect land, some penal matters, and marriage, virtually
identical with the law of England.
ii2 ROMAN AND ENGLISH LAW
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 experi-
ments which may be found in it, the law of the United
States remains (except of course in Louisiana) sub-
stantially 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 Univer-
sity), 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 doc-
trines 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.
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
ROMAN AND ENGLISH LAW 113
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 Eng-
land, 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
n 4 ROMAN AND ENGLISH LAW
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 pro-
visions, 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 recog-
nized 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
;
ROMAN AND ENGLISH LAW 115
First, a large and elaborate system of Inheritance
and Family Law, the Musulman pretty uniform through-
out 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 com-
mentaries 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 con-
nected 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 Musul-
man 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,
I 2
n6 ROMAN AND ENGLISH LAW
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 lif$
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 Musul-
man 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
ROMAN AND ENGLISH LAW 117
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, adop-
tion (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 1 . 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.
In those departments in which the pre-existing
1 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.
n8 ROMAN AND ENGLISH LAW
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 techni-
calities he might have learnt, and make the best use
he could of his mother-wit 1 .
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
1 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.
ROMAN AND ENGLISH LAW 119
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 Govern-
ment 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 ac-
customed 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
120 ROMAN AND ENGLISH LAW
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 in-
evitable also that they should alter the penal law in con-
formity with their own ideas. But they did so in a very
haphazard fashion. The criminal law became a patch-
work 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 prob-
ably 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 dis-
advantage, for in traversing the jungle of Indian law
the burden of English case lore would have too much
impeded the march of justice.
ROMAN AND ENGLISH LAW 121
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
122 ROMAN AND ENGLISH LAW
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 de-
claring 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 an< ^ I 882).
Evidence (1872).
Limitation of Actions (1877).
Specific Relief (1877).
Probate and Administration (1881).
Contracts (1872) (but only the general rules of con-
tract 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).
ROMAN AND ENGLISH LAW 123
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 Euro-
peans 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),
i2 4 ROMAN AND ENGLISH LAW
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
ROMAN AND ENGLISH LAW 125
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 Govern-
ment 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 |fnd 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
126 ROMAN AND ENGLISH LAW
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 sus-
ceptible 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, conform-
ably 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.
ROMAN AND ENGLISH LAW 127
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 bene-
ficial 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 appre-
128 ROMAN AND ENGLISH LAW
ciate 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 common-
sense 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 magis-
trates 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 1 .
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
1 The merits of this Code are discussed in an interesting and suggestive
manner by Mr. H. Speyer in an article entitled Le Droit Penal Anglo -indien,
which appeared in the Revue de I' Universite de Bruxelles in April, 1900.
ROMAN AND ENGLISH LAW 129
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 pro-
visions 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.
BRYCE I K
130 ROMAN AND ENGLISH LAW
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 counter-
poise 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 experi-
ence 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
ROMAN AND ENGLISH LAW 131
claimed for it, one may hesitate to pronounce its enact-
ment 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 codify-
ing 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 ex-
pressed 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 enact-
ment 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
K2
132 ROMAN AND ENGLISH 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 ex-
perience 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 any-
thing 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
ROMAN AND ENGLISH LAW 133
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
i 3 4 ROMAN AND ENGLISH LAW
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 develop-
ment 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 ad-
ministered in the provinces was being created by
magistrates and judges who lived in the provinces and
who were, after the time of Tiberius, mostly them-
selves 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
ROMAN AND ENGLISH LAW 135
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 civiliza-
tion 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 ad-
vanced first to recognize and ultimately to supersede
than any body of law which the English found.
136 ROMAN AND ENGLISH LAW
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 Euro-
peans 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 in-
teresting 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.
ROMAN AND ENGLISH LAW 137
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 Juris, 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
i 3 8 ROMAN AND ENGLISH LAW
to the provincial 3ubjects of Rome borne any recog-
nizable 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 equaliza-
tion 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
ROMAN AND ENGLISH LAW 139
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 consider-
able 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 culti-
vated 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
fc li '
c\ &
i 4 o ROMAN AND ENGLISH LAW
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 unex-
pected 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
ROMAN AND ENGLISH LAW 141
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 ascer-
taining 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 1 .
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.
1 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.
142 ROMAN AND ENGLISH LAW
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 experi-
ence 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 popula-
tion, but Bracton and Coke and Mansfield might rejoice
to perceive that the doctrines which they expounded
ROMAN AND ENGLISH LAW 143
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 con-
trasted 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 West-
144 ROMAN AND ENGLISH LAW
minster 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 deal-
ings 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 de-
partment 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.
Ill
FLEXIBLE AND RIGID
CONSTITUTIONS*
I. THE CONSTITUTIONS OF ROME AND ENGLAND.
ROME and England are the two States whose con-
stitutions 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 her-
self 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 pur-
pose, slowly developed itself into a system monarchical
only in name. That system became in the eighteenth
century the starting-point for all modern political philo-
sophy 2 , and in the nineteenth the model for nearly all
the schemes of free representative polity that have
1 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 Consti-
tution here described. It has been enlarged and revised and brought up
to date, but the substance remains the same.
2 The interest which the English Constitution excited in Montesquieu
may be compared with that which the Roman excited in Polybius.
BRYCE i L
146 FLEXIBLE AND RIGID CONSTITUTIONS
arisen in the Old World as well as for many in the newer
countries.
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 in-
struction 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 con-
stitutional 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
FLEXIBLE AND RIGID CONSTITUTIONS 147
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 Federa-
tion 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 Re-
public, 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 remark-
able 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 1 .
1 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.
L 2
148 FLEXIBLE AND RIGID CONSTITUTIONS
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,
FLEXIBLE AND RIGID CONSTITUTIONS 149
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 enact-
ments or agreements of different dates, possibly proceed-
ing from different sources, intermixed with customary
rules which rest only on tradition or precedent, but are
deemed of practically equal authority. Other Consti-
tutions 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 estab-
lished 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 Con-
stitutions 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
i5o FLEXIBLE AND RIGID CONSTITUTIONS
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 en-
larged 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 CONSTI-
TUTIONS.
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 arrange-
ments 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
FLEXIBLE AND RIGID CONSTITUTIONS 151
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 suscep-
tible 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, muni-
cipal regulations, and so forth) are of the same rank and
exert the same force. There is, moreover, only one legis-
lative 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 legis-
lating 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
152 FLEXIBLE AND RIGID CONSTITUTIONS
by illustrative instances. At Rome in the second cen-
tury 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 gene-
rality and the same force. There- was but one legis-
lative 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, how-
ever, and in France the case is different. The Consti-
tution 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 *. 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,
1 It is unnecessary for the present purpose to call attention to the compli-
cation introduced in Switzerland by the application of the Referendum plan
to ordinary laws.
FLEXIBLE AND RIGID CONSTITUTIONS 153
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.
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 fun-
damental 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
i 5 4 FLEXIBLE AND RIGID CONSTITUTIONS
never at rest, but are always undergoing some sort of
change, however slight, in the course of ordinary legis-
lation, 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 S'olid or Crystallized.
When a man desires to change l 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 Consti-
tutions: 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 ex-
amination of them, to which we may now proceed.
I begin with Flexible Constitutions, not only because
they are more familiar to students of Roman history
1 /. e. to change mechanically, not necessarily chemically.
FLEXIBLE AND RIGID CONSTITUTIONS 155
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 Polities, we know com-
paratively little about most of the constitutions even of
the more famous Greek cities (except Athens), and prac-
tically 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 Con-
stitutions would appear to be Rigid 1 .
But a preliminary objection deserves to be first con-
sidered. 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
1 Except that of the late South African Republic (Transvaal). The cases
of the British self-governing colonies will be presently referred to.
156 FLEXIBLE AND RIGID CONSTITUTIONS
applies to the parliamentary reform Acts of 1867 and
1884 was clearly a constitutional statute. But it con-
tained 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, de-
fining and distributing the powers of government, the
mode of creating public authorities, the rights and immu-
nities of the citizen. That which we call the Constitu-
tion of the Roman State, that which we now call the
Constitution of the United Kingdom, is a mass of prece-
dents, carried in men's memories or recorded in writing,
of dicta of lawyers or statesmen, of customs, usages, un-
derstandings 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
FLEXIBLE AND RIGID CONSTITUTIONS 157
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 l . 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 ascer-
tained were the powers of the Senate, that in Cicero's
1 This point has been brought out with admirable force in Mr. Dicey's
Law of the Constitution.
158 FLEXIBLE AND RIGID CONSTITUTIONS
time it was matter of constitutional debate whether its
decrees had or had not the full force of law l ; 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.
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 defi-
nite and positive. Much of the current talk about the
danger of altering the British Constitution 2 seems to
spring from the notion that the name represents a con-
crete 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 ' Constitu-
tion.' 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 ' consti-
tutional law' appears in the jurists of the Empire as
ius quod ad statum rei Romanae special 3 .
The objection, however, which we have been con-
sidering, 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
1 See as to this, Essay XIV, vol. ii. p. 304.
2 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. 3 Ulpian in Digest, i. 1,2.
FLEXIBLE AND RIGID CONSTITUTIONS 159
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 aggre-
gate 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 be-
cause 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
160 FLEXIBLE AND RIGID CONSTITUTIONS
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 organiza-
tion has passed into a despotism *, 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 com-
munity by vesting legal authority in a mass meeting of
the citizens. The Folk Mot of our Teutonic ances-
tors, like the still surviving Landesgemeinde of Uri or
Appenzell, represents in a rural community what
the a-yopd represents in Homeric Greece, what the
e/cKArjo-ta 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 repre-
sents to-day in Albania and what the similar meeting
called a Pitso represents among the Basuto and
Bechuana Kafirs. Such meetings, like the New Eng-
land 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
1 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-estab-
lished 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.
FLEXIBLE AND RIGID CONSTITUTIONS 161
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 (/. 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,
BRYCE I M
162 FLEXIBLE AND RIGID CONSTITUTIONS
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 l . 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 pre-
sently return to examine the causes which produce it.
1 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.
FLEXIBLE AND RIGID CONSTITUTIONS 163
V. THE STRENGTH AND WEAKNESS OF FLEXIBLE
CONSTITUTIONS.
The names ' Flexible ' or * Fluid/ which I have sug-
gested 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 conserva-
tive policy cannot arrest this process of variation. If the
change does not for a time appear in the laws, it is in pro-
gress in the minds of men, and may have all the more
violent a working when it begins to tell upon legisla-
tion. 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
M 2
164 FLEXIBLE AND RIGID CONSTITUTIONS
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, und, 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 legis-
lative 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 trans-
gressed 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 Eng-
land. 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 com-
petent 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
FLEXIBLE AND RIGID CONSTITUTIONS 165
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 per-
fect 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 1 .
We all know how hard it is to secure even small con-
stitutional improvements, such as the abolition of the
provision, confessedly useless and certainly troublesome,
1 The two most important changes, the Union with Scotland and the
Union with Ireland, were, however, among those most quickly carried
through.
166 FLEXIBLE AND RIGID CONSTITUTIONS
which obliges a member of the House of Commons to
vacate his seat and seek re-election on his being ap-
pointed a Minister of the Crown.
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 corre-
sponds 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
FLEXIBLE AND RIGID CONSTITUTIONS 167
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 1 .
This truth might be illustrated both from Rome and
from England; and, indeed, from Switzerland alsoj
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.
A further reason may be found in the fact that a con-
stitution 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 dis-
credited, 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
1 'A xa.ioiT\ovT<uv SeanoTwv iro\\f) X&P 1 *} Aesch. Agam. 1002.
i68 FLEXIBLE AND RIGID CONSTITUTIONS
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 en-
vironment.
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 frame-
work; 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 senti-
ment of respect for the established order is not shaken.
The old habits are maintained, and the machine, modi-
fied 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
FLEXIBLE AND RIGID CONSTITUTIONS 169
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
170 FLEXIBLE AND RIGID CONSTITUTIONS
balance or seriously shake its main principles. Sus-
pensions of the ordinary rights of the private citizen,
extensions of the ordinary powers of the magistrate,
which would have ruined most States by setting dan-
gerous precedents, were at Rome found harmless because
law and custom recognized them as expedients avail-
able 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 emer-
gencies, 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 Con-
stitution 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 emer-
gencies ; so that when it became necessary to place
extraordinary powers in one or few hands, the Consti-
tution received a violent wrench, from which it might
not recover. At Rome the contingency had been fore-
seen, and the mode of meeting it was legal. A spirit
FLEXIBLE AND RIGID CONSTITUTIONS 171
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 confi-
dence.
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 Com-
mons 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 sus-
pended ; and the Sovereign (or rather the Cabinet) of
to-day is almost replaced in the position of the last
172 FLEXIBLE AND RIGID CONSTITUTIONS
Tudor or the first Stuart. Stringent measures to re-
press 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 Par-
liament 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
FLEXIBLE AND RIGID CONSTITUTIONS 173
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 Consti-
tution, 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 con-
tinuity. 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 resist-
ance less stubborn, disposing both to some compromise.
i 7 4 FLEXIBLE AND RIGID CONSTITUTIONS
At Rome the resort to the appointment of military tri-
bunes 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 govern-
ment 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 Con-
stitution permits small reforms to be easily effected.
FLEXIBLE AND RIGID CONSTITUTIONS 175
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
176 FLEXIBLE AND RIGID CONSTITUTIONS
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 re-
turning tree caught him by the hands and held him fast
till he died. In our own days Captain Webb, stimu-
lated 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
FLEXIBLE AND RIGID CONSTITUTIONS 177
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 1 , 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 2 . 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
1 This was written in 1884. Since that year sweeping changes have been
made in the procedure of the House of Commons which have greatly cur-
tailed 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.
2 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 how-
ever 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.
BRYCE i N
178 FLEXIBLE AND RIGID CONSTITUTIONS
reason to fear it will do so in this eminently ignoble
fashion 1 .
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 super-
sedes 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 unde-
fined 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
1 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.
FLEXIBLE AND RIGID CONSTITUTIONS 179
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 com-
munities, such as are the Forest Cantons of Switzer-
land, 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 imperil
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 simplifica-
tion 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
N 2
i8o FLEXIBLE AND RIGID CONSTITUTIONS
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
utnlike 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
FLEXIBLE AND RIGID CONSTITUTIONS 181
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 limi-
tations 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
i8 2 FLEXIBLE AND RIGID CONSTITUTIONS
prescribe to the Crown what persons it should employ
as Ministers that the old motive for limiting the pre-
rogative 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 condi-
tion 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 magis-
trates 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
FLEXIBLE AND RIGID CONSTITUTIONS 183
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 representa-
tives, 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 admi-
nistration, 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 repre-
sentative character of the assemblies of modern Europe
has been a moderating factor. But these assemblies
184 FLEXIBLE AND RIGID CONSTITUTIONS
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 news-
papers, 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 dele-
gates 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.
FLEXIBLE AND RIGID CONSTITUTIONS 185
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 respon-
sible 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, in-
creases 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 con-
verse 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,
186 FLEXIBLE AND RIGID CONSTITUTIONS
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 discrimi-
nation and a skill in applying old principles to new com-
binations 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 per-
missible 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
FLEXIBLE AND RIGID CONSTITUTIONS 187
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 con-
stitution 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 under-
stand 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
i88 FLEXIBLE AND RIGID CONSTITUTIONS
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 know-
ledge and training, men with little respect for pre-
cedents, and little capacity for understanding their
bearing, may take command of engines and ship : and
the representative assembly may be rilled 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 con-
ditions is generally necessary for the salvation of a
FLEXIBLE AND RIGID CONSTITUTIONS 189
Flexible Constitution. Either (i) 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 busi-
ness 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 con-
stitutions 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 con-
structive 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
FLEXIBLE AND RIGID CONSTITUTIONS
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 succes-
sive 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
FLEXIBLE AND RIGID CONSTITUTIONS 191
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
i 9 2 FLEXIBLE AND RIGID CONSTITUTIONS
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 govern-
ment. 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 determina-
tion. 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
FLEXIBLE AND RIGID CONSTITUTIONS 193
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.
i
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 terri-
tories have to be taken in as citizens, this is most quickly
and easily effected by the action of the ordinary legis-
lature. 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
BRYCB I O
i 9 4 FLEXIBLE AND RIGID CONSTITUTIONS
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 reconstruc-
tion 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
FLEXIBLE AND RIGID CONSTITUTIONS 195
the union of neighbouring tribes, whose popular assem-
blies 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 repro-
duced the general lines of the Roman constitution, and
did not create any representative council, excellently as
O 2
196 FLEXIBLE AND RIGID CONSTITUTIONS
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 Federa-
tion 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
FLEXIBLE AND RIGID CONSTITUTIONS 197
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 Con-
stitutions, 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,
ig8 FLEXIBLE AND RIGID CONSTITUTIONS
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 (Trans-
vaal) 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 1 . 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 dis-
cussion 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
1 See Essay VII, p. 453.
FLEXIBLE AND RIGID CONSTITUTIONS 199
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 *, 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 disallow-
ance 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, conform-
ably to the English habit of drawing little distinction
between constitutional and other enactments.
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
1 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.
200 FLEXIBLE ANI> RIGID CONSTITUTIONS
to the confederation of the seven United Provinces of
the Netherlands.
The beginnings of Rigid Constitutions may, how-
ever, 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 l . 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 sub-
sequently into a royal charter, were really a rudimentary
constitution. And almost contemporaneously the con-
ception 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 Govern-
ment, 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 2 .
From this rapid geographical survey we may now
return to examine the circumstances under which con-
1 Observations on this topic may be found in the author's American
Commonwealth, chap, xxxvii.
2 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.
FLEXIBLE AND RIGID CONSTITUTIONS 201
stitutions 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 instru-
ment 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 com-
munities 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.
i. They may be given by a monarch to his subjects
202 FLEXIBLE AND RIGID CONSTITUTIONS
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 Statute or Funda-
mental 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 x 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-con-
stitutions under which they had lived as British Colonies,
1 See Essay VII, p. 433.
FLEXIBLE AND RIGID CONSTITUTIONS 203
merely turning them into State constitutions, with
nothing but the Confederation above them, that Con-
federation 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.
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 unchange-
able by the Dominion Legislature, it is a Rigid Con-
stitution within the terms of our definition, although
changeable, like any other statute, by the British Par-
liament. The new Federal Constitution of Australia
belongs to the same class and had a like origin *.
4. They may arise by the tightening of a looser tie
1 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.
204 FLEXIBLE AND RIGID CONSTITUTIONS
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 pro-
vide 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 com-
munities 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
FLEXIBLE AND RIGID CONSTITUTIONS 205
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 compara-
tive recent appearance in history. Documentary constitu-
tions, 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 some-
times 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 con-
sisted of the whole body of the citizens. In those
days, accordingly, when it was decided to give pecu-
liar 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
206 FLEXIBLE AND RIGID CONSTITUTIONS
attributed this expedient to Lycurgus at Sparta. The
other was to provide in the law intended to be Funda-
mental 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 de-
barred any amendment, however desirable, and however
generally desired. Hence they were in practice little
regarded, though the exceptionally pious or super-
stitious Spartans were deemed to be largely deterred
from governmental changes by the fear of divine dis-
approval. 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 re-
pealedand of course the proposal would not be made
unless its success were pretty well assured the Funda-
mental 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 com-
munities 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
FLEXIBLE AND RIGID CONSTITUTIONS 207
ordinary forms, seem to forget that the Act declaring
the Fundamental Statute to be Fundamental and un-
changeable 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
attentipn both of the people and the legislature in an
emphatic way to the fact that a very solemn decision was
being reversed. Some may think that such a security,
if imperfect, would be worth having. The restraint
imposed would, however, be a moral not a legal one *.
A constitution placed out of the power of the legis-
lature 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 constitu-
1 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 forth-
with 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.
208 FLEXIBLE AND RIGID CONSTITUTIONS
tions 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 Sar-
dinia 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 Con-
stitutionnelle granted by Louis XVIII, under which the
government of France was carried on for many years,
was intended to create a sort of parliamentary govern-
ment, 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 govern-
ment. 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.
FLEXIBLE AND RIGID CONSTITUTIONS 209
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 re-
publican 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 viafacti. 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 propor-
tionate representation in the Parliament, or the minimum
number of its representatives in the House of Repre-
sentatives, reduced without the approval of a majority of
its electors voting on a constitutional amendment 1 .
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.
1 See Essay VIII, p. 524.
BRYCE I P
210 FLEXIBLE AND RIGID CONSTITUTIONS
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 re-
jected, by the newly chosen Legislature. This arrange-
ment, 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 re-
publics of Spanish America. It is in substance an
appeal to the people as well as to their repre-
sentatives, and therefore adds a further guarantee
against hasty change. Finally, the two Houses of the
FLEXIBLE AND RIGID CONSTITUTIONS 211
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 l . 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.
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 2 .
A third plan is to refer the new constitution, or
1 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.
3 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, JEtablissement et Revision des Constitutions. See also
Dareste, Les Constitutions Modemes. I owe to these books, and especially
to the former, most of the facts here given regarding the minor States.
P 2
2i2 FLEXIBLE AND RIGID CONSTITUTIONS
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 federa-
tion, 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, Switzer-
land, Australia, and Mexico a bare majority. (Switzer-
land 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 Legis-
lature 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 Funda-
mental 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
FLEXIBLE AND RIGID CONSTITUTIONS 213
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 plebiscite) by Louis Napoleon under the
Second Empire.
These variations in the mode of amending are in-
teresting 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, re-
cognition of Popular Sovereignty ; and it has the advan-
tage 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 inter-
mediate 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
2i 4 FLEXIBLE AND RIGID CONSTITUTIONS
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 revo-
lutionary 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 safe-
guard 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 Cham-
bers 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 establish-
ment 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.
FLEXIBLE AND RIGID CONSTITUTIONS 215
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 dis-
posed 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
216 FLEXIBLE AND RIGID CONSTITUTIONS
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 change-
able 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 con-
vention 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 J ,
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.
The French plan of using the two Houses sitting
1 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.
FLEXIBLE AND RIGID CONSTITUTIONS 217
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, /. e. of the whole of the Great
Council of the Nation l 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.
To examine the distinctive qualities of Rigid Consti-
tutions, as I must now do, is virtually to traverse
again the same path which was followed in investi-
gating 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 Consti-
tutions are their Definiteness and their Stability.
XL 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 legis-
1 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.
2i8 FLEXIBLE AND RIGID CONSTITUTIONS
lature, 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 ascertain-
able 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 docu-
ment 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
FLEXIBLE AND RIGID CONSTITUTIONS 219
cover all the cases that can possibly arise under it 1 .
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 unfore-
seen cases will be found doubtful when those cases
have to be dealt with. Here let us distinguish three
classes of omissions or obscurities :
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 Execu-
tive, 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 consti-
tution 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 .
1 ' Neque leges neque senatus consulta ita scribi possunt, ut omnes casus
qui quandoque inciderint comprehendantur.' lulianus in Digest i. 3, 10.
220 FLEXIBLE AND RIGID CONSTITUTIONS
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 docu-
ments 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 constitu-
FLEXIBLE AND RIGID CONSTITUTIONS 221
tional amendment. Statutes, on the other hand, can be
changed by the legislature; usage may take a new
direction ; the decisions given interpreting the constitu-
tion may be recalled or varied by the authority that
pronounced them. All these are in fact Flexible para-
sites growing upon a Rigid stem. Thus it will be seen
that the apparent definiteness and simplicity of Docu-
mentary 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
222 FLEXIBLE AND RIGID CONSTITUTIONS
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 vio-
lating 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 tam-
pered with. Moreover the process prescribed for amend-
ment 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 appre-
ciated when the proposal first appeared. In these
respects the Rigid Constitution has real elements of
stability.
FLEXIBLE AND RIGID CONSTITUTIONS 223
Nevertheless it maybe 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 emer-
gency, 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 aggra-
vate 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
224 FLEXIBLE AND RIGID CONSTITUTIONS
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
FLEXIBLE AND RIGID CONSTITUTIONS 225
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 dis-
like 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 enjoy-
ments, 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 sever-
ance which, at moments of exasperation, they may
possibly have contemplated with equanimity, a severe
blow when it arrives. So a nation, though not con-
tented 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 dis-
cusses the old problem of the Best Form of Government,
because everybody now admits that the chief merit of
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226 FLEXIBLE AND RIGID CONSTITUTIONS
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 depart-
ments of government, all become different, while the
form and constitutionally-prescribed methods of govern-
ment remain unmodified, it is clear that flaws in the
Constitution will be revealed which were previously
unseen, and problems will arise with which its arrange-
ments cannot cope. The remedy is of course to amend
the Constitution. But that is just what may be impos-
sible, because the requisite majority maybe 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
FLEXIBLE AND RIGID CONSTITUTIONS 227
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 cir-
cumstances of different nations are too dissimilar
to enable close parallels to be drawn, and because
much depends upon the skill with which the pro-
visions 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 struc-
ture 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
Q2
228 FLEXIBLE AND RIGID CONSTITUTIONS
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 govern-
ment may prevent the evolution of a needed organ. A
prohibition debarring the legislature from passing cer-
tain 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 instru-
ment 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 Constitu-
tion 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
FLEXIBLE AND RIGID CONSTITUTIONS 229
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, *'. 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 inter-
preting a Rigid Constitution.
On this point there is a remarkable diversity of theory
230 FLEXIBLE AND RIGID CONSTITUTIONS
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 con-
stitutional 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 interpre-
tation 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 constitu-
tional 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 Con-
stitution, the function of the Judiciary to interpret the
FLEXIBLE AND RIGID CONSTITUTIONS 231
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 pro-
ceeded 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
232 FLEXIBLE AND RIGID CONSTITUTIONS
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 func-
tion, 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 Legis-
lature 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,
FLEXIBLE AND RIGID CONSTITUTIONS 233
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 con-
duct 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 \
1 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 ques-
tions 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, *'. e. have
234 FLEXIBLE AND RIGID CONSTITUTIONS
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 Constitu-
tion 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 circum-
stances 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
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.
FLEXIBLE AND RIGID CONSTITUTIONS 235
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 *. 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 regula-
tions on matters of detail, and have thus, in most
States, ceased to be considered fundamental instru-
ments 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 in-
struments are but slightly changed.
In estimating the influence of Flexible Constitutions
in forming the political character of a nation, in stimu-
lating its intelligence and training its judgement, it was
1 Something must, however, be allowed for the provisions which require
large majorities for any amendment of the Constitution.
236 FLEXIBLE AND RIGID CONSTITUTIONS
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 Con-
stitution. 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 legis-
lators 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,
FLEXIBLE AND RIGID CONSTITUTIONS 237
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 technicali-
ties of an old common law Constitution. The taste of
the multitude, and especially of that class which out-
numbers 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, senti-
ments which need no subtlety to be appreciated, pro-
positions 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 straight-
forward 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 Consti-
tutions permitted abuses of executive power against
which the express enactments of a Rigid Constitution
i
238 FLEXIBLE AND RIGID CONSTITUTIONS
protect the people. Magna Charta, the Bill of Rights,
the Twelve Tables, were all fragments, or rather in-
stalments, of such a Constitution, rightly dear to the
commons, for they represented an advance towards
liberty and order 1 .
The theory of democracy assumes that the multitude
are both competent and interested ; competent to under-
stand 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
1 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
FLEXIBLE AND RIGID CONSTITUTIONS 239
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 dis-
heartened 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 restric-
tions 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 con-
stitutional provisions have incurred criticism and cen-
sure from various sections, and many attempts have
2 4 o FLEXIBLE AND RIGID CONSTITUTIONS
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 Con-
stitution 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 Legis-
lature 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,
FLEXIBLE AND RIGID CONSTITUTIONS 241
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 demo-
cracy. '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 legisla-
tion, 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 funda-
mentally 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 ? '
BRYCB I R
242 FLEXIBLE AND RIGID CONSTITUTIONS
I refer to these arguments, which were frequently
heard in England during some years after the extension
of the suffrage in 1884 1 , with no intention of discuss-
ing 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, con-
servatives 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.
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 occu-
pying 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 2 . The
other is that no country now possessing a Rigid Con-
1 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.
3 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 there-
fore not complete.
FLEXIBLE AND RIGID CONSTITUTIONS 243
stitution seems likely to change it for a Flexible one.
The footsteps are all the other way. Flexible Consti-
tutions have been turned into Rigid ones. No Rigid
one has become Flexible l . 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.
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- in-
strument 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 execu-
tives in check have disappeared. Why should the
people, safe and self-confident, impose a check on them-
selves ? 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 'plebiscites/ Now
legislatures are nowhere rising in the respect and con-
fidence of the people, and it is therefore improbable
1 The Constitution of Italy, already referred to, is scarcely an exception.
R2
244 FLEXIBLE AND RIGID CONSTITUTIONS
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 Constitu-
tions 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 revolu-
tionary 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
FLEXIBLE AND RIGID CONSTITUTIONS 245
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 in-
duced 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
246 FLEXIBLE AND RIGID CONSTITUTIONS
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 l . 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 representa-
tives of the (at present seven) component States 2 , 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 de-
sired Confederation, and creating the Federal Assembly.
Such a statute would be passed by the Parliament of
the United Kingdom, and (being expressed to be
1 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.
2 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.
FLEXIBLE AND RIGID CONSTITUTIONS 247
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 copy-
right, 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 Constitu-
tion 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 1 . Parliament would not be fully sove-
reign ; and if either the British or a Colonial Parlia-
ment 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.
Doubtless, if such a Federal Constitution were es-
tablished, 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
1 It may of course be observed (see p. 207, ante) that the British Parlia-
ment, 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 tun's 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.
248 FLEXIBLE AND RIGID CONSTITUTIONS
(as to the extent of the powers of the Federal Assembly
and otherwise) would go before it, sometimes in the first
instance, sometimes byway 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 pro-
vided, 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
FLEXIBLE AND RIGID CONSTITUTIONS 249
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 conjunc-
tion, are surrounded, are greater than those who ad-
vocate 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 occu-
pied. Asia, excluding China and Japan in the East, and
2 5 o FLEXIBLE AND RIGID CONSTITUTIONS
the two dying Musulman powers in the West, is virtu-
ally 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 common-
wealths 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, Monte-
negro : 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 domi-
nions 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 mother-
land, 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 meme chose ' is even more true of
those countries than of that to which it was originally
FLEXIBLE AND RIGID CONSTITUTIONS 251
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 in-
creasing 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, what-
ever 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 ex-
ception of Montenegro, which has no Constitution at
all, but lives under the paternal autocracy of the tem-
poral ruler who has succeeded the ancient ecclesiastical
Vladika \ 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 conse-
crated as fundamental by placing it above ordinary legis-
lation. 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,
1 As to Italy, however, see above, pp. 202 and 208.
252 FLEXIBLE AND RIGID CONSTITUTIONS
usages of government that had naturally sprung up
might, when independence had been established, con-
tinue 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.
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 \
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 per-
manent 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.
"AiravO' 6 ftaitpbs KavapiO/jirjTos
<t>vet T* a8i)\a ical (pavtvra. tcpvirrerat.
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
254 NOTE TO ESSAY III
the level of intellectual life and outside the sphere of ideas
which the permanent political institutions aforesaid pre-
suppose and need for their proper working. This class
includes all the remaining peoples of the world, from in-
telligent 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 con-
fined 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, ulti-
mately extinguished the habit of self-government among its
subjects.
IV
THE ACTION OF CENTRIPETAL
AND CENTRIFUGAL FORCES ON
POLITICAL CONSTITUTIONS 1
As every government and every constitution is the
result of certain forces and tendencies which bring men
together in an organized community, so every govern-
ment 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 pur-
pose a certain measure of the exercise of their indi-
vidual wills. So strong is the aggregative tendency, that
each community naturally goes on by a sort of taw 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 con-
tact 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
1 This Essay was composed in the early part of 1885. It has been revised
throughout, but the substance remains the same.
256 CENTRIPETAL & CENTRIFUGAL FORCES
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, t. 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.
I. How THE TENDENCIES TO AGGREGATION AND TO DIS-
JUNCTION 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 embody-
ing 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
CENTRIPETAL & CENTRIFUGAL FORCES 257
members of the community are gathered into one organ-
ized 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 par-
ticular centre, such attraction being of course dissocia-
tive as regards the other groups and their members 1 .
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.
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 Poll-
1 In the pages that follow the word Group is used to denote the section
of persons within a larger community who may be 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.
BRYCE I
258 CENTRIPETAL & CENTRIFUGAL FORCES
tical Dynamics, and is one with which the constitu-
tional lawyer is not directly concerned. The consti-
tutional lawyer, however, must always, if he is to
comprehend his subject and treat it fruitfully, be a his-
torian 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 pheno-
mena in other times and places. Thus the lawyer who
has to consider and advise on any constitutional pro-
blem, 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, other-
wise 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
CENTRIPETAL & CENTRIFUGAL FORCES 259
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 Constitu-
tion, 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 consti-
tution 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 ope-
rative are towards the dissociation of the compo-
nent groups of the community, a frame of govern-
ment 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
S2
2 6o CENTRIPETAL & CENTRIFUGAL FORCES
community as a whole, the creation of a Rigid Consti-
tion 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 l . 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 effi-
cient 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 recog-
nition and play to the centrifugal as may disarm them,
and may allow the causes which make for unity to
operate quietly without exciting antagonism.
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
1 Subject of course to any provisions for amending the Constitution which
may have been inserted. See Essay III, p. 207 sqq.
CENTRIPETAL & CENTRIFUGAL FORCES 261
recognize the forces, and on the other hand to provide
safeguards against their too violent action. Their
action will preserve or destroy the Constitution, pre-
serve 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 CENTRI-
PETAL OR AS CENTRIFUGAL FORCES.
Now let us see what are the chief among the ten-
dencies 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, every thing 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.
262 CENTRIPETAL & CENTRIFUGAL FORCES
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 ser-
vice 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 inde-
pendence 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 cen-
tripetal 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 fac-
tion. 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 cen-
CENTRIPETAL & CENTRIFUGAL FORCES 263
tripetally 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 Pro-
perty, 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 con-
sumers 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 in-
fluences, derived from the consideration of such gains,
which play upon the citizen's mind, are usually aggre-
gative 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
264 CENTRIPETAL & CENTRIFUGAL FORCES
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 In-
terest may be centrifugal. A particular group of traders
or landowners, for instance, living in a particular dis-
trict, 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 1 . Trade consider-
ations 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
1 The case of Ireland shows the same forces of industrial or commercial
interest, real or supposed, operating partly as centripetal, partly as centri-
fugal. 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.
CENTRIPETAL & CENTRIFUGAL FORCES 265
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 want-
ing industrial grounds which made the adhesion of
Queensland long doubtful.
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 intellec-
tual 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 revolu-
tionaries 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 l . 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
1 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.
266 CENTRIPETAL & CENTRIFUGAL FORCES
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 embit-
tered. 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 tradi-
tions and historical recollections, and to the possession
of the materials for a common pride in past achieve-
ments. 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.
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
CENTRIPETAL & CENTRIFUGAL FORCES 267
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 intel-
lectual 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 differ-
ence of character and temperament which makes it hard
for either race to do full justice to the other. That repul-
sion is powerfully operative to-day in the Austrian
Empire. In the ancient world the obstinate and
passionate Egyptians seem to have displayed, and pro-
voked, 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,
268 CENTRIPETAL & CENTRIFUGAL FORCES
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 autono-
mous 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 essen-
tially the same sentiment, though, as regards the mon-
archy 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 exist-
CENTRIPETAL & CENTRIFUGAL FORCES 269
ence. In Bavaria, and still more in the case of Scot-
land, 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 intellec-
tual 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 indi-
viduals and as a race, it makes them more bold in organ-
izing 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.
2 7 o CENTRIPETAL & CENTRIFUGAL FORCES
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 natu-
rally, and can be readily modified by the normal action
of the normal sovereign authority, i. e. where the Con-
stitution 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 there-
from. 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 dis-
contented 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 some-
thing 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 neverthe-
less 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 imme-
diately 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
CENTRIPETAL & CENTRIFUGAL FORCES 271
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 con-
sidered 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 govern-
ment 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
272 CENTRIPETAL & CENTRIFUGAL FORCES
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 cohesive-
ness 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 l )
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 bur-
dens, 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.
1 See Essay IX, vol. ii. p. 6 sqq.
CENTRIPETAL & CENTRIFUGAL FORCES 273
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 risi
