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 rising in rebellion by providing machinery
whereby the complaints of those who think themselves
aggrieved shall be fully made known, and shall, if well
founded, have due effect on the rulers by warning them
to remove the grievances, or by displacing them if they
fail to do so.
How constitutional machinery should be framed and
worked for the attainment of the two former objects
enumerated above, viz. the establishment of a proper
frame of government and the safeguarding of private
rights, is a matter which does not fall within the scope
of our present inquiry. The third object does, so we
have to ask how a constitution should be framed in
order to enable it to maintain and strengthen the unity
of a State.
It may do this in two ways. One is by setting various
centripetal forces to work. The other is by preventing
all or some of the centrifugal forces from working.
I have already enumerated the tendencies or influ-
ences which operate to draw men together and bind
them into a community, be it greater or smaller, and
have pointed out that these tendencies may in any given
case operate in favour either of the State as a whole, in
which case they preserve it, or in favour of some group
274 CENTRIPETAL & CENTRIFUGAL FORCES
or section within it, in which case they sap its unity.
Let us now consider how the constitutional arrangements
of a State may be 1 so devised as to draw together all its
members and all the minor groups within it.
The most generally available of these centripetal
tendencies is trade, that interchange of commodities
which benefits all the producers, by giving them a
market, all the consumers by giving them the means
of getting what they want, all the middlemen by sup-
plying them with occupation. A Constitution can render
no greater service to the unity as well as to the material
progress of a nation than by enabling the freest inter-
change of products to go on within its limits. Nothing
did more to keep the districts of each of the great Euro-
pean countries divided during the Middle Ages than
the levying of tolls along the rivers and highways by
petty potentates, or than the insecurity of those rivers
and highways, as well as the want of good roads, for
thus the market for the producers of the cheaper
articles was narrowed to the small area immediately
around them, and men were prevented from realizing,
or benefiting by, the greatness of the country they
belonged to. England, with an exceptionally strong
and centralized government, suffered less from these
tolls and this insecurity than did the large States of
the Continent, and England arrived at unity sooner
than they did. And so, conversely, nothing has done
more to unify the vast territories of the United States
than the provisions of the Federal Constitution which
secure perfect freedom of trade within its limits, and
empower the National Government to regulate the
means of communication between the several States of
CENTRIPETAL & CENTRIFUGAL FORCES 275
the Union. So the Customs Union of the Germanic
States, formed under the auspices of Prussia in A.D. 1829,
did a great work in stimulating industry, while it showed
the people the benefits of united action, and prepared
the way for the formation of the new German Empire.
Another influence of moment is the establishment of
a common law and a common system of courts. It is
not an influence which can be reckoned on so invariably
or confidently as can the influence of commerce, for any
hasty attempt to change the law (whether customary or
statutory) to which men are accustomed may provoke
resistance and retard the growth of unity. Great Britain
has wisely forborne to impose her own law on the
dominions she has acquired by conquest or purchase.
Roman-Dutch law remains in South Africa, in Ceylon,
and in Guiana ; Roman- French law in Lower Canada.
So the French Code was left in force not only in Alsace-
Lorraine which Germany took in 1871 but also in the
German country all along the left bank of the Lower
Rhine, when that region was reunited to Germany in
1814. So Roman law has remained in Louisiana,
which was once French. But where one legal system
can, without exciting resentment, be extended over the
whole of a country, it becomes a valuable unifying
force. As respects the substance of law, this happens
by the formation of certain habits of thought and action,
certain ideas of justice and utility. As respects the
administration of law, it happens by giving to the central
executive an engine for making its power felt, and usually
felt for good. In the Middle Ages, the jurisdiction of
the king's courts was found the most effective means
both in England, from Henry II onward, and (some-
T 2
276 CENTRIPETAL & CENTRIFUGAL FORCES
what later) in France, of extending the power of the
central government and accustoming the people to
rally round the Crown as the representative of national
unity as well as of justice. A somewhat similar process
has been in progress during the last thirty years among
those petty principalities which we call the Laos States,
and which lie to the north of the kingdom of Siam.
The princes of these States were practically indepen-
dent, living in a country of forests and hills, and
recognizing only a vague titular suzerainty as vested in
the Siamese king at Bangkok. But when foresters
from British Burma had come among them, desiring
to cut down and export the teak trees in those
forests which make their only wealth, and when
disputes had arisen between the Laos chiefs and these
timber traders, the Government of India found it
needful to make treaties with the king of Siam, under
which a Court presided over by Siamese officials was
set up in Chiengmai, the principal State. By means
of this Court the Siamese Government has been able
gradually to obtain complete control of the forest
administration and the revenues thence arising, and
incidentally to strengthen its general authority over
these Laos States.
Similarly, the jurisdiction of the British Privy Council
as a Supreme Court of Appeal from the Colonies and
India, and the action of the Supreme Court of the
United States as the final Court of Appeal for the
whole Union (in certain classes of cases), have done
something to make the members of these vast political
aggregates realize the bond that links them together.
In the case of the United States, respect for the Federal
CENTRIPETAL & CENTRIFUGAL FORCES 277
Courts and the keen interest with which their develop-
ment of the law by judicial interpretation is followed by
a large and powerful profession has been an important
factor in strengthening the sense of national unity.
After law, religion, not as less potent, for it is more
potent, but as more uncertain, because it has been as
often a dissevering as a unifying influence. There is,
however, a marked distinction between the earlier and
the later forms of religion as regards the energy of the
force they exert. In the earlier stages of civilization,
when tradition and ritual counted for much, and abstract
theology had not yet come into being, the worship of the
gods of the nation or city was a part, a necessary and
sometimes the most deep-rooted part, of the political
constitution and the national life. In Egypt the rise or
fall of a great deity is often the sign of the rise or fall
of a dynasty. Moab, Edom, and Ammon, are each the
people of a peculiar God. After the Captivity, when
the minor Semitic peoples decline or vanish, Israel
continues to be held together by the name of Jehovah,
and by the Law He has given. Every Greek and every
Italian city has its own distinctive public State worship.
A race sometimes pays special honour to one out of its
various deities, and the devotion of the Dorians to
Apollo, of the Athenians to the Virgin Goddess, finds
a mediaeval parallel in that of the Swedes to Odin,
of the Norwegians to Thor. As the Roman Empire
included so many races and cities that no one deity or
group of deities could be worshipped by all, altars were
erected to the Goddess Rome, and the Guardian Spirit %
or Genius of the reigning Emperor became a common
object of devotion for the whole mass of his subjects.
278 CENTRIPETAL & CENTRIFUGAL FORCES
In modern times the strong religions are (except
Hinduism) World Religions, and therefore not national
or local as were those of antiquity. But they exert
an even greater political power. For monotheistic re-
ligions, however they may develop into elaborate rites
and forms of ceremonial observance, are primarily
philosophical religions, in which abstract ideas and
beliefs take not only a firm but an exclusive grasp
of the mind and heart of whosoever holds them.
Hence they form a closer tie than did the worships
of the ancient I talo- Hellenic world. Christianity created
a new cohesion when the provinces of the Roman Empire
were beginning to fall asunder. Islam formed a pro-
digious dominion out of many diverse peoples. The
mutually hostile forms of a World Religion, such as the
Sunnite and Shiite sects in Islam, act as consolidating
or dissevering influences just as the religion itself did
before schisms had arisen. When a faith grounded in
peculiar dogmas or observances is held by one section
of a people and hated by another section, it becomes
a formidably centrifugal force. When the great mass
of a people have embraced such a faith, their political
cohesion is strengthened, and they may attract from
other communities persons or groups who share their
beliefs. The same principle applies to beliefs which
cannot be called religious, but which exert a similar
power over men's emotions. Even where no question
of the supernatural is involved, the holding in common
of certain ideas deemed supremely valuable whether for
the individual or for society, may operate as a centri-
fugal or centripetal force.
A nation with a national religion which all or
CENTRIPETAL & CENTRIFUGAL FORCES 279
nearly all citizens cherish possesses a bond of unity
which grows the more powerful the more its tradi-
tions become entwined with the national life. It is
chiefly the influence of the Orthodox Church that has
made a people so low in the scale of civilization as
Russia was three centuries ago, to-day so united, so
strong through its union, and so submissive to its
sovereign, for it is not less as Head of the Church
than as a secular prince that the Czar commands the
reverence of his subjects 1 . Accordingly whenever a
State Church can be set up which embraces practically
the whole of the people, and when it can be associated
with the government and the movements of public life,
the cohesion of the nation and the power of the govern-
ment which controls the church will be increased. Of
the possibly pernicious influence of such arrangements
on such a church and on religion I do not speak ; that
is quite another matter. I am only pointing out that
a Constitution will gain strength, and a nation unity, if
the ecclesiastical arrangements can be linked to those of
the secular government, assuming the people to be all
attached to the same form of faith and worship.
Similarly, in so far as those who frame a Constitution
can make it provide a system of education which will
give the people common ideas and common aspirations,
in so far as they can persuade the inhabitants to use
a common language, if the country is one where more
than one tongue has been spoken, or even to enjoy
and meet for the enjoyment of common festivities and
1 There are of course dissenting sects in Russia, some of them counting
many adherents, but they have seldom, and in no large measure, affected
the political unity of the nation.
2 8o CENTRIPETAL & CENTRIFUGAL FORCES
games, they will be availing themselves of influences not
to be despised. The Prussian Government founded
the University of Bonn immediately after the recovery
of the left bank v of the Rhine from France in 1814, and
the University of Strassburg immediately after the
recovery of Alsace in 1871, in both cases with the view
of benefiting these territories and of drawing them
closer to the rest of the country by the afflux of
students from other parts of it, an aim which was
realized. Indeed the non-local character of the German
Universities, each serving the whole of the lands
wherein the German tongue was spoken, powerfully
contributed to intensify the sentiment of a common
German nationality throughout the two centuries (1648
to 1870) during which Germany had virtually ceased to
be a State. The Olympian, Pythian, Isthmian, and
Nemean games had no contemptible effect in fostering
the sentiment of a common national unity, as against
the barbarians, among the Greeks, who had never en-
joyed and did not desire political union. The admission
of the Macedonian king to strive at the Olympian games
was a political event of high significance, for it enabled
his descendants Philip and Alexander the Great to claim
to belong to the Hellenic race.
Some of these various engines for promoting the
cohesion of a nation may seem to lie rather in the
sphere of governmental action than in that of a Con-
stitution. Commercial freedom, however, as well as
religious compulsion on the one hand, or religious
freedom on the other hand, have been provided for by
some Rigid Constitutions. So too has been the use of
certain languages. Where the Constitution is a Flexible
CENTRIPETAL & CENTRIFUGAL FORCES 281
one, the question whether the laws regulating such
matters are to be deemed a part of the Constitution
depends entirely on the practical importance ascribed
to them, since in such a Constitution there is no
distinction of form between fundamental and other
provisions.
IV. How CONSTITUTIONS MAY REDUCE OR REGULATE
THE CENTRIFUGAL FORCES.
Now let us see what Constitutions may effect in the
other of the two above specified ways, viz. what they
may do to meet and grapple with, and if possible disarm,
the tendencies which make for disruption, i. e. the
forces which, while drawing men together in minor
groups within the State, are as regards the State
itself centrifugal forces.
What are these tendencies? History tells us that
the chief among them are race feeling, resentment for
past injuries, grievances in respect of real or supposed
ill-treatment in matters of industry, or of trade, or of
education, or of language, or of religion, where these
grievances or any of them press on a part only of the
population. If they press on the whole population,
or on the humbler classes as a whole, they are per-
turbing, but not necessarily nor even probably disrup-
tive, i.e. they threaten disaffection or a general revolt
against the government, rather than the severance of
a particular province or the secession of a particular
section of the people. It is only with grievances which
affect one section or district, and make it desire an
independence to be obtained by separation, that we
have here to deal. There must be in every such case
282 CENTRIPETAL & CENTRIFUGAL FORCES
either a sentiment of dislike on the part of the dis-
affected section towards the rest of the nation, or else
a belief that great material advantages will be obtained
by separation ; and the latter of these causes is almost
sure to produce the former. When two or more of
these tendencies combine in any given case, so much
the stronger does the desire for separation become.
A few illustrations will explain better than a long
abstract statement what I desire to convey. In the
ancient world the thing which we call National Sentiment
was seldom a powerful factor, perhaps because the more
advanced peoples were divided into small city com-
munities, while the backward peoples, living under
large empires like the Persian or that of the Seleucid
kings, were allowed to retain their own customs and
religion, and often their native princes, feeling the
weight of subjection only in having to pay tribute and
send a contingent in war. The only nations that
gave much trouble to the Achaemenid kings of Persia
were the Egyptians, a race very peculiar and very con-
ceited, and the Greeks of Asia Minor. Under the
Roman Empire there were wonderfully few national
revolts, probably because the imperial government
pressed equally upon all, conceded rights of citizenship
pretty freely, and gave the subjects in exchange for
their own national sentiment the higher pride of be-
longing to the majestic World State which had
engulfed them. The chief source of disruptive attempts
lay in the monotheistic religions. The Jews made more
than one obviously hopeless rebellion. When Chris-
tianity became the religion of the Empire, schisms and
heresies gave trouble. Africa was convulsed by the
CENTRIPETAL & CENTRIFUGAL FORCES 283
Donatist movement. Egypt was disaffected owing
to Monophysitism, and no doubt gave herself the more
readily to the Arab conquerors in respect of this dis-
affection. The persecuted Montanist sectaries ofPhrygia
revolted in the sixth century. It was the religious
persecution of the Fire-worshipping Sassanid kings that
provoked their Armenian vassals to rebellion 1 . So in
the fifteenth and sixteenth centuries, the sentiment of
nationality having not yet reached its full strength, it was
chiefly by religious divisions that the unity of States
was threatened. This was what lost the Dutch Nether-
lands to Spain. This was what split up the Romano-
Germanic Empire, and made it, after the Thirty Years'
War, the mere shadow of a State. It contributed to
keep the Highlanders distinct from the Lowland popu-
lation of Scotland after the Reformation (though other
causes also were at work), and it was of course a still
more potent force in Ireland. In our own time it nearly
rent Switzerland in two in the war of the Sonderbund.
Conversely, any one who notices how little the unity
of the nation has been threatened in Spain, a country
where the populations and dialects of the different
provinces still present striking contrasts, and are accom-
panied by diversities of character, will be disposed to
attribute this fact not merely to the absence of natural
boundaries between the provinces, but also to the
remarkable religious unity which the nation has always
preserved.
In our own time, while religion is a less energetic
factor, what is called national sentiment has begun %
1 The dualistic Zoroastrianism of Persia seems to have taken many of the
characteristics of a monotheistic religion.
284 CENTRIPETAL & CENTRIFUGAL FORCES
to threaten loosely compacted States. It compelled
the transformation -in 1868 of the so-called Austrian
Empire into the present Dual Monarchy. It shakes
the Austrian half of that monarchy now, so sharp
is the antagonism between the Czechs of Bohemia
and the other Slavic populations of Cis-Leithania and
the Germans of the Western and South- Western Crown
Lands. Iceland differs from Denmark, with which she
has been politically united since 1380 (or 1397), in lan-
guage, in character, and in habits, and she has therefore
struggled for autonomy, a large measure of which she
obtained in 1874. She has had some economic griev-
ances, but sentiment has been an even stronger element
in her discontent, which, however, stopped short of a
wish to separate, as she feels herself too small to stand
alone. A strong party in Norway has desired to be
divorced from Sweden, to which she was unnaturally
yoked in 1814 by the Congress of Vienna, not merely in
respect of specific complaints regarding the Foreign
Office and the consular service, but also because her
people, though Lutherans like the Swedes, are far more
democratic in ideas and temper than the latter, and
because their high national pride makes them unwilling
to appear to be in any way subordinate to the sister
kingdom. The case of Poland is a simple one, because
she has the memory of an independent kingdom de-
stroyed by force and fraud, and is different in religion,
as well as in speech, from the Russians who have an-
nexed her. Had the peasant population of the country
shared the patriotism of the upper and middle classes,
Poland might possibly have succeeded in shaking off
the yoke. Even now her disaffection is a source of
CENTRIPETAL & CENTRIFUGAL FORCES 285
weakness to Russia. In Ireland several currents of dis-
content have joined to produce the passion and prolong
the struggle for autonomy, or, in a very few of the more
ardent minds, for independence. There is the diversity
of faith, which remains, though that of language has
almost vanished, a diversity embittered by recollections
of persecution. There are economic grievances, the
memory of the destruction of an industry in the last
century, the more urgent resentment at the exactions
of landlords, and the peasants' desire to have a grip of
the soil. There is an incompatibility of character and
temperament, due partly to historical conditions, partly
to the old antagonism of Celt and Teuton. All these
have gone to create a passion among the people to
be recognized as a nation controlling its own affairs,
a passion which is the same in essence among those
who would be content with the possession of a
subordinate legislature, and those, now fewer than
formerly, who would like to go further.
If the sources of the centrifugal force in Ireland are
easily explicable, and indeed so strong that had this force
acted upon the whole nation instead of only upon a
majority which consists mainly of the poorer and weaker
part of the population, it would have before now pre-
vailed, those which, induced the secession of the
Southern States of America are much less evident.
Here there was no religious factor, nor any revengeful
feeling, nor any sense of an unjust or oppressive control.
The South had obtained more than its fair share of
power and influence in the councils of the Union. But ,
the planters had persuaded themselves that property
in slaves and the whole slave-holding system were
286 CENTRIPETAL & CENTRIFUGAL FORCES
threatened by the growing strength in the Northern
and Western States of an aversion to slavery, with
a determination to check its extension ; and the irrita-
tion of feeling which a long struggle had engendered,
coupled with a growing dissimilarity of habits and
ideas, enabled the hot-headed oligarchy which con-
trolled the Southern population to drive it into separa-
tion. Possibly these causes would not have been
strong enough to provoke an armed conflict in a unified
country. It was the existence of State Governments,
and the conviction that the rights of the States, sup-
posed to be guaranteed by the Constitution, furnished
a legal basis for secession, that spurred the South into
its desperate venture.
What then can the framing, or the manipulation in
working, of a Constitution do to reduce the power of
such disruptive tendencies as we have been considering ?
They may of course be resisted by the employment
of physical force. If a government is sufficiently
strong and resolute, and is supported by the great
majority of the nation, it may crush down the discon-
tent of a province or a section. It is however an
axiom in free governments, and ought to be an axiom in
all governments, that physical force should never be
used when peaceful means will suffice. Coercion usually
seems easier, and naturally commends itself to the dull,
the impatient, and the violent, to imperious princes,
arrogant ministers, and excited majorities. But coer-
cion, besides being a fatal expedient if it fails, is often
a bad expedient when it appears to succeed, for it
leaves smouldering discontent behind among the van-
quished, and it is apt to inflict a moral injury upon the
CENTRIPETAL & CENTRIFUGAL FORCES 287
victors, perhaps to warp for the future their frame of
government and to lower their political traditions.
Accordingly whenever a Constitution can be so drawn
and worked as to give the disjunctive tendencies just
so much recognition as may disarm their violence, and
bring all sections of the nation and all parts of the
country to acquiesce in unity under one government,
this course is to be preferred. It may sometimes fail.
Every expedient may fail. But it has generally more
promise of ultimate success than force has, for in a free
country force is not a remedy, but a confession of past
failures and a postponement of dangers likely to recur.
Among the methods which a Constitution may employ
for the purpose indicated, the following find a place.
It may enact certain securities against oppression,
whether by the executive or by the legislature, giving
to such securities a specially solemn sanction, and thus
reassuring the minds of the citizens. This was done
by Magna Charta, by the Petition of Right, and again
by the American Federal and State Constitutions, and
by the French Declaration of the Rights of Man of
1789. It is usually done for the protection of all sub-
jects or citizens alike, but of course the benefit of such
a protection enures with special value for any section
of the population, or any province or group of pro-
vinces, likely to be specially exposed at any given time
to the abuses of power, because they are a minority
whom the Government, or the majority, may view with
disfavour.
A Constitution may provide means for varying the
general institutions or laws of the State in such a way
as to exempt particular parts of the State from any legis-
288 CENTRIPETAL & CENTRIFUGAL FORCES
lation that might be opposed to their special interests or
feelings. The retention of Scotland as a distinct kingdom
after the union of the crowns in 1603, and as a distinct
part of the United Kingdom after the Treaty and Act of
Union in 1707, has had most beneficial effects in enabling
Scotland to be treated separately where it is fitting she
should be. Her faith, her laws and judicature, her
system of local government, have remained almost in-
tact, to the satisfaction of her people, and with no injury
to the cohesion of the united monarchy 1 . Similarly
the maintenance of Finland as a separate Grand Duchy,
with her own tongue, religion, laws and privileges,
guaranteed by the coronation oath of the Czar, has
made the Finns loyal and contented subjects, and has in
no wise detracted from the strength of Russia 2 . The
cases of Hungary as towards the Austrian Monarchy,
and of Croatia as towards Hungary, are also in point.
It may provide for relegating certain classes of affairs
to local legislatures, such as those of Croatia or Fin-
land, areas which are not only, like Scotland, political
divisions retaining their old laws, but also, unlike Scot-
land since the Union, communities enjoying local auto-
nomy. All Federations are managed on this system ;
and one can see in the case of Canada the advantages
it secures, for the Roman Catholics of Quebec are able to
have legislation diverse from that which the Protestant
majority desires in the other provinces of the Dominion.
1 Though it must be admitted that the passing of legislation disapproved
by the majority of Scotch representatives, or the omission to pass legislation
which they demand, often elicits murmurs.
2 This wise policy seems unfortunately to be now (1900) on the point of
being abandoned, with results which every lover of freedom and progress
must regret.
CENTRIPETAL & CENTRIFUGAL FORCES 289
It may assign certain administrative and, within
limits, certain legislative functions also to the inhabi-
tants of minor local areas, such as counties, empowering
them to regulate their local affairs in their own way.
Provisions of this nature are not usually embodied in
European constitutional instruments. They are, how-
ever, to be found in the State Constitutions of the
American States. And they are really, in substance, parts
of any well-framed Constitution, for nothing contributes
more to the smooth working of a central government and
to the satisfaction of the people under it, than the habit
of leaving to comparatively small local communities
the settlement of as many questions as possible. The
practice of local self-government and the love for it are
not a centrifugal force, but rather tend to ease off any
friction that may exist by giving harmless scope for in-
dependent action, and thus producing local contentment.
It is only where there exist grievances fostering disrup-
tive sentiments that the existence of local bodies with
a pretty large sphere of activity need excite disquiet.
It may exclude certain matters altogether from the
competence of the central government, and thereby
keep them out of the range of controversy. This prin-
ciple has been wisely followed in the American and
Canadian and Swiss Federal Constitutions as regards
religion in its relations to the State. In some federa-
tions it has been similarly found desirable to disable
the several legislatures from dealing with topics likely
to produce dissensions among the members of the
federation, or otherwise to affect the cohesion of the
nation. Thus in the United States no State legis-
lature can impose any duties on goods brought from
BRYCE I U
290 CENTRIPETAL & CENTRIFUGAL FORCES
one State to another, nor in any wise interfere with
commerce between the States.
By these means a Constitution may prevent the dis-
ruptive forces in a country from threatening the stability
of the central government or the unity of the State. To
remove part of the material on which they might work is
to weaken their working, and to divert into safe channels
the political activity they would evoke. Although a
Flexible Constitution may accomplish this, if those
who work it respect certain fundamental principles
and treat their querulous minorities in a conciliatory
spirit, the work is best done, and usually has been
done, by a Rigid Constitution, because this latter
provides a guarantee to minorities, or to subdivisions
of the country, stronger than they can have under an
omnipotent legislature. In fact the existence of the
grounds of contention and possibilities of disruption
we have been considering is among the chief causes
which have called Federal Governments and Rigid
Constitutions into being.
One further observation should be made before
quitting this part of the subject. Racial differences and
animosities, which have played a large part in threatening
the unity of States, are usually dangerous only when the
unfriendly races occupy different parts of the country.
If they live intermixed, in tolerably equal numbers,
and if in addition they are not of different religions,
and speak the same tongue, the antagonism will dis-
appear in a generation or two by social intercourse
and especially by intermarriage. When the right of
full legal intermarriage had been established, the fusion
of the patricians and the plebs at Rome began. So
CENTRIPETAL & CENTRIFUGAL FORCES 291
the Northmen in the tenth and eleventh centuries,
so the Norman- French in the eleventh and twelfth
centuries, became blent with the English. The Mag-
yars and Saxons, though generally occupying different
parts of the country, and to some extent retaining each
their own speech, have in Transylvania now begun to
melt into one. It is the fact that they not only speak
a different tongue but also profess a different faith that
keeps the Rumans of that province apart from both
Saxons and Magyars ; and even these differences
might in time cease to operate did not these Rumans
look across the mountains to a large Ruman State
into which they would gladly be absorbed. But in
one set of cases no fusion is possible ; and this set of
cases forms the despair of the statesman. It presents
a problem which no Constitution has solved. It is
the juxtaposition on the same soil of races of different
colour.
This is a recent phenomenon in history. In the ancient
world, almost all the barbarous tribes whom Rome
subdued and brought into her Empire were sufficiently
near the Italians and Hellenized Asiatics in physical
characteristics for intermarriage to go on freely. The
Carthaginians, who to be sure were not numerous, seem
to have soon lost their distinctive nationality : and that
the Jews remained distinct was their own doing, not that
of the conquerors 1 . Even as towards Egyptians and
Numidians, who were certainly dark, one hears of little
repulsion. Besides, both races were intelligent, and
1 In two respects the Jews under the early Empire would seem to have
been above the average level of the civilized subjects of Rome. There was
apparently very little slavery among them ; and there must have been an
exceptionally large proportion of persons able to read.
U2
292 CENTRIPETAL & CENTRIFUGAL FORCES
the former in their way highly civilized. With the
African slave trade a new and a dolorous chapter in
history opens. In our own time it is the settlement of
Europeans in countries where the native holds his
ground against the settler, as the Kafir does in South
Africa, and the aboriginal Peruvians and Araucanians do
in Western South America, or it is the influx of coloured
immigrants, like that of the Chinese in Western America
and the Hawaiian Isles, that raises, or threatens to raise
in the future, this problem in an acute form. A com-
munity in which there exist two or more race-elements
physically contrasted and socially unsusceptible of amal-
gamation cannot grow into a really united State. If the
coloured people are excluded from political rights, there
is created a source of weakness, possibly of danger. If
they are admitted, there is admitted a class who cannot
fully share the political life of the more civilized and
probably smaller element, who will not be consoled by
political equality for social disparagement, and who may
lower the standard of politics by their incompetence or
by their liability to corruption. If the people of colour
are dispersed over the country among the Europeans,
instead of dwelling in masses by themselves, they may
not act as a centrifugal force, threatening secession,
but they are a serious hindrance to the working
of any form of popular government that has been
hitherto devised, for they divide the population, they
complicate political issues, they prevent the growth
of a genuinely national opinion.
The most noteworthy attempts that Constitutions
have made to deal with these cases have been made in
the United States, where the latest amendments to the
CENTRIPETAL & CENTRIFUGAL FORCES 293
Federal Constitution provide protection for the negroes
and forbid the States to exclude any person from the
electoral suffrage in respect of race or colour, and where
several recent State Constitutions have devised ingenious
schemes for disfranchising the vast mass of those whom
these very amendments have sought to protect. So far
as political rights are concerned, the problem is very
far from having been solved in the United States. But
as regards private civil rights, it has certainly been an
advantage to the negroes that the Federal Constitution
guarantees such rights to all citizens : and probably in
any country where marked differences, with possible
antagonisms, of race exist, it will be prudent to place the
private civil rights of every class of persons under the
equal protection of the laws, and to make the rights
themselves practically identical. It would lead me too
far from the main subject to describe the ways in which
similar problems have been dealt with in Algeria, in
South Africa, and in some of the other colonies of
European nations. Nowhere has any quite satisfactory
solution been found 1 . But the case of New Zealand
deserves to be mentioned as one in which the experi-
ment has been tried of giving parliamentary representa-
tion to the natives, who mostly live apart on their own
reserved lands. So far, the results have been good. The
conditions are favourable, for the Maoris are a brave
and intelligent race, and they are now too few in number
to excite disquiet.
It was the good fortune of the Roman Empire that
the vast majority of the races whom it conquered and
1 In Algeria the electoral suffrage is limited ; but in some of the French
tropical colonies it seems to have been granted irrespective of colour.
294 CENTRIPETAL & CENTRIFUGAL FORCES
absorbed had no conspicuous physical differences from
the Italians which prevented intermarriage and fusion.
Race and birthplace were no great obstacle to a man
of force. Two or three of the Emperors were of
African or Arab extraction. Moreover, the peoples
of Southern Europe seem to have less repulsion of
sentiment towards the dark-skinned races than the
Teutons have. The Spanish and Portuguese inter-
marry not only with the native Indians of Central and
Southern America, but also with the negroes. The
French of Canada intermarried more freely with the
Indians of North America than the English have done.
Summing up, we may say that the aim of a well-
framed Constitution will presumably be to give the
maximum of scope to the centripetal and the minimum
to the centrifugal forces. But this presumption is
subject to two countervailing considerations. One is
that the energy of civic life may be better secured by
giving ample range and sphere of play to local self-
government, which will stimulate and train the political
interest of the members of the State, and relieve the
central authority of some onerous duties. The other
is that the centrifugal forces may, if too closely pent up,
like heated water in the heart of the earth, produce at
untoward moments explosions like those of a volcano.
Hence it is well to provide, in the Constitution, such
means of escape for the steam as can be made com-
patible with the general safety of the State. Where
a Constitution, and especially a Rigid Constitution, has
been framed with due regard to these considerations, and
turns to account the methods already discussed, it may
itself become a new centripetal force, a factor making
CENTRIPETAL & CENTRIFUGAL FORCES 295
for the unity and coherence of the community which
lives under it The Rigid Constitution has in this
respect one advantage over the Flexible one, that it is
more easily understood by the mass of the people, and
more capable of coming to form a part of their political
consciousness. When such a Constitution is so con-
trived and worked as to satisfy the bulk of the nation
and it will do so all the more if no single section
dislikes it it attracts the affection and pride of the
people, their pride because it is their work, their
affection because they enjoy good government under it.
Time, if it does not weaken these feelings, strengthens
them, because reverence comes with age. By providing
a convenient channel or medium through or in which
the centripetal forces may act, the Constitution increases
the effective strength of those forces. It is a reservoir
of energy, an accumulator, if the comparison be per-
missible, which has been charged by a dynamo, and
will go on for some time discharging the energy stored
up in it. But, like an accumulator, its energy becomes
exhausted if there is not behind it an engine generating
fresh power, that is to say, if the real social and
political forces which called it into being have become
feebler, and those which oppose it have become
stronger.
V. ILLUSTRATIONS FROM MODERN HISTORY OF THE
ACTION OF CONSTITUTIONS.
The best instance of the capacity of a Constitution to
reinforce and confirm existing centripetal tendencies is *
supplied by the history of the Rigid Constitution of the
296 CENTRIPETAL & CENTRIFUGAL FORCES
United States. That instrument was at first received
with so little favour by the people that its ratification
was, in many States, obtained with the greatest possible
difficulty, and the original document secured accept-
ance only on the understanding, which was loyally
carried out, that it should forthwith receive a number
of amendments. Within fifteen years the party which
had advocated it was overthrown in the country, and
ultimately broke up and vanished. A generation passed
away before it began to be generally popular. But
after a time it secured so widespread a respect that
even during the fierce and protracted struggle which
ushered in the Civil War few attacked the Constitution
itself, nearly all the combatants on one side or the
other claiming that its provisions were really in their
favour. It was not round the merits, but round the
true construction, of the instrument that controversy
raged. Since the Civil War, and the amendments
which embodied the results of the Civil War, it has
been glorified and extolled in all quarters 1 , and has
unquestionably been a most potent influence in consoli-
dating the nation, as well as in extending the range and
the activity of the central government.
To what is this success due ? Regarded as a Frame
of Government, i. e. as a piece of mechanism for dis-
tributing powers between the Executive, the Legislature
and the Judiciary, the American system has probably
been praised beyond its deserts. Both the mode of
electing the President and the working of Congress
leave much to be desired. But the Constitution has
1 Only since 1890 have complaints begun to be made : see Essay III,
p. 239, ante.
CENTRIPETAL & CENTRIFUGAL FORCES 297
had two conspicuous merits. It so judiciously esti-
mated the centripetal and centrifugal forces as they
actually stood at the time when it was framed, frankly
recognizing the latter and leaving free play for them,
and while throwing its own weight into the scale of the
centripetal, doing this only so far as not to provoke
a disjunctive reaction, that it succeeded in winning
respect from the advocates both of States' Rights and
of National Unity 1 . Thus it was able to add more
strength to the centripetal tendency than it could have
done had it been originally drawn on more distinctly
centripetal lines. For and here comes in the second
merit its provisions defining the functions of the cen-
tral Government were expressed in such wide and
elastic terms as to be susceptible of interpretation
either in a more restricted or in a more liberal way,
i.e. so as to allow either a less wide or a more wide
scope of action for the Central Government. During
the earlier years, when State sentiment was still stronger
than National sentiment, the scope remained limited,
because both the executive and the legislature wished to
keep it so, and such extensions as there were came from
judicial construction. But latterly, and especially since
the prodigious development of internal communications
has stimulated commerce, and since the death blow given
to States' Rights doctrines by the Civil War, the scope
has been widened, and has widened quite naturally and
gradually, with no violence to the words of the Consti-
1 It has been accused of having caused a civil war by omitting to deal with
the questions out of which the Civil War arose, and by failing to negative the
right of secession. But to this it may be answered that an attempt to deal
with those questions or to negative that right might possibly have prevented
it from having ever been accepted.
298 CENTRIPETAL & CENTRIFUGAL FORCES
tution, but according to that expansive interpretation
of them which changing conditions and a corresponding
change in national sentiment prescribed 1 .
Nowadays one hears in the United States less
about the Constitution than about the Flag 2 . But that
is partly because the Constitution has done its work,
and made the Flag the popular badge of a Unity which
it took nearly a century to endear to the nation.
One might go on to illustrate the efficiency of a Con-
stitution in consolidating a people composed of disparate
elements from the parallel case of Switzerland, where
communities speaking three (it might almost be said
four) different languages have been brought much
closer together by the Constitutions of 1848 and 1874
than they were before, or could have been without
some such arrangement. Switzerland, however, is a
more complicated case, because much has turned on
the external pressure towards unity exerted by the
fear felt for several great bordering Powers. The
formidable neighbours of the Confederation have, so
to speak, squeezed together into a Swiss people
the originally dissimilar Alemannic, Celto-Burgundian,
Italian, and Romansch communities.
The two instances of the United States and Switzer-
land 3 , compared with those of unitary countries living
1 This interpretation has sometimes been at variance with the views of the
older interpreters, but no instance occurs to me in which an impartial jurist
could have pronounced it inadmissible.
3 This is still more so to-day (1900) than it was when this Essay was first
composed.
3 One would like to refer to the cases of the numerous so-called republics,
most of them federal, of Spanish America. But apart from the difficulty of
ascertaining their constitutional history, little of which has been written,
some of these republics seem to pay so little regard to their constitutions,
CENTRIPETAL & CENTRIFUGAL FORCES 299
under Rigid Constitutions, such as France, Belgium,
Holland and Denmark, suggest the observation that
the service which Rigid Constitutions may render in
strengthening the centripetal tendency can best be
rendered where a Federation is to be constructed. For
in these cases what is needed is an arrangement by
which the several rights of the component communities
which are to form the State may be so protected that
they need not fear to give their allegiance to the
State and cordially support its Central Government.
The existence of such communities is an expression
of forces actually operative which are centrifugal
as towards the State as a whole, and therefore need
to be studied. By giving a carefully limited scope to
these forces, and thereby diminishing their possibilities
of danger, the Constitution subserves the cohesion of
the States. In a truly unitary country this service is
not needed. But there are cases in which States
endeavouring to become unitary would have done
better had they sought to apply the federal principle,
placing it under the protection of a Rigid Constitution.
I have already referred to Denmark. Holland might
probably have saved Belgium by a concession of some
such kind. Whether a similar contrivance might not
have been profitably employed within the British Isles
in A.D. 1782, or in A.D. 1800, or again later, is a question
living generally in a state of revolution, whether subsiding, or actually
raging, or apprehended, like the Atlantic during a series of cyclones follow-
ing one another along the same track from the Bermudas to the Fastnet,
that it is hard to draw any conclusions of value from them. They are in
fact republics only in name : and it is surprising that Sir H. Maine in his
Popular Government condescended to go to them for arguments to discredit
democracy. They are military tyrannies, the product of peculiar historical,
territorial and racial conditions.
300 CENTRIPETAL & CENTRIFUGAL FORCES
which will already have presented itself to one who has
followed the argument thus far.
In dwelling upon the services which Constitutions
may render, by fostering the centripetal forces, or by
restraining the violence and softening the action of the
centrifugal forces, we must not forget that no scheme of
government can hope permanently to resist the action
of either tendency if either develops much greater
strength than it possessed when the Constitution was
framed. If the centripetal forces grow, the Consti-
tution whose provisions have recognized and given
scope to the centrifugal will be practically, in some
of those provisions, superseded. If the centrifugal
grow, it may be overthrown. It is where the forces
are nearly balanced, that the weight of the Con-
stitution may turn the scale, and avert conflicts which
would have rent the community, or caused a violent
subjection of one part of it to the other. And in any
case the Constitution ought, where dissimilative and
disruptive forces are feared, to be so drawn as to enlist
all available motives of interest, to shelter the law behind
popular sentiment where possible, to oppose it to senti-
ment as little as possible, and to avoid challenging at the
same time the hostility of several kinds of sentiment.
VI. THE PROBABLE ACTION OF THE AGGREGATIVE AND
THE DISJUNCTIVE TENDENCIES IN THE FUTURE.
Whether in the long run it is the centripetal or the
centrifugal force that will prevail in politics, or, in other
words, whether large States or small States are more
likely to commend themselves to mankind, is a question
CENTRIPETAL & CENTRIFUGAL FORCES 301
which belongs rather to history than to the doc-
trine of constitutions, and which could be adequately
discussed only after a long investigation. History
shows us first one force dominant, then the other,
though no doubt the centrifugal is usually more
powerful in rude times and in hilly or mountainous
countries, the centripetal in countries comparatively
advanced in civilization, and in level and fertile regions
where wealth is more easily acquired and stored, and
where military operations are easier. When the mists
of antiquity begin to rise sufficiently to show us the
Mediterranean and south-west Asiatic world, we dis-
cover both a few great States and a multitude of small
ones. The former have a low, the latter a high and
intense political vitality. From the time of Menes
down to that of Attila the tendency is generally towards
aggregation : and the history of the ancient nations
shows us, not only an enormous number of petty
monarchies and republics swallowed up in the Empire
of Rome, but that empire itself far more highly central-
ized than any preceding one had been. When the
Roman dominion began to break up the process was
reversed, and for seven hundred years or more the
centrifugal forces had it their own way. Europe and
Western Asia were divided up among innumerable
petty potentates, and even the large monarchies, such
as the two Khalifates, the Romano-Germanic Empire,
the kingdoms of France and Hungary, possessed so
feeble a royal authority that the real organs of govern-
ment and centres of attraction were to be sought rather m
in the vassals than in the nominal sovereign. From
the thirteenth century onwards the tide begins to set
302 CENTRIPETAL & CENTRIFUGAL FORCES
the other way. One great State indeed the Empire
first decays and then disappears under the action of
centrifugal forces, but all the other chief States expand,
absorbing their smaller neighbours, and giving them-
selves a compact and well-knit organization which
makes the central power effective through the whole
sphere of its action. This process culminates in the
despotic monarchies of the eighteenth century, when
the strength of feudal localism has been completely
broken, though the picturesque relics of it still cumber
the ground, and when at the same time the founda-
tions are laid in the West of a gigantic State which
proceeds to cover the temperate area of North America
between the two oceans, and, in the East, of the
dominion of a European nation which has absorbed
the numerous and populous principalities of India.
Immediately afterwards the doctrine of popular self-
government and the doctrine of nationalities come upon
the scene, threatening a disruption of some existing
political aggregates. In point of fact, however, these
new principles have done as much to unite as to
sever, for though five States Greece, Rumania, Servia,
Montenegro and Bulgaria have been cut off from an
effete monarchy, and sixteen republics have been
carved out of the American dominions of Spain and
Portugal, the doctrine of nationality has substituted two
new great States, more important than all the last-
mentioned twenty-one put together, for the multitude
of kingdoms and principalities which so late as 1859
filled Italy and Germany.
Thus neither Democracy nor the principle of Nation-
alities has, on the balance of cases, operated to check
CENTRIPETAL & CENTRIFUGAL FORCES 303
the general movement towards aggregation which
marks the last six centuries.
It may, however, be said and this question should
be faced before we proceed to inquire whether the
aggregative movement is likely to continue that in all
this inquiry we have been ignoring two potent factors.
One is Conquest that is to say, military power.
We have been examining the forces of Interest and
Sympathy, which cover a number of influences social
or economic, racial or sentimental. But after all it is
Conquest, i.e. the might of the strongest, which has
created most States as we find them. Is Conquest one
of the centripetal forces ? and if so, is it not the greatest
of them ?
The other factor is Family Succession, which both
during the Middle Ages and since has done a great deal
to consolidate principalities and kingdoms. The United
Kingdom owes much to this agency, Austria and France
even more.
Conquest and Dynastic Succession are hardly fit
to be classed among the centripetal forces, because
they are not susceptible of scientific treatment like the
other influences. The disposition of the stronger to
subdue and annex the weaker neighbour is of course
a permanent fact in human nature, and therefore in
history. But in each particular instance the success
of one or other combatant depends on what may be
called historical accidents on the numbers or the dis-
cipline of troops, on the possession of a commander
of military genius, on alliances with other States, on ,
the internal dissensions of one State as compared with
the unity of another. Physical force belongs to a
3 o 4 CENTRIPETAL & CENTRIFUGAL FORCES
different sphere from that in which political constitu-
tions work. Constitutions may result from a conquest
or may be maintained for a time by arms ; but if they
are obliged to rely on and have constant recourse to
physical force in order to prevent their overthrow,
they are, considered as Constitutions, failures ; because
the very nature and object of a constitutional Frame of
Government is so to express and so to adjust to
existing conditions the wishes and aims of the citizens
as to make the majority, and if possible the vast
majority, of the people desire to support it. According
to the proverb, you can do anything with bayonets
except sit down on them. Physical force is of course
needed to punish occasional infractions of the Consti-
tution or to quell revolts against it. But the system
of government which ex hypothesi corresponds to the
permanently strongest among the moral forces, else it
has no right to prevail in a free country, ought not to
be surrounded by cannon.
Similarly, the devolution of princedoms or kingdoms
by marriage and inheritance, much as it has done to
bring States originally independent under one govern-
ment, lies outside political science in the proper sense
of the term. Like conquest, it brings about a new
state of things by an event with which the ordinary
political and constitutional phenomena of national life
have nothing to do, coming into these phenomena as an
incommensurable and (so to speak) irrational factor \
1 The fact that the custom of a country permits or forbids succession
through females makes a great difference in the importance of succession.
The union of Castile with Aragon, like the union of England with Scotland,
would not have occurred under a different rule of succession. So it may
make a difference whether the throne of the larger country passes to the
CENTRIPETAL & CENTRIFUGAL FORCES 305
So soon as either conquest or a union due to here-
ditary succession has taken place, the normal centri-
petal and centrifugal tendencies resume their action.
Where the territory of one people has been forcibly
acquired by another, as Lombardy was acquired by
Austria in 1815, or has been occupied in virtue of
a title based on succession, as Portugal was claimed
by Spain in 1580, such centripetal forces as may exist
have the advantage of physical force behind them. But
this advantage may be unavailing against the stronger
forces which sentiment sends forth to dissever the
connexion. Austria lost Lombardy after forty -four
years ; Spain lost Portugal after sixty. In both cases
there was fighting, but it was not so much the balance
of military strength as the settled hostility of the sub-
jected people which in both caused the severance. So
the acquisition by the English kings of Aquitaine and
the subsequent conquest of large part of France, the
conquest by the Turks of Transylvania, the union of
Holstein with Denmark, the union of Belgium with
Holland, the union of Alsace with France, all effected
without regard to the will of the people, were all in
time brought to an end. The last-mentioned ease is
a peculiar one. It was not because the Alsatians
wished to be reunited to Germany, but because the
Germans wished to be reunited to Alsace that a con-
nexion which had lasted nearly two centuries was
dissolved in 1871. Military motives, decisive as regards
the annexed part of Lorraine, had something to do
dynasty of the smaller, or vice versa. Had a king of England inherited
the throne of Scotland, Scotland might have been more hostile to England/
Had a king of Portugal inherited the throne of Spain, the two countries
might have remained united.
BRYCE i X
3 o6 CENTRIPETAL & CENTRIFUGAL FORCES
with the taking of Alsace also ; but if Alsace had not
been German in language and habits, though not in
sentiment, the popular voice of Germany would not
have insisted on recovering it against the will of its
inhabitants.
Speaking broadly, one may say that Conquest and
Inheritance give an opportunity, better in the latter
than in the former case, for centripetal forces to work.
If the peoples on which they operate are backward,
with no pronounced national feeling, that chance may
be a good one, and the influences of free commerce,
joint government (especially if it is good government),
together with the kind of pride which common service
in war often produces, may operate to weld two peoples
together into a united State. Much depends on lan-
guage, much on geographical position, much on
external pressure from powerful neighbours. But if
one of the peoples (or both) has already developed
a strong sentiment of nationality, the prospect of fusion
is but slender.
The Roman Empire is the capital instance of a vast
dominion established by conquest. But there it was
the weakness of the centrifugal forces that secured the
cohesion of the Empire. The conquered countries
were either, like Gaul, Spain and Britain, occupied
by tribes between whom there existed so weak a bond
that no general national feeling or combined national
action was possible, or had been, as in the Eastern
Mediterranean World, ruled by dynasties, most of them
sprung from military adventurers 1 , so that the senti-
1 There were of course also a certain number of city republics, or leagues
of republics, but these were too small to have developed national feeling
CENTRIPETAL & CENTRIFUGAL FORCES 307
ment of national life had not centred in the monarchy.
The centrifugal forces of interest the desire for peace,
good government, facilities for commerce, and so forth
obtained free play under the imperial administration,
and to these was added after a time the sense of pride
in Roman citizenship, and in the greatness of a State
which included all the highest civilization of the world.
So too during the Middle Ages not a few conquests
ended in an assimilation of the vanquished, which
enlarged without weakening the conquering nation.
But during the last three centuries the experience of
military powers has been that the acquisition of masses
of subjects who, being already civilized, are likely to
resist absorption and to remain disaffected, is a doubtful
gain and may become a danger to the conquering
State. The last conspicuous instance is Poland,
partitioned between three Powers, to all of whom
her provinces have brought trouble. Conquests
continue to be made, but they are now mostly of
barbarous or semi-civilized races, so inferior to the
conquerors in force and in national spirit that the
centrifugal forces are, or at least seem to be, practically
negligible.
Is it possible, then, to arrive at any conclusion re-
garding the respective strength which these two sets
of forces are likely to display in the coming centuries ?
Will the tendency to aggregation continue, and does
the future belong to great States ? Or may new
forces appear which will reverse the process, as it was
in the modern sense ; and the Roman system left most of them a certain m
measure of self-government which modified their regret for an indepen-
dence the delight in which had been (in many cases) reduced by domestic
disorders.
X2
3o8 CENTRIPETAL & CENTRIFUGAL FORCES
reversed, though through causes most unlikely to re-
appear, at the fall of the Roman Empire ?
At first sight the probabilities seem to point to
further aggregation. Although none of the five great
national States Russia, Germany, France, Italy,
Britain is in the least likely to be absorbed by any of
the others, there is reason to think that within the next
century some of the smaller states will have disap-
peared from the map of Europe. In one or two other
parts of the world as for instance in South and
in Central America the process by which the great
States are expanding is not yet complete. The in-
fluences of swifter and cheaper communications by
land and sea, of increasing commerce, and of the
closer intercourse which commerce brings, of the
power exerted by the printing press in extinguishing
the languages which prevail over a small area and
diffusing those spoken by vast masses of men all
these things make for unity within each of the great
States and add to the attractive power which the
greater have for the smaller. These influences, more-
over, all promise to be permanent.
Against them we must set the fact that Conquest,
so far as civilized peoples are concerned, seems likely
to play a smaller role in the future than in the past,
because it begins to be perceived how tenacious is the
sentiment of nationality in a vanquished people, and
how much the maintenance of that sentiment may
endanger the victor State. As was observed in an
earlier page, the progress of a community in civilization
often tends to intensify both its capacity for political
discontent and its peculiar national sentiment, thus
CENTRIPETAL & CENTRIFUGAL FORCES 309
counterworking the influences of trade and wealth.
A people, or a nationality included in a large State,
while feeling the centripetal forces of material interest,
may nevertheless feel the repellent instinct of an un-
quenched attachment to its national traditions and cling
to the hope of reviving its old national life.
The problem is, however, a far more complex one
than any comparison of the influences of material
interest on the one side and national sentiment on
the other would suggest. Many phenomena may be
imagined which would affect it as the world moves
on. One is a change in the conditions under which
war is waged. Another is a removal of some of the
causes which induce war, or a means, better than now
exists, of averting its outbreak. Another is the growth
of what is called Collectivism and a disposition to apply
its principles in small rather than in large areas, seeing
that there are obviously some things which can be
better managed in the former. We are far from
having exhausted the possibilities of the influence of
scientific discovery upon economic life, and through it
upon social and political life. Both the relations of
Nations and States to one another and the relations of
the groups or communities within each State to each
other may be affected in ways as yet scarcely dreamt of.
Neither can we foresee the modes in which the scien-
tific way of looking at all questions may come ulti-
mately to tinge and modify men's habits of thought
even in social and political matters. No institution was
at one time more generally prevalent over the world, or
seemed more deeply rooted, than Slavery ; and slavery*
which has now vanished from civilized communities,
3io CENTRIPETAL & CENTRIFUGAL FORCES
will soon have vanished from all countries. There is
indeed hardly any institution for which permanence can
be predicted except and some will not admit even this
exception the Family.
Imagine a world in which all the hitherto unappro-
priated territories had been allotted to one or other of
the few strongest States. Imagine tariffs abolished and
the principle of equality of trade-facilities among States
established. Imagine a system of international arbitra-
tion created under which the risks of war were so greatly
reduced that the prospect of war did not occupy men's
minds and give a military and aggressive tinge to their
patriotism. The present relations of centripetal and
centrifugal forces would under such conditions be
greatly altered, as respects both the wide theatre of
the world and the internal conditions of each particular
State.
Imagine also a great advance in the desire to use
governmental agencies for the benefit of the citizens,
and a general conviction that such agencies could
best be used by comparatively small communities
rather than by the State as a whole. A new centri-
fugal force, centrifugal at least in respect of each State,
would thereby have been called into action. No one
will venture to foretell any of these things. But none
of them is impossible ; and it is plain that they might
produce a set of conditions, and a play of forces, unlike
the present, and unlike any period in the past. We
must not therefore assume that the large States and the
present structure and organization of States will be
permanent.
Of the more remote future, History can venture to say
CENTRIPETAL & CENTRIFUGAL FORCES 311
little more than this that it will never bring back the
past. She recognizes that, as Heraclitus says, one cannot
step twice into the same river. Even when she is able
to declare that certain forces will assuredly be present,
she cannot forecast their relative strength at any given
moment, nor say what hitherto unobserved forces they
may not, in their action upon one another, call into
activity. All she can do for the lawyer, the statesman
and the legislator, when they have to study and use the
forces operative in their own time, is to indicate to
them the nature and the character, the significant
elements of strength and weakness, that belong to each
and every force that has been heretofore conspicuous,
so as to direct and guide them in observing and reflect-
ing on the present. This is much less than has some-
times been claimed for history. Nevertheless it is a real
service, for nothing is more difficult than to observe
exactly, and the ripest fruit of historical study is that
detachment of mind, created by the habit of scien-
tific thinking, which prevents observation from being
coloured by prejudice or passion.
V
PRIMITIVE ICELAND
ICELAND is known to most men as a land of vol-
canoes, geysers and glaciers. But it ought to be no
less interesting to the student of history as the birth-
place of a brilliant literature in poetry and prose, and as
the home of a people who have maintained for many
centuries a high level of intellectual cultivation. It is an
almost unique instance of a community whose culture
and creative power flourished independently of any
favouring material conditions, and indeed under con-
ditions in the highest degree unfavourable. Nor
ought it to be less interesting to the student of
politics and laws as having produced a Constitution
unlike any other whereof records remain, and a body
of law so elaborate and complex that it is hard to
believe that it existed among men whose chief occu-
pation was to kill one another.
With the exception of Madeira and the Azores,
Iceland is the only part of what we call the Old World l
which was never occupied by a prehistoric race, and in
which, therefore, the racial origin of the population is
historically known to us.
None of those rude tribes who dwell scattered over
1 Though geographically Iceland belongs rather to North America than
to Europe, geologically its affinities are with the Cape Verde Islands, the
Canaries, Madeira, and possibly the Azores to the South, with Jan Mayen
to the North, as it seems to owe its origin to a line of volcanic action
stretching from the Cape Verde Islands to far beyond the Arctic Circle.
PRIMITIVE ICELAND 313
the north of Asia, Europe and America Lapps,
Samoyedes or Esquimaux ever set foot in it. Adam-
nan, Abbot of lona from A. D. 679 to 704, reports in his
famous Life of St. Columba *, a prophecy of the saint re-
garding a holy man named Kormak, who, in Columba's
days (A.D. 521-597), made three long voyages from
Ireland in search of the 'Desert in the Ocean' (eremum in
Oceano\ a term so happily descriptive of Iceland that
one is tempted to believe it to be the region referred
to. A little later the Venerable Bede (A.D. 673-735)
speaks of contemporaries of his own who, coming from
the isle of Thule, declared that in it the sun could
be seen at midnight for a few days 2 . Still later the
Irish monk Dicuil (writing about A. D. 825) tells 3 of an
isle lying far to the North- West where monks known
to him had spent the summer some thirty years before.
And our earliest Icelandic authority, the famous
Landndmabok (Book of the Land-takings), mentions that
when the first Norwegian settlers arrived they found
a few hermits of Irish race already established there,
who soon vanished from the presence of the stronger
heathen, leaving behind books, bells and staves (prob-
ably croziers). The Norse settlers called them Papas
(*'. e. priests), or Westmen, a term used to describe
the Scots of Ireland. No doubt, then, the earliest
1 Vita S. Columbae, cap. vi.
2 Comment, on 2 Kings xx. 9. The extreme northernmost point of
Iceland just touches the Arctic Circle.
3 In his book De Mensura Orbis Terrae, cap. 7, he identifies the isle with
Thule ; and the reports of the monks point rather to Iceland than to the
Faeroe Isles, a group which Dicuil mentions elsewhere, and which there-
fore he cannot mean by his Thule. The name Thule has of course been
applied by different writers to different lands. When Tacitus says thafc
it was seen in the distance by the fleet of Agricola, he probably means
either Shetland or the Fair Isle between the Shetlands and the Orkneys.
3 i4 PRIMITIVE ICELAND
discoverers of the isle were these Celtic hermits, who
had crossed the wide and stormy sea in their light
coracles of wood and leather, consecrating themselves
to prayer and fasting in this inclement wilderness.
But they contributed no element to the population of
the island, and can hardly be said to have a place
in its history, which begins with the great Norwegian
immigration.
The first Teuton to reach Iceland was a Norse
Viking named NaddocT, who was driven to the isle by
a storm in the latter half of the ninth century. He
called it Snaeland, or Snowland. A second visitor,
a Swede named Gardar, sailed round it; a third
(Floki, a Norseman) landed, and gave it the name it
still bears. But though the news of the discovery
soon spread far and wide through the whole North-
land, the isle might possibly have lain unoccupied but
for the events that were passing in Norway. King
Harald the Fairhaired was then in the full career of
his conquests. The great battle of Hafrsfjord had
established his power in Central and Southern Norway,
and he was traversing the fjords with his fleet, com-
pelling the petty chieftains who stood at the head of
the numerous small independent communities that
filled the country to acknowledge his supremacy, and
imposing a tax upon the land-holding freemen.
The proud spirit of the warriors who for more
than a century had been ravaging the coasts of all
Western Europe could not brook subjection, and, being
unable to offer a united opposition, the boldest and
bravest among them resolved to find freedom in exile.
Some sought the Orkneys, Shetlands and Faeroe isles,
PRIMITIVE ICELAND 315
already settled by Northmen. Some joined the Nor-
wegian settlers in Ireland, and drove the Celtic popula-
tion out of some districts on its eastern coast. Others,
again, followed Hrolf Ganger (Gongu Hrolfr) ('the
Walker'), or Rollo as our books call him, a Viking who,
having incurred the wrath of Harald, sailed forth from
his home on the fjords near Bergen to found in Northern
Gaul a dynasty of Norsemen whence came the long line
of Norman dukes and English kings, Albanique patres
atque altae moenia Romae. And yet others, hearing
the praises of the lately-discovered isle far off in the
ocean, turned their prows to the west and landed on
the solitary shores of Iceland. They embarked without
any concert or common plan; each chieftain, or head
of a household, taking his own family, and perhaps
a group of friends or dependents ; and they settled in
the new land where they pleased, sometimes throwing
overboard as they neared the shore the wooden
columns, adorned with figures of Thor and OSin, of
the high-seat in their old Norwegian hall, and disem-
barking at the point to which these were driven
by the winds and currents. At first each took for
himself as much land as he desired, but those who
came later, when the better pastures had been already
occupied, were obliged to buy land or to fight for it;
and a curious custom grew up by which the extent
of territory to which a settler was entitled was fixed.
A man could claim no more than what he could carry
fire round in a single day; a woman, than that round
which she could lead a two-year-old heifer. So rapid
was the immigration, many colonists from Norwegian*
Ireland and the Scottish isles, Orkneys, Shetlands and
316 PRIMITIVE ICELAND
Hebrides (the two former groups being then Scandina-
vian) joining those who came direct from Norway,
that in sixty years the population had risen (so far as
our data enable it to be estimated) to about 50,000, a
number which seems not to have been exceeded down
to the census of A. D. 1823. With those who came from
Ireland and the Hebrides there came some small infu-
sion of Celtic blood, which we note in such names as
Njal, Kjartan, and Kormak, given to men descended
from the daughters of Irish chieftains.
Planting themselves in this irregular way, and in
a country where the good land lay in scattered patches,
and where deserts glaciers and morasses, as well as
torrents, passable only with difficulty or even danger,
cut off one settlement from another, the first settlers
did not create, and indeed felt little need of, any political
or social organization. But after a time a sort of polity
began to shape itself, and the process of its growth is
one of the most interesting phenomena of mediaeval
history. The elements out of which it sprang were
of course those two which the settlers had brought
with them from Norway, and both of which were
part of the common heritage of the Teutonic race
the habit of joint worship at a temple, and the habit
of holding an assembly of all freemen to discuss and
dispatch matters of common interest, and more especially
lawsuits 1 . This assembly resembled the Old English
Folk Mot, and was called the Thing, a name which
survives in our English word Hustings (Husting or
1 Not but what the habit of holding such an assembly has existed among
peoples of very diverse race in many parts of the world. It existed among
the Greeks. It exists among the Kafirs of South Africa.
PRIMITIVE ICELAND 317
House Thing), the platform from whence candidates
spoke at parliamentary elections, which disappeared in
A. D. 1872 when written nominations were prescribed by
the statute which introduced vote by ballot. The ping l
was held at the temple, usually dedicated to Thor,
the favourite deity of the Norsemen as OSin was of
the Swedes; since the place of worship was the natural
centre of the neighbourhood, and the ping was pre-
sided over by the local magnate or chief, who was
usually also the owner or guardian of the local temple,
there being among the Scandinavian peoples no special
sacerdotal caste.
Now when a Norse chief settled himself in Iceland,
one of his first acts was to erect a temple, often with
the sacred pillars which he had brought from the
ancestral temple in the old country. The temple soon
became a place of resort, not only for his own immediate
dependents, but also for those other settlers of the
district who might not be rich enough to build and
maintain a shrine of their own. Of this temple the
chieftain and his descendants were the priests ; and as
the meetings of the local ping were held at it, he was
the natural person to preside over such meetings, both
because he was usually (though not invariably) eminent
by his wealth and power, and also because he offered
the sacrifices and kept the sacred temple-ring on which
judicial oaths were taken, as at Rome men swore at the
Ara Maxima of Hercules. Thus the priest acquired, if
he had not already enjoyed it, the position of a sort of local
chieftain or magnate, not unlike those kings of heroic
1 I use the Icelandic and Anglo-Saxon letter ]> in this word to distinguish
it from the common English word.
3i8 PRIMITIVE ICELAND
Greece whom we read of in Homer, or those German
tribe-princes whom Tacitus describes. Although his
title was that ,of GoSi l (originally GuSi) or priest, a word
derived from the name of the Deity, he lost in becoming
the depositary of a certain measure of political power
most of such religious character as his office had
possessed. Nor did any sanctity attach to his person.
In that age at least religion had come to sit rather
lightly upon the Norsemen. Either from inner decay,
or from the influence of the Christian peoples with whom
they came in contact beyond the seas, the old faith was
beginning to disintegrate. Worship was often cold or
careless, and we read of men who regarded neither por
nor OSin, but trusted in their own might and main.
The Go$i was therefore much more of a secular than
of an ecclesiastical person, a chieftain rather than a
priest in our sense of the word 2 . His powers as
a chieftain were very indefinite, as indeed had been
those of the local chieftains of Norway. He was only
the first among a number of free and warlike land-
owners, some of them equal or superior to him in
lineage, with an official dignity which was little more
than formal in the hands of a weak man, but might be
turned to great account by a person of vigour and
ability. As he presided in the ping, so he was the
appropriate person to see to the regularity of its judicial
proceedings, to preserve order, and to provide for the
1 The term goSi does not seem to have been used in Norway, but Ulfila,
in his translation of the Bible into Gothic (in the fourth century A. D.),
renders tepews by gudja. The is pronounced like th in ' then.'
a It is true that as the Sagas whence we draw our knowledge of the
GoSi were all written down at a time when heathenism had vanished, it is
possible that they may not fully represent the original character of the office.
PRIMITIVE ICELAND 319
carrying out of any measures of common concern on
which it might determine. When any unforeseen
danger or difficulty arose, he was looked to to advise
or take the lead in action ; the members of his ping
expected aid and protection from him, while he, like
a thegn among the Teutons of contemporary England,
expected support and deference from them. But he
had no legal powers of coercion. Any one might
oppose him in the ping or out of it. Any ping-man
might withdraw at pleasure, join himself to some other
GoSi, and become a member of some other ping 1 .
There was, it must be noted, no territorial circum-
scription corresponding to the ping. Land had nothing
to do with the position held by the GoSi to the pingmen,
and herein, as well as in the absence of the relation
of commendation and homage, we see a capital
difference between this system and feudality. Nor
was the post of Gofti a place whence much emolu-
ment could be drawn. The pingmen were indeed
required to pay a sort of tax called the temple
toll (hoftollr), but this did no more than meet the
expenses to which the GoSi was put in keeping up
the temple, and feasting those who came to the
1 The illustrious Konrad Maurer, to whose learned researches and sound
judgement every one who writes about the constitutional antiquities of
Iceland must feel infinitely indebted, thinks that the name of GoSi was used
in Norway before the emigration to Iceland, though probably the priest
was there a less important person than he became in Iceland, where his
custody of the temple put him to some extent in the position held in
the Norwegian motherland by the hereditary chieftain, who was in Norway
the natural president of the local Thing.
Those who desire to study the early history of Iceland may be referred
to the writings of Dr. Maurer, and especially to his Island bis zum Unter-
gange des Freistaats (Munich, 1874), and his Beitrdge eur Rechtsgeschichte des
Germanischen Nordens (Munich, 1852).
320 PRIMITIVE ICELAND
sacrifices ; it gave him no revenue which he could use
to extend his authority. Accordingly, the GoftorS was
regarded as implying power rather than property, and
was not (after the introduction of Christianity) liable to
the payment of tithe. A curious feature of the office
was its alienability. Probably because it had arisen
out of the ownership of the temple, it was regarded
as a piece of private property which could be trans-
ferred by way of sale or gift, and could be vested in
several persons jointly. And similarly a number of
GotSorSs might by inheritance or purchase become
vested in the same person.
Thus in the years immediately following the immigra-
tion there sprang up round the coasts of Iceland a great
number of petty, unconnected and loosely aggregated
groups of settlers. We must not venture to call them
states, scarcely even communities, not principalities,
such as those which were beginning to spring up in
Western Europe, not in a strict sense republics, yet
nearer to republics than to principalities, organized, so
far as they were organized at all, chiefly for the pur-
poses of justice, and particularly for the exaction of fines
for homicide, but with no settled plan of government, no
written laws if indeed writing was yet in use at all
no defined territory, and a comparatively weak cohesion
among their own members, the Thingmen. The really
effective tie was, in those ages, the tie of kindred ; and
the pingmen of the same Gofti were not kinsfolk, were
not a clan or sept, like the Celtic communities of Scotland
and Ireland. That tie was strong enough to involve
a whole district in the blood-feud of a single man. For
when any member of a family was killed, it was the
PRIMITIVE ICELAND 321
duty of his nearest relatives to avenge his death, either
by obtaining a full compensation in money, for which,
if the offender refused to pay it, a lawsuit was brought
in the ping, or else by slaying the murderer or some
member of his family. Thus a feud, like a Vendetta in
Corsica or in Eastern Kentucky, might go on from
generation to generation, each act of revenge drawing
others in its train, and tending to draw more and more
families into the feud, because when fights took place,
the friends of each party often joined, and if some
were killed, their relatives had a new blood-claim to
prosecute.
Between the different communities that had thus
sprung up there was no political tie whatever. There
did not as yet exist any Icelandic nation, much less any
common Icelandic State of which all the communities
felt themselves members. Each was an independent
body ; and if a dispute arose between the members of
two different pings, there was no means of adjusting
it except by voluntary submission to the award of some
other ping or else by open war. Seeing that slayings and
plunderings and burnings were everyday occurrences
in this fierce race, where Vikingry (i. e. piracy) was the
most ; honoured pursuit, such cases were very frequent,
especially as to take revenge for a kinsman's death was
deemed a sacred duty.
Even when the offender belonged to the same ping
as the injured, it often happened that the influence
of his kindred, or the favour of the Go$i of the place,
or some technical error in bringing the suit for com-
pensation, prevented justice from being done. Ac-
cordingly the need for some remedy, for some further
BRYCE I Y
322 PRIMITIVE ICELAND
political, or rather judicial, organization of the island
began to be generally felt, for however fond men may
be of killing one another, the Norsemen were always
also fond of money, and would often prefer a blood-fine
to the satisfaction of killing their enemy, could the
blood-fine be secured. Thus it came to pass that,
about fifty years after the first colonization, a chief
named tflfljot, venerable from his age and abilities,
came forward to propose a scheme. He urged the
creation of one general ping for the whole country,
where all matters of common interest might be dis-
cussed, and all suits which could not be dispatched,
or had not been fairly dealt with in the local pings,
might be decided. Travelling round the island, he
brought over to his views the most influential GoSis
and other leading men ; and at their request, sailed to
Norway to inquire into the laws prevailing there, and
to draw up regulations for this new general ping ;
somewhat as envoys were, according to the Roman
story, sent from Rome to the Greek cities to bring
back materials and suggestions for the legislation of
the Decemvirs. At the same time tllfljot's foster-
brother, Grim Geitskor ('Goat's Shoe'), the fleetest
man and nimblest rock-climber in Iceland, was commis-
sioned to traverse the island in search of a place suitable
for the meeting of the proposed assembly. After long
wanderings, Goat's Shoe hit upon a spot to which
the name of ping Vellir l , ' the plains of the ping,' has
ever since belonged, in the south-west of the island,
1 Thing Vellir is the nominative plural, Thing Valla the form in which
the word has become more familiar to Englishmen, and which remains in
Thingwall (near Liverpool), Tynwald (in the Isle of Man), and Dingwall (in
Rosshire) is the genitive plural.
PRIMITIVE ICELAND 323
about eight hours' riding from where Reykjavik the
present capital now stands, and within the district of
the first temple that had been founded by Ingolf, the
earliest Norwegian settler. This circumstance gave the
place a sort of sacredness. There was plenty of water
and pasture, and the lake which washed the plain of
meeting abounded (as it does to this day) with trout and
wild fowl. (It abounds also with most pernicious small
black flies, whereon the trout grow fat, but which make
fishing not always a pleasure.) Here, accordingly, tllfljot
having in the meantime returned from Norway with
his materials for legislation, the first Aiding, or General
Assembly of all Iceland, met in A. D. 930, and here it
continued to meet, year after year, for a fortnight in
the latter half of June, till the year 1800 l , one of
the oldest national assemblies in the civilized world,
and one of the very few which did not, like the
English Parliament and the Diet of the Romano-
Germanic Empire, grow up imperceptibly and, so
to speak, naturally, from small beginnings, but was
formally and of set purpose established, by what would
have been called, had paper existed, a paper consti-
tution, that is to say by the deliberate agreement of
independent groups of men, seeking to attain the
common ends of order and justice.
There was thus created, before the middle of the
tenth century, when Athelstan the Victorious 2 was
1 Since this lecture was delivered the Aiding which since 1843 had led
a feeble life at Reykjavik as a sort of advisory council, has been re-established
as a representative governing assembly under a new constitution granted
to Iceland in 1874. It now meets every second year at Reykjavik.
2 The Saga of Egil calls him ASalsteinn hinn Sigrsaeli (lit. ' blessed with
victory '). It is curious that this title should have been preserved in Iceland
and apparently have been forgotten in England.
Y 2
324 PRIMITIVE ICELAND
reigning in England and defeating Scots and North-
umbrians at Brunanburh by the help of the Icelandic
warriors Thorolf and Egil, sons of Skallagrim l , when
the Saxon king Henry the Fowler was repelling the
Magyar hosts and laying the foundations of the German
Kingdom, and when the power of the last Carolingians
was beginning to pale in Gaul before the rising star
of the Capetian line, a sort of republic embracing the
whole isle of Iceland, a republic remarkable not only
from its peculiar political structure, but also, as will
presently appear, from the extremely limited range of
its governmental activity. About thirty years later its
constitution was amended in some important points,
and forty years after that time, about the year 1004,
further alterations were made, the details of which
are too much disputed as well as too intricate to be
explained here. Its general outline, in its completed
shape, was the following. The total number of regular
pings, and priest-chieftaincies or GoSorfts, was fixed
at thirty-nine, nine for each of the four Quarters into
which the island was divided, except the North Quarter,
which, in order to allay certain local susceptibilities, was
allowed twelve. Each of these thirty-nine local pings
was presided over by its Go3i. Then, for certain pur-
poses, three of these pings were united to form a larger
ping-district (pingsokn), of which there were therefore
thirteen in all, viz. four for the North Quarter, and
three for each of the other Quarters. There was also
one still larger ping for each Quarter, called the
FjorSungsfing. It seems to have grown up before
1 See Egils Saga Skallagritnssonar, chap. 54.
PRIMITIVE ICELAND 325
the institution of the Aljnng, and to have represented
the first stage in the organization of a larger community
out of the small local pings. But it tended in course
of time to lose its importance.
Ordinary lawsuits and questions of local interest
were determined in these minor pings, while graver
suits, or those in which the parties belonged to different
pings, or where it was sought to reverse the decision
of a local ping, as well as all proposals for alterations
of the general law, were brought before the Aljnng, at
its annual meeting in June. It seems to have been
therefore partly a court of first instance and partly
a court of appeal. Now the Aljnng was open, like
other primary Teutonic and Hellenic assemblies, to all
freemen who chose to attend ; but its powers were
practically exercised by a limited number of persons,
viz. the GoSis and certain members nominated by
them.
For judicial purposes, the Aljnng acted through four
Courts, one for each Quarter. Each Quarter Court
(fjorSungsdomr) consisted, according to one view, of
thirty-six members, viz. the GoSis of the Quarter with
twenty-four nominees, and, according to another view,
of nine persons nominated by the Goftis of the Quarter.
There was also a fifth Court (called the fimtardomr),
instituted later than the others (A.D. 1004), on the sug-
gestion of the famous jurist Njal, son of Thorgeir.
This Court, which exercised jurisdiction in cases where
one of the other Courts had failed, was composed
in a somewhat different way, acted under a more
stringent oath, and gave its decisions by a majority,,
whereas in other Courts unanimity was required. It
326 PRIMITIVE ICELAND
seems to have been intended not only to avert armed
strife by providing a better method for settling disputes,
but also to organize the country as a whole and give it
something approaching to a central authority. This
result, however, was not attained, the social and physical
obstacles proving insuperable.
In these judicial committees of the Aiding lawsuits
were brought and argued with an elaborate formality
and a minute adherence to technical rules far more
strict than is now practised anywhere in Europe, a fact
which will appear the more extraordinary when we
remember that in those days both the law and all the
appropriate forms of words which the parties were
obliged to employ were not written, but preserved
solely by the memory of individual men.
For legislative purposes the Aiding acted through
another committee of 144 persons, only one-third
(forty-eight) of whom, being the thirty-nine GoSis
and nine nominees, had the right of voting. The
nine nominees were persons chosen by the Goftis of
the East, South, and West Quarters, three by each
Quarter, in order to give each of these Quarters the
same strength in the Committee as the North Quarter
had with its twelve GoSis. Each of the forty-eight
appointed two assessors who advised him, sitting one
behind him and the other in front of him, so that he
could readily seek their counsel, and thus the 144 were
made up, the forty-eight being described as the Middle
Bench. This Committee was called the L5gretta (lit.
'Law Amending'), and by it all changes in the law
were made, and all matters of common interest dis-
cussed. It was essentially an aristocratic body, as
PRIMITIVE ICELAND 327
indeed the whole Constitution bore an aristocratic
colour, though there was no such thing as a formal
distinction of rank l , much less any titled nobility.
After the introduction of Christianity in A.D. 1000, the
two bishops were added to the Logretta, while at the
head of all, making up the number of members to 147,
stood an elected officer, called the Speaker of the
Law.
This last-named personage, the solitary official of the
republic, is one of the most curious parts of the system.
He was called the LogsogumaSr, literally ' Law-say^man/
or, as we may render it, Speaker, or Declarer, of the Law,
and was the depositary and organ of the unwritten
common law of the country. It was his duty to recite
aloud, in the hearing of the greater number of those
present at the ping, the whole law of Iceland, going
through it in the three years during which he held
office ; and to recite once in every year the formulas of
actions, this being the part of the law which was of
most practical importance. Besides this, he presided
in the Logretta, giving a casting vote where the votes
were equal; and he was bound to answer every one
who asked him what the provisions of the law actually
were, although not required to advise applicants as to
the course they ought to follow in a given case. When
in any suit a question of what was the legal rule arose,
reference was made to him, and his decision was
accepted as final. For these labours he received a
yearly salary of two hundred ells of Va'Smal (the blue
1 Although the penalty for killing a man of high lineage was heavier than
that for an ordinary freeman ; and one perceives from the Sagas how care-
fully genealogies were preserved and what great respect was paid to long
descent.
328 PRIMITIVE ICELAND
woollen cloth which then served as currency, and which
continued to do so, for some purposes, down to our own
time), besides one-half of the fines imposed at the
Aiding. He was of course selected from the most ac-
complished lawyers of the time. His declarations of
the law were conclusive, at least during his three years'
term of office, in all causes and over all persons. Thus
he exercised a kind of quasi-judicial or quasi-legislative
power, and has been fancifully compared to the Roman
Praetor, also an officer elected for a term, also by his
edicts the declarer of the law he had to administer 1 .
But the Law-Speaker was in reality neither judge nor
magistrate, nor, indeed, a legislator, except in so far as
the right to enounce and interpret borders on legislation.
He delivered no judgements, he had no power of en-
forcing a decision or of punishing an offender. He did
not even open the Aiding and take the responsibility for
keeping order at it, for these functions belonged to the
Gofti of the district, called, because the Aiding met
within his jurisdiction, the AllsherjargoSi (priest of the
whole host). The Logsogumaor was in fact nothing
but the living voice of the law, enunciating those
customary rules which had come down from the fore-
time, rules which all accepted, though they were not
preserved in any written form, and though they must
have been practically unknown to the great majority of
the citizens.
The office, although more important in Iceland from
the absence of a king or local prince, was one of which
we find traces among other Scandinavian peoples, or
1 Viva vox iuris civilis was the description which the Romans used to
give of their Praetor, as to whom see Essay XIV, vol. ii. p. 274.
PRIMITIVE ICELAND 329
at least among the Norsemen. It appears in Norway,
in the Orkneys, and in the Hebrides (though there the
name is Logman, which in Iceland means merely one
learned in the law).
Thingvellir, where the Aiding met from the year 930
down to a time within the memory of living men, is
a spot not less remarkable physically than memorable
for the stirring events of which it was the witness. It
is a slightly undulating plain, some five miles long by
three wide, washed on the south by a broad island-
studded lake, and girdled in at its northern end by
lofty mountains, their black volcanic rocks streaked here
and there with snow-beds. The surface is all of lava,
sometimes bare and rugged, sometimes covered with
thin brushwood, dwarf birches and willows, sometimes
smoothing itself out into sweeps of emerald pasture, but
everywhere intersected by profound chasms, formed
when the whole was a molten mass. East and west it
is hemmed in by two lines of precipices, whose rugged
sides seem to show that the plain between them has,
at some remote period, perhaps when the lava-flood was
cooling, sunk suddenly down, leaving these walls to be the
edges of the plateau which stretches away backwards to
the east and west Under the western of these two walls,
on the margin of the lake, just where it receives the
stream which has flung itself in a sparkling cascade
over the precipice, the place of meeting was fixed. The
chieftains, who came from every corner of the island
with a following of armed companions and dependents,
because broils were frequent, and armed strife might
interrupt the progress of a lawsuit, built their booths
erections of stone and turf roofed for the time with cloth or
330 PRIMITIVE ICELAND
canvas along the banks of the Oxara river, and turned
out their horses to pasture by the lake. Places were
appointed for the holding of the several courts, while
the L6grtta or legislative committee sat on a spot
which nature seemed to have herself designed for the
purpose. Two of the extraordinary chasms by which
the plain is seamed, each some eighty feet deep, and filled
for the lower fifty feet by bright green water, enclose
a narrow strip of lava some two hundred yards long,
cutting it off, except at one point where there is a
narrow entrance which three men might hold, from the
surrounding land. The surface is nearly level, covered
by short grass now browsed by a few sheep ; and there
is nothing to tell that in this space, in the full sight of
the assembled multitude, the heroes of ancient Iceland
spoke and voted their laws, and gave their verdicts ;
while from an eminence in the midst of the enclosure,
still called the L^gberg, or Hill of Laws, the Law-
Speaker recited the law of the nation in the sight and
hearing of the multitude that stood on the further side
of the chasms 1 . Not only so : there is all round nothing
whatever to show that the place has ever been different
from what it is now. Between the LOgberg and the
lake stands the little wooden church and its humble
parsonage. No other house is near, nor any sign of
human life. Only the islet is still pointed out in the
river where the solemn duels which the laws of Iceland
1 Since this was written, some eminent antiquaries, including my lamented
friend Dr. GuSbrand Vigfusson, have argued that the true LOgberg is to be
sought not in this spot which tradition indicates, but on the edge of the
great lava rift called the Almannagja to the west of the river. See The
Saga Steads of Iceland, by W. G. Collingwood and Jon Stefansson, 1899,
pp. 14-17-
PRIMITIVE ICELAND 331
recognized were fought, and the deep green swirling
pool into which women condemned for witchcraft were
hurled from the brink of the precipice. In most of the
spots to which the traveller is drawn, by memories of
constitutional freedom or of political struggles, his
imagination is aided by the remains of the buildings
where assemblies met or monarchs sat enthroned. Here
man has left nothing to speak of his presence, and it
is hard to realize, when one looks on this silent and
desolate scene, that it was once rilled by so much
strenuous life, and so often resounded to the clash of
arms.
For the Aljnng was not merely an assembly for the
dispatch of business : it was the great annual gathering
of the whole nation, a gathering all the more needed
in a land where there are no towns, and most men
live miles away from their nearest neighbours. To
it chieftains rode with their wives and daughters and
a band of armed retainers from the furthest corners of
the country, taking perhaps, as those must have done
who came from the East fjords along the northern edge
of the great central desert, a fortnight or more on the
way. Shipmasters from Norway or Ireland brought
their wares for sale. Artisans plied their trades.
We are told that even jugglers' sheds and drinking-
booths were set up, and games of all kinds carried
on. It was a great opportunity not only for the
renewing of friendships between those who lived in
distant parts of the country, but for the arranging
of adoptions and marriages; and the Sagas mention
numerous instances in which proposals were ma4e
or betrothals entered into at a meeting of the
332 PRIMITIVE ICELAND
Aiding, in most of which instances the will of the
maiden seems to have prevailed over that of her
parents. It was midsummer, when there is in those
latitudes no night, but the glare of day subsides
for a few hours into an exquisitely rich and tender
twilight, clothing the sky with colours never seen in
our duller air. And we can fancy how those who
followed their fathers to the AlJ?ing found compensation
for all the loneliness and gloom of the long winter in
this one fortnight of vivid mirth and excitement.
The meeting of the Aiding was not only the centre
of the political life of the Republic. It was, so to
speak, the Republic itself, for it was only then that the
Republic became visible before men's eyes or acted as
a collective whole. During the rest of the year lawsuits
and everything else of public concern were left to
the Quarter pings and local pings, and to the local
Goftis. The few laws or resolutions of general concern
which the Aiding passed they were few, because its
legislative activity was chiefly occupied in regulating its
own judicial proceedings were probably meant to be
accepted and observed over the whole island, but the
Aiding did not attempt to enforce them, and indeed
had no machinery by which it could do so. Each Go$i
was, in a loose way, a sort of executive magistrate
over his own pingmen ; but he did not derive his
authority from the Central or Federal Aiding, and
he was not responsible to the Aiding for its exercise.
The Republic, if we may so call it, had no Executive
whatever. Its sole official was the Law-Speaker (of
whom more anon), but his function was only to declare
the law, and was exercised only while the Aiding was
PRIMITIVE ICELAND 333
sitting. At other times the constituent pings and GoSis
were virtually quite independent, and might and often
did carry on war with one another, subject to no
penalty or liability for so doing, save in so far as an
action for compensation might be brought against any
one who had killed another. There was no police, no
militia, no fleet, no army, nor any means, like those
provided in the feudal kingdoms of contemporary
Europe, of raising an army. The isle lay so far away
from all other countries except Greenland, on which
an Icelandic colony had been planted, that it happily
did not need to have a foreign policy. There was
neither public revenue nor public expenditure, neither
exchequer nor budget. No taxes were levied by the
Republic, as indeed no expenses were incurred on
its behalf.
The Icelandic Republic was in fact a government
developed only upon its judicial and (to a much smaller
extent) upon its legislative side, omitting altogether
the executive and international sides, which were in
the Greek and Roman world, and have again in the
modern world, become so important. For a community
to exist with such an absence of administrative
organization was obviously possible only in a region
like Iceland, severed by a wide and stormy sea from
the rest of the world, and with a very thin and scattered
population; possible too only in a simple state of
society where man's needs are few and every one fends
for himself.
The system whose outlines I have sought to draw is
full of interest and suggestion, as well to the student
of legal theory as to the constitutional historian.
334 PRIMITIVE ICELAND
Some modern theorists derive law from the State, and
cannot think of law as existing without a State. A few
among them have in England gone so far as to deny that
Customary Law is law at all, and to define all Law as
a Command issued by the State power. But here in
Iceland we find Law, and indeed (as will appear presently)
a complex and highly developed legal system, existing
without the institutions which make a State; for a
community such as has been described, though for
convenience it may perhaps be called a Republic, is
clearly not a State in the usual sense of the word. Of
Iceland, indeed, one may say that so far from the State
creating the Law, the Law created the State that is
to say, such State organization as existed came into
being for the sake of deciding lawsuits. There it
ended. When the decision had been given, the action
of the Republic stopped. To carry it out was left to
a successful plaintiff; and the only effect a decision
had, so far as the Courts were concerned, was to expose
the person resisting it to the penalties of outlawry
that is to say, any one might slay him, like Cain, without
incurring in respect of his death any liability on the
footing of which his relatives could sue the slayer.
Law in fact existed without any public responsibility
for enforcing it, the sanction, on which modern jurists so
often dwell as being vital to the conception of law, being
found partly in public opinion, partly in the greater
insecurity which attached to the life of the person who
disregarded a judgement. Yet law was by no means
ineffective. Doubtless it was often defied, and some-
times successfully defied. That happened everywhere
in the earlier Middle Ages, and happens to-day in
PRIMITIVE ICELAND 335
semi-civilized peoples. But the facts that the Aiding
maintained so active a judicial life, that the field of
law was cultivated so assiduously, and the details of
procedure worked out with so much pains and art, that
lawsuits were contested so keenly and skilfully all
these facts seem to prove that law must have in the
main had its course and prevailed, for it is hard
to suppose that all this time and pains would have
been during two centuries or more devoted to a pursuit
which had no practical result. The contemporary
kingdoms and principalities of the earlier Middle Ages
lived by the vigour of the executive. There was in
them very little of a State administration, and the law
was in most or all of them older than the State that
is to say, it had existed in the form of customs recog-
nized and obeyed before efficient means were provided
for enforcing it. So far they resembled Iceland; and
the same may be said of the city republics of Italy and
Germany. But Iceland is unique as the example of
a community which had a great deal of law and no
central Executive, a great many Courts and no authority
to carry out their judgements.
The process by which the law of Iceland grew, though
less exceptional than was its political constitution, illus-
trates very happily the origin of Customary Law and
the first beginnings of legislation. Law springs out of
usage. The gathering of the neighbours develops into
the ping or local assembly of Norway and the Folk Mot
of early England. It treats of all matters of common
concern ; and as it is the body before whom complaints
of wrong are laid, it adopts by degrees regular set forms
of words for the statements of a grievance, and for the
336 PRIMITIVE ICELAND
replies to those statements. The usages become recog-
nized customs, prescribing the cases in which redress
may be claimed and the defences by which the claims
may be repelled. The forms of words grow more
elaborate and come to be considered so essential that
a variation from them vitiates the claim. The body of
rules thus formed becomes so large that only a few
men, devoting themselves to the subject, are able to
carry the whole in their memory. These men, proud of
their knowledge, elaborate the rules, and particularly
the set forms of words, still further, and in their enjoy-
ment of technicalities attach more and more importance
to formal accuracy. Thus Custom, which was loose
and vague while held in solution in the minds of the
mass, becomes crystallized into precision by the labour
of the few whose special knowledge gives them a sort
of pre-eminence, and even a measure of power. Then
it is found that there are diversities of opinion among
the experts in the law, or instances arise which show
that some custom generally accepted is inconvenient.
By this time Custom has acquired so much authority
that the assembly, which has been also, and perhaps
primarily, a law court, does not venture to transgress it,
the men of legal learning being of course specially
opposed to such a course. It therefore becomes neces-
sary formally to change the Custom by a resolution of
the body which is at once the Assembly and the Court.
As this body consists of those who use, and whose pro-
genitors have created, the custom, and as it continues to
settle other matters of common concern affecting the
district, it is the proper and only body to make the change.
This, then, is legislation in its early stage. The law
PRIMITIVE ICELAND 337
produced, which we may call Statute Law, is for many
generations extremely small in proportion to the mass
of law which rests upon Custom only. But the
Statute Law is important because it is explicit, because
it is sure to be remembered, because it deals with
points comparatively large, since it would not be worth
while to submit small ones to the assembly. Never-
theless legislation is among all peoples the smallest
part of the work of primitive assemblies, be they pings
or Folk Mots or Agorai or Comitia. And the growth of
the law of Iceland by custom, preserved and elaborated
by a succession of law-sages, occasionally (though rarely)
altered or added to by the vote of the Aiding, presents
a lively picture of what must have been the similar
process of the construction of early Roman law by the
jurists (prudentes) and assembly (comitia).
Iceland, however, provided a means for the ascertain-
ment and publicity of her law which Rome lacked.
The L6gsoguma8r is an elegant (using the word in
its strict Roman sense) complement to a system of
Customary Law. His function was well designed to
meet and cure the two chief defects in such a system, the
uncertainty which existed as to what the rules accepted
as law were and the difficulty which an individual de-
siring to take or defend legal proceedings found in dis-
covering what the rule applicable to his case really was.
The solemn recitation of the whole law fixed it in the
recollections of those who busied themselves with such
matters, and gave everybody an opportunity of knowing
what it covered. The right to interrogate the living de-
positary of the law as to any special point whereanent
the querist desired to be informed was a great boon
BRYCB I Z
338 PRIMITIVE ICELAND
to private persons, who, since they might often have
to suffer from the extreme technicality of procedure,
needed all the more to be warned beforehand where
the pitfalls lay. In these respects the Icelandic system
contrasts favourably with those of early Rome and
early England. Till the Twelve Tables were enacted
the private citizen of Rome had no means of ascertain-
ing the law except by asking some sage, who need not
answer unless he pleased, and whose view had no
authority beyond that which his personal reputation
implied. Even after the Twelve Tables had reduced
much of the ancient Customary Law to shape, and
made it accessible to the citizens at large, many of the
forms of procedure, and the rules as to the days on
which legal proceedings could be taken, were kept
concealed by the patrician men of law till divulged
(at the end of the fourth century B. c.) by Cn. Flavius.
In England there was indeed no similar effort to keep
legal knowledge within the hands of a few. But the
customs were numerous, and many of them were un-
certain. There was no way of ascertaining them except
by the judgement of a Court, a tedious and expensive
process, which after all decided only the particular point
that arose in the case that occasioned the judgement.
That means of determining a custom to be valid and
binding which the Icelanders had already secured
through their official in the last half of the tenth century
did not begin to be created by the action of the English
Courts till the end of the twelfth, and centuries were
needed to complete the process.
One of the things that most awakens our surprise in
the Icelandic Constitution is its extreme complexity.
PRIMITIVE ICELAND 339
In one sense simple and even rude, since it omits so
much we should have expected to find in a constitution,
it is in another sense intricate, and puzzles us by the
artificial character of the arrangements made for the
composition of the various courts and of the legis-
lative body, while the multiplicity of pings, and the
distribution of powers among them, has given rise to
many controversies among historians, some still un-
settled. This phenomenon, however, finds a parallel
in some of the constitutions of the Greek republics, not
to speak of the elaborate systems of such cities as
Florence and Venice in the fourteenth century. In
Iceland the strong sense of independence which dis-
tinguished the Norsemen, and the jealousy the chiefs
had of one another, made it necessary to devise means
for securing equality and for preventing the influence
of any group or district from attaining predominance.
Herein the spirit of the Icelandic Constitution is singu-
larly unlike that of the Roman. There, the intense
realization of the unity of the city and the need for giving
its government the maximum of concentration against
neighbouring enemies caused vast powers to be entrusted
first to the King and then to the Consuls or to a dictator.
In Iceland, where no such need of defence existed, where
there was no foreign enemy, and men lived scattered in
tiny groups round the edges of a vast interior desert, no
executive powers were given to anybody, and elaborate
precautions were taken to secure the rights of the
smaller communities which composed the Republic and
of the priest-chieftains who represented them.
A like intricate character recurs in the system of legal,
procedure, but the cause is different and not peculiar to
Z 2
340 PRIMITIVE ICELAND
Iceland. The excessive technicality of Icelandic process,
and the stress laid upon exact compliance with its
rules, belong to that stage of the human mind in which
form and matter have not yet been separated, and in
which the respect for usage and tradition outweighs
the sense of substantial justice. Simplicity in legal
matters, instead of characterizing the state of nature,
is the latest legal achievement of a civilized age. In
accounting for the strictness of adherence to the letter,
we must allow something for the dread, natural enough
in such an age, that if deviations from the letter of the
law were overlooked, if what we should call a power of
amendment on matters of form were entrusted to the
Court, such discretion would be abused and confidence
in the Courts destroyed. But the reason is chiefly to be
found, as in the parallel case of those older forms of
Roman procedure which continued terribly technical till
the time of Cicero, and as in the case of our own older law,
to the conservative spirit of the lawyers, attached to the
forms they had received and studied, and taking a pro-
fessional pride in working out their methods, a pride
all the greater the more technical those methods were,
because the more intricate the technicalities the higher
the importance of the few who had mastered them.
Substantial justice is all the layman cares for. With
the lawyer it is otherwise. An eminent English judge
used to remark that of the questions argued before him,
counsel showed most interest in points of practice, costs
came next, while the merits of the case were last. The
late Baron Parke (Lord Wensleydale) was a type of the
kind of mind which flourished in Iceland in the eleventh
century; and it was a type useful in its way, a type which
PRIMITIVE ICELAND 341
ought always to be represented in the legal profession,
for reverence for tradition and an acute interest in the
exactitude of form are hardly less necessary than a
philosophic spirit and a zeal for progress.
How keen was the taste for legal subtleties and in-
tricacies is shown, not only by the existence of schools
of law in Iceland young men gathering round sages
like Njal or Skapti Thoroddsson, just as the well-born
youth of Rome frequented the house of Tib. Corun-
canius or Q. Mucius Scaevola but also by the evident
enjoyment which the authors of the Sagas show, and
which their public must evidently have taken, in the
steps in a lawsuit, or in the telling of some incident
which raises a nice point of procedure. In no other
literature is fiction or history, by whichever name we
describe the Sagas, so permeated by legal lore.
Our knowledge of the substance of early Icelandic
law is derived partly from references or allusions in
the Sagas, partly from some ancient law-books, the
oldest of which belongs to the period of the Republic,
and was compiled, probably about the middle of
the twelfth century, out of materials some of them
much older, and reaching back into the eleventh and
even the tenth. Statutes had been passed during the
course of the tenth century, and the tflfljotslog of
A.D. 930 is spoken of as a body of law prepared by
"Cllfljot after his journey to Norway and accepted by the
Aiding, though it was probably a redaction of existing
Norse customs, and does not seem to have been re-
duced to writing, as indeed it is improbable that any
laws were written before the beginning of the twelfth^
century. The next effort at what has been called a
342 PRIMITIVE ICELAND
codification of the law was made nearly two centuries
after trifljot (about A.D. 1117), when a small commission
was appointed which examined the customs, rejected
some, approved or amended others, and created what
is described as a sort of systematic collection. This
is usually known as the HafliSaskra, from a prominent
GotSi and lawyer Haflifti Marsson, who was a member
of the commission. This law is stated to have been
accepted by the Aiding, and was no doubt preserved in
writing, as the name Skra (scroll) conveys.
The later book which used to be described as a Code
survives in two MSS., differing a good deal from one
another, and is commonly known as Gragas ('Grey-
Goose') 1 . It is, however, really not a Code at all,
and not even a single law-book, but a mass of matter
of different dates and origins never reduced to any
sort of unity. There are ordinances of the Aiding,
decisions and declarations delivered by Law-Speakers,
ecclesiastical regulations, formulas of legal procedure
or legal transactions, memoranda of customs which
seemed to those who recorded them to have obtained
recognition and validity. It is full of instruction as
a picture of primitive Teutonic institutions and life;
and it throws a good deal of light both on the law of
early England English and Anglo-Norman and upon
some of the most curious features of early Roman law.
Sometimes the references to the deliverances of a Law-
Speaker as originating a rule make us think of the
1 The name Gragas (probably drawn from the binding in which a copy of
it was preserved) seems to have originally belonged to a MS. of the
Frostajringslog, the law which prevailed round Throndhjem in Norway, and
to have been applied by mistake in the seventeenth century to this Icelandic
collection of customs, first published by the Arnamagnaean foundation in 1829.
PRIMITIVE ICELAND 343
Roman Praetor, sometimes the concisely phrased records
of what was settled by the Logretta remind us of our
English reports of the judgements of the King's Courts
in their early forms; while in one point the collection
as a whole has a character which belongs to the earlier
law-books as well of Rome as of England. Though the
statutes of the Aiding are the most distinctly authoritative
rules it contains, much whose authority would seem
doubtful to a modern is set down in a way which clearly
implies that it did possess authority. The line between
absolutely binding law and all other law is not sharply
drawn ; indeed no such line exists. That which is re-
corded may be only a single instance of the observance
of an alleged custom. It may be only the expression of
the individual opinion of some learned logmaor (Law-
man =jurist). Nevertheless it is a record which has
come down from the past, and by which therefore the
men of the present may seek to be guided.
In the law of Iceland, as it is presented in this ancient
collection, we have, as in the Constitution of the island
and the system of the Courts, a striking contrast
between the rudeness of an extremely archaic society,
in which private war is constantly going on, piracy is
an honourable occupation, slavery exists, and there is
no State administration and very little use of writing,
and the refined intricacy of a system of law which
makes elaborate provision for the definition of legal
rights and their investigation and determination by legal
process. The time of day is fixed by guessing at
the height of the sun above the horizon. The wife is
purchased. A father may deliver his child into slavery,
no doubt (as in early Rome), a qualified slavery, for the
344 PRIMITIVE ICELAND
payment of his debts, and the insolvent debtor may be
made a slave. But, on the other hand, there are rules,
not unlike those of our modern Courts of Equity, regu-
lating the guardianship of the property of a minor, and
permitting a portion of it to be applied to the support
of his indigent father, brother or sister \ There are
careful distinctions as to who may sue for the penalty
for homicide. If the slain man is an Icelander, the
action goes first to the son, then to the nearest blood
relation, then to the local Gofti, then to any member of
the same Quarter, then to any citizen (a sort of actio
popularis), If the slain man was not an Icelander, but
one who used the ' Danish (or northern) tongue/ i. e. if
he was either a Norseman or a Dane or a Swede, then
any relative may sue ; if a stranger of any other
nationality, only a father son or brother may sue. But
for the protection of persons coming in a ship, the
comrade or partner 2 of the deceased, whom failing, the
skipper who has the largest share in the ship, is a proper
plaintiff.
It is curious to note that, although homicide and
murder were common, the punishment of death is never
prescribed, even as in two or three of the Southern States
of America the death penalty is seldom inflicted, while
'shootings at sight' and lynchings abound. And an
interesting resemblance to early Roman law may be
found in the extreme severity of the law of slander and
libel. The truth of a defamatory statement is no defence.
1 This rule is ascribed to GuSmund Thorgeirsson, who was Law-Speaker
from 1123 to 1135 A.D.
2 Partner is felagi (English ' fellow '). Many further rules on this point
are contained in the passage, Gragas, chap, xxxvii (vol. ii. pp. 71-73 of the
Arnamagnaean edition).
PRIMITIVE ICELAND 345
To affix a nickname to a man is punishable by banish-
ment. No verses are to be made on a man, even in his
praise, without his leave first obtained; and one who
teaches or repeats the verses made by another incurs an
equal penalty, the remedy extending even to verses made
against the memory of the dead. A love poem addressed
to a woman is actionable, the action being brought by
her guardian if she is under twenty years of age 1 .
Of the ramifications of the system of procedure into
all sorts of Courts, besides the regular pings, I have no
space to speak ; but one singular illustration of the faith
which the Icelanders had in the efficacy of legal remedies
deserves to be given, because in it these remedies reach
beyond the present life. It comes from the Eyrbyggja
Saga, one of the most striking of the old tales.
A chief named Thorodd, living at Frofta in Breioifjorft,
on the west side of Iceland, had just before Yule-tide
been wrecked and drowned with his boat-companions
in the fjord. The boat was washed ashore, but the
bodies were not recovered. Thereupon his wife ThuriS
and his eldest son Kjartan bade the neighbours to the
funeral feast ; but on the first night of the feast, as soon
as the fire was lighted in the hall, Thorodd and his
companions entered, dripping wet, and took their seats
round it. The guests welcomed them : it was held that
those would fare well with Ran (the goddess of the
deep sea) who attended their own funeral banquet.
The ghosts, however, refused to acknowledge any
greetings, and remained seated in silence till the fire
had burnt out, when they rose and left. Next night
1 See Gragas, chaps, civ-cviii, pp. 143-156 of vol. ii. in the Arnamagnaean
edition.
346 PRIMITIVE ICELAND
they returned at the same time and behaved in the
same way, and did so, not only every night while
the feast lasted, but even afterwards. The servants
at last refused to enter the fire-hall, and no cooking
could be done, for when a fire was lit in another room,
Thorodd and his companions went there instead. At
last Kjartan had a second fire lit in the hall, leaving the
big one to the ghosts, so the cooking could now be
done. But men died in the house, and Thuri^ herself
fell ill, so Kjartan sought counsel of his uncle Snorri,
an eminent lawyer and the leading GoSi of Western
Iceland. By Snorri's advice Kjartan and seven others
with him went to the hall door and formally summoned
Thorodd and his companions for trespassing within
the house and causing men's deaths. Then they named
a Door-Court (Dyradomr) and set forth the suits, follow-
ing all the regular procedure as at a ping-Court. Verdicts
were delivered, the cases summed up and judgement
given; and when the judgement word was given on
each ghost, each rose and quitted the hall, and was
never seen thereafter.
Ghosts have given much trouble in many countries,
but it is only the Icelanders who have dealt with them
by an action of ejectment.
Although it is a remarkable evidence of the political
genius of the Norsemen that they should have been
able to work at all a legal system such as has been
described, it need hardly be said that it did not
work smoothly. The Icelanders were a people of
warriors, little accustomed to restrain their passions,
and holding revenge for a sacred duty. The main-
tenance of order at the Aiding was entrusted to the
PRIMITIVE ICELAND 347
GoSi of the spot, and it was strictly forbidden to wear
arms while the meeting lasted. The closing of the
Aiding was called Vapnatak (weapon-taking, wapentake),
because the arms that had been laid aside were taken
when men started to ride home from the ping. But
the arms were after all only left in the booth, and more
than once it happened that the party which found itself
unsuccessful in a lawsuit seized sword and spear and
fought out the issue in a bloody battle, from which
sprang again new blood-feuds and new lawsuits. It is
not very often that the Sagas give us a glimpse of the
conduct of business at the Aiding ; but one such law-
suit, followed by a combat, which arose when the suit
broke down on a technical point, is described with
wonderful force and spirit in the famous Saga of Njal
Thorgeirsson, a masterpiece of literature in the freshness
and brilliance of its narrative.
We hear occasionally of the passing of particular
laws at an Aiding. In A.D. 994, for instance, it was
enacted that the suit for compensation for homicide
which was brought, according to the general practice
of the northern nations, by and for the benefit of the
nearest relatives of the slain, a right which has survived
in the law of Scotland under the name of Assythment,
and has been partially introduced into the law of England
by the Act 9 & 10 Viet. c. 93 (commonly called Lord
Campbell's Act), should in future not be brought by a
woman or by a child under sixteen years of age, but by
the nearest male relative. This provision was suggested
by a case that had occurred just before, when inadequate
compensation had been recovered for the slaughter of
a chieftain named Arnkel, owing to the mismanagement
348 PRIMITIVE ICELAND
of the suit by his widow. Again, in A.D. 1006 we
are told of the abolition of the judicial combat on
the occasion of an 'indecisive duel between the poet
and Viking Gunnlaug Ormstunga (Snake's tongue l ) and
another poet named Hrafn, the details of which are
recorded in one of the most beautiful and touching of
the early Sagas. Gunnlaug had been betrothed to
Helga the Fair, one of the most famous heroines of
Icelandic story, but having been detained in England
by King Ethelred II, whose guest he had previously
been in London 2 and whose praises he had been
celebrating in verse, had failed to return at the appointed
time, and found Helga, who had yielded to the im-
portunities of her relatives, already married to Hrafn.
According to the custom of the North, which then
allowed any man to require another either to give
up his wife and all his property or defend her and
it by arms, Gunnlaug came to the Aiding and formally
challenged Hrafn, and they fought, each with his second,
a solemn duel on the island in the Oxara which was
set apart for that purpose. A dispute arose after
the first encounter, and the combatants were separated.
Gunnlaug wished to resume the combat, but the law
already referred to, prohibiting formal duels in future,
was passed next day by the LSgretta; and he unwill-
ingly obeyed, for a breach of it would have exposed
him to the penalties of outlawry. Helga, however,
1 So called from his satirical powers.
2 The Saga says (Gunnlaugs Saga Ormstungu, chap, vii) that in the
days of Ethelred son of Edgar (ASalraftr Jatgeirsson) the same tongue
was spoken in England and Denmark as in Norway, and that this continued
in England till William the Bastard won England, after whom Welsh (Valsk
= French) was spoken.
PRIMITIVE ICELAND 349
refused to live any longer with her husband Hrafn,
and next year the two rivals sailed by agreement to
Norway, just as, fifty years ago, persons fearing to fight
a duel in England used to cross to Calais for the
purpose. Years passed before they met in the wild
country east of Throndhjem. There they fought out
their quarrel. Gunnlaug smote off his enemy's foot,
and then proposed to stop the combat. Hrafn how-
ever, supporting himself against a tree, wished to fight
on, but as he was tortured by thirst, he besought his
opponent to fetch him a draught of water from a brook
hard by, promising not to deceive him. The chivalric
Gunnlaug brought the water in his helmet, whereupon
Hrafn, taking the water with his left hand, suddenly
raised his sword and, with all his remaining strength,
smote Gunnlaug on his bared head. * Thou hast done
ill and deceived me/ said Gunnlaug, 'seeing that
I trusted you/ 'So is that/ answered Hrafn, 'but I
grudged thee the love of Helga the Fair/ Then they
fought on. Hrafn was slain, and in a few hours
Gunnlaug died of his wounds l . The news was brought
to Iceland, and after a time Helga, thinking ever of
Gunnlaug, and often spreading out upon her knees
a garment which Gunnlaug had given to her, pined
away and died likewise.
Another striking scene at the Aiding has been pre-
served to us in the Saga which relates the introduction
1 The Saga adds that very shortly after the combat, and long before the
news of it could have reached Iceland, the ghosts both of Gunnlaug and
of Hrafn appeared in dreams to their respective fathers in Iceland, and
recited poems describing their deaths. Illugi the Black, Gunnlaug's father,
remembered the poem he heard and repeated it aloud next day. The Saga
gives both poems. This is one of the earliest Teutonic instances of a death-
apparition.
350 PRIMITIVE ICELAND
of Christianity. King Olaf Tryggvason, the most brilliant
of all the Norwegian sovereigns, who, having been him-
self converted some ten years before, was hard at work
converting the stubborn Norwegians by burning their
houses and torturing themselves, had sent two mission-
aries to Iceland, one of whom, the priest Thangbrand,
had been obliged to leave Norway on account of his
violent life, and who signalized himself in Iceland by
committing two murders in the course of his five
months' stay, which was then summarily shortened.
The unworthiness of the minister, however, does not
seem to have injured the cause he championed. Several
men of note embraced the new faith, which was of course
well known to the Icelanders from their intercourse
with Ireland and Britain, and had the promise of the
future to recommend it. These men, and also some
heathen chieftains who thought that acceptance was
the best way of avoiding civil war, supported the
envoys of Olaf, when, at the Aiding of the year 1000,
they urged upon the assembly to decree the abolition
of paganism. A story goes that, while the debate was
at its height, a messenger arrived to tell that a volcano
had broken out thirty miles to the south, and was pour-
ing a flood of lava over the pastures. The heathen
party accepted the news as an omen, and exclaimed,
' This is the wrath of the gods at these new rites ; see
what you have to expect from their anger ! J ' With
whom, then/ said Snorri, a leading GoSi who had not
yet declared himself, * with whom were the gods angry
when this rock was molten on which we stand?' (pointing
to the deep lava rifts that lay around the Logberg).
By the interposition of the Law-Speaker Thorgeir, that
PRIMITIVE ICELAND 351
which he described as a compromise, but which was in
reality a surrender by the heathen party, was at the
same Aiding accepted. The people were to be baptized
and declare themselves Christians, and the temples and
images of the old gods were to be destroyed ; but those
who liked to sacrifice at home might continue to do so ;
and two heathen customs, the exposure of new-born
infants and the eating of horse-flesh, were to be
permitted. Some difficulty arose over the reluctance
of those who came from the North and East Quarters
of the island to submit to immersion in cold water;
but this difficulty was happily overcome by the use
of the hot springs at Reykir for the rite.
The century and a half that followed the introduction
of Christianity was the most brilliant period in the
history of the island. It was not indeed a time of
peace, for the old passions and the old superstitions
were but little altered. Slayings and burnings of
houses with their inmates went on pretty much as
before. But there was now added to the stimulus
which their free republican life and their piratical
expeditions gave to the national spirit the influence
of the learning and ideas which came in the train of
the new faith. The use of writing soon spread, and
the magnificent Sagas, which are among the noblest
monuments of Northern genius, were nearly all of
them produced in this age, though some were not
committed to parchment before the end of the twelfth
century.
For many years the Constitution of the Republic
seems to have undergone no great alteration. The.
establishment of Christianity did indeed throw consider-
352 PRIMITIVE ICELAND
able power into the hands of the two bishops, and
eventually produced a strife between the Church and
the temporal magnates resembling that which distracted
both the Romano -Germanic Empire and England.
This scarcely affected the position of the GoSi, whose
authority had now lost so much as it originally pos-
sessed of a religious character. Snorri, whose appeal
to geology is said to have decided the Aiding against
paganism, was himself the priest of the most famous
heathen sanctuary of the island. But in the beginning
of the thirteenth century the delicately-framed fabric
of the Republican Constitution began to break up.
The tendency of a federation usually is to become less
of a federation and more of a single united state. But
in Iceland the federal bond, if one can use this name,
was always weak, and when a powerful member be-
came disobedient, there were no legal means of reducing
him to submission. By degrees the number of priest-
chieftainships diminished, the GoftorSs, which passed
not only by inheritance but also by gift or sale, coming
to be accumulated in the hands of a few great families,
who thus acquired a predominant influence at the
Al]?ing, were virtually masters of large districts of the
country, and marched about like feudal lords attended
by petty armies. Thus the old blood-feuds assumed
more and more the aspect of civil wars. Piracy was
now less practised, because the countries which had
formerly been ravaged were better prepared for defence,
so the energy that used to spend itself upon the coasts
of Scotland and Ireland, of North Germany and Gaul,
was now turned inward, and with fatal results.
I am not writing the history of Iceland, though indeed
PRIMITIVE ICELAND 353
I wish I were doing so, for the theme is a fascinating
one. But before closing these scattered observations,
intended to stimulate rather than to satisfy curiosity,
I will add three remarks suggested by the sketch that
has been given.
The first remark is that Iceland presents one of the
few instances in history of a breach in the continuity
of institutional development. The settlers were all of
Norse stock ; and Norway had in its petty communities
a rudimentary system of institutions not unlike that
described by Tacitus in his account of Germany, or
that which the conquering Angles and Saxons brought
to Britain. Each community was an independent Fylki
(folk). In each Fylki there was a number of nobles,
one of whom stood foremost as hereditary chieftain,
and a body of warlike freemen, as well as a certain
number of slaves. In each there was a popular assembly,
the ping, corresponding to our Saxon Folk Mot. Now
owing to the way in which the settlers had planted
themselves along the coasts of Iceland, and to the fact
that they were less closely aggregated there than men
had been in Norway, this organization did not reappear
in the new land. There was indeed everywhere a ping,
for the habit of meeting to deal with lawsuits and other
matters of common interest was cherished as the very
foundation of society. But an Icelandic community was
not a Fylki. It was not an old natural growth, but
rather a group of families whose tie was at first only
that of local proximity and thereafter that also of worship
at a common temple. The GoSi, though he became
the centre of this group, was not a chieftain with a.
hereditary claim to leadership, and was not necessarily
354 PRIMITIVE ICELAND
of any higher lineage than some of his fingmen. Such
eminent and high-born men as Njal for instance and
Egil Skallagrimsson were not Goftis. The GoSorft
was really a new institution, due to the special circum-
stances of Iceland, and apparently without precedent
among the Teutonic races. Still more plainly was
the organization of the Republic with its scheme of
Courts and its Logretta a new creation, due to the
wisdom and public spirit of the leading men of the
nation, and not a purely natural growth.
Secondly, as the Icelandic Republic is a new form
of political society, so the Alfdng, in which the unity of
the Republic found visible expression, is a unique body,
which cannot be referred to any one of the familiar types
of assembly. It is not a Primary Assembly, for though
all freemen are present, only a limited number of persons
are entitled to exercise either judicial or legislative
functions. Neither is it a Representative Assembly,
for no one was elected to sit in it as a delegate
from others. The Gofts sat each by his own right,
and the other members as nominees of the Go8is.
Neither again is it a sort of King's Council, like the
Curia Regis of mediaeval England, consisting of
magnates and official advisers summoned by a monarch.
If parallels to it are to be sought, they are to be sought
rather in bodies such as the Roman Senate may have
been in its earlier form, a sort of council of the heads
of organized communities ; yet the differences between
the Roman gentes and the Icelandic pingmen, and the
absence of an executive magistrate like the Roman
king, make the parallel anything but close. Still more
remote is the resemblance which the Aiding might be
PRIMITIVE ICELAND 355
deemed to bear to the council of a league, such as was
the Swiss Confederation before 1799, or such as the
Diet of the Romano-Germanic Empire in its later days.
The comparison of Iceland to a federation suggests
a third question. Why did not the Republic develop
into a united State, whether republican or monarchical,
as did most of the nations of mediaeval Europe ?
Out of several reasons that might be assigned I will
mention three only, two of them political, the third
physical.
In Iceland there was no single great family with any
hereditary claim to stand above the others, while all
the leading families were animated by a high sense
of pride and a pervading sentiment of equality. This
love of equality remains among the sons of the old
Norsemen both in Iceland and in Norway, and is indeed
stronger there than anywhere else in Europe.
Iceland had not, and could not have, any foreign wars.
There was therefore no external strife to consolidate
her people, no opportunity for any leader to win glory
against an enemy, or to create an army on which to base
his power. All the wars were civil wars, and tended to
disunion.
The third reason is to be found in the nature of the
country. The island, larger than Ireland, has practically
no land fit for tillage, and very little fit even for pasture.
Neither has it any internal trade. The interior is occupied
by snow mountains and glaciers and lava-fields and
wastes of black volcanic sand or pebbles. Iceland
is really one huge desert with some habitable spots
scattered along its coasts. It was the Desert that most,
of all destroyed the chances of political unity under
A a 2
356 PRIMITIVE ICELAND
a republic by dividing the people into numerous small
groups, far removed from one another, and in many
places severed by rugged and barren wastes, or by
torrents difficult to cross.
Nevertheless, although the Republic was evidently
destined to perish, it is possible that had Iceland
been left to herself the rivalry of the two or three
great factions which divided it, and were usually in
arms against one another, would have ended in
the triumph of one of them, and in the establishment
of a monarchy, or (less probably) of several indepen-
dent rival principalities. But a new and more formid-
able figure now appeared on the scene. The successors
of King Harald the Fairhaired had always held that
the Icelanders, since their ancestors had come from
Norway, ought to own their supremacy 1 , and they
argued that as monarchical government was divinely
appointed, and prevailed everywhere in Continental
Europe, no republic had a right to exist. King Hakon
Hakonsson (Hakon IV), one of the greatest among
the kings of Norway, now found in the distracted state
of the island a better opportunity of carrying out the
plans which his predecessors Olaf Tryggvason and
Olaf the Saint had been obliged, by the watchfulness
of the Aiding, to abandon. By bribes and by threats,
by drawing the leading Icelanders to his Court, and
sending his own emissaries through the island, he
succeeded in gaining over the few chiefs who now
practically controlled the Aiding, and at the meeting
1 This claim of a Crown to the allegiance of emigrants who had passed
into new lands reminds one of that made by the British Government, down
to 1852 and 1854, as respects the Dutch farmers who had gone forth into the
wilderness of South Africa in 1836.
PRIMITIVE ICELAND 357
of midsummer, A. D. 1262 (one year before the battle of
Largs, which saved Scotland from the invasion of this
very Hakon), the Southern, Western and Northern
Quarters accepted the King of Norway as their
sovereign, while in 1264 (the year of the summoning
of the first representative Parliament of England by
Earl Simon de Montfort) the remaining districts which
had not yet recognized the Norwegian Crown, now
held by Magnus son of Hakon, made a like submission.
Thenceforward Iceland has followed the fortunes first
of Norway and then of Denmark. In 1814, when
Norway was severed from the Danish and transferred
to the Swedish Crown, Iceland ought to have gone
with Norway. But nobody at the Congress of Vienna
knew or cared about the matter 1 : and so Iceland
remains attached to Denmark, for which she has little
love.
With the free republic the literature which had given
it lustre withered up and disappeared. Only one work
of high merit, the religious poem called The Lily, was
produced in the centuries that succeeded down to the
Reformation, when the spirit of the people was again
stirred, and a succession of eminent writers began
which has never failed down to our own day. But
in the darkest times, in the ignorance and gloom of
the fifteenth century, in the pestilences and famine
caused by the terrible volcanic eruptions of the
eighteenth, which are said to have destroyed one-fifth
of the population, the Icelanders never ceased to
1 The preliminaries to the Treaty of Kiel by which Norway was severed
from the Danish Crown to be attached to the Swedish refer to Iceland, the
Faeroe Isles, and Greenland as having < never belonged to Norway/
358 PRIMITIVE ICELAND
cherish and enjoy their ancient Sagas. No farmhouse
wanted its tiny store of manuscripts, which were and
still are read^ aloud in the long nights of winter, while
the women spin and the men make nets and harness.
And it is beyond doubt chiefly owing to the profusion
and the literary splendour of these works of a remote
antiquity works produced in an age when England
and Germany, Italy and France had nothing better
than dull monkish annalists or the reciters of such a
tedious ballad epic as the Song of the Nibelungs that the
Icelandic language has preserved its ancient strength
and purity, and that the Icelandic nation, a handful of
people scattered round the edge of a vast and dreary
wilderness, has maintained itself, in face of the over-
whelming forces of nature, at so high a level of culture,
virtue and intelligence.
VI
THE
UNITED STATES CONSTITUTION
AS SEEN IN THE PAST
THE PREDICTIONS OF HAMILTON AND TOCQUEVILLE
HE who desires to discover what have been the
main tendencies ruling and guiding the development of
American institutions, will find it profitable to examine
what were the views held and predictions delivered,
at different epochs in the growth of the Republic, by
acute and well-informed observers. There is a sort of
dramatic interest in this method of inquiry, and it is
calculated to temper our self-confidence in judging the
phenomena of to-day. Besides, it helps us to realize,
better than we can do merely by following the course
of events, what aspect the political landscape wore from
time to time. When we read a narrative, we read into
the events our knowledge of all that actually flowed
from them. When we read what the contemporary
observer expected from them as he saw them happening
we reach a truer comprehension of the time.
To collect and set forth a representative anthology of
political prophecies made at critical epochs in the history
of the United States, would be a laborious undertaking,
for one would have to search through a large number
of writings, some of them fugitive writings, in order to
360 HAMILTON AND TOCQUEVILLE
present adequate materials for determining the theories
and beliefs prevalent at any given period. I attempt
nothing so ambitious. I desire merely to indicate,
by a comparatively simple example, how such a method
may be profitably followed, disclaiming any pretensions
to dig deep into even the obvious and familiar materials
which students of American history possess.
For this purpose, then, I will take two famous
books the one written at the very birth of the Union
by those who watched its cradle, and recording inci-
dentally, and therefore all the more faithfully, the im-
pressions and anticipations of the friends and enemies
of the infant Constitution ; the other a careful study of
its provisions and practical working by a singularly
fair and penetrating European philosopher. I choose
these books not only because both are specially repre-
sentative and of rare literary merit, but because they
are easily accessible to European as well as American
readers, who may, by referring to their pages, supply
the omissions which want of space will compel me to
make, and may thereby obtain a more full and graphic
transcript of contemporary opinion. One of these
books is The Federalist^ a series of letters recom-
mending the proposed Constitution for adoption to
the people of New York, written in 1788 by Alexander
Hamilton, afterwards Secretary of the Treasury, James
Madison, afterwards President from 1809 to 1817, and
John Jay, afterwards Chief Justice from 1789 to 1795.
They were all signed Publius. The other, which falls
1 There are several good editions of The Federalist. The latest and one of
the best known to me is that edited by Mr. Paul Leicester Ford (New York,
1898).
HAMILTON AND TOCQUEVILLE 361
not quite halfway between 1788 and our own time, is
the Democracy in America of Alexis de Tocqueville.
I. THE UNITED STATES AT THE ADOPTION OF
THE CONSTITUTION.
I begin by briefly summarizing the record which
The Federalist preserves for us of the beliefs of the
opponents and advocates of the Draft Constitution of
1787 regarding the forces then at work in American
politics and the probable future of the nation.
To understand those beliefs, however, we must bear
in mind what the people of the United States then were,
and for that purpose I will recall the reader's attention
to some of the more salient aspects of the Republic at
the epoch when its national life began.
In 1783 the last British soldier quitted New York,
the last stronghold that was held for King George. In
1787 the present Constitution of the United States was
framed by the Convention at Philadelphia, and in 1788
accepted by the requisite number of States (nine). In
1789 George Washington entered on his Presidency,
the first Congress met and the machine began to work.
It was a memorable year for Europe as well as for
America a year which, even after the lapse of more
than a century, we are scarcely yet ripe for judging, so
many sorrows as well as blessings, woAAa ^kv aO\a
fxe/juyjueW, TroAAa 8e Xvypa, were destined to come upon
mankind from those elections of the States-General
which were proceeding in France while Washington
was being installed at Philadelphia.
All of the thirteen United States lay along the
362 HAMILTON AND TOCQUEVILLE
Atlantic coast. Their area was 827,844 square miles,
their population 3,929,214, little more than half the
population of New York State in 1900. Settlers had
already begun to cut the woods and build villages
beyond the Alleghanies ; but when Kentucky was re-
ceived as a State into the Union in 1792, she had a
population of only 80,000. The population was wholly of
English (or Anglo-Scottish) stock, save that a few Dutch
were left in New York, a few persons of Swedish blood
in Delaware, and some isolated German settlements in
Pennsylvania. But in spite of this homogeneity the
cohesion of the States was weak. Communication was
slow, difficult and costly. The jealousies and suspicions
which had almost proved fatal to Washington's efforts
during the War of Independence were still rife. There
was some real conflict, and a far greater imagined
conflict, of interests between the trading and the purely
agricultural States, even more than between the slave
States and those in which slavery had practically died
out. Many competent observers doubted whether the
new Federal Union, accepted only because the Con-
federation had proved a failure and the attitude of
foreign powers was threatening, could maintain itself
in the face of the strong sentiment of local indepen-
dence animating the several colonies, each of which,
after throwing off the yoke of Britain, was little inclined
to brook any control but that of its own legislature. The
new Constitution was an experiment, or rather a bundle
of experiments, whose working there were few data for
predicting. It was a compromise, and its own authors
feared for it the common fate of compromises to satisfy
neither party and to leave open rents which time would
HAMILTON AND TOCQUEVILLE 363
widen. In particular, it seemed most doubtful whether
the two branches of the Legislature, drawn from so
wide an area and elected on different plans, would
work harmoniously, and whether general obedience
would be yielded to an executive President who must
necessarily belong to and seem to represent one par-
ticular State and section of the country. Parties did
not yet exist, for there was as yet hardly a nation ; but
within a decade they grew to maturity and ferocity.
One of them claimed to defend local self-government,
the rights of the people, democratic equality ; the other,
the principle of national unity and the authority of
the Federal power. One sympathized with France, the
other was accused of leaning to an English alliance.
They were, or soon came to be, divided not merely on
burning questions of foreign policy and home policy,
but also and this was an issue which mixed itself up
with everything else as to the extent of the powers to
be allowed to the central Government and its relations
to the States questions which the curt though appa-
rently clear language of the Constitution had by no
means exhausted.
Slavery was not yet a burning question indeed it
existed to some slight extent in the Middle as well as in
the Southern States, but the opposition of North and
South was already visible. The Puritanism of New
England, its industries and its maritime commerce, gave
it different sentiments as well as different interests from
those which dominated the inhabitants of the South,
a population wholly agricultural, among whom the influ-
ence of Jefferson was strong, and theories of extreme
democracy had made progress.
364 HAMILTON AND TOCQUEVILLE
There was great diversity of opinion and feeling on
all political questions in the America of those days, and
the utmost freedom in expressing it. Over against the
extreme democrats stood an illustrious group whose
leader was currently believed to be a monarchist at
heart, and who never concealed his contempt for the
ignorance and folly of the crowd. Among these men,
and to a less extent among the Jeffersonians also, there
existed no small culture and literary power, and though
the masses were all orthodox Christians and, except in
Maryland, orthodox Protestants, there was no lack of
scepticism in the highest circles. One may speak of
highest circles, for social equality, though rapidly
advancing and gladly welcomed, was as yet rather a
doctrine than a fact: and the respect for every kind
of authority was great. There were neither large for-
tunes nor abject poverty : but the labouring class, then
far less organized than it is now, deferred to the middle
class, and the middle class to its intellectual chiefs.
The clergy were powerful in New England : the great
colonial families enjoyed high consideration in New
York, in Pennsylvania, and above all in Virginia, whose
landowners seemed to reproduce the later semi-feudal
society of England. Although all the States were
republics of a hue already democratic, every State
constitution required a property qualification for the
holding of office or a seat in the Legislature, and, in
most States, a similar condition was imposed even on
> >the exercise of the suffrage. Literary men (other than
journalists) were rare, the universities few and old-
fashioned in their methods, science scarcely pursued,
philosophy absorbed in theology and theology dryly
HAMILTON AND TOCQUEVILLE 365
dogmatic. But public life was adorned by many strik-
ing figures. Five men at least of that generation,
Washington, Franklin, Hamilton, Jefferson and Mar-
shall, belong to the history of the world ; and a second
rank which included John Adams, Madison, Jay, Patrick
Henry, Gouverneur Morris, Roger Sherman, James
Wilson, Albert Gallatin, and several other gifted figures
less familiar to Europe, must be mentioned with respect.
Everybody professed the principles of the Declaration
of Independence, and therefore held a republican form
of government to be the only proper, or at any rate
the only possible form for the central authority as well
as for the States. But of the actual working of repub-
lican governments there was very little experience,
and of the working of democracies, in our present sense
of the word, there was really none at all beyond that
of the several States since 1776, when they broke
loose from the British Crown. Englishmen are
more likely than other Europeans to forget that in
1788 there was in the Old World only one free and no
democratic nation 1 . In Europe there now remain
but two strong monarchies, those of Russia and
Prussia, while the Western hemisphere, scarcely ex-
cepting Dutch and British Guiana and Canada, is
entirely (at least in name) republican. But the world
of 1788 was a world full of monarchs despotic
monarchs a world which had to go back for its notions
of popular government to the commonwealths of
classical antiquity. Hence the speculations of those
times about the dangers, and merits, and tendencies
1 The Swiss Confederation was hardly yet a nation, and few of the cantons
were governed democratically.
366 HAMILTON AND TOCQUEVILLE
characteristic of free governments, were and must
needs be vague and fantastic, because the materials for
a sound induction "were wanting. Wise men, when
forced to speculate, recurred to the general principles
of human nature. Ordinary men went off into the
air and talked at large, painting a sovereign people
as reckless, violent, capricious on the one hand, or
virtuous and pacific on the other, according to their
own predilections, whether selfish or emotional, for
authority or for liberty. Though no one has yet
written the natural history of the masses as rulers,
the hundred years since 1788 have given us materials
for such a natural history surpassing those which
Hamilton possessed almost as much as the materials
at the disposal of Darwin exceeded those of Buffon.
Hence in examining the views of the Federalist
writers * and their antagonists, we must expect some-
times to find the diagnosis inexact and the prognosis
fanciful.
II. PREDICTIONS OF THE OPPONENTS AND ADVOCATES
OF THE CONSTITUTION.
Those who opposed the Draft Constitution of 1787,
a party both numerous and influential in nearly every
State, were the men specially democratic and also
specially conservative. They disliked all strengthening
of government, and especially the erection of a central
1 Of these writers Hamilton must be deemed the leading spirit, not merely
because he wrote by far the larger number of letters, but because his mind
was more penetrating and commanding than either Madison's or Jay's.
Madison rendered admirable service in the Philadelphia Convention of 1787,
but afterwards yielded to the influence of Jefferson, a character with less
balance but more force and more intellectual fertility.
HAMILTON AND TOCQUEVILLE 367
authority. They were satisfied with the system of
sovereign and practically independent States. Hence
they predicted the following as the consequences to be
expected from the creation of an effective Federal
executive and legislature 1 .
1. The destruction of the States as commonwealths.
The central government, it was said, would gradually
encroach upon their powers; would use the federal
army to overcome their resistance ; would supplant
them in the respect of their citizens ; would at last
swallow them up. The phrase ' consolidation of the
Union/ which had been used by the Convention
of 1787 to recommend its draft, was laid hold of as
a term of reproach. ' Consolidation/ the absorption
of the States by or into one centralized government,
became the popular cry, and carried away the un-
thinking.
2. The creation of a despot in the person of the
President. His legal authority would be so large as
not only to tempt him, but to enable him, to extend it
further, at the expense of the liberties both of States
and of people. ' Monarchy/ it was argued, ' thrown
off after such efforts, will in substance return with
this copy of King George III, whose command of
the federal army, power over appointments, and oppor-
tunities for intriguing with foreign powers on the one
hand and corrupting the legislature on the other 2 ,
will render the new tyrant more dangerous , than the
old one. Or if he be more open to avarice than to
1 I take no account of those objections to the Constitution which may be
deemed to have been removed by the first eleven amendments.
3 See The Federalist, No. LIV.
3 68 HAMILTON AND TOCQUEVILLE
ambition, he will be the tool of foreign sovereigns
and the means whereby they will control or enslave
America V
3. The Senate will become an oligarchy. Sitting
for six years, and not directly elected by the people,
it ' must gradually acquire a dangerous pre-eminence in
the government, and finally transform it into a tyrannical
aristocracy V
4. The House of Representatives will also, like
every other legislature, aim at supremacy. Elected
only once in two years, it will forget its duty to the
people. It will consist of ' the wealthy and well-born/
and will try to secure the election of such persons only
as its members 3 .
5. The larger States will use the greater weight in
the government which the Federal constitution gives
them to overbear the smaller States.
1 The Federalist, No. LXVI, p. 667. ' Calculating upon the aversion of the
people to monarchy, the writers against the Constitution have endeavoured
to enlist all their jealousies and apprehensions in opposition to the intended
President of the United States, not merely as the embryo but as the full-
grown progeny of that detested parent. They have to establish the pre-
tended affinity, not scrupled to draw resources even from the regions of
fiction. The authority of a magistrate in few instances greater, in some
instances less, than those of a Governor of New York, have been magnified
into more than royal prerogatives. He has been decorated with attributes
superior in dignity and splendour to those of a King of Great Britain. He
has been shown to us with the diadem sparkling on his brow and the
imperial purple flowing in his train. He has been seated on a throne
surrounded with minions and mistresses, giving audience to the envoys of
foreign potentates in all the supercilious pomp of majesty. The images of
Asiatic despotism and voluptuousness have scarcely been wanting to crown
the exaggerated scene. We have been taught to tremble at the terrific
visages of murdering janizaries, and to blush at the unveiled mysteries of
a future seraglio.'
These were the days when Johnson and Gibbon ruled English style.
3 The Federalist, No. LXII.
The Federalist, Nos. LVI and LIX.
HAMILTON AND TOCQUEVILLE 369
6. The existence of a strong central government is
not only likely, by multiplying the occasions of diplo-
matic intercourse with foreign powers, to give openings
for intrigues by them dangerous to American independ-
ence, but likely also to provoke foreign wars, in which
the republic will perish if defeated, or if victorious
maintain herself only by vast expenditure, with the
additional evil of having created in an army a standing
menace to freedom.
That some of these anticipations were inconsistent
with others of them was no reason why even the
same persons should not resort to both in argument.
Any one who wishes to add to the number, for I have
quoted but a few, being those which turn upon the
main outlines of the Philadelphia draft, may do so by
referring to the record, known as Elliott's Debates, of
the discussions in the several State Conventions which
deliberated on the new Constitution. It is an eminently
instructive record.
I pass from the opponents of the Constitution to its
advocates. Hamilton and its friends sought in it a
remedy against what they deemed the characteristic
dangers of popular government. It is by dwelling on
these dangers that they recommend it. We can per-
ceive, however, that, while lauding its remedial power,
they are aware how deep-seated such dangers are, and
how likely to recur even after the adoption of the
Constitution. The language which Hamilton held in
private proves that he desired a more centralized
government, which would have approached nearer to
that British Constitution which he regarded as being,
with all its defects (and partly owing to its corruptions !),
370 HAMILTON AND TOCQUEVILLE
the best model for free nations l . He feared anarchy,
and thought that only a strong national government
could avert it. And in a remarkable letter written in
February, 1802, under the influence of disappointment
with the course events were then taking, he describes,
in his somewhat sweeping way, the Constitution he
was ' still labouring to prop ' as a ' frail and worthless
fabric.'
We may therefore legitimately treat his list of evils
to be provided against by the new Federal Government
as indicating the permanently mischievous tendencies
which he foresaw. Some of them, he is obliged to
admit, cannot be wholly averted by any constitutional
devices, but only by the watchful intelligence and
educated virtue of the people.
The evils chiefly feared are the following :
1. The spirit and power of faction, which is so clearly
the natural and necessary offspring of tendencies always
present in mankind, that wherever liberty exists it must
be looked for 2 .
Its causes are irremovable ; all you can do is to control
its effects, and the best prospect of overcoming them
is afforded by the representative system and the wide
area of the United States with the diversities among
its, population.
2. Sudden impulses, carrying the people away and
inducing hasty and violent measures 3 .
3. Instability in foreign policy, due to changes in
1 Though he, like other observers of that time, had not realized, and might
not have relished, the supremacy, now become omnipotence, which the
House of Commons had already won.
8 The Federalist, No. X (written by Madison), and in other letters.
8 The Federalist, No, LXII.
HAMILTON AND TOCQUEVILLE 371
the executive and in public sentiment, and rendering
necessary the participation of a comparatively small
council or Senate in the management of this department.
4. Ill-considered legislation. ' Facility and excess of
law-making Y and * inconstancy and mutability in the
laws V form the ' greatest blemish in the character and
genius of our governments/
5. The Legislature is usually the strongest power
in free governments. It will seek, as the example of
the English Parliament shows, to encroach upon the
other departments ; and this is especially to be feared
from the House of Representatives as holding the
power of the purse 3 .
6. The States, and especially the larger States, may
overbear the Federal Government. They have closer
and more constant relations with the citizen, because
they make and administer the ordinary laws he lives
under. His allegiance has hitherto belonged to them,
and may not be readily given to the central authority.
In a struggle, should a struggle come, State power is
likely to prevail against Federal power.
7. There is in republics a danger that the majority
may oppress the minority. Already conspicuous in some
of the State governments, as for instance in Rhode
Island, this danger may be diminished by the applica-
1 The Federalist, No. LXI.
2 The Federalist, No. LXXII.
3 ' The Legislative Department is everywhere (Y. e. in all the States) ex-
tending the sphere of its activity and drawing all power into its impetuous
vortex. ... It is against the enterprising ambition of this department that
the People ought to indulge all their jealousy and exhaust all their pre-
cautions' (The Federalist, No. XLVII). The people have now begun to
resort to precautions ; but it is not the ambition of State legislatures that is
feared, it is their subserviency to private interests or the party machine.
B b 2
372 HAMILTON AND TOCQUEVILLE
tion of the federal system to the great area of the Union,
where 'society will be broken into so many parts,
interests, and classes of citizens, that the rights of
individuals or of the minority will be in little danger
from interested combinations of the majority 1 /
8. Another source of trouble is disclosed by the rash
and foolish experiments which some States have tried
in passing laws which threaten the validity of contracts
and the security of property. There are also signs of
weakness in the difficulty which State Governments
have found in raising revenue by direct taxation 2 .
Citizens whose poverty does not excuse their want of
public spirit refuse to pay ; and the administration fears
to coerce them.
Not less instructive than the fears of The Federalist
writers are their hopes. Some of the perils which have
since been disclosed are not divined. Some institutions
which have conspicuously failed are relied on as full of
promise.
The method of choosing the President is recom-
mended with a confidence the more remarkable because
it was the point on which the Convention had been
most divided and had been latest in reaching an agree-
ment.
'If the manner of the appointment of the Chief
Magistrate be not perfect, it is at least excellent. It
unites in an eminent degree all the advantages the
union of which was to be wished for. . . . The process
of election affords a moral certainty that the office of
President will never fall to the lot of any one who is
not in an eminent degree endowed with the requisite
1 The Federalist, No. L. 3 The Federalist, No. XII.
HAMILTON AND TOCQUEVILLE 373
qualifications. Talents for low intrigue, and the little
arts of popularity, may alone suffice to elevate a man
to the first honours in a single State, but it will require
other talents and a different kind of merit to establish
him in the confidence and esteem of the whole Union,
or of so considerable a portion of it as would be
necessary to make him a successful candidate for the
distinguished office of President of the United States.
It will not be too strong to say that there will be
a constant probability of seeing the station filled by
characters pre-eminent for ability and virtue 1 /
It is assumed that America will continue an agri-
cultural and (to a less extent) a commercial country,
but that she will not develop manufactures ; and also
that the fortunes of her citizens will continue to be
small 2 . No serious apprehensions regarding the in-
fluence of wealth in elections or in politics generally
are expressed.
1 The Federalist, No. LXVII. In A. D. 1800, twelve years after Hamilton
wrote this passage, the contest for the Presidency lay between Jefferson and
Aaron Burr, and Hamilton was compelled by his sense of Burr's demerits to
urge his party to vote (when the choice came before the House of Repre-
sentatives) for Jefferson, his own bitter enemy. What he thought of Burr,
who, but for his intervention, would certainly have obtained the chief magis-
tracy of the nation (and by whose hand he ultimately died), maybe inferred
from the fact that he preferred as President the man of whom he thus
writes : ' I admit that his (Jefferson's) politics are tinctured with fanaticism ;
that he is too much in earnest in his democracy ; that he has been a mis-
chievous enemy to the principal measures of our past administration ; that he
is crafty and persevering in his objects ; that he is not scrupulous about the
means of success, nor very mindful of truth ; and that he is a contemptible
hypocrite. But, &c.' (Letter to James A. Bayard, Jan. 16, 1801.)
After this it is superfluous, as it would be invidious, to dwell on the defi-
ciencies of some recent Presidents or Presidential candidates.
2 ' The private fortunes of the President and Senators, as they must all
be American citizens, cannot possibly be sources of danger ' (The Federalist, '
No. LIV).
374 HAMILTON AND TOCQUEVILLE
The contingency of a division of the States into two
antagonistic groups is not contemplated. When the
possibility of State combinations is touched on, it is
chiefly with reference to the action of small and of
large States respectively. In particular no hint is
dropped as to the likelihood of the institution of slavery
becoming a bond to unite the Southern States and
a cause of quarrel between them and the Northern.
Yet slavery had given trouble in the Philadelphia
Convention, and an opposition of North and South
grounded upon it soon emerged.
Although the mischiefs of faction are dwelt on,
nothing indicates that its embodiment in highly de-
veloped party systems, whose organizations might over-
shadow the legal government, had occurred to any
one's mind. Still less, of course, is there any anticipa-
tion of the influence to be exerted on politics by the
distribution of offices. Not till long afterwards were
they treated as ' spoils of war.'
III. CRITICISM OF THE PREDICTIONS OF 1788.
Let us now see which of these views and forecasts
have been verified by the event.
Of those put forth by the opponents of the Constitu-
tion not one has proved true. The States are still strong,
the President is not a despot, though for a time during
the Civil War he came near being one, nor has he
ever fallen under the influence of any European power.
The House does not consist of the 'wealthy and well-
born/ The larger States do not combine against nor
press hardly on the smaller. No great country has
had so few wars or indeed so few foreign complications
HAMILTON AND TOCQUEVILLE 375
of any kind l . The Senate is still often called ' an
oligarchy/ but this means only that it consists of com-
paratively few persons, most of them wealthy, and that
it has a strong corporate feeling in favour of the per-
sonal interests of each of its members. It is really as
dependent on public opinion as the House, perhaps
even more afraid of public opinion, and as directly the
creature of. party machinery, though less directly of
popular election.
One is surprised to find that of the many arrows
of accusation levelled at the Constitution, all should
have flown wide of the mark.
The deeper insight and more exact thinking of
Hamilton and Madison fastened upon most of the real
and permanent weaknesses in popular government.
Yet even they could not foresee the particular forms
which those weaknesses would assume in the new
nation. To examine in detail the eight points specified
above would involve an examination of American his-
tory for a century. I shall therefore simply indicate
in a word or two the extent to which, in each case,
the alarms or predictions of The Federalist may be
deemed well grounded.
i. The spirit of faction has certainly, as Madison
expected, proved less intense over the large area of
the Union than it did in the Greek republics of antiquity
or in the several States from 1776 to 1789. On the
other hand, the bonds of sympathy created by the
Federal system have at times enabled one State to
1 Three wars since 1789 : that of 1812, that of 1845, and that of 1898.
Every one of these might no doubt have been avoided with honour, and
two of them savoured of aggression, but the same may be said of nearly
all the wars of European States.
376 HAMILTON AND TOCQUEVILLE
infect another with its own vehemence. But for South
Carolina, there would have been no secession in 1861.
Since 1880 the ' demon of faction ' has been less power-
ful in the parties than at any previous date since the
so-called ' Era of Good Feeling ** in 1820.
2. Sudden popular impulses there have been. But
finding a ready and constitutional expression in elec-
tions, they do not induce a resort to arms, while
the elaborate system of checks on legislation seldom
allows them to result in the passing of dangerous
measures by Congress. In some States the risk of bad
laws is serious, but it is lessened by the provisions of
the Federal Constitution as well as by the veto power
of the State Governor and the restrictions of recent
State Constitutions.
3. The early history of the Union furnishes illustra-
tions of feebleness and inconstancy in foreign policy,
yet not greater than those which mark most monarchies.
Royal caprice, or the influence of successive favourites,
has proved more pernicious in absolute kingdoms or
principalities than popular fickleness in republics. That
the foreign policy of the United States was singularly
consistent down till 1898, when it suddenly took an
entirely 'new departure/ was not due to the Senate.
It must be credited partly to the good sense of the
people, partly to the fact that the position and interests
of the nation prescribed certain broad and simple lines.
4. Whatever may be thought of its handling of private
bills, Congress was seldom prone to haste or reckless
expenditure in legislation on public matters, until it
passed the amazing Pensions Act of 1890. Nor has it
given the country too many laws. It has been on the
HAMILTON AND TOCQUEVILLE 377
whole more blameable for what it neglects or postpones
than for what it enacts. The censure is more true of
the States, especially the newer Western States.
5. The House of Representatives has doubtless
sought to extend its sway at the expense of other
departments. Whether it has succeeded is a question
on which competent observers in America itself differ ;
but the fact of their differing proves that the encroach-
ments have not been considerable. Whenever the
President is weak or unpopular, Congress seems to be
gaining on the Executive Chief. When the latter is
or seems strong, he can keep the Legislature at bay.
6. In the struggle which never quite ceases, though
it is often scarcely noticed, between the States and the
Federal Government, the States have on the whole
lost ground. Nor are the larger States practically
more formidable than the small ones. The largest is
small compared with the immense Union. No State
would now venture to brave the Federal Judiciary as
Georgia did, and for a time did successfully (1832), in
one of the painful cases regarding the Cherokee Indians.
7. The so-called Tyranny of the Majority, a subject
too large to be fully examined here l , has not hitherto
proved a serious evil in America. This, however, is
due rather to the character and habits of the people
and their institutions generally than to the mere extent
and population of the Union, on which the Federalist
writers relied.
8. There has been some unwise Congressional legis-
lation, especially in currency matters, and, of course,
1 The subject is discussed in the author's American Commonwealth, chaps.*
Ixxxiv and Ixxxv.
378 HAMILTON AND TOCQUEVILLE
much more of unwise State legislation. But property
is secure, and the sense of civic duty seems, on the
whole, to be improving.
It will appear from this examination, and from the
fact (noted a few pages back) that some remarkable
developments which political life has taken never crossed
the minds of the authors of The Federalist, that these
wisest men of their time did not foresee what strike
us to-day as the specially characteristic virtues and
faults of American democracy. Neither the spoils
system nor the system of party nominations by wire-
pullers crossed their minds. They did not foresee the
inordinate multiplication of elections, nor the evils of con-
fining eligibility for a seat in the legislature to a person
resident in the electing district, nor the disposition to
'play down* to the masses by seductive proposals.
That the power which money might come to exert lay
quite out of their view is not to be wondered at, for no
large fortunes then existed. No student of history will
deem that these omissions detract from their greatness,
for history teaches nothing more plainly than the vanity
of predictions in the realm of what we call the moral
and political sciences, in religion, in ethics, in sociology,
in government and politics. Deep thinkers help us
when they unfold those permanent truths of human
nature which come everywhere into play. Historians
help us when, by interpreting the past, they demonstrate
what are the tendencies that have gone to create the
present. Observers keen enough to interpret the
underlying phenomena of their own time may help us
by showing which of the tendencies now at work are
likely to become ruling factors in the near future. But
HAMILTON AND TOCQUEVILLE 379
beyond the near future that is to say, beyond the
lifetime of the generation which already holds power-
no true philosopher will venture. He may indulge his
fancy in picturing the details of the remoter landscape ;
but he knows that it is a region fit for fancy, not for
science. In the works of great thinkers there are to
be found some happy guesses about times to come ;
but these are few indeed, compared with the prophecies
whose worthlessness was so soon revealed that men
forgot they had ever been made, or the dreams which,
like those of Dante, idealized an impossible future from
an irrevocable past.
As regards the views of Hamilton and Madison, who,
be it remembered, do not present themselves as pro-
phets, but as the censors of present evils which they
are seeking to remedy, it may be added that the
Constitution which they framed and carried checked
some of these very evils (e.g. the unjust law-making
and reckless currency experiments of the State legis-
latures); and that it was obviously impossible till
the Federal government had begun to work to say
how the existing forces could adapt themselves to it.
Hamilton remarks in one of his letters that he holds
with Montesquieu that a nation's form of government
ought to be fitted to it as a suit of clothes is fitted to
its wearer 1 . He would doubtless have added that one
cannot make sure of the fit until the suit has been
tried on.
We must remember, moreover, that the causes which
1 * I hold with Montesquieu that a government must be fitted to a nation
as much as a coat to the individual ; and consequently that what may be
good at Philadelphia may be bad at Paris and ridiculous at Petersburgh.*
To Lafayette, Jan. 6, 1799.
380 HAMILTON AND TOCQUEVILLE
have affected the political growth of America are
largely causes which were in 1788 altogether beyond
human ken. The cotton gin, Napoleon's willingness
to sell Louisiana, steam communications by water and
land, Irish and German immigration, have swayed the
course of that history; but even the first of these
factors had not risen over the horizon in that year,
and the last did not become potent till halfway
through the nineteenth century 1 .
What the sages of the Convention do show us are
certain tendencies they discern in their contemporaries,
viz. :
Recklessness and unwisdom in the masses, producing
bad laws.
Unwillingness to submit to or support a strong
government.
Abuse by the majority of its legal power over the
minority.
Indifference to national as compared with local and
sectional interests, and consequent preference of State
loyalty to national loyalty.
That each of these tendencies then existed, and might
have been expected to work for evil, admits of no
doubt. But if we ask American history what it has
to say about their subsequent course, the answer will
be that the second and third tendencies have declined,
and do not at present menace the public welfare, while
the first, though never absent and always liable to
marked recrudescence, as the annals of the several
States prove, has done comparatively little harm in the
1 The first cargo of cotton was sent from America to Europe in 1791, and
the cotton gin invented in 1793.
HAMILTON AND TOCQUEVILLE 381
sphere of national government. As to the fourth,
which Hamilton seems to have chiefly feared, it ulti-
mately took the form, not of a general centrifugal force,
impelling each State to fly off from the system, but of
a scheme for the separation of the Southern or slave-
holding States into a separate Confederacy, and in this
form it received, in 1865, a crushing and apparently
final defeat 1 .
IV. TOCQUEVILLE AND HIS BOOK.
Fifty-one years after the recognition of the indepen-
dence of the United States, sixty-seven years before
the beginning of the twentieth century, Alexis de
Tocqueville published his Democracy in America, one
of the few treatises on the philosophy of politics
which has risen to the rank of a classic. His
book, therefore, stands rather further than halfway
back between our own days and those first days
of the Republic which we know from the writings
of the Fathers, of Washington, Jefferson, Adams,
Hamilton, Madison. It offers a means of measuring
the changes that had passed on the country during the
half-century from the birth of the Union to the visit
of its most famous European critic, and again from
the days of that critic to our own.
It is a classic, and because it is a classic, one may
venture to canvas it freely without the fear of seeming
to detract from the fame of its author. The more one
1 When we come to Tocqueville, we shall find him touching but lightly on
the two first of the above tendencies (partly, perhaps, because he attends
too little to the State governments), but emphasizing the third and fearing
from the fourth the dissolution of the Union.
382 HAMILTON AND TOCQUEVILLE
reads Tocqueville, the more admiration does one feel
for the acuteness of his observation, for the delicacy
of his analysis, for the elegant precision of his reason-
ings, for the -limpid purity of his style ; above all, for
his love of truth and the elevation of his character.
He is not only urbane, but judicial; not only noble,
but edifying. There is perhaps no book of the genera-
tion to which he belonged which contains more solid
wisdom in a more attractive dress.
We have here, however, to regard the treatise, not
as a model of art and a storehouse of ethical maxims,
but as a picture and criticism of the government
and people of the United States. And before using
it as evidence of their condition seventy years ago,
we must appraise the reliance to be placed upon it 1 .
First let it be observed that not only are Tocqueville's
descriptions of democracy as displayed in America no
longer true in many points, but that in certain points
they never were true. That is to say, some were true
of America, but not of democracy in general, while
others were true of democracy in general, but not true
of America. It is worth while to attempt to indicate
the causes of such errors as may be discovered in his
picture, because they are errors which every one
who approaches a similar task has to guard against.
Tocqueville is not widely read in the United States,
where the scientific, historical, and philosophical study
of the institutions of the country, apart from the legal
study of the Constitution, is of comparatively recent
1 Some interesting remarks upon Tocqueville's tour in America and upon
his views of American affairs may be found in President Gilman's Introduc-
tion to a recent edition (1898) of the English translation of Tocqueville's
book.
HAMILTON AND TOCQUEVILLE 383
growth. He is less read than formerly in England
and even in France. But his views of the American
government and people have so passed into the texture
of our thoughts that we cannot shake off his influence,
and, in order to profit by it, are bound to submit his
conclusions and predictions to a searching though
always respectful examination.
The defects of the book are due to three causes. He
had a strong and penetrating intellect, but it moved by
preference in the a priori or deductive path, and his
power of observation, quick and active as it was, did
not lead but followed the march of his reasonings. It
will be found, when his method is closely scrutinized,
that the facts he cites are rather the illustrations
than the sources of his conclusions. He had studied
America carefully and thoroughly. But he wanted the
necessary preparation for that study. His knowledge
of England, while remarkable in a native of continental
Europe, was not sufficient to show him how much in
American institutions is really English, and explainable
only from English sources.
He wrote about America, and meant to describe it
fully and faithfully. But his heart was in France, and
the thought of France, never absent from him, un-
consciously coloured every picture he drew. It made
him think things abnormal which are merely un- French ;
it made him attach undue importance to phenomena
which seemed to explain French events or supply
a warning against French dangers.
He reveals his method in the introduction to his
book. He draws a fancy sketch of a democratic
people, based on a few general principles, passes to
384 HAMILTON AND TOCQUEVILLE
the condition of France, and then proceeds to tell
us that in America he went to seek the type of
democracy democracy pure and simple in its normal
shape.
' J'avoue que dans I'Amerique, j'ai vu plus que PAmer-
ique ; j'y ai cherche une image de la democratic elle-
meme, de ses penchants, de son caractere, de ses
prejuges, de ses passions/
Like Plato in the Republic, he begins by imagining
that there exists somewhere a type or pattern of
democracy, and as the American Republic comes
nearest to this pattern, he selects it for examination.
He is aware, of course, that there must be in every
country and people many features special to the country
which reappear in its government, and repeatedly
observes that this or that is peculiar to America, and
must not be taken as necessarily or generally true of
other democracies. But in practice he underrates the
purely local and special features of America, and often,
forgetting his own scientific cautions, treats it as a
norm for democracy in general. Nor does he, after
finding his norm, proceed simply to examine the facts
and draw inferences from them. In many chapters he
begins by laying down one or two large principles,
he develops conclusions from them, and then he points
out that the phenomena of America conform to these
conclusions. Instead of drawing the character of
democracy from the aspects it presents in America,
he arrives at its character by a sort of intuitive
method, and uses those aspects only to point and
enforce propositions he has already reached. It is
not democracy in America he describes, but his own
HAMILTON AND TOCQUEVILLE 385
theoretic view of democracy illustrated from America.
He is admirably honest, never concealing or con-
sciously evading a fact which he perceives to tell
against his theories. But being already prepossessed
by certain abstract principles, facts do not fall on his
mind like seeds on virgin soil. He is struck by
those which accord with, he is apt to ignore those
which diverge from, his preconceptions. Like all de-
ductive reasoners, he is peculiarly exposed to the
danger of pressing a principle too far, of seeking to
explain a phenomenon by one principle only when it
is perhaps the result of an accidental concurrence of
several minor causes. The scholasticism we observe
in him is due partly to this deductive habit, partly to
his want of familiarity with the actualities of politics.
An instance of it appears in his tendency to over-
estimate the value of constitutional powers and devices,
and to forget how often they are modified, almost
reversed, in practice by the habits of those who use
them. Though no one has more judiciously warned
us to look to the actual working of institutions and
the ideas of the men who work them rather than to
their letter, he has himself failed to observe that the
American Constitution tends to vary in working from
its legal theory, and the name Legislature has pre-
vented him, like so many other foreign observers, from
seeing in the English Parliament an executive as well
as a law-making body.
In saying that he did not know England, I fully
admit that his knowledge of that country and its free
government was far beyond the knowledge of most
cultivated foreigners. He had studied its history,
BRYCE I C C
3 86 HAMILTON AND TOCQUEVILLE
and had gathered from his reading the sentiments of
its aristocracy and of its literary men. But he did
not know the ideas and habits of the English middle
class, with 1 whom the Americans of his time might
better have been compared, and he was not familiar
as how could a stranger be? with the details of
English politics and the working of the English judicial
system. Hence he has failed to grasp the substantial
identity of the American people with the English.
He perceives that there are many and close resem-
blances, and traces much that is American to an English
source. He has seen and described with perfect just-
ness and clearness the mental habits of the English
and American lawyer as contrasted with those of the
French lawyer. But he has not grasped, as perhaps no
one but an Englishman or an American can grasp, the
truth that the American people of 1830 was a branch
of the English people, modified in some directions
by the circumstances of its colonial life and its more
popular government, but in essentials the same. Hence
much that was merely English appeared to Tocqueville
to be American or democratic. The functions of the
judges, for instance, in expounding the Constitution
(whether of the Federation or of a State) and dis-
regarding a statute which conflicts therewith, the re-
sponsibility of an official to the ordinary courts of the
land, the co-existence of laws of a higher and lower
degree of authority, seem to him to be novel and
brilliant inventions instead of mere instances of general
doctrines of English law, adapted to the circumstances
of a colony dependent on a home Government, or of
a State partially subordinated to a Federal Govern-
HAMILTON AND TOCQUEVILLE 387
ment. The absence of what the French call ' Adminis-
tration/ and the disposition to leave people to themselves,
which strike him, would not surprise an Englishman
accustomed to the like freedom. Much that he remarks
in the mental habits of the ordinary American, his
latent conservatism for instance, his indifference to
amusement as compared with material comfort, his
commercial eagerness and tendency to take a com-
mercial view of all things, might have been just as
well remarked of the ordinary middle-class Englishman,
and had nothing to do with a democratic government.
Other features, which he ascribes to this last-named
cause, such as habits of easy social intercourse, the
disposition to prize certain particular virtues, the readi-
ness to give mutual help, are equally attributable to
the conditions of life that existed among settlers in
a wild country where few persons were raised by birth
or wealth above their fellows, and every one had need
of the aid of others conditions whose results remained
in the temper of the people even when the community
had passed into another phase, a phase in which in-
equalities of wealth were already marked, and tempta-
tions had begun to appear which did not beset the
Puritans of the seventeenth century.
It is no reproach to this great author that France
formed to him the background of every picture whose
foreground was the New World. He tells us frankly
in the Introduction that the phenomena of social
equality, as they existed in France, and the political
consequences to be expected from them, filled his mind
when he examined the institutions of America; he
hoped to find there lessons by which France might
3 88 HAMILTON AND TOCQUEVILLE
profit: 'J'ai voulu y trouver des enseignements dont
nous puissions profiter.' But with this purpose before
him, he could hardly avoid laying too much stress on
points which seemed to have instruction for his own
countrymen, and from fancying those things to be
abnormal, or at least specially noteworthy, which stood
contrasted with the circumstances of France. Tocque-
ville is, among eminent French writers, one of the least
prone to assume the ways and ideas of his own country
to be the rule, and those of another country the ex-
ception; yet even in him the tendency lurks. There
is more than a trace of it in his surprise at the
American habit of using without abusing political
associations, and at the disposition of Legislatures to
try experiments in legislation, a disposition which
struck him chiefly by its contrast with the immutability
which the Code of the First Empire seemed to have
stamped upon the private law of France.
His constant reference to France goes deeper than
the method of the book. It determines his scope
and aim. The Democracy in America is not so much
a political study as a work of edification. It is a
warning to France of the need to adjust her political
institutions to her social condition, and above all to
improve the tone of her politics, to create a moral and
religious basis for her national life, to erect a new fabric
of social doctrine, in the place of that which, already
crumbling, the Revolution had overthrown. We must
not, therefore, expect to find in him a complete descrip-
tion and criticism, such as a German would have given,
of the government of America in all its details and
aspects. To note this is not to complain of the book.
HAMILTON AND TOCQUEVILLE 389
What Tocqueville has produced is more artistic, and
possibly more impressive than such a description would
have been, as a landscape gives a juster notion of
scenery than a map. His book is permanently valuable,
because its reflections and exhortations are applicable
not merely to the Frenchmen of sixty-five years ago,
but to mankind generally, since they touch upon failings
and dangers permanently inherent in political society.
Let it only be remembered that, in spite of its scientific
form, it is really a work of art quite as much as a work
of science, and a work suffused with strong, though care-
fully repressed, emotion.
The best illustration I can give of these tendencies
in our author will be found in a comparison of the first
part of the book, published in 1834, and now included
in the first and second volumes of recent editions, with
the second part published in 1840, and now forming
the third volume. In the first part the author keeps
near his facts. Even when he has set out on the
a priori road he presently brings his theory into
relation with American phenomena : they give sub-
stance to, and (so to speak) steady the theory, while
the theory connects and illumines them. But in the
second part (third volume) he soars far from the ground,
and is often lost in the clouds of his own sombre
meditation. When this part was written, the direct
impressions of his transatlantic visit had begun to fade
from his mind. With all his finesse and fertility, he
had neither sufficient profundity of thought, nor a
sufficient ample store of facts gathered from history
at large, to enable him to give body and substance to
his reflections on the obscure problems wherewith he
390 HAMILTON AND TOCQUEVILLE
attempts to deal 1 . Hence, this part of the book is not
so much a study of American democracy as a series
of ingenious and finespun abstract speculations on the
features of equality and its results on modern society
and thought, speculations which, though they have
been singled out for admiration by some high judges,
such as Ampere and Laboulaye, will appear to most
readers overfanciful, overconfident in their effort to
construct a general theory applicable to the infinitely
diversified facts of human society, and occasionally
monotonous in their repetition of distinctions without
differences and generalities too vague, perhaps too
hollow, for practical use.
How far do these defects of Tocqueville's work
affect its value for our present purpose, that of dis-
covering from it what was the condition, political,
social, intellectual, of the United States in 1833, and
what the forces that were then at work in determining
the march of the nation and the development of its
institutions ?
It is but slightly that they impair its worth as
a record of facts. Tocqueville is so careful and so
unprejudiced an observer that I doubt if there be
a single remark of his which can be dismissed as
either erroneous or superficial. There is always some
basis for every statement he makes. But the basis
is occasionally too small for the superstructure of
inference, speculation, and prediction which he rears
upon it. To borrow an illustration from chemistry,
1 Sainte-Beuve remarks of him, ' II a commence" a penser avant d'avoir rien
appris : ce qui fait qu'il a quelquefois pens creux.' Thiers once said, in
the Chamber, 'Quand je considere intuitivement, comme dirait M. de
Tocqueville.'
HAMILTON AND TOCQUEVILLE 391
his analysis is always right so far as it is qualitative,
sometimes wrong where it attempts to be quantitative.
The fact is there, but it is perhaps a smaller fact than
he thinks, or a transient fact, or a fact whose importance
is, or shortly will be, diminished by other facts which
he has not adequately recognized.
When we pass from description to argument he is
a less safe guide. By the light of subsequent experi-
ence we can perceive that he mistook transitory for
permanent causes. Many of the phenomena which he
ascribes to democracy were due only to the fact that
large fortunes had not yet grown up in America, others
to the absence, in most parts of the country, of that
higher education and culture which comes with wealth,
leisure, and the settlement of society. I have already
observed that he sometimes supposes features of
American politics to be novel and democratic which
are really old and English ; that he does not allow
sufficiently for the imprint which colonial life had left
on the habits and ideas of the people, an imprint which,
though it tends to wear off with time, is yet also
modified into something which, while you may call it
democratic, remains different from the democracy of an
old European country, and is not an index to the
character of democracy in general.
It need hardly be said that the worth of a book like
his is not to be measured by the number of flaws which
can be discovered under the critic's microscope. Even
a sovereign genius like Aristotle cannot be expected
to foresee which of the influences he discerns will
retain their potency : it is enough if his view is more
piercing and more comprehensive than that of his
392 HAMILTON AND TOCQUEVILLE
greatest contemporaries, if his record shows the high-
water mark of the learning and philosophy of the time.
Had history falsified far more of Tocqueville's pre-
dictions than she has done, his work would still remain
eminently suggestive and stimulating. And it is edifi-
catory not merely because it contains precepts instinct
with the loftiest morality. It is a model of that spirit
of fairness and justice, that love of pure truth which
is conspicuously necessary, and not less conspicuously
difficult, in the discussion, even the abstract discussion,
of the problems of political philosophy. Few books
inspire a higher respect for their writer.
V. TOCQUEVILLE'S VIEW OF THE UNITED STATES.
Before we examine the picture of the social and
political phenomena of America which Tocqueville has
drawn, let us see what were the chief changes that had
passed on the territory of the Union, on its material
resources, on the habits and ideas of the people, during
the forty-six years that elapsed from the publication
of the Federalist to that of the Democratic en Ame'rique.
The territory of the United States had been extended
to include the whole valley of the Mississippi, while to
the north-west it stretched across the Rocky Mountains
as far as the Pacific. All beyond the Missouri was
still wilderness, much of it wholly unexplored, but
to the east of the Mississippi there were now twenty-
four States with an area of 2,059,043 square miles and
a population of fourteen millions. The new Western
States, though rapidly increasing, were still so raw as
to exercise comparatively little influence on the balance
HAMILTON AND TOCQUEVILLE 393
of national power, which vibrated between the free
Northern and the Southern Slave States. Slavery
was not an immediately menacing question, for the
first wound it made had been skinned over, so to speak,
by the Missouri Compromise of 1820 ; but it was evi-
dently pregnant with future trouble, for the number
of slaves was rapidly increasing, and the slaveholders
were already resolved to retain their political influence
by the creation of new slave States. The great
Federalist party had vanished, and the Republican-
Democratic party, which had triumphed over it, had
just been split up into several bitterly hostile factions.
Questions of foreign policy were no longer urgent, for
Europe had ceased to menace America, who had now
no neighbours on her own continent except the British
Crown on the north and the Mexican Republic on the
south and west. The protective tariff and the existence
of the United States Bank were the questions most
agitated, but the main dividing party lines were still those
which connected themselves with the stricter or looser
interpretation of the Federal Constitution that is to say,
they were questions as to the extent of Federal power
on the one hand, as to the rights of the States on the
other. New England was still Puritan and commer-
cial, with a bias towards protective tariffs, the South
still agricultural, and in favour of free trade. The
rule of the masses had made its greatest strides in
New York, the first, among the older States, which
introduced the new methods of party organization
and which thoroughly democratized her Constitution \
1 The process of democratization was completed by the Constitution of
1846.
394 HAMILTON AND TOCQUEVILLE
Everywhere property qualifications for office or the
electoral franchise were being abolished, and even the
judges formerly nominated by the State Governor or
chosen by the State Legislature were beginning to be
elected by manhood suffrage and for terms of years.
In fact a great democratic wave was passing over the
country, sweeping away the old landmarks, destroying
the respect for authority, casting office and power more
and more into the hands of the humbler classes, and
causing the withdrawal from public life of men of
education and refinement. State feeling was still
strong, especially in the South, and perhaps stronger
than national feeling, but the activity of commerce and
the westward movement of population were breaking
down the old local exclusiveness, and those who saw
steamboats plying on the Hudson and heard that loco-
motive engines were beginning to be run in England,
might have foreseen that the creation of more easy,
cheap, and rapid communications would bind the
sections of the country together with a new and
irresistible power. The time was one of great com-
mercial activity and great apparent prosperity; but
large fortunes were still few, while in the general pursuit
of material objects science, learning, and literature had
fallen into the background. Emerson was still a young
Unitarian minister, known only to the circle of his own
friends. Channing was just rising into note; Long-
fellow and Hawthorne, Prescott and Ticknor had not
begun to write. Washington Irving was one of the
few authors whose names had reached Europe. How
disagreeable the manners of ordinary people (for one
must of course except the cultivated circles of Boston
HAMILTON AND TOCQUEVILLE 395
and Philadelphia) seemed to the European visitor may
be gathered from the diaries of Richard Cobden and
Sir Charles Lyell, who travelled in America a year
or two after Tocqueville. There was a good deal of
ability among the ruling generation of statesmen the
generation of 1787 was just dying out with Madison
but only three names can be said to have survived in
the world's memory, the names of three party leaders
who were also great orators, Clay, Calhoun, and
Webster 1 .
In those days America was a month from Europe
and comparatively little affected by Europe. Her
people walked in a vain conceit of their own greatness
and freedom, and scorned instruction from the effete
monarchies of the Old World, which in turn repaid
them with contemptuous indifference. Neither conti-
nent had realized how closely its fortunes were to be
interwoven with those of the other by trade and the
movements of population. No wheat, no cattle were
sent across the Atlantic, nor had the flow of immigra-
tion from Ireland, much less from Central Europe, as
yet begun.
The United States of 1834 had made enormous
advances in material prosperity. Already a great nation,
it could become a great power as soon as it cared to
spend money on fleets and armies. The Federal govern-
ment had stood the test of time and of not a few storms.
Its component parts knew their respective functions,
and worked with less friction than might have been
1 To none of whom, oddly enough, does Tocqueville refer. He is
singularly sparing in his references to individuals, mentioning no one except
President Jackson for blame and Livingston (author of the Louisiana Code and
Secretary of State, 1831-3) for praise.
396 HAMILTON AND TOCQUEVILLE
expected. The sense of national unity, powerfully
stimulated by the war of 1812, was still growing. But
the level of public life had not risen. It was now rather
below than, above that of average private society. Even
in the realm of morality there were strange contrasts.
A puritan strictness in some departments of conduct
and a universal recognition of the sanctions of religion
co-existed in the North with some commercial laxity,
while the semi-civilized South, not less religious and
valuing itself on its high code of honour, was dis-
graced by the tolerance accorded to duels and acts of
murderous violence, not to speak of the darker evils
which slavery brought in its train. As respects the
government of States and cities, democratic doctrines
had triumphed all along the line. The masses of the
people had now realized their power, and entered into
the full fruition of it. They had unlimited confidence
in their wisdom and virtue, and had not yet discovered
the dangers incidental to the rule of numbers. The
wise elders, or the philosophic minds who looked on
with distrust, were either afraid to speak out, or deemed
it hopeless to try to stem the flowing tide. They
stood aside (as Plato says) under the wall out of the
storm. The party organizations had just begun to
spread their tough yet flexible network over the whole
country; and the class of professional politicians, at
once the creator and the creature of such organizations,
was already formed. The offices had, three years before,
been proclaimed to belong to the victors as spoils of
war, but few saw to what consequences this doctrine
was to lead. I will not say that it was a period of transi-
tion, for that is true of every period in America, so fast
HAMILTON AND TOCQUEVILLE 397
do events move even in the quietest times ; but it was
a period when that which had been democratic theory
was passing swiftly into democratic practice, when the
seeds sown long ago by Jefferson had ripened into
a waving crop, when the forces which in every society
react against extreme democracy were unusually weak,
some not yet developed, some afraid to resist the
stream.
VI. TOCQUEVILLE'S IMPRESSIONS AND PROPHECIES.
Let us see what were the impressions which the
America of 1832 made on the mind of Tocqueville.
I do not pretend to summarize his account, which every
student ought to read for himself, but shall be content
with presenting the more salient points that ought to
be noted in comparing 1832 with 1788 on the one
hand, and 1900 on the other.
He is struck by the thoroughness with which the
principle of the sovereignty of the people is carried
out. Seventy years ago this principle was far from
having obtained its present ascendency in Western
Europe. In America, however, it was not merely
recognized in theory, but consistently applied through
every branch of local, State, and National govern-
ment.
He is impressed by the greater importance to
ordinary citizens of State government than of Federal
government, and their warmer attachment to the
former than to the latter. The Federal government
seems comparatively weak, and in case of a conflict
398 HAMILTON AND TOCQUEVILLE
between the two powers, the loyalty of the people
would be given rather to the State l .
He finds the basis of all American government
in the ' commune/ i. e. in local government, the ulti-
mate unit of which is in New England the township,
in the Southern and Middle States the county. It
is here that the bulk of the work of administration is
done, here that the citizens learn how to use and love
freedom, here that the wonderful activity they display
in public affairs finds its chief sphere and its constant
stimulus.
The absence of what a European calls 'the ad-
ministration' is remarkable. Public work is divided
up between a multitude of petty and unrelated local
officials : there is no ' hierarchy/ no organized civil
service with a subordination of ranks. The means
employed to keep officials to their work and punish
offences are two frequent popular election and the
power of invoking the ordinary courts of justice to
obtain damages for negligence or unwarranted action.
But along with the extreme 'administrative decentral-
ization' there exists a no less extreme 'governmental
centralization/ that is to say, all the powers of govern-
ment are collected into one hand, that of the people,
the majority of the voters. This majority is omnipotent;
and thus authority is strong, capable of great efforts,
capable also of tyranny. Hence the value of local
self-government, which prevents the abuse of power
by a central authority: hence the necessity for this
1 His insistence on this point makes it all the more strange that he does
not give any description of a State as a commonwealth, nor characterize
the general features of its government.
HAMILTON AND TOCQUEVILLE 399
administrative decentralization, which atones for its
want of skill in details by the wholesome influence
it exerts on the character of the people.
The judges enjoy along with the dignity of their
European brethren the singular but most salutary
power of ' declaring laws to be unconstitutional/ and
thus they serve to restrain excesses of legislative as
well as of executive authority.
The President appears to our author to be a com-
paratively weak official. No person, no group, no
party, has much to hope from the success of a par-
ticular candidate at a Presidential election, because
he has not much to give away [!]. The elective system
unduly weakens executive authority, because a President
who approaches the end of his four years' term feels
himself feeble, and dares not take any bold step :
while the coming in of a new President may cause
a complete change of policy. His re-eligibility further
weakens and abases him, for he must purchase re-
election by intrigue and an unworthy pandering to the
desires of his party. It intensifies the characteristic
fault of democratic government, the predominance of
a temporary majority.
The Federal Supreme Court is the noblest product
of the wisdom of those who framed the Federal Con-
stitution. It keeps the whole machine in working order,
protecting the Union against the States, and each part
of the Federal government against the aggressions of
the others. The strength of the Federation, naturally
a weak form of government, lies in the direct authority
which the Federal courts have over the individual
citizen : while the action of these Courts, even against a
400 HAMILTON AND TOCQUEVILLE
State, gives less offence than might be expected because
they do not directly attack its statutes, but merely, at the
instance of an individual plaintiff or defendant, secure
to him rights which those statutes may have inci-
dentally infringed.
The Federal Constitution is much superior to the
State Constitutions ; the Federal Legislature, Executive
and Judiciary, are all of them more independent of
the popular majority, and freer in their action than the
corresponding authorities in the several States. Simi-
larly the Federal government is better than those of the
States, wiser, more skilful, more consistent, more firm.
The day of great parties is past : there is now
a feverish agitation of small parties and a constant
effort to create parties, to grasp at some principle or
watchword under which men may group themselves,
probably for selfish ends. Self-interest is at the bottom
of the parties, yet aristocratic or democratic sentiment
attaches itself to each of them, that is to say, when
a practical issue arises, the old antithesis of faith in
the masses and distrust of the masses reappears in the
view which men and parties take of it. The rich
mix little in politics. Secretly disgusted at the pre-
dominance of the crowd, they treat their shoemaker
as an equal when they meet him on the street, but in
their luxurious homes lament the vulgarity of public
life and predict a bad end for democracy.
Next to the people, the greatest power in the country
is the press : yet it is less powerful than in France,
because the number of journals is so prodigious,
because they are so poorly written, because there is
no centre like Paris. Advertisements and general
HAMILTON AND TOCQUEVILLE 401
news occupy far more of their space than does political
argument, and in the midst of a din of opposing voices
the ordinary citizen retains his dull fixity of opinion,
the prejudices of his sect or party.
A European is surprised, not only at the number
of voluntary associations aiming at public objects,
but at the tolerance which the law accords to them.
They are immensely active and powerful, and do not
threaten public security as they would in France,
because they admit themselves, by the very fact of
their existence, to represent a minority of voters, and
seek to prevail by force of argument and not of arms.
Universal suffrage, while it gives admirable stability
to the government, does not, as people in Europe ex-
pect that it will, bring the best men to the top. On the
contrary, the governors are inferior to the governed 1 .
The best men do not seek either office or a seat in the
House of Representatives, and the people, without
positively hating the 'upper classes/ do not like
them ; and carefully keep them out of power. ' II ne
craint point les grands talents, mais il les goute peu. J
The striking inferiority of the House to the Senate
is due to the fact that the latter is a product of double
election, and it is to double election that democracies
must come if they will avoid the evils inseparable from
placing political functions in the hands of every class
of the people 2 .
1 This is a common remark of visitors to America, but it arises from their
mistaking the people they see in society for ' the governed ' in general.
They go carrying introductions to rich or educated people : if they mixed
with the masses they would form a different notion of 'the governed,' as
Tocqueville rather oddly calls the ordinary citizens.
2 It is surprising that Tocqueville should have supposed this to be the
BRYCE I D d
402 HAMILTON AND TOCQUEVILLE
American magistrates are allowed a wider arbitrary
discretion than is common in Europe, because they
are more constantly watched by the sovereign people,
and are more absolutely at their mercy 1 .
Every office is, in America, a salaried office ; nor can
anything be more conformable to the spirit of a demo-
cracy. The minor offices are, relatively to Europe, well
paid, the higher ones ill paid. Nobody wears any dress
or displays any insignia of office 2 .
Administration has both an unstable and an un-
scientific character. Few records are kept of the acts
of departments : little information is accumulated : even
original documents are neglected. Tocqueville was
sometimes given such documents in answer to his
queries, and told that he might keep them. The conduct
of public business is a hand to mouth, rule of thumb
sort of affair a .
Not less instability reigns in the field of legislation.
Laws are being constantly changed; nothing remains
fixed or certain 4 .
cause of the excellence he ascribes to the Senate, considering that the
more obvious, as well as the true, explanation is to be found in the fact that
the wider powers and longer term of the Senate made the ablest men
seek entrance to it.
1 The only instance given of this is in the discretion allowed to the officers
of the New England townships, whose functions are, however, unimportant.
The statement cannot have been generally true.
3 This remained true till very recent years as regards public officials, save
and except the Judges of the Supreme Court when sitting at Washington.
But lately the Supreme Court Judges of some States have begun to wear
gowns.
3 This has ceased to be true in Federal administration, and in that of the
more advanced States.
4 Tocqueville does not say whether he intends this remark to apply to
State legislation only or to Federal legislation also. He quotes dicta of
Hamilton, Madison, and Jefferson to the same effect, but these testimonies,
or most of them, refer to a time anterior to the creation of the Federal
HAMILTON AND TOCQUEVILLE 403
It is a mistake to suppose that democratic govern-
ments are specially economical. They are parsimonious
in salaries, at least to the higher officials, but they spend
freely on objects beneficial to the mass of the people,
such as education, while the want of financial skill
involves a good deal of waste. You must not expect
economy where those who pay the bulk of the taxes
are a mere fraction of those who direct their expen-
diture. If ever America finds herself among dangers,
her taxation will be as heavy as that of European
monarchies.
There is little bribery of voters, but many charges
against the integrity of politicians. Now the corruption
of the ' governors ' is worse than that of the * governed,'
for it lowers the tone of public morals by presenting
the spectacle of prosperous turpitude.
The American democracy is self-indulgent and self-
complacent, slow to recognize, still more slow to correct,
its faults. But it has the unequalled good fortune of
being able to commit reparable errors (lafacultedefaire
desfautes reparables). It can sin with impunity.
It is eminently ill-fitted to conduct foreign policy.
Fortunately it has none.
The benefits which American society derives from its
democratic government are summed up as follows :
As the majority make the laws, their general ten-
dency, in spite of many errors in detail, is to benefit
the majority, because though the means may sometimes
Constitution. If it is true that State laws were being constantly changed
in 1832, this can have been true only of administrative statutes, not of
private law generally. One is tempted to believe that Tocqueville was
unconsciously comparing America with France, where the Code has
arrested legislation to an extent surprising to an English observer.
D d 2
4 o 4 HAMILTON AND TOCQUEVILLE
be ill chosen, the end is always the same. Hence the
country prospers.
Every one is interested in the welfare of the country,
because his own welfare is bound up with it. This
patriotism may be only an enlarged egotism, but it is
powerful nevertheless, for it is a permanent sentiment,
independent of transient enthusiasms. Its character
appears in the childish intolerance of criticism which
the people display. They will not permit you to find
fault with any one of their institutions or habits, not
even if you praise all the rest l .
There is a profound respect for every political right,
and therefore for every magistrate, and for the authority
of the law, which is the work of the people themselves.
If there be exceptions to this respect, they are to be
found among the rich, who fear that the law may
be made or used to their detriment.
The infinite and incessant activity of public life, the
responsibilities it casts on the citizen, the sense of his
importance which it gives him, have stimulated his whole
nature, and made him enterprising in all private affairs
also. Hence, in great measure, the industrial prosperity
of the country. Democracy effects more for the material
progress of a nation than in the way of rendering it
great in the arts, or in poetry, or in manners, or in
elevation of character, or in the capacity for acting on
other nations and leaving a great name in history.
We now come to the darker side of the picture. In
democracies, the majority is omnipotent, and in America
1 Every one knows how frequently European visitors used to comment
upon this American trait. It is now much less noticeable than formerly.
I can even say from experience that it has sensibly diminished since 1870.
HAMILTON AND TOCQUEVILLE 405
the evils hence flowing are aggravated by the shortness
of the term for which a legislature is chosen, by the
weakness of the Executive, by the incipient disposition to
choose even the judges by popular vote, by the notion
universally accepted that the majority must be right.
The majority in a legislature being unchecked, laws are
hastily made and altered, administration has no perma-
nence, officials are allowed a dangerously wide range
of arbitrary authority. There is no escape from the
tyranny of the majority. It dominates even thought, for-
bidding, not indeed by law, but through social penalties
no less effective than legal ones, the expression of any
opinion displeasing to the ordinary citizen. In theology,
even in philosophy, one must beware of any divergence
from orthodoxy. No one dare tell an unwelcome truth to
the people, for it will receive nothing but incense. Such
repression sufficiently explains the absence of great
writers and of great characters in public life. It is not
therefore of weakness that free government in America
will ever perish, but through excess of strength, the
majority driving the minority to despair and to arms.
There are, however, influences which temper the
despotism of the majority. One is the existence of
a strong system of local self-government, whereby nearly
all administration is decentralized. Another is the
power of the lawyers, a class everywhere disposed to
maintain authority and to defend that which exists, and
specially so disposed in England and America because
the law which they study and practise is founded on
precedents and despises abstract reason. A third exists
in the jury, and particularly the jury in its action in
civil causes, for it teaches the people not only the
4 o6 HAMILTON AND TOCQUEVILLE
regular methods of law and justice, but respect for law
and for the judges who administer it.
Next we come to an enumeration of the causes which
maintain republican government. They are, over and
above the constitutional safeguards already discussed,
the following:
The absence of neighbouring States, and the con-
sequent absence of great wars, of financial crises *, of
invasions or conquests. How dangerous to republics
is the passion for military glory is shown by the two
elections of General Jackson to be President, a man
of violent temper and limited capacity, recommended
by nothing but the memory of his victory at New
Orleans twenty years before 2 .
The absence of a great capital.
The material prosperity of the country, due to its
immense extent and natural resources, which open a
boundless field in which the desire of gain and the love
of independence may gratify themselves and render the
vices of man almost as useful to society as his virtues.
The passions which really agitate America are com-
mercial, not political.
The influence of religion. American Protestantism
is republican and democratic ; American Catholicism no
less so ; for Catholicism itself tends to an equality of
conditions, since it treats all men alike. The Catholic
clergy are as hearty republicans as any others.
The indirect influence of religion on manners and
1 This observation seems strange indeed to any one who remembers the
commercial history of the United States since the great crisis of 1838.
3 Jackson's popularity began with his military exploit : but his hold on
the people was due to other causes also. His election coincided with the
rise of the great democratic wave already referred to.
HAMILTON AND TOCQUEVILLE 407
morality. Nowhere is marriage so much respected
and the relations of the sexes so well ordered. The
universal acceptance of Christianity, an acceptance
which imposes silence even on the few sceptics who
may be supposed to exist there as everywhere, steadies
and restrains men's minds. ' No one ventures to pro-
claim that everything is permissible in the interests of
society. Impious maxim, which seems to have been
invented in an age of liberty in order to give legitimacy
to all tyrants to come.' The Americans themselves
cannot imagine liberty without Christianity. And the
chief cause why religion is so powerful among them is
because it is entirely separated from the State 1 .
The intelligence of the people, and their education,
but especially their practical experience in working
their local politics. However, though everybody has
some education, letters and culture do not flourish.
The Americans regard literature properly so called with
disfavour : they are averse to general ideas. They
have no great historian, not a single poet, legal com-
mentators but no publicists, good artisans but very few
inventors [!].
Of all these causes, the most important are those
which belong to the character and habits of the people.
These are infinitely more important sources of well-
being than the laws, as the laws are in turn more
important than the physical conditions 2 .
1 I do not profess to summarize in these few lines all that Tocqueville says
of the character and influence of Christianity in the United States, for he
devotes many pages to it, and they are among the wisest and most per-
manently true that he has written.
2 Like most of his contemporaries, Tocqueville failed to appreciate the
enormous influence of physical environment, which has, however, doubt-
4 o8 HAMILTON AND TOCQUEVILLE
Whether democracy will succeed in other parts of the
world is a question which a study of America does not
enable the observer confidently to answer Her insti-
tutions, however suitable to her position in a world of
her own, could not be transferred bodily to Europe.
But the peace and prosperity which the Union enjoys
under its democratic government do raise a strong pre-
sumption in favour of democracy even in Europe. For
the passions and vices which attack free government
are the same in America as in Europe, and as the legis-
lator has overcome many of them there, combating
envy by the idea of rights, and the presumptuous
ignorance of the crowd by the practice of local govern-
ment, he may overcome them here in Europe likewise.
One may imagine institutions for a democracy other
than those the Americans have adopted, and some of
them better ones. Since it seems probable that the
peoples of Europe will have to choose between demo-
cracy and despotism, they ought at least to try the
former, and may be encouraged by the example of
America.
A concluding chapter is devoted to speculations on
the future of the three races which inhabit the terri-
tories of the United States. I need not transcribe what
he says of the unhappy Indian tribes. Their fate was
then already certain : the process which he saw passing
in Alabama and Michigan afterwards repeated itself in
California and Oregon.
The presence of the blacks is the greatest evil that
threatens the United States. They increase, in the
less increased, so far as America is concerned, through the scientific dis-
coveries made since the date of his journey.
HAMILTON AND TOCQUEVILLE 409
Gulf States, faster than do the whites. They cannot
be kept for ever in slavery, since the tendencies of the
modern world run strongly the other way. They
cannot be absorbed into the white population, for the
whites will not intermarry with them, not even in the
North where they have been free for two generations.
Once freed, they would be more dangerous than now,
because they would not long submit to be debarred
from political rights. A terrible struggle would ensue.
Hence the Southern Americans, even those who regret
slavery, are forced to maintain it, and have enacted
a harsh code which keeps the slave as near as possible
to a beast of burden, forbidding him to be taught
and making it difficult for him to be manumitted. No
one in America seems to see any solution. The North
discusses the problem with noisy inquietude. The
South maintains an ominous silence. Slavery is evi-
dently economically mischievous, for the free States are
far more prosperous: but the South holds to slavery
as a necessity.
As to the Federal Union, it shows many signs of
weakness. The States have most of the important
powers of government in their hands ; they have the
attachment of the people; they act with vigour and
promptitude, while the Federal authority hesitates and
argues. In every struggle that has heretofore arisen
the Federal Government has given way, and it possesses
neither the material force to coerce a rebellious State
nor a clear legal right to retain a member wishing to
dissolve the Federal tie. But although the Union has
no national patriotism to support it (for the professions
of such patriotism one hears in America are but lip-deep),
4 io HAMILTON AND TOCQUEVILLE
it is maintained by certain interests those material
interests which each part of the country has in remain-
ing politically united with the rest. Against these one
finds no strong interests making for material severance,
but one does find diversities, not indeed of opinion for
opinions and ideas are wonderfully similar over the
whole country but of character, particularly between
Northern and Southern men, which increase the chances
of discord. And in the rapid growth of the Union there
lies a real source of danger. Its population doubles
every twenty- two years. Before a century has passed
its territory will be covered by more than a hundred
millions of people and divided into forty States 1 . Now
all partnerships are more difficult to keep together the
more the number of partners increases 2 . Even admit-
ting, therefore, that this hundred millions of people have
similar interests and are benefited by remaining united,
still the mere fact that they will then form forty nations,
distinct and unequally powerful, will make the main-
tenance of the Federal Government only a happy
accident. ' I cannot believe in the duration of a govern-
ment whose task is to hold together forty different
peoples spread over a surface equal to the half of
Europe, to avoid rivalries, ambitions, and struggles
among them, and to unite the action of their independent
wills for the accomplishment of the same plans V
The greatest danger, however, which the Union
1 There are now forty-five, with a population of nearly eighty millions.
3 No proof is given of this proposition, which is by no means self-evident,
and which has indeed all the air of a premiss laid down by a schoolman of
the thirteenth century.
3 He has, however, nowhere attempted to prove that the States deserve to
be called ' nations ' or ' peoples.'
HAMILTON AND TOCQUEVILLE 411
incurs as it grows is the transference of forces which
goes on within its own body. The Northern States
increase more rapidly than the Southern, those of the
Mississippi Valley more rapidly still. Washington,
which when founded was in the centre of the Union,
is now at one end of it. The disproportionate growth
of some States menaces the independence of others.
Hence the South has become suspicious, jealous, irrit-
able. It fancies itself oppressed because outstripped
in the race of prosperity and no longer dominant. It
threatens to retire from a partnership whose charges
it bears, but whose profits it does not share 3 .
Besides the danger that some States may withdraw
from the Union (in which case there would probably
be formed several federations, for it is highly unlikely
that the original condition of State isolation would
reappear), there is the danger that the central Federal
authority may continue to decline till it has become
no less feeble than was the old Confederation. Although
Americans fear, or pretend to fear, the growth of cen-
tralization and the accumulation of powers in the hands
of the Federal Government, there can be little doubt
that the central authority has been growing steadily
weaker, and is less and less able to face the resistance
of a refractory State. The concessions of public territory
made to the States, the hostility to the United States
Bank, the (virtual) success of South Carolina in the
Nullification struggle, are all proofs of this truth.
General Jackson, now (1832) President, is at this moment
1 The protective tariff was felt as a grievance by the South, being im-
posed in the interest of the Northern and Middle States. No doubt, the
North got more pecuniary gain out of the Union than the South did.
4 i2 HAMILTON AND TOCQUEVILLE
strong, but only because he flatters the majority and
lends himself to its passions. His personal power may
increase, but that of the President declines. ' Unless
I am strangely mistaken, the Federal Government of
the United States tends to become daily weaker; it
draws back from one kind of business after another,
it more and more restricts the sphere of its action.
Naturally feeble, it abandons even the appearance of
force. On the other side, I think I perceive that in the
United States the sentiment of independence becomes
more and more lively in the States, and the love of
provincial government more and more pronounced.
People wish to keep the Union, but to keep it reduced
to a shadow : they would like to have it strong for some
purposes and weak for the rest strong in war and
almost non-existent in peace forgetting that such alter-
nations of strength and weakness are impossible/
Nevertheless the time when the Federal power will
be extinguished is still distant, for the continuance of
the Union is desired, and when the weakness of the
Government is seen to threaten the life of the Union,
there may be a reaction in its favour.
Whatever may be the future of the Federation, that
of republicanism is well assured. It is deeply rooted
not only in the laws, but in the habits, the ideas, the
sentiments, even the religion of the people. It is
indeed just possible that the extreme instability of
legislation and administration may some day disgust
the Americans with their present government, and
in that case they will pass rapidly from republicanism
to despotism, not stopping by the way in the stage
of limited monarchy. An aristocracy, however, such
HAMILTON AND TOCQUEVILLE 413
as that of the old countries of Europe, can never grow
up. Democratic equality will survive, whatever be
the form which government may take.
This brief summary, which conveys no impression of
the elegance and refinement of Tocqueville's reason-
ings, need not be pursued to include his remarks on
the commercial and maritime greatness of the United
States, nor his speculations on the future of the Anglo-
American race. Still less shall I enter on the second
part of the book, for (as has been observed already)
it deals with the ideas of democracy and equality in
a very abstract and sometimes unfruitful way, and it
would need a separate critical study.
But before passing on to consider how far the
United States now differs from the republic which the
French philosopher described, we must pause to ask
ourselves whether his description was complete.
It is a salutary warning to those who think it easy to
get to the bottom of the political and social phenomena
of a nation, to find that so keen and so industrious
an observer as Tocqueville, who seized with unrivalled
acuteness and described with consummate art many
of the minor features of American politics, omitted to
notice several which had already begun to show their
heads in his day, and have since become of the first
importance. Among these are
The system of party organization. It was full grown
in some States (New York for instance), and spreading
quickly through the rest.
The influence of commercial growth and closer
commercial relations in binding together different
States of the Union and breaking down the power oil
4 i4 HAMILTON AND TOCQUEVILLE
State sentiment. He does in one passage refer to this
influence, but is far from appreciating the enormous
force it wa.s destined to exercise, and must have
exercised even without railways.
The results of the principle proclaimed definitely
just before his visit, and already operative in some
places, that public office was to be bestowed as a
reward for political service, and held only so long
as the party which bestowed it remained in power.
The assertion by President Monroe of the intention
of the United States to regard as unfriendly (i. e. to do
their best to resist) any extension of the ' European
system' to the American Continent, and any further
colonization thereof or intrusion by European powers
thereon.
The rise of the Abolitionists (they had begun to
organize themselves before 1830, and formed a National
Anti-Slavery Society in 1833) and the intense hostility
they aroused in the South.
The growth of the literary spirit, and the beginnings
of literary production. The society which produced
Washington Irving, Fenimore Cooper, Channing,
Hawthorne, Emerson, Longfellow, Thoreau, Prescott,
Ticknor, Margaret Fuller, Holmes, Lowell, Parkman
not to add some almost equally famous later names-
deserved mention as a soil whence remarkable fruits
might be expected which would affect the whole nation.
Yet it is not once referred to, although one can perceive
that Tocqueville had spent some time in Boston, for
many of his views are evidently due to the conversa-
tions he held with the leading Whigs of that day
there.
HAMILTON AND TOCQUEVILLE 415
The influence of money on politics. It might surely
have been foretold that in a country with such re-
sources, and among a people whose restless commercial
activity would be able to act on a vast scale, great
piles of wealth would soon be accumulated, that this
wealth would perceive objects which it might accom-
plish by legislative aid, would seek to influence govern-
ments, and would find ample opportunities for doing
so. But of the dangers that must thence arise we do
not hear a word.
VII. EXAMINATION OF TOCQUEVILLE'S VIEWS.
Such was the aspect of the United States in 1832,
such the predictions which an unusually penetrating
and philosophic mind formed of its future. I will not
attempt to inquire how far the details of the picture
are accurate, because it would be unprofitable to con-
test statements without assigning one's own reasons,
while to assign them would lead me into a historical
disquisition. A shorter and simpler course will be to
inquire in what respects things have changed since his
time, for thus we shall be in a position to discern
which of the tendencies he noted have proved perma-
nent, what new tendencies have come into being, what
are the main tendencies which are now controlling the
destinies of the Republic.
I have noted at the end of last section the phenomena
which, already existing in Tocqueville's day, he omitted
to notice or to appraise at their due value. Let us
see what time has brought forward since his day to
alter the conditions of the problem as he saw it.
4 i6 HAMILTON AND TOCQUEVILLE
The great events that have befallen since 1834 are
these :
The annexation of Texas in 1845.
The war with Mexico in 1846, leading to the enlarge-
ment of the United States by the vast territories which
are now California, Nevada, Utah, Idaho, Arizona, and
New Mexico.
The making of railways over the whole country,
culminating with the completion of four or five great
Trans-Continental roads (the first in 1869).
The establishment of lines of swift ocean steamers
between America and Europe.
The immigration from Ireland (immensely increased
after the famine of 1846), and from Germany (beginning
somewhat later), and from Scandinavia, Austria- Hungary,
and Russia (later still).
The War of Secession, 1861-65 ; together with the
extinction of Slavery.
The laying of submarine cables to Europe, and the
extension of telegraphic communication over the whole
Union.
The settlement of the Alabama claims, an event
scarcely less important in American history than in
English, because it greatly diminished the likelihood of
a war between the two countries. In Tocqueville's time
the hatred of Americans to England was rancorous.
The growth of great cities. In 1830, only two had
a population exceeding 100,000. There are now (census
of 1900) thirty-eight which exceed that population J .
1 In 1790 there were only six cities with populations of at least 8,000.
There are now 545. The percentage of urban to rural population (taking
urban as that of a city of 8,000) was then 3-4 and is now 33'!.
HAMILTON AND TOCQUEVILLE 417
The growth of great fortunes, and of wealthy and
powerful trading corporations ; the extension of mining,
especially silver and gold mining ; the stupendous
development of speculation, not to say gambling, in
stocks and produce.
The growth of the universities and of many kindred
literary and scientific institutions.
The war with Spain in 1898, and consequent annexa-
tion of Hawaii (which might probably not have been taken
but for naval needs supposed to have been disclosed
by the war), of Puerto Rico, and of the Philippine Isles.
These are events which have told directly or indirectly
upon politics. I go on to enumerate the political
changes themselves of the same sixty-seven years.
Democratization of State Constitutions, total abolition
of property qualifications, choice of judges (in most
States) by popular vote and for terms of years, restric-
tions on the power of State Legislatures, more frequent
use of the popular vote or so-called Referendum l .
Development of the Spoils System, consequent degra-
dation of the increasingly large and important civil
service, both Federal, State, and Municipal.
Perfection and hierarchical consolidation, on nominally
representative but really oligarchic lines, of party
organizations ; consequent growth of Rings and Bosses,
and demoralization of city government.
Enfranchisement of the negroes through amendments
to the Constitution.
Intensification of National (as opposed to State)
sentiment consequent on the War of Secession ; passion
1 ^specially in the form of the amendment of particular provisions of
State Constitutions.
BRYCE i EC
418 HAMILTON AND TOCQUEVILLE
for the national flag ; rejection of the dogmas of State
sovereignty and right of nullification.
Increased importance of currency and other financial
problems : emergence of industrial questions as bases
for party organization : efforts to found a Labour Party
and a ' People's Party/
To these I add, as powerfully affecting politics, the
development not only of literary, scientific and historical
studies, but in particular of a new school of publicists,
who discuss constitutional and economic questions in
a philosophic spirit; closer intellectual relations with
Europe, and particularly with England and Germany;
resort of American students to German Universities ;
increased interest of the best class of citizens in
politics; improved literary quality of the newspapers
and of periodicals (political and semi-political) generally ;
growth of a critical and sceptical spirit in matters of
religion and philosophy ; diminished political influence
of the clergy.
We may now ask which of Tocqueville's observations
have ceased to be true, which of his predictions falsified.
I follow the order in which they were presented in
the last section.
Although the powers of the several States remain in
point of law precisely what they were (except as regards
the Constitutional amendments presently to be noticed)
and the citizen depends as much now as then upon
the State in all that relates to person and property,
to the conduct of family and commercial relations,
the National or Federal Government has become more
important to him than it was then. He watches its
proceedings more closely, and, of course, thanks to
HAMILTON AND TOCQUEVILLE 419
the telegraph, knows them sooner and more fully. His
patriotism is far more national, and in case of a conflict
between one or more States and the Federal power,
the sympathies of the other States would probably be
with the latter.
Local government has been maintained in its com-
pleteness, but it seems to excite less interest among
the people. In the larger cities it has fallen into the
hands of professional politicians, who have perverted it
into a grasping and sordid oligarchy.
There is still, as compared with Continental Europe,
little ' administration/ though more than in Tocqueville's
time. But the influence of Federal legislation on the
business of the country is far greater than it was, for
the tariff and the currency, matters of increased conse-
quence ever since the war, are in its hands.
The dignity of the judicial bench has in most States
suffered seriously from the system of popular election
for comparatively short terms. In those States where
nomination by the Executive has been retained, and
in the case of the Federal Judges (nominated by the
President), the position is perhaps the highest permanent
one open to a citizen.
The President's authority received a portentous en-
largement during the War of Secession, and although
it has now returned to its normal condition, the sense
of its importance has survived. His election is con-
tested with increasing excitement, for his immense
patronage and the magnitude of the issues he may
influence by his veto power give individuals and
parties the strongest grounds for hope and fear.
Experience has, on the whole, confirmed the view that
E e 2
420 HAMILTON AND TOCQUEVILLE
the re-eligibility of an acting President (/. e. the power
of electing him for an immediately succeeding term)
might well be dispensed with.
The credit of the Supreme Court suffered some-
what from its pro-slavery decisions just before the war,
and may possibly have suffered slightly since in respect
of its treatment of the Legal Tender question. Never-
theless it remains respected and influential.
The State Constitutions, nearly all of which have
been re-enacted or largely amended since 1834, remain
inferior to the Federal Constitution, and the State
legislatures are, of course (possibly with a very few
exceptions in the New England States), still more
inferior to Congress.
Two great parties reappeared immediately after
Tocqueville wrote, and except for a brief interval before
the Civil War when the Whig party had practically
expired before its successor and representative the
Republican party had come to maturity, they have
continued to divide the country, making minor parties
of slight consequence. Now and then an attempt is
made to start a new party as a national organization,
but it rarely becomes strong enough to maintain itself.
The rich and educated renewed their interest in politics
under the impulse of the Slavery and Secession struggle.
After a subsequent interval of apathy they seem to
be again returning to public life. The secret murmurs
against democracy, whereof Tocqueville speaks, are
confined to a handful of fashionable exquisites less
self-complacent now than they were in the days when
they learnt luxury and contempt for the people in the
Paris of Louis Napoleon.
HAMILTON AND TOCQUEVILLE 421
Although newspapers are better written than formerly
and those of the great cities travel further over the
country, the multitude of discordant voices still prevents
the people from being enslaved by the press, which
however shows an alarming capacity for exciting them.
The habit of association by voluntary societies maintains
itself.
The defects of the professional politicians, a term
which now more precisely describes those whom Tocque-
ville calls by the inappropriate European name of ' the
governors/ continue at least as marked as in his time.
So, too, the House of Representatives continues less
influential than the Senate, but for other reasons than
those which Tocqueville assigns, and to a less degree
than he describes. The Senate has not, since 1880,
maintained the character he gives it ; and the fact that
it is still chosen in the way which he commended shows
that the merits he ascribed to it were not due to its mode
of choice. Indeed in the judgement of most thoughtful
men, popular election in the States would give a better
Senate than election by the State Legislatures now does.
American magistrates never did in general enjoy the
arbitrary power Tocqueville ascribes to them. They
assuredly do not enjoy it now, but in municipalities
there is a growing tendency to concentrate power,
especially the appointing power, in the hands of one
or a few officers in order that the people may have
some one person on whom responsibility can be fixed.
Such power is sometimes very wide, but it cannot be
called arbitrary. A few minor offices are unsalaried;
the salaries of the greater ones have been raised, par-
ticularly in the older States.
422 HAMILTON AND TOCQUEVILLE
The methods of administration, especially of Federal
administration, have been much improved, but are still
behind those of the most advanced European countries,
one or two departments excepted.
Government is far from economical. The war of the
Rebellion was conducted in the most lavish way: the
high protective tariff raises a vast revenue, and direct
local taxation takes more from the citizen than in most
European countries. An enormous sum is spent upon
pensions to persons who purport to have served in the
Northern armies during the Civil War 1 .
Congress does not pass many public statutes, nor
do they greatly alter ordinary law within the sphere
open to federal legislation. Many legislative experi-
ments are tried in the newer States, but the ordinary
private law is in no such condition of mutability as
Tocqueville describes. The law of England suffered
more changes between 1868 and 1885 than either the
common or statute law of the older States of the
Union.
The respect for the rights of others, for the regular
course of legal process, for the civil magistrate, remains
strong ; nor have the rich (although of late years more
threatened) seriously begun to apprehend any attacks
on them, otherwise than as stockholders in great rail-
way and other corporations.
The tyranny of the majority is not a serious evil in
the America of to-day, though people still sometimes
profess alarm at it. It cannot act through a State
legislature so much as it may have done in Tocque-
1 In 1892 the expenditure on this head was $155,000,000 : in 1901 it was
estimated at $142,000,000.
HAMILTON AND TOCQUEVILLE 423
villa's days, for the wings of these bodies have been
effectively clipped by the newer State constitutions.
Faint are the traces which remain of that intolerance
of heterodoxy in politics, religion or social views where-
on he dilates 1 . Politicians on the stump still flatter
the crowd, but many home truths are told to it never-
theless in other ways and places, and the man who
ventures to tell them need no longer fear social pro-
scription (at least in time of peace) in the Northern or
Western States, perhaps not even in the Southern.
The Republic came scatheless out of a terrible
civil war, and although the laurels of the general who
concluded that war twice secured for him the Presi-
dency, they did not make his influence dangerous to
freedom. There is indeed no great capital, but there
are cities greater than most European capitals, and the
Republic has not been imperilled by their growth. The
influence of the clergy on public affairs has declined :
whether or no that of religion has also been weakened
it is more difficult to say. But all Americans are still
agreed that religion gains by its entire detachment
from the State.
The negro problem remains, but it has passed into
a new and for the moment less threatening phase.
Neither Tocqueville nor any one else then living could
have foreseen that manumission would come as a war
measure, and be followed by the grant of political
rights. It is no impeachment of his judgement that he
omitted to contemplate a state of things in which the
1 Competent American observers in Tocqueville's own time thought he
greatly exaggerated this danger. See a letter from Jared Sparks printed in
Professor Herbert B.Adams' interesting monograph Jared Sparks and A lexis
de Tocqueville, in Johns Hopkins University Studies, 1898.
4 2 4 HAMILTON AND TOCQUEVILLE
blacks have been made politically the equals of the
whites, while inferior in most other respects, and des-
tined, apparently, to remain wholly separate from them.
He was right in perceiving that fusion was not possible,
and that liberation would not solve the problem, because
it would not make the liberated fit for citizenship. Fit
that is to say, as fit as a considerable part of the white
population they will probably in the long run become,
but even then the social problem will remain. His
remark that the repulsion between the races in the
South would probably be greater under freedom than
under slavery has so far been strikingly verified by the
result.
All the forces that made for the maintenance of the
Federal Union are now stronger than they were then,
while the chief force that opposed it, viz. the difference
of character and habits between North and South,
largely produced by the existence of slavery, tends to
vanish. Nor does the growth of the Union make the
retention of its parts in one body more difficult. On
the contrary, the United States is a smaller country
now when it stretches from the Bay of Fundy to the
Gulf of California, with its seventy-six millions of people,
than it was then with its thirteen millions, just as the
civilized world was larger in the time of Herodotus
than it is now, for it took twice as many months to
travel from Persepolis or the Caspian Sea to the Pillars
of Hercules as it does now to circumnavigate the globe,
one was obliged to use a greater number of languages,
and the journey was incomparably more dangerous.
Before steamboats plied on rivers, and trains ran on
railways, three or four weeks at least were consumed
HAMILTON AND TOCQUEVILLE 425
in reaching Missouri from Maine. Now one goes in
six days of easy travelling right across the continent.
Nor has the increased number of States bred more
dissensions. The forty-five States of to-day are not as
Tocqueville assumes, and this is the error which vitiates
his reasonings, forty-five nations. The differences in
their size and wealth have become greater, but they
work more harmoniously together than ever heretofore,
because neither the lines which divide parties nor the
substantial issues which affect men's minds coincide
with State boundaries. The Western States are now,
so far as population goes, the dominant section of the
Union, and become daily more so. But their interests
link them more closely than ever to the North Atlantic
States, through which their products pass to Europe,
and the notion once entertained of moving the capital
from Washington to the Mississippi valley has been
quietly dropped.
VIII. CONCLUDING SUMMARY.
Before bidding farewell to our philosopher, let us
summarize his conclusions.
He sees in the United States by far the most success-
ful and durable form of democratic government that has
yet appeared in the world.
Its merits are the unequalled measure of freedom,
freedom of action, but not of thought, which it secures
to the ordinary citizen, the material and social benefits
it confers on him, the stimulus it gives to all his prac-
tical faculties.
These benefits are likely to be permanent, for they
rest upon the assured permanence of
426 HAMILTON AND TOCQUEVILLE
Social equality ;
Local self-government ;
Republican institutions ;
Widely diffused education.
It is true that these benefits would not have been
attained so quickly nor in such ample measure but for
the extraordinary natural advantages of the New World.
Nevertheless, these natural advantages are but sub-
sidiary causes. The character of the people, trained
to freedom by experience and by religion, is the chief
cause, their institutions the second, their material con-
ditions only the third; for what have the Spaniards
made of like conditions in Central and South America l ?
Nevertheless, the horizon is not free from clouds.
What are these clouds ?
Besides slavery and the existence of a vast negro
population they are
The conceit and ignorance of the masses, perpetually
flattered by their leaders, and therefore slow to correct
their faults.
The withdrawal from politics of the rich, and inferior
tone of ' the governors/ i. e. the politicians.
The tyranny of the majority, which enslaves not only
the legislatures, but individual thought and speech,
checking literary progress, and preventing the emergence
of great men.
The concentration of power in the legislatures (Federal
and State), which weakens the Executive, and makes all
laws unstable.
1 The conditions of most parts of the tropical regions of South and Central
America are in reality quite different from those of the American Union
taken as a whole.
HAMILTON AND TOCQUEVILLE 427
The probable dissolution of the Federal Union, either
by the secession of recalcitrant States or by the slow
decline of Federal authority.
There is therefore warning for France in the example
of America. But there is also encouragement and the
encouragement is greater than the warning.
Of the clouds which Tocqueville saw, one rose till it
covered the whole sky, broke in a thunderstorm, and
disappeared. Others have silently melted into the blue.
Some still hang on the horizon, darkening parts of the
landscape.
Let us cast one glance back at the course which
events have actually taken as compared with that which
Hamilton first, and Tocqueville afterwards, expected.
The Republic fared far otherwise than as Hamilton
and his friends either hoped or feared. In this there
is nothing to impeach their wisdom. They saw the
dangers of their own time, and like wise and patriotic
men provided the best remedies which existing conditions
permitted. Some dangers they overcame so completely,
particularly the financial misdoings of State legislatures,
that these have now passed out of memory. They could
not foresee what the power of money would become,
because there was then little money in the country. They
could not foresee the astonishing development of party
machinery, because it is a perfectly new thing in the
history of the world: and human imagination never
does more, at any rate in the field of politics and
sociology, than body forth things a little bigger than,
or in some other wise a little varying from, what they
have been before. It cannot create something out of
nothing. Least of all could they divine what the results
428 HAMILTON AND TOCQUEVILLE
would be of the coexistence of the money power and
the party machine. Nor did even Tocqueville, writing
half a century later, when wealth had already appeared
and the party machine was in places beginning to work,
perceive what both had in store.
How would Tocqueville amend his criticisms were
he surveying the phenomena of to-day ?
He would add to his praise of the United States that
its people re-established their government on firm foun-
dations after a frightful civil war, that their army went
back to its peaceful occupations, that they paid off their
debt, that they have continued to secure a free field for
an unparalleled industrial development and to maintain
a hitherto unattained standard of comfort, that the
level of knowledge and intellectual culture has risen
enormously. He would admit that he had overrated
the dangers to be feared from a tyrannical majority and
had underrated the strength of the Union. But he
would stand aghast, as indeed all the best citizens in the
United States do now, at the mismanagement and cor-
ruption of city governments. He would perceive that
the party organizations have now become the con-
trolling force in the country, more important than the
Legislature or the Executive. He would recognize
the evils incident to the habit of regarding public office
as a means of private advantage to its holder and the
bestowal of it as a reward for party services. And he
would, while gladly owning that the older forms of
faction had ceased to be alarming, note a new develop-
ment which the spirit of faction has taken in the tendency
to look at and deal with both legislation and foreign
affairs from the point of view of party advantage. Want
HAMILTON AND TOCQUEVILLE 429
of foresight or insight in those who direct the affairs
of a mighty nation is at all times a misfortune: but
when foresight and insight are set aside for the sake
of some transitory party gain, the results may be even
more serious.
This, however, is a tendency inherent in all schemes
of government by party. It is familiar and formidable
in European countries also.
VII
TWO
SOUTH AFRICAN CONSTITUTIONS 1
I. THE CONDITIONS UNDER WHICH THESE CON-
STITUTIONS AROSE.
THE old Greek saying, 'Africa is always bringing
something new 2 / finds an unexpected application in
the fact that there exist in South Africa two Dutch
republics possessing constitutions diverse in type from
any of those which we find subsisting in other modern
States. The system established by these two South
African instruments resembles neither the English,
or so-called 'Cabinet/ system of government, which
has been more or less imitated by the other free
countries of Europe, and has been reproduced in the
self-governing British colonies, nor the American, or
so-called 'Presidential/ system, as it exists in the
United States and the several States of the American
Union. And although it bears some resemblance to
the constitution of the Swiss Confederation and to the
constitutions of the cantons of Switzerland, this resem-
1 This Essay was composed early in 1896, and describes the Constitutions of
the Orange Free State and South African Republic as they stood in December
1895, the month when the fatal invasion of the latter Republic by the police
of the British S. Africa Company took place. I have left it, for obvious
reasons, substantially unchanged, save that here and there I have corrected
what seemed to be errors, have added one or two references to recent events,
and have explained some constitutional points with more fullness. In its
original form, the Essay appeared in the Forum in April 1896.
2 Ac76Tcu TIS Trapotfua on del <j>fpd Aifivi) TI KO.IVUV. Arist. Hist. Anim. viii. 28.
SOUTH AFRICAN CONSTITUTIONS 431
blance is not a close one, and is evidently not due to con-
scious imitation, but to a certain similarity of phenomena
suggesting similar devices. The constitutions of these
two Dutch republics are the product, the pure and
original product, of African conditions, having drawn
comparatively little from the experience of older coun-
tries, or from the models their schemes of government
afford. Moreover, these South African constitutions
grew up upon a perfectly virgin soil. There was no
pre-existing political organization, such as the old feudal
polities supplied in some countries of Europe, out of
which these Republics could develop themselves. There
were no charters of guilds or companies, such as those
which gave their earliest form to the governments of
several of the older American States. Nor was there
any home pattern to be copied, as the British colonies
have, by the aid of statutes of the Imperial Parliament,
copied the constitution of the United Kingdom.
This is one of the most interesting features of these
Constitutions. They are not specifically Dutch. Neither
are they English. Nothing is more uncommon in history
than an institution starting de novo, instead of being
naturally evolved out of some earlier form. The simple
farmers who drafted the documents which I propose to
describe, knew little about the systems either of Europe
or of America. Few possessed any historical, still fewer
any legal, knowledge. Many were uneducated men,
though with plenty of rough sense and mother wit.
They would have liked to get on without any govern-
ment, and were resolved to have as little as possible.
Circumstances, however, compelled them to form some
sort of organization; and in setting to work to form
432 SOUTH AFRICAN CONSTITUTIONS
one, with little except their recollections of the local
arrangements of Cape Colony to guide or to assist
them, they came as near as any set of men ever have
come to the situation which philosophers have so often
imagined, but which has so rarely in fact occurred
that of free and independent persons uniting in an
absolutely new social compact for mutual help and
defence, and thereby creating a government whose
authority has had, and can have had, no origin save in
the consent of the governed.
A few preliminary words are needed to explain the
circumstances under which the constitutions of the
Orange Free State and of the South African Republic
(commonly called the Transvaal) were drawn up.
As early as 1820 a certain number of farmers, mostly
of Dutch origin, living in the north-eastern part of Cape
Colony, were in the habit of driving their flocks and
herds into the wilderness north of the Orange River,
where they found good fresh pasture during and after
the summer rains. About 1828 a few of these farmers
established themselves permanently there, still of course
remaining subjects of the British Crown, which had
acquired Cape Colony first by conquest and then by
purchase in 1806 and 1814. In 1835-6, however, a
much greater number of farmers migrated from the
colony ; some in larger, some in smaller bodies. They
had various grievances against the British Government,
some dating back as far as 1815 : and they desired to
live by themselves in their own way, untroubled by
the Governors whom it sent to rule the country 1 .
1 A concise account of these grievances and a sketch of the subsequent
history of the emigrants may be found in Dr. Theal's Story of South Africa
SOUTH AFRICAN CONSTITUTIONS 433
Between 1835 and 1838 a considerable number of these
emigrants moved into the country beyond the Orange
River, some remaining there, others pushing still
further to the north-east into the hitherto unknown
regions beyond the Vaal River, while a third body,
perhaps the largest, moved down into what was then
a thinly peopled Kafir land, and is now the British
colony of Natal. This is not the place in which to
relate the striking story of their battles with the Zulu
king and of their struggle with the British Government
for the possession of Natai. It is enough to say that
this third body ultimately quitted Natal to join the other
emigrants north of the mountains ; and that, after many
conflicts between those emigrants and the native tribes,
and some serious difficulties with successive Governors
of Cape Colony, the British Government finally, by a
Convention signed at Sand River in 1852, recognized
the independence of the settlers beyond the Vaal River,
while, by a later Convention signed at Bloemfontein
in 1854, it renounced the sovereignty it had claimed
over the country between the Orange River and the
Vaal River, leaving the inhabitants of both these
territories free to settle their own future form of
government for themselves.
These two Conventions are the legal and formal
starting-points of the two republics in South Africa,
and from them the history of those republics, as self-
governing states, recognized in the community of
nations by international law, takes its beginning. The
emigrant farmers had, however, already been driven
(published by Messrs. Putnam), and in my Impressions of South Africa, chaps,
xi and xii. See also Dr. Theal's larger History of the Boers in South Africa.
BRYCB i F f
434 SOUTH AFRICAN CONSTITUTIONS
by the force of circumstances to establish some sort
of government among themselves. As early as 1836
an assembly of one of the largest emigrant groups
then dwelling in the Orange River Territory, elected
seven persons to constitute a body with legislative and
judicial power. In 1838 the Natal emigrants established
a Volksraad (council of the people) which consisted of
twenty-four members, elected annually, who met every
three months and had the general direction of the
affairs of the community, acting during the intervals
between the meetings by a small committee called the
Commissie Raad. All important measures were, how-
ever, submitted to a general meeting called the Publiek,
in which every burgher was entitled to speak and vote.
It was a primary assembly, like the Old English Folk
Mot, or the Landesgemeinde of the older Swiss
Cantons. A somewhat similar system prevailed among
the farmers settled in the country beyond the Vaal
River. They too had a Volksraad, or sometimes for
they were from time to time divided into separate and
practically independent republican communities several
Volksraads; and each district or petty republic had
a commandant-general. Their organization was really
more military than civil, and the commandant-general
with his Krygsraad (council of war), consisting of the
commandants and field cornets within the district,
formed the nearest approach to a regular executive.
I have unfortunately been unable to obtain proper
materials for the internal political history, if such a
term can be used, of these communities before they
proceeded to enact the constitutions to be presently
described, and fear that such materials as do exist are
SOUTH AFRICAN CONSTITUTIONS 435
very scanty. But, speaking broadly, it may be said
that, in all the communities of the emigrant farmers,
supreme power was deemed to be vested in an assembly
of the whole male citizens, usually acting through a
council of delegates, and that the permanent officials
were generally a magistrate, called a landrost, in each
village, a field cornet in each ward, and a commandant
in each district. All these officials were chosen by the
people 1 . In these primitive arrangements consisted
the materials out of which a constitutional government
had to be built up.
From this point the history of the Orange River
Territory, which by the Convention of 1854 was re-
cognized as the Orange Free State, and that of the
Transvaal Territory begin to diverge. In describing
the constitutions of the republics, I take first that of
the Orange Free State, because it dates from 1854,
while the existing constitution of the Transvaal is four
years younger, having been adopted in 1858. The
former is also by far the simpler and shorter document.
When the British Government in 1854 voluntarily
divested itself of its rights over the Orange River
Territory, greatly against the will of some of its
subjects there, the inhabitants of that Territory were
estimated at 15,000 Europeans, most of them of Dutch,
the rest of British origin. (The number of native Kafirs
was much larger, but cannot now be estimated.) The
great majority were farmers, pasturing their sheep and
cattle on large farms, but five small villages already
1 I am indebted for most of these facts regarding the early organization
of the emigrants to Dr. G. M. Theal's History of the Boers in South Africa,
a book of considerable merit and interest, which, however, carries its narra-
tive down only to 1854.
Ff2
436 SOUTH AFRICAN CONSTITUTIONS
existed, one of which, Bloemfontein, has grown to be
a town of 5,800 people, and is now the capital. The
Volksraad, or assembly of delegates of the people,
framed, and on April 10, 1854, enacted, a constitution
for the new republic. This constitution was revised
and amended in 1866, and again in 1879, but the main
features of the original instrument remain. I proceed
to deal with it as it now stands.
II. CONSTITUTION OF THE ORANGE FREE STATE.
This Constitution, which is in the Dutch language, and
is called De Constitutie, is a terse and straightforward
document of sixty-two articles, most of which are only
a few lines in length l . It begins by defining the qualifi-
cations for citizenship and the exercise of the suffrage
(articles i to 4), and incidentally imposes the obligation
of military service on all citizens between the ages of
sixteen and sixty. Only whites can be citizens. New-
comers may obtain citizenship if they have resided one
year in the state and have real property to the value
of at least 150 sterling ($750), or if they have resided
three successive years and have made a written promise
of allegiance.
Articles 5 to 27 deal with the composition and functions
of the Volksraad, or ruling assembly, which is declared
to possess the supreme legislative authority. It consists
of representatives (at present fifty-eight in number), one
from each of the wards or Field Cornetcies, and one from
the chief town or village of each of the (at present
1 My thanks are due to the distinguished Chief Justice of the Free State
(Mr. Melius de Villiers) for much information kindly furnished to me re-
garding this Constitution.
SOUTH AFRICAN CONSTITUTIONS 437
nineteen) districts. They are elected for four years,
one-half retiring every two years. Twelve constitute
a quorum. Every citizen is eligible who has not been
convicted of crime by a jury or been declared a bank-
rupt or insolvent, who has attained the age of twenty-
five years, and who possesses fixed (i.e. real) unmort-
gaged property of the value of 500 at least.
The Volksraad is to meet annually in May, and may
be summoned to an extra session by its chairman, as
also by the President ( 34), or by the President and the
Executive Council ( 45).
The Volksraad has power to depose the President if
insolvent or convicted of crime, and may also itself try
him on a charge of treason, bribery, or other grave
offence ; but the whole Volksraad must be present or
have been duly summoned, and a majority of three to
one is required for conviction. The sentence shall in
these cases extend only to deposition from office and
disqualification for public service in future, a President
so deposed being liable to further criminal proceedings
before the regular courts.
The votes of members of the Volksraad shall be
recorded on a demand by one-fifth of those present
The sittings are to be public, save where a special cause
for a secret sitting exists.
The Volksraad shall make no law restricting the
right of public meeting and petition.
It shall concern itself with the promotion of religion
and education.
It shall promote and support the Dutch Reformed
Church.
It may alter the constitution, but only by a majority
438 SOUTH AFRICAN CONSTITUTIONS
of three-fifths of the votes in two consecutive annual
sessions.
It has power to regulate the administration and
finances, levy taxe.s, borrow money, and provide for
the public defence.
Articles 28 to 41 deal with the choice and functions
of the President of the state.
He is to be elected by the whole body of citizens,
the Volksraad, however, recommending one or more
persons to the citizens 1 .
He is chosen for five years and is re-eligible.
He is the head of the executive, charged with the
supervision and regulation of the administrative depart-
ments and public service generally, and is responsible
to the Volksraad, his acts being subject to an appeal to
that body. He is to report annually to the Volksraad,
to assist its deliberations by his advice, but without
the right of voting, and, if necessary, to propose bills.
He makes appointments to public offices, and may fill
vacancies that occur when the Volksraad is not sitting,
but his appointments require its confirmation. (Such
confirmation has been hardly ever, if ever, refused.)
He may also suspend public functionaries, but dismissal
appears to require the consent of the Volksraad.
Articles 42 to 46 deal with the Executive Council. It
consists of five members, besides the State President, who
is ex-offtcio chairman, with a deciding or overriding vote
(bestissende stem). Of these five, one is the landrost (magis-
trate) of Bloemfontein, another the State Secretary,
both these officials being appointed by the President
1 In practice, the recommendation of the majority of the Volksraad is
looked upon as likely to ensure the election of the person so recommended.
SOUTH AFRICAN CONSTITUTIONS 439
and confirmed by the Volksraad ; the remaining three
are elected by the Volksraad. This Council advises the
President, but does not control his action in matters
which the Constitution entrusts to him, reports its pro-
ceedings annually to the Volksraad, and has the rights,
in conjunction with the President, of pardoning offenders
and of declaring martial law.
Regarding the judicial power only two provisions
require mention. Article 48 declares this power to be
exclusively exercisable by the courts of law established
by law. Article 49 secures trial by jury in all criminal
causes in the superior courts.
Local government and military organization, subjects
intimately connected in Dutch South Africa, occupy
articles 50 to 56 inclusive.
A field cornet is elected by the citizens of each ward,
a field commandant by those of each district, in both
cases from among themselves *. In case of war, all the
commandants and cornets taken together elect a Com-
mandant-General, who thereupon receives his instruc-
tions from the President. Those who elected him may,
with the consent of the President, dismiss him and
choose another. Every field cornet and commandant
must have landed property, the latter to the value of
200 at least.
Article 57 declares Roman-Dutch law to be the
common law of the state 2 .
Articles 58 and 59 declare that the law shall be
1 In the earlier days of Rome the army elected its subordinate officers.
3 Roman-Dutch law is the common law all over South Africa, even in the
almost purely English colony of Natal (though of course not in Portuguese or
German territory). It has been largely affected, especially in the British
colonies, by recent legislation.
440 SOUTH AFRICAN CONSTITUTIONS
administered without respect of persons and that every
resident shall be held bound to obey it, while articles 60,
61, and 62 guarantee the rights of property, of personal
liberty, and of press freedom.
It will be convenient to defer general criticisms upon
the frame of government established by this Constitution
till we have examined that of the sister republic of the
Transvaal, which agrees with it in many respects. But
we may here briefly note, before passing further, a few
remarkable features of the present instrument.
1. It is a Rigid constitution, i.e. one which cannot be
changed in the same way and by the same authority as
that whereby the ordinary law is changed, but which
must be changed in some specially prescribed form in
this case, by a three-fourths majority of the Volksraad
in two successive sessions l .
2. The body of the people do not come in as a voting
power, save for the election of the President and
Commandant-General. All other powers, even that of
amending the constitution, belong to the Volksraad.
3. There is only one legislative chamber.
4. The President has no veto on the acts of the
legislature.
5. The President has the right of sitting in and
addressing the legislature.
6. The President's Council is not of his own choosing,
but is given him by the legislature.
7. The heads of the executive departments sit neither
in the Council nor in the legislature.
8. The legislature may apparently reverse any and
every act of the President, save those (pardon of offences
1 As to Rigid Constitutions, see Essay III.
SOUTH AFRICAN CONSTITUTIONS 441
and declaration of martial law) specially given to him
and the Executive Council.
American readers will have noted for themselves some
few points in this Constitution which have been drawn
from that of the United States. Others are said to have
been suggested by the Constitution framed for the
French Republic in 1848. Comparatively few contro-
versies upon the construction of the Constitution have
been debated with any warmth. One, which gave rise
to a difference of opinion between the Volksraad and
the Supreme Court of the state, arose upon the question
whether the Volksraad has power to punish a citizen
for contempt by committing him to prison for a long
term, and to direct the State Attorney to prosecute him.
The judges disapproved what they deemed an un-
constitutional stretching of authority by the legislature.
Using the opportunities of influencing public opinion
which the delivery of charges to juries gave them, they
ultimately so affected the mind of the people that the
Volksraad tacitly retired from its position, leaving the
question of right undetermined.
III. CONSTITUTION OF THE SOUTH AFRICAN REPUBLIC.
The South African Republic, or Transvaal State as
it is popularly called, is ruled by a much longer, much
less clear, and much less systematically arranged docu-
ment than that established by its sister commonwealth 1 .
A considerable part of the contents of this constitution
is indeed unfit, as too minute, for a fundamental instru-
1 I have to thank my friend Mr. J. G. Kotze, late Chief Justice of the South
African Republic, for information kindly supplied to me regarding certain
points in this Constitution.
442 SOUTH AFRICAN CONSTITUTIONS
ment of government ; and, whatever the intention of
its framers may have been, it has not in fact been treated
as a fundamental instrument. Whether it is really
such, in strict contemplation of law, is a question
often discussed in professional circles in Pretoria and
Johannesburg. I shall summarize the more important
of its provisions they occupy two hundred and thirty-
two articles and endeavour therewith to present an
outline of the frame of government which they establish.
The Grondwet (Ground-law) or Constitution was
drafted by a committee of an assembly of delegates and
approved by the assembly itself in February, 1858. It
is in Dutch, but has been translated into English more
than once.
Article 6 declares the territory of the republic open to
every stranger who submits himself to the laws a pro-
vision noteworthy in view of recent events and declares
all persons within the territory equally entitled to the
protection of person and property.
Article 8 states, inter alia, that the people ' permit the
spread of the Gospel among the heathen, subject to
prescribed provisions against the practice of fraud and
deception'; a provision upon whose intention light is
thrown by the suspicions felt by the Boers of the
English missionaries.
Article 9 declares that 'the people will not tolerate
equality between coloured and white inhabitants either
in church or in state V
1 The Boers are a genuinely religious people, and read their Bibles. But
they have shown little regard to i Corinthians xii. 13 ; Galatians iii. 28 ;
and Colossians iii. n. The same may be said of the people of the Southern
States of America ; and is indeed also true of the less religious English
both in South Africa and in the West Indies.
SOUTH AFRICAN CONSTITUTIONS 443
Article 10 forbids slavery or dealing in slaves.
Article 19 grants the liberty of the press.
Articles 20 to 23 formerly declared that the people
would maintain the principles of the doctrine of the
Dutch Reformed Church, as fixed by the Synod of Dort
in 1618 and 1619, that the Dutch Reformed Church shall
be the Church of the State, that no persons shall be
elected to the Volksraad who are not members of that
Church, that no ecclesiastical authority shall be acknow-
ledged save that of the consistories of that Church, and
that no Roman Catholic Churches, nor any Protestant
Churches save those which teach the doctrine of the
Heidelberg Catechism, shall be permitted within the
republic. But these archaic provisions were in the
revised Grondwet of 1889 reduced to a declaration that
only members of a Protestant Church should be elected
to the Volksraad 1 .
After these general provisions we come to the frame
of government. Legislation is committed to a Volksraad,
' the highest authority of the state/ It is to consist of
at least twelve members (the number is at present
twenty-four) who must be over thirty years of age and
possess landed property. Each district returns an equal
number of members. Residence within the district is
not required of a candidate. The members were
formerly elected for two years, and one-half retired
annually. Their term was afterwards extended to four
years. Every citizen who has reached the age of twenty-
one enjoys the suffrage 2 (persons of colour are of course
1 I am informed that even this restriction was abolished subsequently to
1895.
3 The suffrage was by subsequent enactments restricted as respects
444 SOUTH AFRICAN CONSTITUTIONS
incapable of voting or of being elected). The unwork-
able provision of the old Grondwet that ' any matter dis-
cussed shall be decided by three-fourths of the votes '
was subsequently repealed.
Three months are to be given to the people for
intimating to the Volksraad their opinion on any pro-
posed law, ' except laws which admit of no delay ' ( 12),
but laws may be discussed whether published three
months before their introduction or introduced during
the session of the Volksraad ( 43). The sittings are
to open and close with prayer, and are to be public,
unless the chairman or the President of the Execu-
tive Council deems secrecy necessary.
If the high court of justice declares the President,
or any member of the Executive Council, or the Com-
mandant-General, unfit to fill his office, the Volksraad
shall remove from office the person so declared unfit
and shall provide for filling the vacant office.
The administration, as well as the proposal, of laws
was by the old Grondwet given to an Executive Council
( 13). The revised instrument vests it in the State Pre-
sident. The President is elected for five years by the
citizens voting all over the country. He must have
attained the age of thirty and be a member of a Protes-
tant (formerly of the Dutch Reformed) Church ( 56).
He is the highest officer of the state, and appoints all
officials. All public servants, except those who ad-
minister justice, are subordinate to him and under his
immigrants and the sons of immigrants ; and in 1895 a person coming into
the country could not obtain full electoral rights till after a period of twelve
years. In July 1899, three months before the war which broke out in that
year, the period was shortened to seven years owing to pressure by the British
Government.
SOUTH AFRICAN CONSTITUTIONS 445
supervision. In case of his death, dismissal, or inability
to act, his functions devolve on the oldest member of
the Executive Council till a new appointment is made.
The Volksraad shall dismiss him on conviction of any
serious offence. He is to propose laws to the Volks-
raad 'whether emanating from himself or sent in to
him by the people' and support them in that body
either personally or through a member of the Executive
Council. He has, however, no right to vote in the Volks-
raad. He recommends to the Volksraad persons for
appointment to public posts; and may suspend public
servants, saving his responsibility to the Volksraad.. He
submits an estimate of revenue and expenditure, reports
on his own action during the past year and on the
condition of the republic, visits annually all towns
and villages where any public office exists to give
due opportunity to the inhabitants of stating their
wishes.
The Executive Council consists of four official members
besides the President, namely, the State Secretary, the
Commandant-General, the Superintendent of Native
Affairs, and the Keeper of Minutes (N otulenhouder\ and
of two other members. All except the Commandant-
General are elected by the Volksraad ; the Secretary for
four years, the two other members for three years. The
Commandant-General is elected by the burghers of the
whole republic for ten years. All, including the Presi-
dent, are entitled to sit, but not to vote, in the Volksraad,
The President and Council carry on correspondence
with foreign powers, and may commute or remit a penal
sentence. A sentence of death requires the unanimous
confirmation of the Council. The President may, with
446 SOUTH AFRICAN CONSTITUTIONS
the unanimous consent of the Council, proclaim war
and publish a war ordinance summoning all persons
to serve (,23, 66, 84).
The provisions relating to the military organization
( 93~ IX 4) are interesting chiefly as indicating the
highly militant character of the republic. Express pro-
vision is made not only for foreign war and for the
maintenance of order at home, but also for the cases
of native insurrection and of disaffection or civil war
among the whites. The officers are all elected by the
burghers, the Commandant-General by the whole body
of burghers for ten years, the commandants in each
district for five years, the field cornets and assistant field
cornets in the wards for three years.
The judiciary ( 115-135) consists of landrosts (magis-
trates who also discharge administrative duties), heem-
raden (local councillors or assessors), and jurors. The
provisions regarding the exercise of judicial power are
minute and curious in their way, but have no great
interest for constitutional purposes. Two landrosts are
proposed to the people of the judicial district by the
Executive Council, and the people vote between these
two. Minute provisions regarding the oaths to be taken
by these officials and by jurymen, and regarding the
penalties they may inflict, fill the remaining articles.
A guarantee for the independence of the courts is to
be found in the general statement in article 15 that ' the
judicial power is vested in landrosts, heemraden, and
jurors/ and in the declaration ( 57) that the judicial
officers are ' left altogether free and independent in the
exercise of their judicial power/ A High Court and
a Circuit Court, not provided for in the old Grondwet,
SOUTH AFRICAN CONSTITUTIONS 447
appear in that of 1889, and are appointed for life. The
High Court consists of a chief justice and four puisne
judges.
The old Grondwet also contained some curious details
relating to civil administration (which was primarily
entrusted to the judicial officers, supported by the com-
mandants and field cornets), and the revenue of the
State, which was intended to be drawn chiefly from fees
and licences, the people having little disposition to be
directly taxed. The farm tax was not to exceed forty
dollars, and the poll-tax, payable by persons without or
with only one farm, was fixed at five dollars annually.
Five dollars was the payment allowed to each member
of the Volksraad for each day's attendance. Most of
these provisions have disappeared from the instrument
of 1889. The salary of the President of the Council,
which had been fixed at 5,333 dollars, 2 schellings, and
4 stuivers, to be increased as the revenue increased,
now amounts to 7,000 sterling ($35,000) per annum,
besides allowances.
The most considerable change made since 1889 was
the establishment, in 1890, of a chamber called the
Second Volksraad, which is elected on a more liberal
basis than the First Volksraad, persons who have
resided in the country for two years, have taken an
oath of allegiance and have complied with divers other
requirements, being admissible as voters. This assembly,
however, enjoys little real power, for its competency
is confined to some specified matters, and to such others
as the First Volksraad may refer to it ; and its acts may
be overruled by the First Raad, whereas the Second
Raad has no power of passing upon the resolutions or
448 SOUTH AFRICAN CONSTITUTIONS
laws enacted by the First Raad. The Second Volksraad
is, therefore, not a second chamber in the ordinary sense
of the term, such as the Senate in American States
or the House of Lords in England, but an appendage
to the old popular House. It was never intended to
exercise much power, and was, in fact, nothing more
than a concession, more apparent than real, to the
demands of the Uitlanders, or recent immigrants ex-
cluded from citizenship.
A few general observations may be made on this
Constitution before we proceed to examine its legal
character and effect.
It was in its older form a crude, untechnical docu-
ment, showing little trace on the part of those who
drafted it either of legal skill or of a knowledge of
other constitutions. The language was often vague,
and many of the provisions went into details ill-fitted
for a fundamental law.
Although enacted by and for a pure democracy, it
was based on inequality inequality of whites and blacks,
inequality of religious creeds. Not only was the Dutch
Reformed Church declared to be established and
endowed by the State, but Roman Catholic churches
were forbidden to exist, and no Roman Catholic nor
Jew nor Protestant of any other than the Dutch
Reformed Church was eligible to the presidency, or to
membership of the legislature or executive council.
In its improved shape (1889) some of these faults have
been corrected, and in particular the religious restric-
tions were reduced to a requirement that the President,
the Secretary of State, the Landrosts and the members
of the Volksraad should belong to a Protestant Church.
SOUTH AFRICAN CONSTITUTIONS 449
The door, however, remained barred against persons
of colour.
It contained and still contains little in the nature of
a Bill of Rights, partly perhaps from an oversight on the
part of its draftsmen, but partly also owing to the assump-
tion which the early history of the republic amply
verified that the government would be a weak one,
unable to encroach upon the rights of private citizens.
The first legal question which arises upon an exami-
nation of this Constitution relates to its stability and
permanence. Is it a Rigid or a Flexible Constitution ?
That is to say, can it, like the constitution of the Orange
Free State and that of the United States, be altered
only in some specially prescribed fashion ? Or may it
be altered by the ordinary legislature in the ordinary
way, like any other part of the law ?
In favour of the former alternative, that the consti-
tution is a Rigid one, appeal has been made not only
to the name Grondwet (Ground-law), but, which is of
more consequence, to some of its language. The general
declarations of the power of the people, the form in
which they entrust power to the legislature, to the
Executive Council, and to the judiciary respectively (as
well as to the military authority), look as if meant to
constitute a triad of authorities, similar to that created
by the constitutions of American States, no one of which
authorities may trespass on the province of the others.
Some things seem intended to be secured against any
alteration by the legislature, e.g., article 9 declares that
' the people will not allow of any equality between
coloured and white inhabitants'; article n declares
that 'the people reserve to themselves the exclusive
BRYCE I G g
450 SOUTH AFRICAN CONSTITUTIONS
right of protecting and defending the independence and
inviolability of Church and State, according to the laws/
On the other hand, it is argued that the constitution
must be deemed to be a Flexible one, because it did
not in its original form, and does not now, contain any
provision whereby it may be altered, otherwise than by
the regular legislature of the country acting according
to its ordinary legislative methods. One cannot sup-
pose that no change was intended ever to be made in
the Grondwet. That supposition would be absurd
in view of the very minute provisions on some trivial
subjects which it contains. No distinction is drawn, by
the terms of the instrument, between these minutiae
and the provisions of a more general and apparently
permanent nature. Ergo, all must be alterable, and
alterable by the only legislative authority, that is to say,
the Volksraad. This view, moreover, is the view which
the legislature has in fact taken, and in which the people
have certainly acquiesced. Some changes have been
made such as the admission to the electoral franchise
of persons not belonging to the Dutch Reformed
Church, the creation of a new supreme court, and the
establishment of a Second Volksraad which are not
consistent with the Grondwet, but whose validity has
not been contested.
The difficulty which arises from the fact that, whereas
the framers of the Grondwet appear to have desired to
make parts of their work fundamental and unchange-
able, they have nevertheless drawn no distinction be-
tween those parts and the rest, and have provided no
specific security against the heedless change of the
weightiest parts, may be explained by noting that they
SOUTH AFRICAN CONSTITUTIONS 451
were not skilled jurists or politicians, alive to the
delicacy of the task they had undertaken. They expected
that the Volksraad would continue to be of the same
mind as they were then, and would respect what they
considered fundamental; they relied on the general
opinion of the nation. They had, moreover, provided
a method whereby the nation should always have an
opportunity of expressing its opinion upon legislation,
namely, the provision ( 12) that the people should have
a period of three months within which to 'intimate
to the Volksraad their views on any proposed law/ it
being assumed that the Volksraad would obey any
such intimation, although no means is provided for
securing that it will do so.
This provision has given rise to a curious question.
It excepts ' those laws which admit of no delay/ Now
the Volksraad has in fact neglected the general pro-
vision, and, instead of allowing the three months' period,
has frequently hastily passed enactments upon which
the people have had no opportunity of expressing their
opinion. Such enactments, which have in some in-
stances purported to alter parts of the Grondwet itself,
are called 'resolutions' (besluite) as opposed to laws;
and when objection has been taken to this mode of
legislation, these resolutions seem to have been usually
justified on the ground of urgency, although in fact many
of them, if important, could hardly be called urgent.
They have been treated as equally binding with laws
passed in accordance with the provisions of the Grond-
wet (for up to 1895 article 12 seems not to have been
formally altered); and it is only recently that their
validity has been seriously questioned in the courts*
Gg2
452 SOUTH AFRICAN CONSTITUTIONS
Those who support their validity argue that in passing
such resolutions as laws, the Volksraad must be taken
to have implicitly, but decisively, repealed the provision
of article 12 ; or that, if this be not so, still the Volksraad
is under article 12 the sole judge of urgency, and
can legally treat things as urgent which are, in fact,
not so ; a view affirmed by the Chief Justice in a case
(State v. Hess) which arose in 1895. They add that
even apart from both these arguments the unbroken
usage of the Volksraad during a number of years,
tacitly approved by the people, must be deemed to
have established the true construction of the Con-
stitution, especially as according to Roman-Dutch
law, usage, whether affirmative or negative, can alter
written enactments and could thus annul the direc-
tions of article 12. So it is written in the Digest of
Justinian (I. 3. 32) : ' Inveterata consuetude pro lege
custoditur . . . nam quid interest suffragio populus
voluntatem suam declaret an rebus ipsis et factis?
Quare rectissime etiam illud receptum est ut leges non
solum suffragio legis latoris, sed etiam tacito consensu
omnium per desuetudinem abrogentur.' To this, how-
ever, it is answered that the principle of obsolescence
by contrary practice cannot fitly be applied where a
statute is recent and express.
Until 1897, the High Court of the Transvaal had
held that the resolutions as well as the laws passed by
the Volksraad were fully valid, whether or no they had
been submitted to the people for the period of three
months, nor had the question of their being really
urgent been raised. It had thus declared the Grondwet
to be alterable by the Legislature, and so not a Rigid
SOUTH AFRICAN CONSTITUTIONS 453
Constitution. In that year, however, in the case of
Brown v. Leyds, the Court held, by a majority, that a
law which had been passed without having been sub-
mitted to the people during the period prescribed by
the Grondwet was unconstitutional and therefore void,
thus appearing to assert (for the language of the judge-
ment is not very clear) the view that the Grondwet was
a Rigid Constitution, not alterable by the Legislature.
This action was warmly resented by the Executive and
Legislature : and the latter passed a resolution directing
the President to require from every judge on pain of dis-
missal a declaration that he would in future recognize as
valid every law passed by the Volksraad, and not again
assert the so-called ' testing power ' of inquiring whether
a law conformed to the provisions of the Grondwet.
The Chief Justice refused to make this declaration, and
was accordingly dismissed, much to the regret of those
who remembered his past services to the State.
On a review of the whole matter, apart from the
political passion which has been brought into it, the
true view would appear to be the following, though
I state it with the diffidence becoming a stranger who is
also imperfectly informed as to the constitutional history
of the republic.
The Grondwet of the South African Republic, though
possibly intended by its framers to be treated, in
respect of its most important provisions, as a funda-
mental law not to be altered by the Volksraad in the
exercise of its ordinary powers, is not really a Rigid
constitution but a Flexible one. We have to look not
so much at what the framers may have wished as at
what the language employed actually conveys and im-
454 SOUTH AFRICAN CONSTITUTIONS
ports ; and the absence of any provision, such as that
contained in the Constitution of the Orange Free State,
for a special and peculiar method of change, is decisive
upon this point. An American lawyer, accustomed to
construe strictly documents which contain or modify
powers, might be inclined to argue that the validity of
laws (not dealing with matters which ' admit of no delay J )
which had been passed as mere resolutions, ignoring
article 12, may have been doubtful until the Volksraad
modified that article by legislation. But the Transvaal
High Court had held that the question of urgency was
a question for the discretion of the Volksraad ; and it
must be added that persons accustomed to other legal
systems do not necessarily proceed upon American
principles. The Swiss, for instance, make their legisla-
ture the interpreter of the Constitution for the purpose
of determining the extent of legislative power 1 . Allowing
for this, and remembering that both the law courts and
the whole people had until 1897 treated the Volksraad
as an absolutely sovereign body, the action it took in
asserting its sovereignty need excite no surprise. It
was claiming nothing more than the powers actually
enjoyed by the British Parliament. However, although
the Volksraad was merely enforcing the rights which
it reasonably (and I think correctly) conceived itself to
possess, and could not have permitted the majority of the
High Court to assert a power previously unknown,
a wiser course would have been to amend the Constitu-
tion in some way which would have given to the judiciary
a more assured position than that which had been
secured to them by a confessedly crude and imperfect
1 See Essay III, p. 231.
SOUTH AFRICAN CONSTITUTIONS 455
instrument. It was through the confused language of
the Grondwet that the whole difficulty arose, and while
formally declaring that the Grondwet was not as it
certainly was not a Rigid Constitution, the Volksraad
ought to have endeavoured to render it more suited
to the needs of a society which had grown to be different
from that for which it had been originally enacted.
IV. OBSERVATIONS ON THE CHARACTER AND WORKING
OF BOTH CONSTITUTIONS.
The principles of these Constitutions are highly demo-
cratic. They were intended so to be. Among the whites
settled in these wide territories there prevailed a perfect
social equality, a passionate love of independence, and
a strong sense of personal dignity. They were as little
influenced by political theories as it was possible for any
civilized men in this century to be. Their wish for a
government purely popular, and indeed for very little
of any government at all, was due to their personal ex-
perience and to the conditions under which they found
themselves in the wilderness; and one may doubt whether
they would have established a regular government but
for the dangers which threatened them from the war-
like native tribes. Such sentiments as I have described
would have disposed them, had they lived in a city, or
in a small area like the cantons of Uri or Appenzell
in Switzerland, to have kept legislation and the deter-
mination of all grave affairs in the hands of a general
meeting of the citizens. But they lived scattered over
a vast wilderness, with no means of communication save
ox-wagons which travel only some twelve miles a day.
In the Orange River Territory when it became a state
456 SOUTH AFRICAN CONSTITUTIONS
there were probably less than three thousand citizens,
though its area was nearly that of England. Hence
primary assemblies were impossible, and power had to
be entrusted to a representative body.
The predominance of the legislature is the most
conspicuous feature of both these constitutions. The
Transvaal Volksraad originally made all the appointments
to the civil service, for the President had only the right
of proposing, and even in the revised Grondwet of 1889
the Raad retains the right of approving or disapproving
the President's appointments. In both republics the
Volksraad appoints a majority of the Executive Council
which surrounds the President, to advise, but also to
watch and check him. It has complete control of
revenue and expenditure. It may change the con-
stitution, though, in the Orange Free State, only by
a prescribed majority. The President has no veto on
its acts; nor is it, as in most modern free countries,
divided into two chambers likely to differ from and
embarrass one another. Its vote, which may, if it
pleases, be a single vote, given under no restrictions
but those of its own making, is decisive.
The comparative feebleness of the other branches of
government corresponds to the overwhelming strength
of the legislature. The authority of the judiciary re-
ceived from the first a somewhat vague recognition, and
its independence was at one time, in the South African
Republic, seriously threatened by the executive and
legislature, and saved only by the exertions of the bench
and bar, which aroused public opinion on its behalf.
The later controversy between the Volksraad and the
Chief Justice has been already discussed. In the Free
SOUTH AFRICAN CONSTITUTIONS 457
State the Court's claim to be the proper and authoritative
interpreter of the constitution, which would be clear
upon English or American principles, was never formally
admitted. And though the judges are in both republics
appointed for life, their salaries are at the mercy of
the legislature.
The executive head of the government has no doubt
the advantage, as in an American State, of being directly
chosen by the people, and not, as in France, by the
legislature. But he has no veto on acts of the legisla-
ture, while his acts can be overruled by it, at least in
the Orange Free State, for in the Transvaal this may be
more doubtful. Its approval is required to any appoint-
ments he may suggest. He is hampered by an Executive
Council which he has not himself selected, resembling
in this respect an American State governor rather than
the President of the Union. It may, in the Free State,
try him and depose him if convicted. He has no military
authority, such as that enjoyed by the British Crown
and its ministers, or by the American President, for
that belongs to the Commandant-General (though in the
Orange Free State the Commandant ' receives instruc-
tions ' from the President).
Against all these sources of weakness there are only
two things to set. The President can speak in the
Volksraad, and he is re-eligible any number of times.
The Executive Council, as already observed, seems
intended to restrain the President, while purporting to
aid and advise him. It may be compared to the Privy
Council of mediaeval England, with the important differ-
ence that it is appointed, not by the executive, but partly
by the legislature, partly by the people. As we shall
458 SOUTH AFRICAN CONSTITUTIONS
see presently, it has proved to be an unimportant part
of the machinery of government.
In all these points the two constitutions present a
close likeness. They are also similar in the recognition
which they originally gave, and have not wholly ceased
to give, to a state church an institution opposed to
democratic ideas in America and in the British Colonies
as well as in their exclusion of persons of colour from
every kind of political right. It would appear that upon
this point there has never been any substantial difference
of opinion in the two republics. Neither indeed is
there much difference of opinion in the British parts of
South Africa, for although the influence of English
ideas has been so far felt that in Cape Colony persons
of colour are permitted to vote, still the combination of
a property qualification with an educational qualification
greatly restricts their number. A republican form of
government, therefore, does not necessarily appear to
make for ' human rights ' in the American sense of that
term, any more than it did in the United States in 1788.
Speaking generally, these two Constitutions carry
the principle of the omnipotence of the representative
chamber to a maximum. This will be more clearly
seen if we compare the system they create, first with
the cabinet system of Britain and her self-governing
colonies, and secondly with the presidential system of
the United States.
The main differences between the South African
scheme of government and the British may be briefly
summarized.
The head of the executive is, in the South African
republics, chosen directly by the people, whereas in
SOUTH AFRICAN CONSTITUTIONS 459
Britain and her colonies the executive ministry is virtually
chosen by the legislature 1 , though nominally by the
Crown or its local representative.
In these republics the executive cannot, as can
ministers under the British system, be dismissed by
a vote of the legislature, nor on the other hand has the
executive the power of dissolving the legislature.
In these republics the nominal is also the real and
acting executive head, whereas in the British system
a responsible ministry is interposed between the nominal
head and the legislature.
In all the above-mentioned points the South African
system bears a close resemblance to the American.
In these republics the President's Council need not
consist of persons in agreement with his views of
policy. It may even be hostile to him, as part of Warren
Hastings's council at Calcutta was in permanent oppo-
sition to that governor. Nor does the Executive Council
consist, like the (normal) British cabinet and United
States Federal cabinet, of the heads of the great
administrative departments, though several officials sit
in it.
On the other hand, the South African system agrees
with the British in permitting the head of the working
executive to speak in the legislature, a permission which
has proved to be of the highest importance, and
which in America is given by usage neither to the
Federal President 2 nor to a State governor.
1 Using the expression which Bagehot has made familiar, though of course
Parliament is far from determining the entire composition of a ministry,
which may occasionally contain persons it would not have selected.
2 Although there is nothing in the federal constitution to prevent a Presi-
dent from addressing either House of Congress.
460 SOUTH AFRICAN CONSTITUTIONS
The chief differences between the South African and
the American system are the following :
The President has, in the South African republics,
far less independence than belongs in the United States
to either a Federal President or to the Governor of a
State. He has no veto on acts of the legislature, and
less indirect power through the patronage at his disposal.
Moreover, the one -chambered legislature is much
stronger as against him than are the two-chambered
legislatures of America, which may, and frequently do,
differ in opinion, so that the President or Governor can'
play off one against the other. Further, as already
observed, an American Federal President has a cabinet
of advisers whom he has himself selected, and an
American State governor has usually officials around
him who, being elected by a party vote at the same
election, are probably his political allies ; whereas a
South African President might possibly have an Execu-
tive Council of opponents forced on him by the Volksraad.
And even in negotiations with foreign states, he cannot
act apart from this Executive Council.
The distinctive note of both these South African
Constitutions is the kind of relation they create between
the Executive and the Legislature. These powers are
not disjoined, as in the United States, because a South
African President habitually addresses and may even
lead the Volksraad. Neither are they united, as in
Britain and her colonies, where the Executive is at the
same time dependent on the legislature, and also the
leader of the legislature, for the South African President
is elected by the people for a fixed term, and cannot be
displaced by the Volksraad. He combines the inde-
SOUTH AFRICAN CONSTITUTIONS 461
pendence of an American President with the oppor-
tunities of influencing the legislature enjoyed by a
British, or British colonial, Ministry. For nearly all
practical purposes he is at the mercy of the legisla-
ture, because he has neither a veto, like the American
President, nor a power of dissolution, like the British
Ministry. The Volksraad could take all real power
from him, should it be so minded. But he is strong
by the possession of the two advantages just mentioned.
He can persuade his Volksraad, which has not, by
forming itself into organized parties, become inaccessible
to persuasion. He can influence the opinion of his
people, because he is their choice, and a single man in
a high place fixes the attention and leads the minds of
a people more than does an assembly.
It must, however, be remembered that the features
perhaps one may say the merits which I have noted
as shown in the working of the South African system,
belong rather to small than to large communities. The
Free State had in 1895 only some seventeen thousand
voting citizens, the Transvaal not many more. Athens
in the days of Themistocles had about thirty thousand.
In large countries, with large Legislatures, whose size
would engender political parties, things would work out
differently. Furthermore, in a large State, the adminis-
trative departments would be numerous and their work
heavy. The President could not discuss departmental
affairs with the Raad, and could not easily be made
personally responsible for all that his administrative
officers did. And the less knowledge he had of affairs
and of persons, the less influence he exerted over the
Raad, the more would his Executive Council tend to
462 SOUTH AFRICAN CONSTITUTIONS
check him. Its members would probably intrigue with the
leaders of parties in the Volksraad, and make themselves
a more important factor in the government than they
have been while overshadowed by his personality.
Any one who, knowing little or nothing about the
social conditions and the history of these two re-
publics, should try to predict the working of their
governments from a perusal of their constitutions, would
expect to find them producing a supremacy, perhaps
a tyranny, of the representative assembly; for few
checks upon its power are to be found within the four
corners of either instrument. He would be prepared
to see party government develop itself in a pronounced
form. Power would be concentrated in the party
majority and its leaders. The Executive would become
the humble instrument of their will. The courts of
law, especially in the Transvaal with its Flexible con-
stitution, would be unable to stem the tide of legislative
violence. The President might perhaps attempt to
resist by producing a deadlock over appointments ; and
he would have a certain moral advantage in being the
direct choice of the people. But the one-chambered
Legislature would in all probability prevail against him.
Is this what has in fact happened? Far from it.
Party government, in the English and American sense,
has not made its appearance. The Legislature has not
become the predominant power, subjecting all others
to itself. It has, in general, followed the lead of the
Executive. The Courts of law, though (in the Transvaal)
at one moment menaced, have administered justice with
fairness and independence. But in order to describe
what has happened, I must, in a very few sentences,
SOUTH AFRICAN CONSTITUTIONS 463
deal separately with the Orange Free State and the
South African Republic, for though their constitutions
are similar and the origin of their respective populations
nearly identical \ their history has been very different.
The Orange Free State had, for many years prior to
1899, a comparatively tranquil and uneventful career.
One native war inflicted some injury upon it, but the
result of that war was to give it a strip of valuable terri-
tory. It had joined the British colonies in a South
African Customs Union, had placed its railroads under the
management of the Cape Government, had maintained
friendly relations with the two British self-governing
colonies, had extended the franchise to immigrants on
easy terms, and was at all times recognized as absolutely
independent by the British Government. Internally its
development, if not rapid, was both steady and healthful.
There was no poverty among the people, and hardly any
wealth. No exciting questions arose to divide the
citizens, and no political parties grew up. The Legisla-
ture, although too large, has been a sensible, business-
like body, which wasted no more time than debate
necessarily implies. From 1863 to 1888 it was guided
by the counsels of President Brand, whom the people
elected for five successive terms, and whose power of
sitting in it and addressing it proved of the utmost value,
for his judgement and patriotism inspired perfect con-
fidence. His successor Mr. Reitz, who was obliged by
ill-health to retire from office in 1895, enjoyed equal
respect and almost equal influence, when he chose to
exert it, with the Volksraad, and things went smoothly
1 The British element is larger among the citizens of the Orange Free
State than it is in the burgher population of the Transvaal.
464 SOUTH AFRICAN CONSTITUTIONS
under him, as they promised to do under President
Steyn, who was elected in 1896, for the latter also was
believed so I heard when visiting the Free State in
3:895 to possess the qualities which had endeared his
predecessors to the community. The Executive Council
has not proved to be a very valuable part of the scheme
of government ; and some judicious observers thought
the constitution ought to be amended by strengthening
the position of the courts and introducing provisions for
a popular vote on constitutional amendments, similar
to those which exist in American States and in Switzer-
land. But, on the whole, the system of government
worked smoothly, purely and efficiently ; the Legislature
was above suspicion, and the people were content
with their institutions.
Very different had been the annals of the South
African Republic. Soon after the Grondwet was
adopted in 1858, a civil war broke out ; and from that
time onward factions and troubles of all kinds were
seldom wanting. In 1877 the country, then threatened
by native enemies, was annexed to the British
dominions against the will of the people : in 1881 its
autonomy was restored, subject to British suzerainty 1 .
Its government, however, continued to be pressed by
financial and other difficulties, till the discovery of rich
gold-fields in 1884-6, while suddenly increasing the
revenue, drew in a stream of immigrants which has
steadily continued to flow, and therewith raised that new
crop of political troubles of which all the world has
1 A further convention was made in 1884, whose articles, omitting all
reference to ' suzerainty, 1 conceded an independence qualified only in re-
spect of the veto retained by Britain over treaties with foreign powers.
SOUTH AFRICAN CONSTITUTIONS 465
heard l . The result has been that the Constitution has
never had any period of comparative peace in which
its working could be fairly tested. If it has not worked
as smoothly as that of the Free State, this may be
due not merely to inherent defects but to the strain
which civil and foreign wars have placed upon it.
The Legislature, however, has not played the leading
part. President Burgers, who held office from 1872
till 1877, was, like President M. W. Pretorius before
him, practically more powerful than the Volksraad ;
and since 1881 President Kruger, who has been thrice
re-elected, has been the ruling force in the politics of
the country. By his influence over the people, by his
constant presence and speeches in the Volksraad, he
threw its leaders entirely into the shade, and probably
exerted more actual power than the chief magistrate of
any other republic, though there was scarcely any other
chief magistrate whose legal authority was confined
within such narrow limits. So much may foreign
troubles or economic and social facts, and so much
do the qualities of individual men, affect and modify
and prevail over the formal rules and constitutional
machinery of government. The Legislature therefore
1 When these immigrants from all parts of the world swarmed into the
country, admission to the franchise was made more difficult, because the
conservative section of the citizens naturally feared that the newcomers,
many of whom did not intend to make the country their home, might, if
they forthwith acquired voting power, soon secure a majority and over-
turn the existing system of the republic, including the official use of the
Dutch language and the relations of Church and State. These non-burgher
immigrants have been absurdly described as ' helots.' A closer parallel to
them is to be found not in the semi-serfs of Sparta but in the class of resident
aliens known at Athens as metics (^roncoi). But they were indeed far
better off than that class, since they enjoyed full civic rights in all matters of
private law, wanting only the right of sharing in the government.
BRYCE I H h
4 66 SOUTH AFRICAN CONSTITUTIONS
has not had in the Transvaal that career of encroach-
ment upon and triumph over the other authorities in
the State which might have been predicted for it. Its
turn might have come when external relations were
tranquil and domestic controversies arose. When
foreign affairs occupy men's minds, and call for rapid
decision as well as for continuity of policy, the Legis-
lature is apt to be, in all countries, dwarfed by the
Executive.
POSTSCRIPT.
Since the foregoing sketch of these remarkable ex-
periments in the construction of Frames of Government
was written (in 1896), both the Dutch republics have
become involved in a deplorable war with England,
which has lasted for many months, and still con-
tinues at the time of this writing. It has brought
misery and desolation upon South Africa, and not least
upon that singularly happy, prosperous, peaceful and
well-governed community, the Orange Free State.
While the flames are still raging, no one can conjec-
ture in what form these two constitutions will emerge
from the furnace, or whether indeed they will survive
at all. In the midst of so terrible a catastrophe, a
catastrophe unredeemed by any prospect of benefit to
any of the combatants, and one whose results must
be fateful in many ways for the future of South Africa,
and possibly also of Britain, the destruction or trans-
formation of constitutions seems but a small matter.
But had these two republics been suffered to continue
the normal course of their constitutional development,
that development would have been full of interest.
SOUTH AFRICAN CONSTITUTIONS 467
It might even have conveyed valuable instruction or
suggested useful examples to other small common-
wealths, for in the scheme of these Constitutions,
and especially in that of the Free State, there are
some merits not to be found either in the American
or in the British system. These simple Free State
farmers were wiser in their simplicity than some of
the philosophers who have at divers times planned
frames of government for nascent communities. But
though Wisdom is justified of all her children, she
cannot secure that her children shall survive the shock
of arms.
H
VIII
THE CONSTITUTION OF THE
COMMONWEALTH OF AUSTRALIA
I. INTRODUCTORY.
AUSTRALIA is the first instance in history of a whole
continent whose inhabitants are all (if we exclude the
vanishing aborigines) of one race and all owe one
allegiance. Thus it has supplied the only instance in
which a political constitution has been, or could have
been, framed for a whole continent. It is moreover
one of the very few cases in history in which a number
of communities politically unconnected (save by their
common allegiance to a distant Crown) who had felt
themselves to be practically a nation have suddenly
transformed themselves into a National State, formally
recognizing their unity and expressing it in the national
institutions which they proceeded to create. There
could hardly be a more striking illustration of the
speed with which events have been moving during the
last and the present age than the fact that Australia,
or New Holland as it was then called, was, except as
to part of its coasts, marked as a Terra Incognita upon
our maps so late as the beginning of the eighteenth
century, that the first British settlement was not planted
in it at Sydney (not far from Captain Cook's Botany
THE AUSTRALIAN COMMONWEALTH 469
Bay) till 1788, that responsible government was not
conferred upon the oldest colony, New South Wales,
until 1855, nor upon West Australia till 1890.
Besides the interest with which every one must see
the birth of a new nation, occupying a vast and rich
territory, the student of political science finds further
matter for inquiry and reflection in the enactment of
an elaborate constitution for the Commonwealth of
Australia. Every creation of a new scheme of govern-
ment is a precious addition to the political resources
of mankind. It represents a survey and scrutiny of the
constitutional experience of the past. It embodies an
experiment full of instruction for the future. The
statesmen of the Convention which framed this latest
addition to the world's stock of Instruments of Govern-
ment had passed in review all previous experiments,
had found in them examples to follow and other
examples to shun, had drawn from them the best
essence of the teachings they were fitted to impart.
When the Convention prepared its highly finished
scheme of polity, it delivered its judgement upon the
work of all who had gone before, while contributing
to the materials which will be available for all who
come hereafter to the work of building up a State.
Nearly all the precedents which the Australian Con-
vention had at its disposal belong to very recent times,
in fact to the last century and a half. Though federal
governments are ancient the oldest apparently is that
formed by the cities of Lycia in the fourth century B. c.
the ancient federations scarcely got beyond the form of
leagues of small republics for the purpose of common
military defence. Such leagues never quite grew into
470 THE AUSTRALIAN COMMONWEALTH
Federal States, properly so called, i. e. States in which
the central government exercises direct power over the
citizens of the component communities. The same
remark applies to the confederacies of the Middle Ages,
such as that of the Hanse Towns and that of the old
Swiss Cantons, as well as to the United Provinces of
the Netherlands. The first true Federal State founded
on a complete and scientific basis was the United
States, which dates from 1788, when its present Con-
stitution was substituted for the Articles of Confedera-
tion of 1776. Next came the Constitution of the Swiss
Confederation, enacted in 1848, and replacing a much
looser form of union which had previously joined the
Cantons of Switzerland. Its present amended form
dates from 1874. The third was the Constitution of
Canada, established by the British North America
Act of 1867. Still later came the Constitution of the
North German Confederation (1866) enlarged into that
of the new Germanic Empire (1871), a remarkable
Federal State with a monarch for its head, and including
as its members both large kingdoms, such as Bavaria
and Wurtemberg, and the city republics of Lttbeck,
Bremen, and Hamburg 1 . But this last-named Federa-
tion, instructive as it is, deals with conditions too
dissimilar from those of Australia to furnish many pre-
cedents in point. It was the Constitutions of the United
States and of Canada which the Australians studied
most carefully, and whence they drew as well inspira-
tion as many useful suggestions. And the student who
1 One might add the Constitution of the Austro-Hungarian Monarchy,
which is a sort of double federation. But it is too peculiar to serve as an
example to other peoples proposing to federalize.
THE AUSTRALIAN COMMONWEALTH 471
examines the Australian scheme will find it interesting
to note many points that recall, by way either of likeness
or of contrast, the systems of the United States, of
Switzerland, and of Canada. It is only with these
three that I propose to compare the Australian Con-
stitution in the pages that follow. As I am writing
not for lawyers but for students of history and of
constitutions, who desire to understand the nature of
this new Government sufficiently to follow with intelli-
gence the course of political life under it, I shall pass
lightly over its more technical and more purely legal
aspects, and dwell rather upon those general features
which will give to the future Australian polity its
character and spirit.
II. THE MOVEMENT FOR FEDERATION.
Like the settlements of Britain in North America,
the Australian settlements were organized as Colonies
at different dates, and several of them independently of
the others 1 . So, again like those of North America,
each remained legally unconnected with the others,
except through the allegiance they all owed to the
British Crown, which sent out Governors to administer
them. These officers were at first practically despotic ;
but when self-government was conferred upon a Colony,
they became the nominal heads of an executive which
in fact consisted of ministers responsible to the elective
legislature of that Colony.
1 New South Wales in 1788, Tasmania in 1825, Western Australia in
1829, South Australia in 1836, Victoria in 1851, Queensland in 1859.
Victoria and Queensland had however been originally settled (1836 and
1826), and for some time administered, from New South Wales, while
Tasmania had been made a penal settlement as early as 1804.
472 THE AUSTRALIAN COMMONWEALTH
Little as there was in the way of official connexion
between the scattered settlements, their inhabitants
always deemed themselves Australians, giving their
sentimental attachment rather to the country as a whole
than to their respective colonies. They were all
English ; they all lived under similar conditions : their
local life had not lasted long enough to form local
traditions with which sentiment could entwine itself.
The very names of some of the colonies did not favour
individualization, for who would call himself a New-
southwalesian? And the idea that the colonies ought
to be united into one political body emerged very early.
As far back as 1849 a Committee in England had re-
commended that there should be a Governor-General
for all Australia, with power to convene a General
Assembly to legislate on matters of common colonial
interest, and a bill introduced into Parliament in that
year contained clauses for establishing such a legisla-
ture. These provisions were dropped, for the time was
not ripe, yet the idea continued to occupy the minds of
Australian statesmen from that year onwards; and
it received a certain impulse from the creation of the
Canadian Confederation in 1867. What it wanted was
motive power, that is to say, a sense of actual evils or
dangers to be averted, of actual benefits to be secured,
by the union of the Colonies into one National State.
Democratic communities, occupied by their own party
controversies, are little disposed to deal with questions
which are not urgent, and which hold out no definite
promise either of benefit to the masses or of political
gain to the leaders. However, in 1883 events occurred
which evoked a new Pan-Australian feeling, and indi-
THE AUSTRALIAN COMMONWEALTH 473
cated objects fit to be secured by a united Australian
government. The late Lord Derby, then Secretary
of State for the Colonies, was the most cautious and
unsentimental of mankind. He belonged to the old
school of English statesmen who deprecated and in
some cases wisely deprecated further additions to the
territories and responsibilities of Britain. Disregarding
the representations of the Governments of several
among the Colonies, he neglected to occupy the
northern part of the great neighbouring island of
New Guinea which Australian opinion desired to see
British, and permitted it, to their great vexation, to be
taken by Germany. About the same time the escape
of convicts into Australia from the French penal settle-
ment in New Caledonia had caused annoyance, and
movements were soon afterwards made by France
which seemed to indicate an intention to appropriate the
New Hebrides group of islands. These occurrences
roused the Australians to desire an authority which
might deliver their common wishes to the Home
Government and take any other steps necessary for
guarding their common interests. Accordingly a con-
ference of delegates from all the Colonies, including
New Zealand and Fiji, met in 1884, and prepared
a scheme which was transmitted to England, and was
there forthwith enacted by the Imperial Parliament
under the name of The Federal Council of Austra-
lasia Act, 1885. This scheme was, however, (as I ob-
served when it was under discussion in the House
of Commons) a very scanty, fragmentary and imperfect
sketch of a Federal Constitution. It had no executive
power and no command of money. No colony need
474 THE AUSTRALIAN COMMONWEALTH
join unless it pleased, and each might withdraw when it
pleased. Thus it befell that the plan excited little popular
interest, and gave such faint promise of energetic action
that only four colonies, Victoria, Queensland, Tasmania,
and South Australia, entered into it; and of these
South Australia presently withdrew. Meanwhile the
need for some general military organization for all
the Colonies began to be felt; and further objects
attainable by union floated before men's minds. With
the increase of trade and industry, the vexation of
tariff barriers between the colonies grew daily less
tolerable. Subjects emerged on which uniformity of
legislation was felt to be needful. The irrigation
question, one of great importance for so arid a
country, brings New South Wales, where some of the
large rivers have their source, into close relation with
Victoria and South Australia, and requires to be treated
on common lines. These and other grounds led to an
Inter-Colonial Conference of Ministers at Melbourne
in 1890, and then to the summoning of a Convention
of Delegates from the Parliaments of all the Colonies,
including Tasmania. This latter body, which included
many leading men, met at Sydney in 1891, debated
the matter with great ability, and produced a Draft
Bill, which became the basis of all subsequent dis-
cussions. The movement, hitherto confined to a group
of political leaders, now began to be taken up by the
people, and became, especially when the financial
troubles of 1893 na cl begun to pass away, the principal
subject in men's minds. That crisis had shown all the
Colonies how closely their interests were bound together,
and had made them desire to remove every hindrance
THE AUSTRALIAN COMMONWEALTH 475
to an industrial and financial recovery. A Conference of
Prime Ministers at Hobart in 1895 led to the passing by
the several Colonial Parliaments of enabling Acts under
which delegates were chosen, this time (following recent
American precedents) by popular vote, to a new Con-
vention which met at Adelaide (in South Australia) in
1897. It produced a second draft constitution, based
on that of 1891, and laid it before the legislatures of the
Colonies for criticism. About seventy-five amendments
were proposed, and were considered by the Convention
at its further sittings, which closed in March, 1898.
The draft Constitution was then submitted to a popular
vote, a new expedient in the British dominions, but one
amply justified by the need for associating the people
with the work. New South Wales alone failed to
adopt it by the prescribed majority, because a large
section of her inhabitants thought that her interests had
not been duly regarded, but after a few amendments
had been inserted at a conference of the Colonial Prime
Ministers, her people ratified it upon a second vote.
On this vote enormous majorities were secured in
Victoria, South Australia and Tasmania, smaller ones
in New South Wales and Queensland. The Constitu-
tion was then sent to England and passed into law
by the Parliament of the United Kingdom under the
title of The Commonwealth of Australia Constitution
Act (63 & 64 Viet. cap. 12). Action by the Imperial
Parliament was not only a convenient way of over-
riding all the colonial constitutions by one compre-
hensive Act, but was legally necessary, inasmuch as
some provisions of the Constitution transcended the
powers of all the colonial legislatures taken together.
476 THE AUSTRALIAN COMMONWEALTH
Since it had from the first been understood that the
wish of the mother country was not to impose her
own views but simply to carry out the wishes of the
Colonies, only one slight alteration, an alteration rather
of form than substance, was made in the draft as
transmitted from Australia, the ill-considered notion of
introducing a larger change having been eventually
dropped by the British Ministry.
I have mentioned these details in order to emphasize
the time, care and pains bestowed by the Australians
for the work was entirely their own upon this latest
effort of constructive statesmanship. The Constitution
of the United States was framed by a Convention which
sat at Philadelphia, with closed doors, for nearly five
months, and was accepted by Conventions in all the
thirteen States without change, though ten amend-
ments were immediately thereafter passed by general
consent, their adoption having been the price paid for
the ratification of the main instrument by some doubtful
States.
The Constitution of Canada took a little more than
two years to settle. The Resolutions on which it
was based were first of all drafted by a conference
of delegates at Quebec. These were approved after
full debate by the legislatures of the Provinces, and
were, after some modifications, embodied in a Bill
prepared by a small conference of Canadian states-
men who met in London. The Bill was then passed
by the Imperial Parliament, never having been
submitted to any popular vote. But this Australian
instrument is the fruit of debates in two Conventions,
of a minute examination by legislatures, of a subse-
THE AUSTRALIAN COMMONWEALTH 477
quent revision by the second Convention, of further
modifications in a few details by a conference of Prime
Ministers, and has after all this preparation been
sealed by the approval of the peoples of the Colonies
concerned. The process of incubation lasted for
nearly nine years, being all the while conducted in
the full blaze of newspaper reporting and under the
constant oversight of public opinion.
III. THE CAUSES WHICH BROUGHT ABOUT
FEDERATION.
The reasons and grounds assigned by the advocates
of Federation were more numerous than those urged in
the United States in 1787-9, or in Canada in 1864-6;
but none of them were so imperative, for the Australian
Colonies were far less seriously menaced by actually
insistent evils, due to the want of a common national
Government, than was the welfare either of the
American States in 1787, or of Switzerland in 1848,
or of Canada in 1867. In North America, it was the
growing and indeed hopeless weakness and poverty
of the existing Confederation, coupled with the bar-
riers to commercial intercourse, the confusion and
depreciation of currency, and the financial demorali-
zation of some of the States, all of which had
just emerged from an exhausting war, that drew the
wisest minds of the nation to Philadelphia, induced
them to persist in efforts to devise a better union,
and enabled them to force its acceptance upon a
people largely reluctant. In Switzerland it was the
War of Secession (the so-called Sonderbund war) of
1847 that compelled the victorious party to substitute
478 THE AUSTRALIAN COMMONWEALTH
a new and truly federal constitution for the league
which had proved too weak. In Canada the relations
of the French-speaking and English-speaking Provinces
(Lower and Upper Canada) had become so awkward
that constitutional government was being practically
brought to a standstill, and nothing remained but that
the leaders of the two parties should devise some new
system. Australia was in no such straits. Her colonies
might have continued to go on and prosper, as six
unconnected self-governing communities. It is there-
fore all the more to the credit of her people that they
forewent the pleasures of local independence which
are so dear to vivacious democracies, perceiving that
although necessity might not dictate a federal union,
reason recommended it.
The grounds which were used in argument to urge
the adoption of the Federal Constitution may be
summed up as follows:
The gain to trade and the general convenience to be
expected from abolishing the tariffs established on
the frontiers of each colony.
The need for a common system of military defence.
The advantages of a common legislation for the regu-
lation of railways and the fixing of railway rates.
The advantages of a common control of the larger
rivers for the purposes both of navigation and of
irrigation.
The need for uniform legislation on a number of
commercial and industrial topics.
The importance of finding an authority competent to
provide for old-age pensions and for the settlement
of labour disputes all over the country.
THE AUSTRALIAN COMMONWEALTH 479
The need for uniform provisions against the entrance
of coloured races (especially Chinese, Malays, and
Indian coolies).
The gain to suitors from the establishment of a High
Court to entertain appeals and avoid the expense
and delay involved in carrying cases to the Privy
Council in England.
The probability that money could be borrowed more
easily on the credit of an Australian Federation
than by each colony for itself.
The stimulus to be given to industry and trade by
substituting one great community for six smaller
ones.
The possibility of making better arrangements for the
disposal of the unappropriated lands belonging to
some of the colonies than could be made by those
colonies for themselves.
There was in these arguments something to move
every class in the community. To the commercial
classes, the prospect of getting rid of custom-houses
and of finding a large free market close at hand
for all products was attractive; as was also that of
sweeping away the vexation of railway rates planned
in the interests of each colony rather than for the
common benefit of trade. Large-minded men, thinkers
as well as statesmen, hoped that a wider field would
bring a loftier spirit into public life. The working-
classes might expect, not only advantages in the way
of brisker employment, but the establishment of that
provision for old age and sickness which a Government
covering the whole country and commanding ample
resources could make more efficiently and on more
480 THE AUSTRALIAN COMMONWEALTH
uniform lines than even the richest colony could do.
Some of these grounds for union measure the distance
which the world has travelled since 1788. Railways
are far older than was self-government in the oldest
Australian colony, far younger than the youngest of
the original thirteen American States. Even so late as
1867, when Canada was confederated, no one thought
of suggesting that the State should provide old-age
pensions.
The opponents of Australian Federation, although they
came more and more to feel their cause hopeless, were
an active party, including many influential men. Besides
denying that the benefits just enumerated would be
attained, they dwelt upon the additional cost which
a new Government, superadded to the existing ones,
must entail. They fanned the jealousies which naturally
exist between small and large communities, telling the
former that they would be overborne in voting, and the
latter that they would suffer in purse ; and they wound
up with the usual and often legitimate appeals to local
sentiment.
The arguments drawn from considerations of expense
and from local jealousies were met by a series of
ingenious compromises and financial devices to which
both the larger and smaller colonies were persuaded
to agree, while the love of each community for its own
political independence was overborne by the rising tide
of national sentiment. An ambition which aspired to
make Australia take its place in the world as a great
nation, mistress of the Southern hemisphere, had been
growing for some time with the growth of a new genera-
tion born in the new home, and was powerfully roused
THE AUSTRALIAN COMMONWEALTH 481
by the vision of a Federal Government which should
resemble that of the United States and warn off intru-
ders in the Western Pacific, as the American Republic
had announced by the pen of President Monroe that
she would do on the North- American Continent. The
same nationally self-assertive spirit and desire for
expansion which has recently spurred four great
European Powers into a rivalry for new colonial
possessions, and which in 1899 made the United
States forswear its old-established principles of policy,
has been astir in the mind of the Australians. It had
been stimulated by the example of a similar spirit in
the mother country, and by the compliments which the
English had now begun to lavish upon their colonies.
It had gained strength with the growth to manhood
of a generation born in Australia, and nurtured in
Australian patriotism. Such a patriotism, finding no
fit scope in devotion to the particular colonies, longed
for a larger ideal. It supplied the motive force
needed to create a national union. Without it, all
the sober reasonings which counselled confederation
might have failed to prevail. No equally strenuous
or forward-reaching spirit moved the Canadians in 1867,
nor are the traces of such a spirit conspicuous in the
American debates of 1787-9. Some men were then
solicitous for liberty, others for order and good govern-
ment, but of imperial greatness in the present sense of
the term little was said. Liberty and peace at home,
not military strength and domination abroad, were
the national ideals of those days.
The history of the Federation movement illustrates
the truth that a great change is seldom effected in
482 THE AUSTRALIAN COMMONWEALTH
politics save by the coincidence of two moving forces
the prospect of material advantage and the power of
sentiment. In every community there are many who
can be moved only by one or other of these two forces,
and nearly every man responds better to the first if
he can be warmed by the second. In the American
debates of 1788-9 feeling was mostly arrayed against
the proposed federation, though reason was almost
entirely for it. Reason prevailed, but prevailed with
far more difficulty than the cause of Federalism, with
less cogent economic grounds behind it, prevailed in
Australia.
Like America in 1787, Australia was fortunate in
having a group of able statesmen, most of whom were
also lawyers, and so doubly qualified for the task of
preparing a constitution. Their learning, their acute-
ness, and their mastery of constitutional principles
can best be appreciated by any one who will peruse
the interesting debates in the two Conventions. They
used the experience of the mother country and of
their predecessors in the work of federation-making,
but they did so in no slavish spirit, choosing from the
doctrines of England and from the rules of America,
Switzerland, and Canada those which seemed best
fitted to the special conditions of their own country.
And like the founders of the American and Canadian
Unions, they were not only guided by a clear practical
sense, but were animated by a spirit of reasonable
compromise, a spirit which promises well for the conduct
of government under the instrument which they have
framed.
THE AUSTRALIAN COMMONWEALTH 483
IV. THE CONDITIONS FOR A FEDERAL
COMMONWEALTH.
Before examining the provisions of the Constitution
which is bringing the hitherto independent colonies into
one political body, it is well to consider for a moment
the territory and the inhabitants that are to be thus
united.
The total area of Australia is nearly 3,000,000
square miles, not much less than that of Europe.
Of this a comparatively small part is peopled by white
men, for the interior, as well as vast tracts stretching
inland from the south-western and north-western coasts,
is almost rainless, and supplies, even in its better
districts, nothing more than a scanty growth of shrubs.
Much of it is lower than the regions towards the
coast, and parts are but little above sea-level. It has
been hitherto deemed incapable of supporting human
settlement, and unfit even for such ranching as is
practised on arid tracts in western North America
and in South Africa. Modern science has brought
so many unexpected things to pass, that this con-
clusion may prove to have been too hasty. Still no
growth of population in the interior can be looked
for corresponding to that which marked the develop-
ment of the United States west of the Alleghanies in
the beginning of the nineteenth century.
Of the six Australian colonies, one, Tasmania, occu-
pies an island of its own, fertile and beautiful, but rather
smaller (26,000 square miles) than Scotland or South
Carolina. It lies 150 miles from the coast of Victoria.
Western Australia covers an enormous area (nearly
112
484 THE AUSTRALIAN COMMONWEALTH
1,000,000 square miles, between three and four times
the size of Texas), and South Australia, which stretches
right across the Continent to the Gulf of Carpentaria,
is almost as large (a little over 900,000 square miles).
Queensland is smaller, with 668,000 square miles;
New South Wales, on the other hand, has only 310,000
square miles (i.e. is rather larger than Sweden and
Norway, and about the size of California, Oregon, and
Washington put together); Victoria only 87,000 (i.e. is
as large as Great Britain and a little larger than Idaho).
The country (including Tasmania) stretches from north
to south over 32 of latitude (11 S. to 43 S.), a wider
range than that of the United States (lat. 49 N. to 26 N.).
There are thus even greater contrasts of climate than
in the last-named country, for though the Tasmanian
winters are less cold than those of Montana, the tropical
heats of North Queensland and the shores of the Gulf
of Carpentaria exceed any temperature reached in
Louisiana and Texas. Fortunately, Northern Australia
is, for its latitude, comparatively free from malarial
fevers. But it is too hot for the out-door labour of
white men. In these marked physical differences
between the extremities of the Continent there lie
sources whence may spring divergences not only of
material interests but ultimately even of character,
divergences comparable to those which made the
Gulf States of the American Union find themselves
drawn apart from the States of the North Atlantic
and Great Lakes.
It must also be noted that the great central wilderness
cuts off not only the tropical north and north-west,
but also the more temperate parts of the west from
THE AUSTRALIAN COMMONWEALTH 485
the thickly peopled regions of the south-east. Western
Australia communicates with her Eastern sisters only
by a long sea voyage J . She is almost in the position
held by California when, before the making of the first
transcontinental railway, people went from New York
to San Francisco via Panama. Nor is there much
prospect that settlements will arise here and there in
the intervening desert.
The population of the Continent, which has now
reached nearly 4,000,000, is very unequally distributed.
The three colonies of widest area, Western Australia,
South Australia, and Queensland, have none of them
500,000 inhabitants. Tasmania has about 170,000. Two
others, New South Wales and Victoria, have each more
than 1,000,000 2 . This disparity ranges them for political
purposes into two groups, the large ones with 2,500,000
people in two colonies, and the small ones with 1,500,000
in four colonies.
Against these two sets of differences, physical and
social, which might be expected to induce an opposition
of economic and political interests, there is to be placed
the fact that the Australian colonies are singularly
homogeneous in population. British North America
is peopled by a French as well as by an English race,
British South Africa by a Dutch race as well as an
English. But Australia is purely British. Even the
Irish and the Scotch, though both races are specially
prone to emigrate, seem less conspicuous than they are
1 It is four days' voyage from Adelaide, the capital of S. Australia, to
Perth, the capital of W. Australia.
a Two-fifths of the population of Victoria live in Melbourne, one-fourth of
the population of New South Wales in Sydney.
486 THE AUSTRALIAN COMMONWEALTH
in Canada >. Australia is to-day almost as purely English
as Massachusetts, Connecticut, and Virginia were in
1776, and probably more English than were the thirteen
original States taken as a whole. In this fact the
colonies found not only an inducement to a closer union,
but a security against the occurrence of one of the
dangers which most frequently threatens the internal
concord of a federation. Race antagonisms have
troubled not only Canada and South Africa but che
United Kingdom itself, and they now constitute the
gravest of the perils that surround the Austro- Hungarian
monarchy.
Among the other favouring conditions may be
enumerated the use of one language only (whereas
in Canada and in South Africa two are spoken), the
existence of one system of law, the experience of the
same form of political institutions, a form modelled on
that which the venerable traditions of the mother
country have endeared to Englishmen in all parts of
the world. It has also been a piece of good fortune
that religion has not interposed any grounds for
jealousy or division. The population of Australia
is divided among various Christian denominations
very much as the population of England is, and the
chief difference between the old and the new country
lies in the greater friendliness to one another of various
communions which exists in the new country, a happy
result due partly to the absence of any State Estab-
1 In 1891, out of that part of the total population of Australia which had
been born in the United Kingdom, about one-fourth had been born in
Ireland and one-sixth in Scotland. Of the whole population of Australia,
95 per cent, are of British stock.
THE AUSTRALIAN COMMONWEALTH 487
lishment of religion, and partly to that sense of social
equality which is strong enough to condemn any
attempt on the part of one religious body to claim social
superiority over the others.
Finally, there is the unique position which Australia
occupies. She has a perfect natural frontier, because
she is surrounded by the sea, an island continent,
so far removed from all other civilized nations that
she is not likely to be either threatened by their attacks
or entangled in their alliances. The United States had,
when its career began, British possessions on the
north, French and Spanish on the south. But the
tropical islands which Holland, Germany and France
claim as theirs to the north and east of the Australian
coasts are cut off by a wide stretch of ocean 1 . They
are not now, and are not likely at any time we can
foresee, to contain a white population capable of dis-
turbing the repose of Australia. Such a country seems
made for one nation, though the fact that its settled
regions lie scattered round a vast central wilderness
suggests that it is better fitted for a federation than
for a government of the unified type. But, on the
other hand, this very remoteness might, in removing
the force of external pressure, have weakened the
sense of need for a federal union had there not
existed that homogeneity of race and that aspiring
national sentiment to which I have adverted.
Compare these conditions with those of the three
other Federations. The thirteen colonies which have
grown into the present forty-five States of the American
Union lay, continuous with one another, along the
1 The nearest point of Dutch New Guinea is about 150 miles from Australia.
4 88 THE AUSTRALIAN COMMONWEALTH
coast of the Atlantic. England held Canada to the
north of them, France held the Mississippi Valley
to the west of them, and, still further to the west,
Spain held the coasts of the Pacific. They had at
that time no natural boundaries on land ; and the
forces that drew them together were local contiguity,
race unity, and above all, the sense that they must
combine to protect themselves against powerful neigh-
bours as well as against the evils which had become
so painfully evident in the governments of the several
States. Nature prescribed union, though few dreamt
that Nature meant that union to cover the whole central
belt of a Continent. In the case of Canada, Nature
spoke with a more doubtful voice. She might rather
have appeared to suggest that this long and narrow
strip of habitable but only partially inhabited land,
stretching from the Gulf of St. Lawrence to Puget
Sound, should either all of it unite with its mighty
neighbour to the south, or should form three or
four separate groups, separated by intervening wilder-
nesses. Political feelings however, compounded of
attachment to Britain and a proud resolve not to be
merged in a rival power which had done nothing
to conciliate them, led the Canadians to form a con-
federation of their own, which Nature has blessed
in this point at least, that its territories are so similar
in climate and in conditions for industrial growth that
few economic antagonisms seem likely to arise among
them. Switzerland, however, is the most remarkable
case of a Federation formed by historical causes in the
very teeth, as it might seem, of ethnological obstacles.
Three races, speaking three languages, have been so
THE AUSTRALIAN COMMONWEALTH 489
squeezed together by formidable neighbours as to
have grown into one. The help of Nature has how-
ever been given in providing them with mountain
fastnesses from which the armies of those neighbours
could be resisted; and the physical character of the
country has joined with the traditions of a splendid
warlike heroism in creating a patriotism perhaps more
intense than any other in the modern world.
V. THE CONSTITUTION AS A FEDERAL INSTRUMENT.
In examining any Federal Constitution, it is con-
venient to consider the system it creates first as
a Federation, i.e. a contrivance for holding minor
communities together in a greater one; and then as
a Frame of Government, composed of organs for
discharging the various functions of administration.
Although the former of these influences the latter,
because the federal character of a State prescribes to
some extent the character of that State's governmental
machinery, it conduces to clearness to deal with these
two aspects separately. Accordingly I begin with the
federal aspect of the Constitution.
Federations are of two kinds. In some, the supreme
power of the Central Government acts upon the com-
munities which make it up only as communities. In
others this power acts directly, not only upon the
component communities, but also upon the individual
citizens as being citizens of the Nation no less than
of the several communities. The former kind of
Federation may be described as really a mere League
of States; the latter kind is a National as well as
a Federal State.
490 THE AUSTRALIAN COMMONWEALTH
The Australian Federation is of this latter type. So
are the United States, the Swiss Confederation, and
the Canadian Federation. It was however to the
former type that both the United States before 1788
and Switzerland before 1848 belonged. So Germany
was a mere League of States before 1866, but has
been a National as well as Federal State since 1866
and 1871.
The essential feature of this latter type, with which
alone we are here henceforth concerned, consists in
the existence above every individual citizen of two
authorities, that of the State, or Canton (as in
Switzerland) or Province (as in Canada), to which
he belongs, and that of the Nation, which includes all
the States, and operates with equal force upon all
their citizens alike. Thus each citizen has an alle-
giance which is double, being due both to his own
particular State and to the Nation. He lives under
two sets of laws, the laws of his State and the laws
of the Nation. He obeys two sets of officials, those of
his State and those of the Nation, and pays two sets
of taxes, besides whatever local taxes or rates his city
or county may impose.
Accordingly the character of each and every Federation
depends upon the distribution of powers between the
Nation and the several States, since some powers
must be allotted to the larger, some to the smaller
entity. With regard to certain powers there can be
no doubt. The navy, for instance, the post office, the
control of all foreign relations, must obviously be
assigned to the National Government, together with
the levying of customs duties at the frontiers and the
THE AUSTRALIAN COMMONWEALTH 491
raising of revenue for the purposes above mentioned.
On the other hand, matters of an evidently local
nature, such as police, prisons and asylums, the system
of municipal or county administration, with the power
of taxing for these purposes, will be allotted to the
State Governments. But between these two sets there
lies a large field of legislation and administration which
may, according to the circumstances of each particular
country and the wishes of the people who enact their
constitution, be granted either to the Nation or to the
States. The law of marriage and divorce, for instance 1 ,
criminal law 1 , bankruptcy, the traffic in intoxicating
liquors 2 , the regulation of railways 2 , the provision of
schools or universities 3 , are all matters which have
both a national and a local significance, and may be
entrusted either to the National legislature or to the
State legislatures according as one or other aspect of
them predominates in the mind of the people.
VI. DISTRIBUTION OF POWERS BETWEEN NATION
AND STATES.
Now the fundamental question in the distribution of
powers between the Nation and the States is this To
which authority does the unallotted residue of powers
belong? It has been found that no distribution, how-
ever careful, can exhaust beforehand all the powers
that a legislature or an executive may possibly have to
exercise, and it therefore becomes essential to provide,
1 In the U.S.A. a State, in Canada a Federal matter.
3 In Switzerland a Federal matter, in the U.S.A. partly a Federal, partly
a State matter.
3 In the U.S.A. and Germany a State matter, in Switzerland and Canada
partly a Federal matter.
492 THE AUSTRALIAN COMMONWEALTH
whenever a power not specifically mentioned needs
to be exercised, whether it should be deemed to be
rightfully exerciseable by the National or by the State
authority. In other words, which of these authorities
is to be deemed general legatee of any undistributed
residue ?
This question has been answered differently by
different Federations. The United States and Switzer-
land leave to the States (to which they had belonged
previously) the undistributed powers. Canada (whose
Provinces were in a different position) bestows them
upon the National (Dominion) Government 1 . The
question is the more important, because it creates in
all sorts of doubtful matters a presumption in favour
of the National Government or the State Governments,
as the case may be. And it is specially important at
the moment of creating a new Federation, because one
of the difficulties always then experienced is to induce
the States to resign powers they have hitherto enjoyed.
Hence it reassures and comforts them to have the
residue of powers not specifically distributed left still
in their hands.
The Australians have followed the example of the
United States and Switzerland rather than that of
Canada; and they have done so for the sake of
appeasing the local sentiment of the several colonies,
and especially of the smaller colonies, who naturally
feared that, as they would have less weight than their
larger neighbours in the national legislature, they
would be in more danger of being subjected to laws
1 See U.S.A. Constitution, Amendment X : Constitution of Swiss Con-
federation, Art. 3 : British North American Act (1867), sect. 91.
THE AUSTRALIAN COMMONWEALTH 493
which their local opinion did not approve. Section 107
provides that
' Every power of the Parliament of a Colony which
has become or becomes a State shall, unless it is by
this Constitution exclusively vested in the Parliament of
the Commonwealth or withdrawn from the Parliament
of the State, continue as at the establishment of the
Commonwealth, or as at the admission or establishment
of the State 1 , as the case may be/
Comparatively few powers of legislation are ' exclu-
sively vested ' in the Commonwealth Parliament ; so that
upon subjects other than these the State Parliaments
retain for the present their previous power to legislate.
But as it is also provided that all Acts of the Common-
wealth Parliament, within the range of the powers
granted, shall override laws of any State Parliament,
such laws as the latter may pass upon subjects open
to both legislatures are left at the mercy of the
Commonwealth Parliament, which may, as and when
it finds time or occasion, pass Acts extinguishing, or
modifying the effect of, those enacted by the States.
Now the range of powers granted to the National or
Commonwealth Parliament is very wide, wider than that
of Congress or of the Swiss National Assembly, or even
of the Dominion Parliament in Canada. I need not
enumerate the powers granted, forty-two in number, for
they will be found in sects. 52 and 53 of the Australian
Constitution. Among them are the following, which are
1 These words are used to cover the case of the creation and admission of
future States.
The name * State/ which the Australians have substituted for ' Colonies,'
is significant. It imports a slightly greater independence and has a more
imposing sound than the Canadian term ' Province.'
494 THE AUSTRALIAN COMMONWEALTH
not specifically given to, and nearly all of which are not
even claimed by, the United States Congress : Powers
to take over State railways, and to construct and extend
railways (with the consent of the State in which the
railway lies), to control telegraphs and telephones and
also trading and financial corporations, to take over State
debts \ to legislate on marriage and divorce, on bills of
exchange and promissory notes, on invalid and old-age
pensions, on arbitration and conciliation in trade disputes
(where these extend beyond one State), on bounties on
the production or export of goods, on the service and
execution throughout the Commonwealth of the civil
and criminal process and judgements of the State
Courts. If these powers come to be all put in force
they may leave for State action a narrower and less
interesting field than it enjoys in the United States,
where nevertheless the State legislatures are bodies of
no great account, seldom enlisting the services of men
of first-rate capacity.
VII. CONSTITUTIONAL POSITION OF THE
AUSTRALIAN STATES.
The Australian Constitution, like that of the United
States, assumes the States to be already organized
communities, and contains nothing regarding their con-
stitutions. The case of Canada was different, because
there the previous government of the Upper and Lower
Provinces, which had been one, had to be cut in two,
and arrangements made for duly constituting the two
1 Canada directs the Dominion to take over the Provincial debts existing
at the time of the Union. In the U. S. A. the war debts of the States were
taken over by the first Congress of the Union.
THE AUSTRALIAN COMMONWEALTH 495
halves. But in the case of Australia, the pre-existing
constitutions of the Colonies, granted by the Imperial
Government at various times, go on unchanged, subject
only to the supersession of some of their functions by
the Commonwealth, and to one or two specifically
mentioned restrictions. That these restrictions are
comparatively few may be partly ascribed to that
aversion which the English everywhere show to this
kind of safeguard against the misuse of legislature
power. The omnipotence of the British Parliament
seems to have fostered the notion that all Parliaments
ought to be free to do wrong as well as to do right.
The only things from which a State is disabled are
the keeping of a naval or military force (except with
the consent of the Commonwealth Parliament), coining
money, and making anything but gold and silver coin
legal tender 1 . A State is not, as are the American
States, forbidden to grant titles of nobility, or to
pass any ex post facto law or law ' impairing the obliga-
tion of contracts/ That no such prohibitions exist
in Canada may be ascribed to the fact that in Canada
the National or Dominion Government has the right
of vetoing laws passed by provincial legislatures, so
that improper legislation can be in this way checked.
The power is not often exercised in Canada, but when
exercised has sometimes led to friction. This plan,
however, is neither so respectful to the Provinces nor
so conformable to general principles as is the American
plan, which leaves the States subject only to the
restrictions imposed by the Constitution, restrictions
1 See sections 114 and 115 of Constitution, and compare Art. I. sect. 10 of
Constitution of U. S. A.
496 THE AUSTRALIAN COMMONWEALTH
which ipso iure annul a law attempting to transgress
them. And the Australians have wisely followed the
American rather than the Canadian precedent. The
Australians have, to be sure, in reserve a power to
which nothing similar exists in America, viz. the right
of the British Crown at home to veto legislation.
Rarely as this right is put in force, it might con-
ceivably be used at the instance of the National
Government to avert an undesirable conflict between
State statutes and National statutes. Note further
that each Australian State is left as free to amend its
own constitution as it was before, subject of course to
the veto of the British Crown, but to no interference
by the Commonwealth, whereas in Canada acts of the
Provincial legislatures amending their constitutions
are subject to the veto of the Dominion Govern-
ment as representing the Crown.
The omission of any provision similar to the famous
and much litigated clause which debars an American
State legislature from passing any law impairing the
obligation of contracts is especially noteworthy. That
clause, introduced by the Philadelphia Convention in
order to check the tendency of some reckless States
to get rid of their debts, produced in course of
time unexpectedly far-reaching results, from some of
which American legislatures and courts have made
ingenious attempts to escape. It has indeed been
thought that several subsequent decisions of the
Supreme Court are not easily reconcileable with
the famous judgement in the Dartmouth College Case
(A.D. 1818), in which the full effect of this clause was for
the first time displayed. That effect has been to fetter
THE AUSTRALIAN COMMONWEALTH 497
legislation in ways which are found so inconvenient
in practice that they are acquiesced in only because
many State legislatures are in the United States ob-
jects of popular distrust. No corresponding distrust
seems to be felt in the British colonies, and therefore
the Australians have not deemed any such prohibition
needful, following the example of the British House
of Commons, which in 1893 rejected a similar clause
when moved as an amendment to the Irish Home Rule
Bill of that year.
In another point the Australian States have been
treated with respect. In each of them the nominal
executive head has hitherto been a Governor appointed
by the British Crown. This was the case in Canada
prior to 1867 : but when the Canadian Federation was
formed, the appointment of the Governors of the several
provinces was entrusted to the Governor-General of
the Dominion, that is to say, to the Dominion Cabinet
by whose advice the Governor-General, being a sort of
constitutional monarch, i^ guided. In practice, there-
fore, these governorships have become rewards bestowed
upon leading party politicians. The Australians wisely
(as most Englishmen will think) avoided this plan.
Neither did they adopt the American method of
letting the people of each State elect the Governor,
a method unsuited to government on the Cabinet
system, because, as the State Governor is under that
system only a nominal head of the Executive (the
Cabinet being the real Executive), there was no good
reason for setting the people to choose him, and good
reasons against doing so, inasmuch as popular elections
are invariably fought on party lines. Accordingly the
BRYCB I
498 THE AUSTRALIAN COMMONWEALTH
Australians have preferred to let him continue to be
appointed by the Home Government, and to allow him
to communicate directly with the Colonial Office in
London. His Ministers are indeed described in the
Constitution (sect. 44) as being ' the Queen's Ministers/
VIII. DIFFERENCES FROM THE UNITED STATES
AND CANADIAN FEDERATIONS.
Four other remarkable divergences, from both the
American and the Canadian Federal systems, remain
to be mentioned.
One relates to the judiciary. In the United States
there is a complete system of Federal Courts ramify-
ing all over the Union and exercising exclusive juris-
diction in all cases arising under Federal statutes, as
well as in a number of other matters specified in Art.
III. sect. 2 of the Constitution. But the State Courts
remain quite independent in all State matters, and de-
termine the interpretation of the State Constitutions
and of all State statutes, nor does any appeal lie from
them to the Federal Courts. In Canada this was not
thought necessary, so there the same set of Courts
deals with questions arising under Federal statutes
and with those arising under Provincial Statutes, and
the Supreme Court of Canada receives appeals from
all other Courts. This is less conformable to theory
than the United States plan, but does not seem to
have worked ill. The danger that Courts sitting in
the Provinces would, under the influence of local
feeling, pervert Federal law was not serious in Canada
(though a similar danger was feared in the United
States in 1787), and indeed all the Canadian judges
THE AUSTRALIAN COMMONWEALTH 499
are appointed by the Dominion Government, a further
illustration of the preponderance which the Nation has
over the Provinces. The Australians have taken a middle
course. They have established a Federal Supreme
Court, to be called 'The High Court of Australia/ and
have taken power for their Parliament to create other
Federal Courts. So far, they follow the United States
precedent. But they have given power to the Common-
wealth Parliament to invest State Courts with federal
jurisdiction, thereby allowing those Courts to be, as in
Canada, both State and Federal. And they have also
allowed an appeal from all State Courts to the Federal
High Court. By this plan the States are more directly
connected with and subordinate to the National Govern-
ment than they are in the United States. The Australian
scheme has one great incidental advantage. In the
United States the law of different States may and
does differ, not only in respect of the difference be-
tween the statutes of one and the statutes of another,
but also in respect of questions of common law un-
touched by statutes. The Supreme Court of Massa-
chusetts may, for instance, take a different view of what
constitutes fraud at common law from that taken by
the Supreme Court of Pennsylvania, and there is no
Court of Appeal above both these Courts to bring their
views into accord. This has not happened to any
great extent in Australia, because the British Privy
Council has entertained appeals from all its Courts,
and it will happen still less in future, because the
Federal High Court will be close at hand to settle
questions on which the Courts of different States may
have been in disaccord.
K k2
5 oo THE AUSTRALIAN COMMONWEALTH
A second point shows how much less powerful the
sentiment of State sovereignty has been in Australia
than it was in the United States. By an amendment
(xi) to the American Constitution made in 1798 it is ex-
pressly declared that no State can be sued by a private
plaintiff. But Australia expressly grants jurisdiction
in such cases to its Federal High Court (sect. 75).
A third point is the curious and novel power given
to a State of referring matters to the Commonwealth
Parliament, and to that Parliament of thereupon legis-
lating on such matters (sect. 51 (xxxvii)). Under this
provision (which is not to be found in the Canadian
Constitution 1 ) there is no department of State law
wherewith the National legislature may not be rendered
competent to deal. It may be usefully employed to
secure uniformity of legislation over all Australia on
a number of subjects not within the specifically allotted
field of the Commonwealth Parliament.
Finally, the Commonwealth Parliament may grant
financial assistance to any State, and may take over
the whole or a part of its debts as existing at the
establishment of the Commonwealth 2 . Provisions such
as these imply, or will involve if put in practice, a rela-
tion between the National Government and the States
closer than that which exists in America.
To complete this account of the relation of the
Nation to the States, let it be noted that a State may
surrender any part of its territory to the Common-
wealth, and that the Commonwealth is bound to protect
each State against invasion or, on the application of the
1 But see section 94 of the Canadian Constitution.
3 Sect. 105.
THE AUSTRALIAN COMMONWEALTH 501
Executive of the State, against domestic violence l . This
latter provision is drawn from the United States con-
stitution 2 , though in America it is from the State
legislature, if then in session, that the application for
protection ought to come. Australia is right in her
variation, because in her States the Legislature acts
through the Executive. Neither provision occurs in
the Constitution of Canada, which assigns military and
naval defence exclusively to the Dominion Government,
and makes itself responsible for the maintenance of
order everywhere. In Switzerland the management of
the army, in which all citizens are bound to serve,
is divided between Cantons and Confederation, the
supreme control remaining with the latter (Artt. 18-22).
The Confederation is bound to protect a Canton against
invasion and disorders, and may even itself intervene
if the Executive of the Canton cannot ask it on its
own motion (Artt. 16 and 17). Australia, as we have
seen, allows the States to maintain a force with the
consent of the Commonwealth; and this is permitted
by the American Constitution also.
IX. THE CONSTITUTION AS A FRAME OF NATIONAL
GOVERNMENT.
We may now pass on to consider the National
Government, the construction whereof occupies by far
the greater part of the Constitution, which, while it left
the States pretty much as they were, had here to build
up a new system from the ground.
The first point to be examined relates to the limita-
1 Sect. 119. a Art. II. sect. 3, and Art. IV. sect. 4.
502 THE AUSTRALIAN COMMONWEALTH
tions imposed on the National Government as against
the citizens generally, since I have already dealt with
the limitations on its powers as against the States
Here a remarkable divergence from the American
Constitution is disclosed. When that instrument was
enacted, the keenest suspicion and jealousy was felt of
the action of the Government to be established under it.
It was feared that Congress might become an illiberal
oligarchy and the President a new George the Third.
Accordingly great pains were taken to debar Congress
from doing anything which could infringe the prim-
ordial human rights of the citizen. Some restrictions
are contained in the original Constitution: others fill
the first nine amendments which were passed two or
three years later, as a part of the arrangements by which
the acceptance of the Constitution was secured. And
down till our own time every State Constitution in
America has continued to contain a similar ' Bill of
Rights ' for the protection of the citizens against abuse
of legislative power. The English, however, have
completely forgotten these old suspicions, which, when
they did exist, attached to the Crown and not to the
Legislature. So when Englishmen in Canada or Aus-
tralia enact new Constitutions, they take no heed of
such matters, and make their legislature as like the
omnipotent Parliament of Britain as they can. The
Canadian Constitution leaves the Dominion Parliament
unfettered save by the direction (sect. 54) that money
shall not be appropriated to any purpose that has not
been recommended to the House of Commons by the
Executive, a direction embodying English practice, and
now adopted by Australia also. And the Australian
THE AUSTRALIAN COMMONWEALTH 503
Constitution contains but one provision which recalls
the old-fashioned Bill of Rights, viz. that which forbids
the Commonwealth to 'make any law for establishing
any religion or for imposing any religious observance
or for prohibiting the free exercise of any religion/
The Swiss Constitution, influenced by French and
American models, is in this respect more archaic, for
it imposes a series of disabilities on its Legislature in
the interest of individual freedom (sectt. 39, 49, 54-59).
This diversity of attitude between the English on the
one hand and both the Americans and the Swiss on
the other is a curious instance of the way in which
usage and tradition mould a nation's mind. Parliament
was for so long a time the protector of Englishmen
against an arbitrary Executive that they did not form
the habit of taking precautions against the abuse of
the powers of the Legislature ; and their struggles for
a fuller freedom took the form of making Parliament
a more truly popular and representative body, not that
of restricting its authority.
The point just examined is one which arises in all
Rigid Constitutions, whether Federal or Unitary. But
the next point is one with which only Federations are
concerned ; and it is one in which all the great Federa-
tions agree. All have adopted the same method of
providing both for the predominance of the majority
of the people considered as one Nation, and for the
maintenance of the rights of the States considered as
distinct communities. The Americans invented this
method : the Swiss, the Canadians, the Germans, and
now the Australians, have imitated them. This method
is to divide the Legislature into two Houses, using
5 o 4 THE AUSTRALIAN COMMONWEALTH
one to represent the whole people on the basis of
numbers, and using the other to represent the several
States on the basis (except in Germany) of their equality
as autonomous communities. It was this device that
made Federation "possible in the United States, for
the smaller States would not have foregone their in-
dependence in reliance upon any weaker guarantee. '
X. THE LEGISLATURE.
The Australian scheme provides (sectt. 7-23) for an
Upper House or Senate of thirty-six members, six from
each State, and a House of Representatives (sectt.
24-40) of seventy-five members, elected on a basis of
population, so that forty-nine members will come from
the two large States, New South Wales and Victoria,
and twenty-six from the four small States. No Original
State is ever to have less than five.
The equal representation of the six Original States is
always to be maintained, but the number of Senators
may be increased, and when new States come to
be formed, the Parliament may allot to them such
number of Senators as it thinks fit. Senators sit for
six years, and do not all retire at the same time. These
features are taken from the Constitution of the United
States, which, as already observed, has been a model
for subsequent Federal Upper Houses. But there are
remarkable variations in the Australian scheme.
1. In the United States each newly-created State
receives as a matter of right its two Senators. In
Australia the Commonwealth may allot such number
as it thinks fit.
2. In the United States one-third of the Senate
THE AUSTRALIAN COMMONWEALTH 505
retires every two years. In Australia one-half retires
every three years.
3. In the United States the President of the Senate
is the Vice- President of the United States, chosen by the
people 1 . In Australia, the Senate is to choose its own
President.
4. In the United States the quorum is one more than
a half of the total number; in Australia one-third of
the total number.
5. In the United States the Legislatures of the several
States elect the Senators. In Australia the Senators
are elected by the people of the State.
This last point is one of great interest. Tocqueville,
writing in 1832, attributed (erroneously, as the sequel
has shown) the excellence of the American Senate to
the method of election by the State Legislatures 2 .
Since his days the American Senate has declined;
and so far from this mode of election having tended to
sustain its character, the general, though not unanimous,
opinion of the wise in America deems the Senate to
be injured by it, and desires a change to the method
of election by direct popular vote. It was partly because
the Australian Convention had become aware of this
tendency of American opinion that they rejected the
existing American plan; nor is it impossible that the
Americans themselves may alter their system, which
gives greater opportunities for intrigue and the use of
money than popular election would be likely to afford.
In Australia, the Senators are in the first instance to
be elected by the people, each State voting as one
1 I. e. practically by the people, though formally by a body of electors
elected for that purpose.
3 See as to this, Essay VI, pp. 401, 421.
5 o6 THE AUSTRALIAN COMMONWEALTH
electorate, but this may be altered (e.g. to a system
of district elections) by the Parliament of the Common-
wealth, or failing its action, by the Parliament of a
State. It will be interesting to see what experiments
are tried and how they work. District voting may
give different results from a general State vote, and
a party for the moment dominant may choose the plan
that best suits it.
6. In the United States the Senate is an undying
body, perpetually renewed by fresh elections, never
losing more than one-third of its members at any one
time. In Australia the Senate may be dissolved in
case a deadlock should arise between it and the
House of Representatives.
The Senate is the sheet-anchor of the four small
States. Commanding a majority in it, they have con-
sented to acquiesce in the great preponderance which
their two larger neighbours possess in the House of
Representatives. The numbers of the latter House are
to be always as nearly as practicable double those of the
Senate, a point whose importance will presently appear.
The House is to continue for three years (subject of
course to dissolution), a term intermediate, though
inclining in the democratic direction, between the two
years of the American Congress and the seven (practically
(six) years of the British House of Commons. The
Canadian term is five years. Until the Commonwealth
Parliament otherwise provides, the electoral suffrage
is to be (as in the United States) the suffrage pre-
scribed by State law for the election of members of
the more numerous State House, and it is expressly
provided, doubtless with a view to the fact that women's
THE AUSTRALIAN COMMONWEALTH 507
suffrage already exists in two colonies, that no law
shall prevent a State voter from voting at Common-
wealth elections. So far from securing, as does the
United States Constitution, that no person shall be
excluded on the ground of race from the suffrage 1 ,
Australia has expressly provided that persons belonging
to a particular race may be excluded, for she declares
(sect. 25) that in such case the excluded race is not
to be reckoned among the population of the State
for the purposes of an allotment of representatives.
Plural voting is forbidden. The quorum of members
is a mean between the inconveniently large quorum
(one-half) of the American, and the very small one
(forty) of the British House. The seat of any Senator
or member of the House becomes ipso facto vacant
if he fails (without permission) to attend any session
for two continuous months. No person having any
pecuniary interest in any agreement with the public
service (except as member of an incorporated company
of at least twenty-five persons), or holding any office of
profit under the Crown, can sit in either House, unless
he be a Minister either of the Commonwealth or of a
State. The exception is noteworthy, not only because
it is framed with a view to the establishment of Cabinet
Government, but also because it implies that a man
may, contrary to American and Canadian usage, be at
the same time both an executive official of a State and
also a member of the Federal Legislature. It would
appear that women are eligible to membership of either
House. Every Senator and Representative is to receive
a salary, fixed for the present at 400 ($2,000) a year.
1 See Amendment XV to the Constitution.
508 THE AUSTRALIAN COMMONWEALTH
XI. THE EXECUTIVE.
The Executive is to consist of the Governor-General
and the Ministers. To the great convenience of the
Australian people, 'the head of the Executive does not
need to be elected either by popular vote (as in the
United States) or by the Chambers, as in France and
Switzerland. He is nominated by the British Crown,
and holds office so long as the Crown pleases, receiving
a salary fixed, for the present, at .10,000 ($50,000) a year
(exactly the salary of the American President). He has
an Executive Council, modelled on the British Privy
Council (though the name Privy Council is not used as
it is in the Canadian Constitution), and from it he chooses
a number of Ministers (fixed for the present at seven)
who are to administer the several departments of the
public service. They must be members of one or other
House of Parliament a remarkable provision, for though
this is the British practice, that practice has never been
embodied in any positive rule. As the Governor-
General is only a constitutional figure-head, these
Ministers will in fact constitute the ruling executive
of the Commonwealth.
XII. THE JUDICIARY.
The Judiciary is to consist in the first instance of a
Federal High Court (containing a Chief Justice and at
least two other judges) capable of exercising both original
jurisdiction in certain sets of cases, and also appellate
jurisdiction not only from single Federal Judges and
inferior Federal Courts, but also from the Supreme
Courts of the States. Power is taken both to establish
THE AUSTRALIAN COMMONWEALTH 509
lower Federal Courts and to invest State Courts with
federal jurisdiction. But besides this Judiciary proper,
there is created a second Court for dealing with cases
relating to trade and commerce, under the name of the
Inter-State Commission (sect. 101). This remarkable and
very important institution has doubtless been suggested
by the United States Inter-State Commerce Commission
created by Congress some eighteen years ago in order
to deal with railway and water traffic between the
States. Its functions will be half-administrative, half-
judicial, and in questions of pure law an appeal will lie
from it to the High Court, while a guarantee for its
independence is found in the clause which declares that
its members shall not be removed during their seven
years' term of office. All Federal Judges are to be
appointed by the Governor-General, that is to say, by
the Executive Ministry. All trials (on indictment) for
any offence against the laws of the Commonwealth
shall be by jury, and held in the State where the
alleged offence was committed. The judicial establish-
ments of the States remain unaffected, and the judges
thereof will continue to be appointed by the State
Executives.
In determining the functions of the High Court there
arose an important question which seemed for a moment
to threaten the whole scheme of Federation. The draft
Constitution which the Convention had prepared and
which the people had approved by their vote provided
that questions arising on the interpretation of the Consti-
tution as to the respective limits of the powers of the
Commonwealth and of the States, or as to the respec-
tive limits of the constitutional powers of any two or
5io THE AUSTRALIAN COMMONWEALTH
more States, should be adjudicated upon by the High
Court of the Commonwealth, and that no appeal should
lie from its decision to the Queen in Council (/. e. to the
Judicial Committee of the Privy Council in England,
which is the Supreme Court of Appeal from the British
Colonies and India), ' unless the public interest of
some part of Her Majesty's dominions, other than the
Commonwealth or a State, are involved/ When the draft
reached England to be embodied in a Bill, the British
Government took exception to this provision as tending
to weaken the tie between the mother country and the
colonies. There were many in England who thought
that it was not in the interest of Australia herself that
she should lose, in questions which might involve
political feeling and be complicated with party issues,
the benefit of having a determination of such questions
by an authority absolutely impartial and unconnected
with her domestic interests and passions. How much
better (they argued) would it have been for the United
States at some critical moments could they have had
constitutional disputes adjudicated on by a tribunal
above all suspicion of sectional or party bias, since
it would have represented the pure essence of legal
wisdom, an unimpeachable devotion to legal truth !
To this the Australians replied that the experience
of the United States had shown that in constitu-
tional questions it was sometimes right and necessary
to have regard to the actual conditions and needs of the
nation; that constitutional questions were in so far
political that where legal considerations were nearly
balanced, the view ought to be preferred which an
enlightened regard for the welfare of the nation
THE AUSTRALIAN COMMONWEALTH 511
suggested ; that a Court sitting in England and know-
ing little of Australia would be unable to appreciate all
the bearings of a constitutional question, and might, in
taking a purely technical and possibly too literal a view
of the Constitution, give to the Constitution a rigidity
which would check its legitimate expansion and aggra-
vate internal strife. Australia must so they pursued
be mistress of her own destinies, and as it is she that
had framed and procured the enactment of this Consti-
tution, so by her ought the responsibility to be borne
of working it on its judicial as well as its executive
and legislative side. Not only was this better for
Australia herself, but it would be more conducive
to the maintenance of the connexion between the
Commonwealth and the mother country.
After some wavering, the British Government, per-
ceiving the risk of offending Australian sentiment, gave
way. They dropped in Committee of the House of
Commons the alteration which they had introduced
into the Australian draft, substituting for it an amend-
ment which, while slightly varying the original terms
of the draft, practically conceded the point for which
the Australian Delegates, sent to England to assist
in passing the measure, had contended. The Act
as passed provides that no appeal shall lie to the
Crown in Council upon the constitutional questions
above-mentioned unless the High Court itself shall,
being satisfied that the question is one which pught
to be determined by the Privy Council, certify to that
effect. In all other such cases its judgement will be
final.
Appeals to the Privy Council in questions other than
5 i2 THE AUSTRALIAN COMMONWEALTH
constitutional will continue to lie from the Supreme
Courts of the States (with the alternative of an appeal
to the High Court) and from the High Court itself,
when special leaye is given by the Privy Council.
The Commonwealth Parliament may limit the matters
in which such leave may be asked, but the laws im-
posing such limitations are to be reserved for the
pleasure of the Crown.
The scheme of judicature above outlined follows
in the main the model contained in the American
Constitution. It does not draw the line between State
and Federal matters and courts so sharply, for appeals
are to lie from State Courts in all matters alike, and
State Courts may receive jurisdiction in Federal
matters. On the other hand, it is more conformable
to principle than either the Canadian plan, which
provides no Federal Courts save the Supreme Court
and gives the appointment of all judges alike to the
Dominion Government, or the Swiss plan, which
refers questions of conflict between the Nation and the
Cantons, or as to the constitutionality of Federal laws,
not to the Judiciary at all, but to the Federal Legisla-
ture. Broadly speaking, the Australian High Court will
have to fill such a place and discharge such functions
as have been filled and discharged in America by that
exalted tribunal which Chief Justice John Marshall and
other great legal luminaries have made illustrious. In
working out the provisions of the Constitution by an
expansive interpretation, cautious but large-minded,
it may render to Australia services not unworthy to
be compared with those which America has gratefully
recognized.
THE AUSTRALIAN COMMONWEALTH 513
XIII. WORKING OF THE FRAME OF GOVERNMENT.
THE CABINET.
Now let us see how this Frame of Government, which
I have briefly outlined in its salient features, is intended
to work.
Its essence lies in a matter which is not indicated
by any express provision, the dependence of the
Executive upon the Legislature. Herein it differs
fundamentally from the American and Swiss systems.
It reproduces the English system of what is called
Cabinet or Responsible Government ; that is to say,
a Government in which the Executive instead of being,
as in America, an independent authority, directly
created by the people and amenable to the people
only, is created by and responsible to the Legislature.
As and when the British colonies respectively obtained
self-governing institutions, each of them adopted this
scheme, since it was the one familiar to them at home :
and to it they seem all determined to adhere.
Its distinctive features are these.
The nominal head of the Executive, in Britain the
Crown, in Australia the Governor-General as repre-
senting the Crown, is permanent, and is not responsible
to the Legislature, because he acts not on his own
views, but upon the advice of his Ministers.
The Ministers are responsible to the Legislature
which virtually chooses them, and they depend upon
its confidence for their continuance in office.
The Ministers are however not wholly at the mercy
of the Legislature, because they may dissolve it, that is
to say, may appeal to the people, in the hope that the
BRYCE I 1
514 THE AUSTRALIAN COMMONWEALTH
people will elect a new Legislature which will support
them. This kind of government accordingly rests on
a balance of three authorities, the Executive, the
Legislature, and the People, the people being a sort
of arbiter between Ministry and Parliament. As
the Ministry can at any moment appeal to the people,
the threat of appealing puts pressure upon the
Parliament, and keeps a majority cohesive. In the
existence of this power of sudden dissolution there
lies a marked difference from the American scheme,
which some one has called Astronomical, because the
four years' term of office of the Executive and the
two years' term of the Legislature are both fixed by
the earth's course round the sun.
I have spoken of the Legislature as the authority to
which the Ministry is responsible. But what is the
Legislature ? In England, although Parliament consists
of two Houses, the Minister-making power resides
solely in the House of Commons. Being elective, the
House of Commons has behind it the moral weight
of the people and the prestige of many victories. Being
the holder of the purse, it has the legal machinery
for giving effect to its will, since without supplies ad-
ministration cannot be carried on. Accordingly, though
the existence of two often discordant Houses may arrest
or modify legislation in Britain, it does not affect the
executive conduct of affairs, save on the rare occasions
when immediate legislation is deemed indispensable by
the Executive. The same remark applies to Canada.
There also one finds two Houses, but the Senate, being
a nominated and not a representative body, holds an
entirely secondary place. The Ministry may disregard
THE AUSTRALIAN COMMONWEALTH 515
a vote of want of confidence passed by it, just as in
England they disregard an adverse vote of the House
of Lords. In Australia, however, things will be quite
different. There the Senate has been constituted as
a representative body, elected by the peoples of the
States ; and as the protector of the rights and interests
of the States it holds functions of the highest im-
portance. Its powers (save in one point to be presently
mentioned) are the same as those of the House.
In whom then does the power of making and un-
making ministries reside? Wherever one finds two
assemblies, one finds them naturally tending to differ ;
and this will be particularly likely to occur where, as
in Australia, they are constructed by different modes
of election. Suppose a vote of no confidence in a
particular Ministry is carried in one House and fol-
lowed by a vote of confidence passed in the other?
Is the Ministry to resign because one House will
not support it? It retains the confidence of the other;
and if it does resign, and a new Ministry comes in, the
House which supported it may pass a vote of no confi-
dence in those who have succeeded it.
The problem is one which cannot arise either under
the English or under the American system. Not under
the English, because the two Houses are not co-
ordinate, the House of Commons being much the
stronger. Not under the American, because, although
the Houses are co-ordinate, neither House has the power
of displacing the President or his Ministers. It is there-
fore a new problem, and one which directly results
from the attempt to combine features of both schemes,
the Cabinet system of England and the* co-ordinate
Ll2
516 THE AUSTRALIAN COMMONWEALTH
Senate, strong because it represents the States, which
a Federal system prescribes.
XIV. PROVISIONS AGAINST DEADLOCKS.
This, however, is only one, though perhaps the most
acute, of the difficulties that arise from the existence
of two co-ordinate Houses. Their differences upon
questions of legislation are always liable to produce dead-
locks. These annoying phenomena occur in England,
though there the House of Lords, except upon Irish
questions, usually gives way (even without a dissolution
of Parliament), because it is afraid of incensing the
people and thereby bringing about its own destruction
if it continues to resist the national will. In Irish
questions the Upper House has been apt to assume
that the people of England and Scotland are not
sufficiently interested to resent very keenly its dif-
ference from the Commons. In the United States
there is no remedy for such deadlocks. They have
to be endured, at whatever cost. The resistance of
the Senate to various plans suggested by the House
for dealing with the slavery question may be reckoned
among the causes which brought on the War of
Secession. The Australian colonies themselves have
had frequent experience of deadlocks in matters of
legislation between the two Houses, for in every
colony there have been two Houses, though in every
colony it is the more popular House which has con-
trolled the Executive.
The difficulties I have indicated were fully before the
minds of the statesmen who sat in the two Conventions.
An ingenious device has been contrived for dealing with
THE AUSTRALIAN COMMONWEALTH 517
them (sect. 57). When the House passes a law and the
Senate disagrees, the House may pass it again after
three months, and if the Senate still disagrees, the
Governor-General may thereupon dissolve both House
and Senate together, unless the Parliament is within
six months of its natural end by effluxion of time. If
after such dissolution the new House again passes the
measure, and the Senate once more disagrees, the
Governor may convene a joint sitting of both Houses.
If the proposed law is then passed by an absolute
majority of the whole Parliament so convened in joint
sitting, it shall be taken to have been duly passed by
both Houses.
This method involves the expenditure of a good deal
of time and the worry of a double general election, one
for the House and one for the Senate. But it may prove
to be the best method of solving a problem which neither
Britain nor the United States has yet attempted to solve,
and which certainly needs solution. The reader who
remembers that the numbers of the House have been
fixed to be always double those of the Senate, will now
see how necessary such a provision was in order to
secure that in this final trial of strength between Senate
and House the principle of State rights and the prin-
ciple of population shall each have its due recognition.
Should these two principles come into collision, should,
for instance, all the members from the four small States
be of one mind and all the members from the two
large States of another mind, the principle of popula-
tion will prevail, for in the two Houses sitting together,
the large States will have sixty-one votes (twelve
senators and forty-nine representatives), whereas the
5 i8 THE AUSTRALIAN COMMONWEALTH
small States will have only fifty (twenty-four senators
and twenty-six representatives). Such a conjuncture
may however never arise.
XV. RELATIONS OF THE Two HOUSES.
The question remains which of the two Houses will
hold the place of the British House of Commons as
determining the tenure of office by Ministries. Upon
this question light may be cast by the provisions
with regard to money bills. The Constitution enacts
(sect. 53) that all bills appropriating revenue or im-
posing taxation must originate in the House, and
that the Senate may not amend taxing bills, or
those 'appropriating money for the ordinary annual
services of the Government/ though it may return
such bills to the House suggesting certain amend-
ments in them. The Senate may however reject such
bills. As this scheme, which somewhat resembles
that of the American Constitution l , itself suggested by
the practice of England, seems to throw upon the
House the primary function of providing money for
the public service, and thus the primary control of the
national exchequer, it would seem that Ministers, unable
without money to carry on that service, must stand or
fall by a vote of the House and not by a vote of the
Senate. Yet the Senate, though it cannot take the first
steps for granting money, can withhold money; and if
it does so in order to get rid of a Ministry it dislikes,
nothing short of the deadlock provision above described
1 In the U.S.A., however, the Senate may and does amend both revenue-
raising and appropriation bills, and indeed frequently prevails against the
House in the quarrels which arise over these matters.
THE AUSTRALIAN COMMONWEALTH 519
can be invoked. Nor can the expedient of mixing up
a number of different taxing provisions in one Bill, or
inserting other matter in appropriation Bills (' tacking '),
be resorted to, for these are expressly prohibited by the
Constitution (sectt. 54, 55). Possibly in practice the
Houses will frequently agree to let the accustomed
services of the year be provided for without much
controversy, and will reserve their serious conflicts
for new proposals regarding taxation or appropriation.
Australians evidently expect that the usage hitherto
prevailing in all the Colonies of letting the Ministry
be installed or ejected by the larger House will be
followed. Nevertheless the relations of the Common-
wealth Houses are so novel and peculiar, that the
experience of the new Government in working them
out will deserve to be watched with the closest atten-
tion by all students of politics. Englishmen in par-
ticular have good reason for doing so, because England,
when she has substituted a representative Second
Chamber for her present theoretically indefensible
House of Lords, will have to devise some means for
avoiding or solving deadlocks between such a Chamber
and the House of Commons.
Some high Australian authorities have appeared to
doubt whether two co-ordinate Houses can be made to
work along with Cabinet Government. They observe
that although there may be sometimes a willingness to
make compromises for the sake of the public service,
there is also in all governments, and certainly not least
in those of the United States and the British Colonies,
a tendency to press every legal right to its furthest
limit, even if the machine should be stopped thereby.
520 THE AUSTRALIAN COMMONWEALTH
Were such stoppages to become frequent, Australia
might, they think, be driven to amend her Constitution
by so far disjoining the Executive from the Legislature
as to give it something of the permanence it enjoys
in America and Switzerland 1 .
The relations of the Senate to the House may largely
depend on factors still undetermined. One of these is
the growth of population. Should the small Colonies
grow rapidly, their representation in the House would
before long be fairly proportionate to that which they
enjoy in the Senate, so that the balance of parties
might, so far as the size of States is concerned, tend
to be nearly the same in both Houses. Another is
the character of the controversies which will arise.
These may not be such as to set the small States
against the large ones, and the three party organizations,
which are already strong, though they possess no such
Machine System as America enjoys, may find their
support pretty equally in all or most of the States, so
that the balance of parties may in practice be found to
differ but little in the Senate from what it is in the
House. Thus these particular wheels or shafts of the
constitutional machine, which are deemed less able than
others to bear a severe strain, may not for a long while
to come have any severe strain thrown upon them.
Another thing which may affect the relations of the
two Houses is the comparative attractions which each
1 It was suggested in the Convention by Mr. Playford (then Prime
Minister of South Australia) that the two Houses sitting together might
appoint the Executive Ministry, but this plan deviated too far from British
Colonial practice to find acceptance. A similar suggestion was made by
Sir John Cockburn in the Sydney Convention in 1891. See his speech in
an interesting volume published by him entitled Australian Federation
(P- J 39)-
THE AUSTRALIAN COMMONWEALTH 521
will have for high political capacity. In the United
States the Senate became, within thirty years from the
establishment of the Constitution, an assembly much
stronger, through the eminence of its members, than
was the House of Representatives. As its term of
membership was longer (six years against two years),
and as it had certain quasi-executive functions in con-
nexion with foreign relations and appointments, men
of ability preferred it to the House, and the House
constantly saw its best talent drawn off to its rival.
The Senate has to-day no such intellectual ascendency
as it had then, but capable men still migrate to it when
they can from the House of Representatives. If the
House establishes in Australia, as it will apparently do,
its sole right to make and unmake Ministries, it will be
the more tempting field for ambition : yet something
will depend upon the amount of genius and character
which the Senate attracts, for the presence of these in
abundant measure will give it weight with the nation.
It has been suggested in Australia that the Senate
with its thirty-six members is too small. The Senate
of the United States however began with twenty-six;
and it has been a great advantage to that body that
its original numbers were small, for traditions more
dignified than those of the tumultuous House were
formed, and a somewhat stronger sense of personal
responsibility was developed just because the individual
was not lost in a crowd.
XVI. MISCELLANEOUS PROVISIONS.
Questions of trade and finance fill a chapter of the
Constitution (sectt. 81-105) ; and it was Indeed these
522 THE AUSTRALIAN COMMONWEALTH
questions, next to the issue between the large and the
small States, that gave most trouble to those who
framed the instrument. It is provided that the collec-
tion and control of all duties of customs and excise
shall pass to the Commonwealth, but that not more
than one-fourth thereof shall, for ten years at least,
be retained by the Commonwealth, the other three-
fourths being paid over to the several States, or applied
to payment of the interest on their respective debts,
should these debts be assumed by the Commonwealth.
This arrangement was deemed needful to supply the
States with funds for defraying their administra-
tive expenses and the interest on their debts, seeing
that the chief part of their revenue arose from customs
and excise, the five which prepared the Constitution,
except New South Wales, having adopted a protective
policy. Bounties may be given either by the Common-
wealth, or by the States with its consent. There are
provisions regarding the collection of the customs, the
control of railways and settlement of railway rates,
the use of rivers for irrigation and water storage, and
the State debts, but as these are largely temporary, and
have little special interest for the student of constitu-
tions, important as they are to Australian industries,
I mention them only to show how elaborately the scheme
of union has been worked out, and on how many per-
plexing topics, settled provisionally by the Constitution,
the Commonwealth Parliament will have to legislate.
The question of the spot where the capital should be
placed gave rise, as had happened in the United States
and in Canada, to some controversy. It was adjusted
by providing that the seat of Federal government should
THE AUSTRALIAN COMMONWEALTH 523
be in the colony of New South Wales, but at least
100 miles from Sydney. Here an area is to be set
apart of not less than 100 square miles, which shall be
under the jurisdiction of the Commonwealth, as the
District of Columbia is under the authority of the
National Government in the United States : and here
a stately city will doubtless in time spring up.
Power is taken to admit new States, whether formed
out of existing States or not, upon any terms and
conditions (e.g. as to number of Senators) which the
Parliament may fix, but if the new State is formed out
of an old one, only with the latter's consent. The
Parliament has also full power to accept and provide
for the administration of any territory transferred to
it by the Crown, so that no constitutional questions
can arise resembling that which has occupied American
lawyers since the annexation of Puerto Rico.
XVII. AMENDMENT OF THE CONSTITUTION.
Last of all we come to the mode of amending the
Constitution, a mode easier to apply than that prescribed
for the United States, but showing the influence to some
extent of the American though more largely of the Swiss
model in its reference to the popular vote.
Every law proposing to alter the Constitution must
be passed by an absolute majority of each House, and
thereupon (after two but before six months) be submitted
to the voters of every State. If in a majority of States
a majority of the electors voting approve the proposal,
and if these State majorities constitute a majority of all
the electors voting over the whole Commonwealth, the
amendment is passed, and is then to be presented to
524 THE AUSTRALIAN COMMONWEALTH
the Crown for assent. Should the two Houses differ,
one passing the proposed law and the other rejecting
it (or passing it with an amendment which the first-
mentioned House rejects), the House which approves
the proposal may again pass it, and if the dissenting
House again dissents, the amendment may be submitted
to the people as if both Houses had passed it. The
decision of the people is final. To meet the fact that
the suffrage is not in all the States confined to men, it
is further provided that, in any State wherein all adults
are entitled to vote, only one half of the vote shall be
counted 1 .
Thus the requirements for the passing of an Amend-
ment are :
1. Absolute majority in each House of Parliament,
or else absolute majority in one House given twice, the
second time after three months' interval, plus submission
on both occasions to the other House.
2. Approval of the people in a majority of States (/. e.
at present in four States at least).
3. Approval of a majority of the people voting over
the whole Commonwealth.
The American Federal Constitution requires a two-
thirds' majority in each House of Congress and a
three-fourths' majority of States, or else the proposal
of a Convention by two-thirds of the States and a
three-fourths' majority of States approving what the
1 But ' no alteration diminishing the proportionate representation of any
State in either House of the Parliament, or the minimum number of repre-
sentatives of a State in the House of Representatives, or increasing,
diminishing or otherwise altering the limits of the State, shall become law
unless the majority of the electors voting in that State approve the proposed
law ' (sect. 128).
THE AUSTRALIAN COMMONWEALTH 525
Convention has settled, conditions extremely difficult
to secure. The Swiss system permits the Constitution
to be amended by the same process as is applied to
the passing of laws, plus a popular vote which results
in a majority of Cantons and in a majority of the
people voting over the whole Confederation.
XVIII. RELATIONS OF THE AUSTRALIAN COMMON-
WEALTH TO THE CROWN.
It has not seemed necessary to set forth the relations
of the Commonwealth to the British Crown, because
these relations are substantially those which have
heretofore existed between the Crown and each of
the self-governing colonies now united in the Federal
Commonwealth. The chief difference is that the
Commonwealth Parliament receives certain powers (as
to extra-territorial fisheries and relations with the
islands of the Pacific) which were previously exercise-
able only by the (now extinct) Federal Council of
Australasia (mentioned above), that it has a general
power to legislate on 'external affairs' (a somewhat
vague term, sect. 51, xxix), and that it may 'exercise
within the Commonwealth, at the request or with the
concurrence of the Parliaments of all the States directly
concerned, any power which can now be exercised only
by the Parliament of the United Kingdom or by the
Federal Council of Australasia ' (sect. 51, xxxviii). Apart
from these provisions, which may give rise to some
delicate questions, the principles and practice which
have guided the action of the Home Government and
of the Colonial Governors will apparently be pre-
served. Though the Imperial Parliament has an
526 THE AUSTRALIAN COMMONWEALTH
unquestioned right to legislate for every part of the
British dominions so as to override all local legis-
lation, it does not now exercise this power except
for a few purposes of utility common to all, or many,
British possessions, such as for the regulation of
merchant-shipping or copyright, and when it does so,
it secures the assent of the self-governing Colonies.
So again, though the Crown has a legal right to with-
hold consent from Colonial Statutes, this right is
rarely exerted, and then only in respect of some general
imperial interest which it is supposed that the statute in
question may prejudicially affect, i. e. the Crown's right
is not exerted in the interest of any class of persons
in the Colony or in pursuance of any particular view
entertained either by the Governor there or by the
Ministry at home. The new Australian Constitution
provides (sectt. 58-60) that when a measure passed
by the Parliament is presented to the Governor-
General, he may either assent to it in the Queen's
name (but subject to a power to the Queen to dis-
allow the same within one year) or he may withhold
assent ; or he may reserve it for the Queen's pleasure,
in which last case it shall not take effect unless he
announces within two years that the Queen has
assented to it. This right of veto, though it looks on
paper larger than that which belongs to the President
of the United States, seeing that the President's veto
can be overridden by a two-thirds' majority in each
House of Congress, is in reality far more limited, and
will constitute no check (except where imperial interests
may be affected) upon the practically sovereign power
of the Commonwealth Parliament.
THE AUSTRALIAN COMMONWEALTH 527
XIX. COMPARISON WITH THE CONSTITUTIONS OF
THE UNITED STATES AND CANADA.
Before I make some general reflections on the char-
acter of this Australian Constitution, it is worth while
to note summarily the principal points in which it differs
from the two other Federal Constitutions which it most
resembles.
The provisions which it has borrowed from the
American Constitution have been already adverted to.
It differs from that Constitution in the following (among
other) respects :
1. It is a longer instrument, going into much fuller
detail on many topics.
2. It leaves less power to the States and gives
more power to the Commonwealth ; and it enables the
Commonwealth Parliament to legislate for a State upon
the State's request, a thing which lies quite outside the
functions of Congress.
3. It does not establish a complete system of Federal
Courts covering the whole area of the Commonwealth,
but allows State Courts to be invested with Federal
jurisdiction.
4. It makes the Federal High Court a Court of
appeal from State Courts, whereas in the United States
each State Supreme Court is final in its proper sphere.
5. It contains hardly any restrictions, in the nature of
a ' Bill of Rights/ upon the power of the Federal Legis-
lature over the individual citizen.
6. Instead of disjoining Legislature and Executive,
it unites them closely by the system of Responsible or
Cabinet Government, and so far from "excluding every
528 THE AUSTRALIAN COMMONWEALTH
official from Congress, it makes a seat in Parliament
a condition of Ministerial office.
7. It vests the choice of the Head of the Executive,
not in the people, but in an external authority, the
British Crown. To be sure, this Head is nominal and
not responsible either to the people or to the legislature.
8. It vests the election of Senators in the people, not
in State Legislatures, gives the Senate no power of
amending but only of suggesting amendments in
money bills, makes the Senate dissoluble in case of
a deadlock between it and the House, and contemplates
the possibility that new States may have a smaller
representation in the Senate than original States.
9. It gives to the Executive no such veto on legis-
lation as the President has in the United States. I have
already explained that the veto of the Governor-
General and the Crown is a different thing, and rarely
employed.
10. It makes the amendment of the Constitution
a much less tedious and difficult process.
Thus it may be said that, as compared with the
American Constitution, it vests more power in the
National Government as against the State Govern-
ments, and that, as between the various departments
of the National Government itself, it concentrates
power more fully in the hands of the Legislature and
imposes fewer restrictions upon its action.
The Constitution of Canada seems at first sight
nearer to that of Australia than does the American.
It has a Monarch, represented by a Governor-General,
for the head of its Executive. It contemplates a number
of States small when compared with the forty-five of
THE AUSTRALIAN COMMONWEALTH 529
the American Union. It has adopted the British system
of Cabinet or responsible Government.
But the differences are really so considerable as
to place Australia's scheme as far from that of her
colonial sister as from the American. Among them
are the following:
1. The Canadian Constitution prescribes the Consti-
tutions of the several Provinces, though it permits
the Provincial legislatures to alter them (subject to a
Federal veto). The Australian assumes its State Con-
stitutions as existing, and makes no change in them,
except so far as the Federation controls or supersedes
them. Hence the antecedent power of changing them
remains, so far as they are not affected by the Federal
Constitution.
2. Australia leaves to the States all residuary powers
(i. e. powers not expressly granted). Canada withholds
them from the Provinces and vests them in the Dominion.
3. Australia leaves the State Governors to be ap-
pointed, as now, by the Home Government, apart from
Federal interference. Canada gives the appointment of
them to the Federal Ministry. And whereas in Canada
a Provincial Governor cannot communicate directly
with home but only with the Governor-General, in
Australia the State Governor and his Ministers are
in direct touch with the British Government in London.
4. Australia gives to the Federal Government no
right whatever to interfere with State Statutes. Canada
invests the Dominion Government with a veto on Pro-
vincial legislation by placing the Governor-General as
regards such legislation in the place which the Queen
holds as regards Dominion legislation. *
BRYCE i M m
530 THE AUSTRALIAN COMMONWEALTH
5. Australia distinguishes Federal from State juris-
diction, taking power to establish Federal Courts other
than her High Court, and to invest State Courts with
Federal jurisdiction. Canada has no special Federal
Courts other than the Supreme Court of the Dominion.
6. Australia makes her Senate an elective assembly.
In Canada the Senate is nominated by the Dominion
Government, and is therefore a weak body, quite unfit
to try conclusions with the House which has the people
behind it.
7. Australia provides a method whereby the Com-
monwealth may amend its Constitution. Canada has
no such method, and thereby leaves amendment to the
Imperial Parliament of the United Kingdom.
This comparison shows that the Australian scheme
of Federal Government stands intermediate between
that of the United States and that of Canada. In the
United States, the Federal Government has less power
as against the States than in Australia. In Canada, the
Federal Government has more power, or at least a
wider range of action. In other words, the Australian
system approaches nearer, in point of form, to a Unitary
Government than does the United States, but not so
near as does Canada. I am speaking merely of form,
that is, of the institutions as they stand on paper, for
it does not necessarily follow that the spirit in which
institutions are worked will precisely correspond to
their form. The old Romano-Germanic Empire, for
instance (1638-1806), was less unitary in practice than
would have been collected from its form ; the new
German Empire (since 1871) is more unitary in spirit
and working than its form would necessarily convey.
THE AUSTRALIAN COMMONWEALTH 531
XX. GENERAL OBSERVATIONS ON THE CONSTI-
TUTION.
Technically regarded, the Constitution is an excellent
piece of work. Its arrangement is logical. Its language
is for the most part clear and precise. The occasional,
and perhaps regrettable, vagueness of some expressions
appears due, not to any carelessness of the draftsmen,
but to the nature of the subject-matter. The cumbrous-
ness of the provisions regarding customs, duties, and
the control of railways is the almost inevitable result of
an effort to meet the claims and appease the appre-
hensions of neighbouring communities with interests
that have been deemed opposed. Although it is much
longer, as well as less terse, than the Constitution of
the United States, going into fuller detail, and with
more of the flavour of an English statute about it, it
nevertheless, like that Constitution, leaves much to be
subsequently filled up by the action of the legislature.
A very large field of legislation remains common to the
States and the Commonwealth Parliament ; and though
statutes passed by the latter will of course override or
supersede those which may have been passed by the
former, it may be many years before the higher Parlia-
ment finds leisure to cultivate all the ground which
lies open before it. A further range of activity for that
Parliament may disclose itself if the State legislatures
should exert the power they possess of asking the
Commonwealth to take over part of their work. And
apart from both these lines of legislative action, the
Parliament will find a very large number of matters
which the Constitution has expressly directed it to
M m 2
532 THE AUSTRALIAN COMMONWEALTH
settle by statutes. Till such statutes have been enacted,
many points material to the working of the system will
remain undetermined.
In two points the experience of the United States
has been, consciously or unconsciously, turned to
account. The complaint has often been made in
America that the Constitution contains no recognition
of the Supreme Being. The Australians have intro-
duced such a recognition in the preamble of the Im-
perial Act establishing the Constitution, which runs as
follows: 'Whereas the people of New South Wales,
Victoria, South Australia, Queensland, and Tasmania,
humbly relying on the blessing of Almighty God, have
agreed to unite in one indissoluble Federal Common-
wealth under the Crown of the United Kingdom/ &c.
And they have also solemnly enounced in the same
preamble that indissolubility of their union which the
Americans did not enounce in 1788, and the absence of
which from the instrument gave rise to endless argu-
mentation on the part of those who maintained the right
of a State to retire from the Federation.
The perfection of any Federal system may be tested
by the degree of thoroughness with which the Federal
principle is worked out in its application, not only to
the legislative, but also to the executive and judicial
branches of government. In this respect the Austra-
lian scheme is less perfect than the American ; for the
Commonwealth has received power to legislate, no
doubt at the request of the State, on purely State
matters, to return to the States part of the revenue it
collects, and to assume the pecuniary liabilities of the
States. There is also, as already noted, no such
THE AUSTRALIAN COMMONWEALTH 533
effort as in America to secure that questions of
State law shall be determined solely by State Courts,
for such cases may be appealed from State Courts to
the Federal High Court. Thus the Nation looms large
over the whole instrument, overshadowing the States.
There are indeed many provisions for safeguarding the
interests of the States, yet these are not so much recog-
nitions of States' rights as stipulations made to secure
material advantages, industrial or commercial or financial.
An explanation of this remarkable feature of the scheme
may be found in the phenomena of Australian as com-
pared with those of American history. The thirteen
States which united in 1788-9 had each of them a long
history. The two oldest dated back to the beginning
of the seventeenth century. The youngest had nearly
sixty years of political life behind it. All were animated
by a strong sentiment of local independence, and by
a passion for liberty which had become associated with
local independence. Their notions of a Unitary Govern-
ment were formed from England, whose monarch
they had latterly learned to hate as their oppressor.
Hence their love for their States was largely senti-
mental. Their minds were filled, not by the mere
sense of what they gained from their States as business
men, but by the loyalty they bore to their States as
protectors of their civic rights and embodiments of their
historical traditions.
Very different were the feelings of the Australians.
The oldest colony dated back scarcely more than a
hundred years, and had enjoyed responsible government
for less than fifty. Proud as each colony was of its
progress, there had not been time for those political
534 THE AUSTRALIAN COMMONWEALTH
traditions to be formed in which the love of local
independence roots itself. Neither were there between
the several colonies such differences of origin or of
usages and ways of life as separated the New Englanders
from the men of 'Virginia and the Carolinas, for the
Australians had emigrated so recently from Britain
that no local types had yet been formed. Still less
was there that aversion to a Unitary system of govern-
ment which the strife with England had evoked among
the Americans. The only political model which the
Australians knew at first hand was the government
of Britain by its Parliament, a government which had
ceased in 1832 to be oligarchic, and had since 1867
begun to be democratic. Accordingly, among the
Australians, State feeling had a thoroughly practical
and business character. It took in each man the
form of a resolve to secure the agricultural and
trading interests of his own part of the country. It
was in fact the wish to make a good bargain for his
community and himself. Sentiment there was and is.
But the sentiment gathered round the Commonwealth
of the future rather than the Colony of the past. The
same kind of feeling which attached the sons of the
Cavaliers to Virginia and the Puritans of Massachusetts
to the old ' Bay State ' made the Australians desire to
found a great nation which should be the mistress of
the Southern seas. Hence the absence of any jealousy
of the central power beyond that which is suggested
by the fear that local industrial or commercial interests
might be unfairly dealt with.
This attitude of Australian feeling will therefore (if
the view here presented be correct) work towards the
THE AUSTRALIAN COMMONWEALTH 535
development of those centralizing tendencies in the
Constitution for which its terms give ample scope. In
all forms of polity the influences which draw the members
of a composite political community together and those
which thrust them asunder are partly material, partly
sentimental l . How the influences of material interest
will work in Australia I will not attempt to predict.
Some of them may prove centrifugal ; others, such as
those of trade, are clearly centripetal. The Constitu-
tion frankly recognizes that economic conditions pre-
scribe a federal rather than a unitary government.
But it is a significant fact that the influences of
sentiment were arrayed on the side of the Nation
rather than on that of the States. One can read this
between the lines of the Constitution ; and it explains
why the Frame of Government is less consistently
Federal than is that of the United States.
XXI. MODERN AND DEMOCRATIC CHARACTER OF
THE AUSTRALIAN CONSTITUTION.
The Australian instrument is the true child of its
era, the latest birth of Time. Compared with it, the
American Constitution seems old-fashioned, and parts
of the Swiss Constitution positively archaic. Cabinet
Government, whose fully developed form is scarcely
a century old, is taken for its basis. Ideas and enter-
prises, problems and proposals, so new that they are
only just beginning to be seriously discussed, figure
in it. As slavery, an institution almost coeval with
the human race, but essentially barbarous, survived to
be mentioned (under a transparent euphemism) in the
1 See Essay IV. .
536 THE AUSTRALIAN COMMONWEALTH
Constitution of the United States, so a new industrial
question viz. the struggle between white labour and
free coloured labour makes its appearance in this
Australian document. Here too are the new products
and new methods of science, telegraphs and telephones
and the keeping of meteorological observations ; here
is the extension of the suffrage to women; here are
the new troubles which spring from contests between
employers and workmen ; here the new proposals for
throwing on the State the function of providing for its
members in sickness and old age; here an express
recognition of the right of a State to control the traffic
in intoxicating liquors. And above all these one per-
ceives through the whole instrument that dominant
factor of our age, the ever-present and all-pervading
influence of economic forces, of industrial production,
of commerce, of finance. The increased and increasing
importance of these influences in the life of the modern
world, stimulated as they have been by the amazing
progress of scientific discovery, finds a fuller expression
in this Constitution than in any other yet framed.
As in these points this Constitution is at least
abreast of European and American theory, and ahead
of European or American practice, so also it represents
the high-water mark of popular government. It is
penetrated by the spirit of democracy. The actual every-
day working of government in the Australian Colonies
is more democratic than in Britain, because Britain
has retained certain oligarchical habits, political as well
as social. It is more democratic than in the United
States, because there both the States and the Union are
fettered by many constitutional restrictions, and because
THE AUSTRALIAN COMMONWEALTH 537
wealth has there (as indeed in Britain also) been able
to exert a control none the less potent because half-con-
cealed. But the Constitution of this Federal Common-
wealth is more democratic than are the Constitutions
of the several Australian colonies, in some of which
property qualifications and nominated second chambers
have survived till now. It prescribes no qualification
for a Senator or Representative beyond his having at-
tained the age of twenty-one and being himself qualified
to become an elector. He need not even be a resident
in the State where he seeks election. The Senate
as well as the House is elective; both are chosen di-
rectly by the people, and on the basis of the suffrage
which each State prescribes for the election of its more
popular House. The duration of the House is only
three years. The direct popular vote, an institution
specially characteristic of advanced democracy, which
has been developed independently in the United States
and in Switzerland (where it has taken the double
form of a Referendum to the people and an Initiative
proceeding from the people), is here applied to the
enactment of amendments to the Constitution, and, in
the form of a general election of both Houses simul-
taneously, to the settlement of deadlocks between the
Houses. There is no veto on the acts of the Legisla-
ture, for that vested in the Governor-General and in
the Crown is not intended to be used except in the
rare cases where imperial interests may be touched.
In fact all those checks and balances in the English
and American Constitutions by which the censors of
democracy used to set such store, have here dwindled
down to one only, viz. the existence of two Chambers.
538 THE AUSTRALIAN COMMONWEALTH
These two will be elected on the same franchise and
composed of similar men, but the tendency to dissen-
sion so natural to rival bodies may sometimes interpose
delays and ought certainly to make the criticism of pro-
posals more searching. If the principle of popular sove-
reignty is expressed with equal clearness in the Con-
stitutions of America and Switzerland, it assumes in
this Australian Constitution a more direct and effective
form, because many of the restrictions which the two
former constitutions (and especially that of America)
impose on the legislature in the supposed interests
of the people are absent from the Australian instru-
ment. In Australia the people, through their legislature
with its short term, are not only supreme, but can, by
the legislature's control of the Executive, give effect
to their wishes with incomparable promptitude. For this
purpose, the expression 'people' practically means the
leader who for the time being commands the popular
majority. Holding in his hand both the Executive
power of the Cabinet and the legislative power of
Parliament, he has opportunities of effecting more than
any one man can effect under the constitutions either
of America or of Switzerland.
The solitary restraint which Australia provides is
the co-ordinate authority of the Senate, a hostile
majority in which may check or at least delay his legis-
lative projects. Yet if his party in the country be well
organized and his programme alluring to the masses
he may control the Senate as well as the House,
for it does not follow that because the smaller States
have prudently placed their interests under the protec-
tion of the Senate, they will on the great issues of
THE AUSTRALIAN COMMONWEALTH 539
politics be usually found opposed to their larger
neighbours l .
This highly democratic character of their Constitu-
tion has been fully appreciated by Australian statesmen.
The effusiveness with which they dwell upon it is prob-
ably more sincere than even that which is displayed
by politicians in England, America, or France, when
they chant the praises of the multitude. Australians
are as sanguine in their temper now as Americans were
in the days before the clouds of Slavery and Secession
had begun to darken their sky.
XXII. POLITICAL PARTY IN AUSTRALIA.
Although the Constitution says no word about political
parties, the fact that it contemplates a party system is
written over it in bold characters. The sages of the
Philadelphia Convention of 1787 neither intended nor
expected that the scheme they devised would fall into
the hands of parties. Indeed they had a touching
faith, dispelled as soon as Washington retired from
the scene, that the electors who were to be chosen
to elect the President would select the best man in the
nation irrespective of his political ties. The Swiss,
strange as it may seem to men of English or Anglo-
American race, have succeeded in keeping their Execu-
tive, elected though it is by the Chambers, out of
party politics altogether, nor do parties dominate the
1 In the first election of members of the two Houses, which took place
while these pages were passing through the press, every State was divided
upon the issue of Free Trade versus Protection, though the Protectionist (or
high-tariff) party secured more seats, in proportion, in the House than it did
in the Senate. . *
540 THE AUSTRALIAN COMMONWEALTH
legislature and colour the public life of the nation as
in America and England. But Government of the
English ' Cabinet type * is essentially party Government,
that is to say, it ha,s been so hitherto both in England
and wherever else it has been tried, and no one has
yet shown how it can be made to work otherwise.
In America the great parties are younger than the
Constitution, which may be said to have created them.
In England they are older than Cabinet Government
proper, being practically contemporaneous in their rise
with that very rudimentary form of the Cabinet which
began to emerge in the time of King Charles II. In
Australia every colony has had such active and skilfully-
organized parties that no one doubts but what the
Federal Legislature will find its first Ministry forthwith
provided with a competent Opposition. It is generally
believed that the tariff will furnish the first, and for
some time the main, ground of party division, for the
new Government must begin by providing itself with
an adequate revenue; the chief part of that revenue
must be raised by indirect taxation, and the issue of
Free Trade versus Protection has for years past been
a burning one in the largest Colonies.
I have observed that the Australian scheme contem-
plates a party system to work it. But what sort of
a party system? Obviously one in which there are
two parties only, each cohesive, each prepared to
replace its antagonist in the Executive. Such was
the party system of England till the present genera-
tion. Such has been the party system of the United
States. Exceptions indeed there have been, such as
the Know-Nothing party in 1852, the Greenback party
THE AUSTRALIAN COMMONWEALTH 541
in 1876, the Populist party which arose in 1889, an ^ is
not quite extinct now (February 1901). In the United
States the power of the two great organizations is so
vast, and the cost of creating a new party so deterrent, that
a third organization seldom appears, and if it appears,
presently disappears. But in France there have been
and are several parliamentary groups, which frequently
change their attitude towards one another, sometimes
combining to support a Ministry, sometimes falling
asunder and leaving it to perish, because one group
alone was not sufficient to sustain it. Hence the lives
of Cabinets have been short, and would have been still
shorter but for the fact that an imminent peril to
republican government itself has sometimes compelled
the various republican groups to hold together. In
Britain the same difficulty became acute from 1880
onwards, as the Irish Nationalists consolidated them-
selves in a distinct Third Party; and it may at any
moment create serious embarrassment. It exists in
Germany also, and in the Reichsrath of the Austrian half
of the Austro-Hungarian Monarchy. Now in several of
the Australian Colonial Parliaments a Labour party has
recently arisen, which, keeping itself independent of the
two older parties, can throw its weight on one or
the other side and endanger the stability of Cabinets.
Should this phenomenon reappear in the Parliament
of the Commonwealth, it will complicate still further
a position which the co-ordinate powers of Senate and
House make complicated enough already 1 .
1 Since these lines were written, the phenomenon has reappeared, for
at the first elections, held in the spring of 1901^ of the Senate and House,
the Labour party obtained more than one-fifth of the seats in each House.
542 THE AUSTRALIAN COMMONWEALTH
XXIII. POLITICAL ISSUES LIKELY TO ARISE
IN AUSTRALIA.
The mention of. parties suggests another question,
the last I shall attempt to discuss, viz. the lines on
which the political life of Australia is likely to move
under her new Constitution. It is a topic on which
little will be said by any one who remembers how
seldom great constitutional changes have been followed
by the results prophesied at the time. The Reform Bill
of 1832 in Britain, the Civil War in the United States,
the union of Italy under the dynasty of Savoy, not to
speak of the French Revolutions of 1789 and 1848, all
brought forth fruits very different from those predicted
by some of the most judicious and unbiassed con-
temporary observers. Even the extension of the
suffrage and redistribution of seats effected in Britain
in 1884-5 were followed by a shifting of the balance
of party strength exactly the opposite of that which
the shrewdest party politicians had expected. But
without attempting forecasts, one may try to indicate
certain conditions likely to affect the development of
Australian national and political life under the new
form which this Constitution gives it.
First let us ask what are the controversies likely to
occupy the nation and to supply a basis for national
parties ?
Taking one country with another, it will be found
that the questions on which men have grouped them-
selves into parties may be classed under five heads,
viz. :
i. Questions of Race, such as those which have
THE AUSTRALIAN COMMONWEALTH 543
contributed to distract Ireland, which to-day trouble
the Austrian Monarchy and (as respects the Poles) the
Prussian Monarchy, which exist, though at present not
acute, in Canada, and which are painfully acute in South
Africa.
2. Questions of religion, now generally less formid-
able than they once were, yet embittering disputes
regarding education in many modern countries.
3. Questions relating to foreign policy, whether as
to the general lines on which it should be conducted,
or as to the attitude to be held towards particular States
at any given moment.
4. Questions regarding the distribution of political
power within the nation itself.
5. Questions of an economic or economico-social
kind, e.g. regarding the disposal of land in public hands
or its tenure in private hands, regarding the conditions
of labour, regarding taxation and finance, the policy of
Protection or Free Trade, the policy of progressive
imposts, the propriety of assisting particular industries or
particular classes out of public funds, whether national
or local. Some of these may seem to be rather social
than economic, but it will be found upon scrutiny that
it is their economic aspect, i.e. their tendency to take
money from or give money to some class in the com-
munity, that makes them bases for party combination.
A purely social question seldom assumes great political
significance.
(i, 2) Applying this classification to Australia we shall
find that the first two sets of questions are absent. All
the people are of practically the same race. None are
animated by any religious passion, although contro-
544 THE AUSTRALIAN COMMONWEALTH
versies have sometimes arisen over theological teaching
in State schools.
(3) Questions of foreign policy do not, strictly speaking,
come within the scope of the Commonwealth Parlia-
ment, because they belong to the mother country.
Nevertheless, it cannot be doubted that the Parliament
will from time to time interest itself in them, especially
as regards the isles of the Pacific and of the Eastern
Archipelago, and will give forcible expression to its
views should any crisis arrive. One can well imagine
that the question of the attitude which the Common-
wealth should assume, or urge the mother country to
assume, towards Germany or France, or Holland, or
even towards China or Japan or the United States,
when any of these Powers may be taking action in the
Western Pacific, might give rise to political contention.
(4) As respects the distribution of political power
and the structure of the Federal Government, Australia
is so democratic already that it cannot go much further.
It will doubtless, however, be proposed to extend to
women in all the States that right of voting at Common-
wealth elections which they already enjoy in South
Australia and Western Australia, under the local law,
or to apply more widely the institution of the direct
popular vote; or to amend the Constitution in some
point which will raise an issue between the more radical
and the more conservative sections of opinion. That
questions of constitutional amendment have played so
small a part in American politics may be attributed to
the extreme difficulty of securing the majorities re-
quired for altering the Constitution. In Australia the
process will be far easier. The history of the United
THE AUSTRALIAN COMMONWEALTH 545
States during the first seventy years of the Constitution
suggests that the question of the respective rights of
the Federation and of the States may furnish a pro-
minent and persistent issue. This is quite possible, for
in Federations there is a tendency for many contro-
versies of various kinds to connect themselves with, or
to raise afresh, controversies regarding the true con-
struction of the Federal instrument as respects the
powers which it assigns to the Nation and to the com-
ponent communities.
(5) It is however questions of the economic order
that are likely to occupy, more than any others, the
minds and energies of Australian statesmen. The
tariff is a practically inexhaustible topic, because apart
from the general issue between a Protective and Free
Trade policy, the particular imports to be taxed and
the particular duties to be imposed will furnish matter
for debates that can hardly have finality, seeing that
circumstances change, and that the financial needs
of the Government will increase. It need hardly be
said that in a new country 'like Australia direct taxation
is difficult to collect and highly unpopular, so that larger
recourse will be had to customs and excise than ortho-
dox economists could justify in Europe. The financial
relations between the Commonwealth and the States
will be another fertile source of controversy. So may
the regulation of the railways, which the Common-
wealth seems likely to take over. So will the arrange-
ments for securing the respective rights of different
States as regards both irrigation and the navigation of
the rivers, practically the only rivers of the Continent,
which intersect the three south* - eastern colonies.
546 THE AUSTRALIAN COMMONWEALTH
Among the labour questions likely to arise, one problem,
much before the minds of Australians, may be found
to cause difficulties in its details if not in its general
principle, viz. the exclusion of immigrants of coloured
race, Chinese, Japanese, Malays, and Indian coolies.
The white labourers of the temperate colonies have been
strongly opposed to the admission of such strangers,
but the planters of the tropical north, who have used
the labour of Pacific islanders on their sugar estates,
take a different view of the case.
Some may think that the obvious line of party
division will be found to be that which ranges the
four smaller and the two larger States into opposite
camps. If this should happen, which may well be
doubted, it will be owing to a coincidence of economic
interests, and not to the mere fact that the strength
of one set of States lies in the House, that of the other
in the Senate. The two largest States, New South
Wales and Victoria, have hitherto been conspicuously
divergent in their financial policy. In America, though
feie small States fought hard against the large ones in
the Convention of 1787, the distinction has never since
that date possessed any permanent political significance.
If parties form themselves on any geographical lines,
the line will more probably be one between the tropical
and the temperate regions. These tropical regions
are at present much less populous and wealthy than
is the temperate south-east corner of the Continent.
They will doubtless increase both in wealth and in
population, but as the strong sun forbids out-door
labour to white men, the population enjoying political
rights cannot, for generations to come, be a large one.
THE AUSTRALIAN COMMONWEALTH 547
XXIV. POSSIBLE ENTRANCE OF NEW STATES.
The existing situation may be so materially affected
by the entrance of new States that one naturally asks
what are the prospects that new States will be ad-
mitted. As the whole Continent is already divided
among the five existing States, new ones can come
into being only by carving up the three larger of
these. There has already been talk of dividing Queens-
land into two or perhaps three States. Others
might be formed out of the now sparsely peopled
regions of the north and north-west, when they
have become more thickly inhabited. How fast the
process of colonization will advance in these regions
will depend upon what engineering science may be
found able to do for the more arid tracts in the way
of storing rain-water and raising it from deep wells,
while something will depend on the disposition of the
Federal Government to spend money for that purpose.
Nor is another element to be overlooked Vast as is
the mineral wealth already known to exist in the
explored parts of Australia, it may be equalled by
that which exists in regions which have received no
thorough geological examination. Should mines begin
to be worked in the arid tracts, an additional motive
would be given for the provision of water supplies
there, for the existence of a population furnishing
markets would stimulate men to develop the capacities
of the soil for ranching and even for tillage. These
possibilities show how many factors hitherto undeter-
mined may go to moulding the political future of the
country. The increase of population in regions now
548 THE AUSTRALIAN COMMONWEALTH
thinly peopled would either make the four smaller
States, or some of them, the equals of the larger, or
would, more probably, lead to the creation of new
States, some of them with a character different from
that of the two which now command a decisive majority
in the House of Representatives. As the settlement of
the Mississippi Valley changed American politics, so
a filling up of large parts of the interior and north of
Australia, unlikely as this now appears, might affect
her constitutional growth in ways at which we can now
only guess.
At present not only these tropical regions, but also
the settled parts of Western Australia are separated by
vast uninhabited spaces from the populous south-east
corner of the continent. Hence just as in Canada an
Intercolonial Railway to connect Nova Scotia and New
Brunswick with Quebec and Ontario was provided for
in the Constitution of 1867, and just as the construction
of the great transcontinental Canadian Pacific line
enabled Manitoba and British Columbia to become
effective members of the Federation, so a line of
railway from east to west across Australia, as well as
the completion of the line, already partly constructed,
from the south to the north, are among the political
needs of the Commonwealth, and might do much to
weld its people into an even more united nation.
One community remains to be mentioned whose
geographical position towards Australia recalls the
saying of Grattan that while the Ocean forbade Ireland
to be politically severed from Britain, the Sea forbade
an incorporating union. It has been hoped that New
Zealand would enter the Federation, and she has herself
THE AUSTRALIAN COMMONWEALTH 549
seriously considered whether she ought to do so. With
a healthy climate, a soil generally well watered, and an
area not much less than that of the British Isles, New
Zealand has evidently a great future before her. The
population, now between 700,000 and 800,000, has tripled
within the last thirty years ; and the level of personal
comfort and well-being is as high as anywhere in the
world. Her accession would give further strength to
the Federal Commonwealth. But New Zealand, as one
of her statesmen observed, has twelve hundred reasons
against union with Australia, for she is separated from
the nearest part of Australia by twelve hundred miles of
stormy sea, a distance more than half of that which
divides Ireland from Newfoundland. She may there-
fore think that some sort of permanent league with
Australia, for the purposes of combined naval defence
and joint action in external questions of common
concern, would conform better to her outlying position
than would participation in a Legislature which must
be mainly occupied with the affairs of Australia. Of
the subjects assigned by the Constitution to the
Commonwealth Parliament, there are several in which,
because purely Australian, New Zealand would have
no interest, some also with regard to which she could
legislate better for herself than the Commonwealth could
legislate for her, inasmuch as her economic and social
conditions are not the same as those of Australia. An
illustration is furnished by the difference between the
native races in the two countries. The Australian
aborigines, one of the most backward branches of the
human family, are obviously unfit for the exercise of
any political functions. They are not permitted to vote
N n 3
550 THE AUSTRALIAN COMMONWEALTH
in any colony, and the Constitution provides that in
determining the number of representatives to be allotted
to a State they shall not be reckoned among its popula-
tion. But the Maoris of New Zealand are an intelligent
folk, to whom New Zealand has given the suffrage,
and who are now on excellent terms with their white
neighbours. It would no doubt be possible for the
Commonwealth Parliament to legislate differently for
them and for the ' black fellows ' of Australia ; but their
dissimilar character shows the difference of the prob-
lems which arise in the two countries. New Zealand
has however an interest in obtaining free access to
the Australian markets, and her final decision as to
entering the Federation may be influenced by the
commercial policy which the larger country pursues l .
In this changeful world, no form of government ever
remains the same during a long series of years, and no
Federation, however strictly the rights of its members
may be secured by a Rigid Constitution, can continue to
maintain exactly the same balance of powers between
the Nation and the States. I have already expressed
the opinion that the tendency is in Australia likely to be
rather towards consolidation than towards a relaxation
of the Federal bond, because not only national senti-
ment but economic influences also will work in that
direction. Much however may depend on a factor still
unpredictable, the relations between Australia, together
with the British Empire generally, and the other Powers
which are interested in the Western Pacific. Nothing
1 While these pages were passing through the press, a Commission
appointed in New Zealand to consider the question has reported strongly
against her entrance into the Australian Federation.
THE AUSTRALIAN COMMONWEALTH 551
does so much to draw together a people already homo-
geneous as the emergence of issues which threaten, or
result in, a struggle against foreign States. The senti-
ment of internal unity is accentuated. Public attention
is diverted from domestic controversies. Powers are
willingly yielded to the Executive which would in days
of peace be refused. The consequences may be good
or evil they have sometimes been in the long run
evil but either way they alter the character of the
government. They may even give a new direction to
its policy, as the United States has recently, and quite
unexpectedly, discovered.
XXV. FUTURE RELATIONS OF THE AUSTRALIAN
COMMONWEALTH TO BRITAIN.
Australia however is not a State standing alone in
the world, but a member of the British Empire, so we
cannot close an examination of her Constitution without
asking whether the union of her Colonies will affect her
relations to the mother country.
When the first Convention to frame a Federal Con-
stitution assembled in 1891, most Englishmen supposed
that a Federated Australia would soon aspire to com-
plete independence. Australian statesmen saw deeper,
and predicted that the formation from the several
Colonies of an Australian Nation would tend not to
loosen, but rather to draw closer the ties that unite the
people to Great Britain. So far as can be judged from
the course of Australian opinion during the past ten
years, this has been the result. There were at first
some who advocated Federation as a means to indepen-
dence. But they soon desisted, overborne by a different
552 THE AUSTRALIAN COMMONWEALTH
current. The same National feeling through which
Federalism triumphed seems to have deepened the sense
of unity with other members of the British race. And
possibly that suspicion which colonies are apt to feel
of a sort of patronage on the part of the mother
country, and which sometimes disposes them to be self-
assertive, may have vanished as they came to realize
that the old country was proud of them and wished to
treat them not only as a daughter but as an equal.
Neither do they, democrats as they are, harbour distrust
of a monarchy, or deem their freedom in any way
hampered by it. The love for republicanism in the
abstract, though far stronger in Continental Europe
than in England, was everywhere a force in the first
half of the nineteenth century. It has faded away in the
second half throughout the British world, because the
solid substance of freedom has been secured, because
the old mischiefs of monarchical government have
reappeared in republics, because men's minds have
begun to be occupied with economic and social rather
than with purely political questions. The fact that
the British Crown is titular head of the Australian
Commonwealth will not render the working of the
Constitution less truly popular, any more than has
befallen in Canada, a somewhat less democratic
country. So far as the internal politics of Australia
are concerned, she will take her own course, scarcely
affected by her connexion with England. But the fact
that she is, and seems likely to remain, a part of the
British Empire, sharing in the enterprises and conflicts
and responsibilities of that vast body, is a fact of the
highest moment for her future and for the future of
THE AUSTRALIAN COMMONWEALTH 553
the world. Still more momentous might her relation
to the Empire become should any scheme be devised
for giving the self-governing Colonies of Britain a share
in the financial liability for common defence, together
with a voice in the determination of a common foreign
policy. The difficulties of constructing any constitu-
tional machinery for this purpose are obvious, yet
perhaps not insurmountable. Should any such arrange-
ment be ever reached, it will probably be reached
through some crisis in the history of the Empire itself.
Sixty years ago it was generally believed that as
soon as each British self-governing colony had become
conscious of its strength, it would naturally desire, and
could not be refused, its independence. But the last
sixty years have brought with them many favouring
conditions ; and among these, one of which no one then
thought, the long reign of a sovereign whose personal
character, by its purity, simplicity and kindliness, won
such reverence and affection, not only for herself,
but also for the ancient institutions at the head of
which she stood, that the prolongation of her life may
be reckoned among the causes which have kept these
far-off lands a part of the British realm and have given
its actual form to the Commonwealth of Australia,
END OF VOL. I
OXFORD
PRINTED AT THE CLARENDON PRESS
BY HORACE HART, M.A.
PRINTER TO THE UNIVERSITY
JA'41 .38 1901 v.l SMC
Bryce, James Bryce, Viscount
Studies in history and
jurisprudence
