III FLEXIBLE AND RIGID CONSTITUTIONS[56] (continued 2)

4. They may arise by the tightening of a looser tie 204which has theretofore existed between various self-governing communities. When external dangers or economic interests have led such communities to desire a closer union than treaties or federative agreements have previously created, such communities may unite themselves into one nation, and give that new nation a government by means of an instrument which is thereafter not only to hold them together but to provide for their action as a single body. This process of turning a League of States (Staatenbund) into a Federal State (Bundesstaat) is practically certain to create a Rigid Constitution, for the component communities which are so uniting will of course desire that the rights of each shall be safeguarded by interposing obstacles and delays to any action tending to change the terms of their union, and they will therefore place the constitution out of the reach of amendment by the ordinary legislature. Cases may, however, be imagined in which the component communities might be willing to forgo this safeguard. The Achaean League did so; and its constitution was therefore a flexible one, but then the Achaean League can hardly be said to have been a single State in the strict sense of the word. It was rather a league, though a close league, of States, like the Swiss Confederation in the eighteenth century.

The most familiar instances of this fourth kind of origin are the United States of North America, the Federation of Mexico (unless it be referred to the second class), and the present Swiss Confederation. To this class may also be referred the very peculiar case of the new German Empire, which by two steps, in 1866 and in 1871, has created itself out of the 205pre-existing Germanic Confederation of 1815, that Confederation having been formed by the decay into fragments of the ancient East Frankish or German kingdom, which had, throughout the Middle Ages, a Flexible Constitution resembling that of the England or France or Castile of the thirteenth century.

X. The Enactment and Amendment of Rigid Constitutions.

Before proceeding to consider the methods by which these constitutions may be enacted and changed, it is worth while to suggest an explanation of their comparative recent appearance in history. Documentary constitutions, i.e. those contained in one or several instruments prepared for the purpose, are old. There were many of them in the Greek cities; and efforts were sometimes made when they were enacted to secure their permanence by declaring them to be unchangeable. But in the old days when City States (and sometimes also small Rural States) were ruled by Primary Assemblies, consisting of all free citizens, there was no authority higher than the legislature that could be found to enact a constitution, seeing that the legislature consisted of the whole body of the citizens. In those days, accordingly, when it was decided to give peculiar permanence to some political arrangement, so that no subsequent assembly of the people should upset it, two expedients were resorted to. One was to make all the leading men, perhaps the whole people, swear solemnly to maintain it, and thereby to bring in the deities of the States as co-enacting or at least protecting and guaranteeing parties. Tradition 206attributed this expedient to Lycurgus at Sparta. The other was to provide in the law intended to be Fundamental that no proposal to repeal it should ever be entertained, or to declare a heavy penalty on the audacious man who should make the proposal. The objection to both these expedients was that they debarred any amendment, however desirable, and however generally desired. Hence they were in practice little regarded, though the exceptionally pious or superstitious Spartans were deemed to be largely deterred from governmental changes by the fear of divine disapproval. Moreover, the second of the above-named devices or barriers could be easily turned by proposing to repeal, not the Fundamental law itself, but the prohibition and the penalty. These having been repealed—and of course the proposal would not be made unless its success were pretty well assured—the Fundamental Law would then itself be forthwith repealed. It must, however, be added that even if the Greek cities had adopted what seems to us the obvious plan of requiring a certain majority of votes (say two-thirds) for a change in the Fundamental Law, or had required it to be passed by four Assemblies in succession at intervals of three months, one may doubt whether such provisions would have restrained a majority in communities which were small, excitable, and seldom legally-minded.

Those who have suggested that the United Kingdom ought to embody certain parts of what we call the British Constitution in a Fundamental Statute (or Statutes) and to declare such a statute unchangeable by Parliament, or by Parliament acting under its 207ordinary forms, seem to forget that the Act declaring the Fundamental Statute to be Fundamental and unchangeable by Parliament would itself be an Act like any other Act, and could be repealed by another ordinary statute in the ordinary way. All that this contrivance would obtain would be to interpose an additional stage in the process of abolition or amendment, and to call the attention both of the people and the legislature in an emphatic way to the fact that a very solemn decision was being reversed. Some may think that such a security, if imperfect, would be worth having. The restraint imposed would, however, be a moral not a legal one^[79].

A constitution placed out of the power of the legislature may or may not be susceptible of alteration in a legal manner. Sometimes no provision has been made, when it was first established, for any change whatever. There are instances of this among constitutions 208granted by a monarch to his subjects—such seems to be to-day the case in Spain—but in cases of this kind it might possibly be held that the grantor implicitly reserved the power to vary his grant, as there may not have been expressed in the document, and need not be, any bilateral obligation. As already observed, the Constitution of the present Kingdom of Italy was originally granted to the Kingdom of Sardinia by King Charles Albert in 1848; and it was for a long time held that the power to change it resided in the Crown only. It was extended by a succession of popular votes (1859 to 1871) to the rest of Italy, and some conceive that this sanction makes at least its fundamental parts unchangeable. But the view that it is alterable by legislation has prevailed, and it has in fact been so altered in some points. The Charte Constitutionnelle granted by Louis XVIII, under which the government of France was carried on for many years, was intended to create a sort of parliamentary government, in the first instance by way of gift from the sovereign, but afterwards, under Louis Philippe, by way of a compact, or kind of covenant between monarch and people. The fact that it contained no provisions for alteration, having apparently been designed to last for ever, worked against it; and the discontents of France may have ripened the faster because no constitutional method had been provided for appeasing them by changes in the machinery of government. Nothing human is immortal; and constitution-makers do well to remember that the less they presume on the long life of their work the longer it is likely to live.

209The Constitutions of Norway (created in 1814, but subsequently altered) and of Greece (created in 1864) declare that amendments are to be confined to matters not fundamental, but omit to specify the matters falling under that description.

The existing Constitution of France is so far legally unalterable that no proposition for abolishing the republican form of government can be entertained. If it be asked, What is a republican form? one may answer that if ever the question has to be answered, it will be not so much by the via iuris as by the via facti. So also the Constitution of the United States is in one respect virtually, if not technically, unchangeable. No State can without its own consent be deprived of its equal representation in the Senate. As no State is ever likely to consent to such a change, the change may be deemed legally unattainable; and that any State against which it was attempted to enforce a reduction of its representation effected by constitutional amendments to which it had refused assent would be legally justified in considering itself out of the Union. In accordance with this American precedent, the new Constitution of Australia declares that no State can have its proportionate representation in the Parliament, or the minimum number of its representatives in the House of Representatives, reduced without the approval of a majority of its electors voting on a constitutional amendment^[80].

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.

210The first is to give the function to the Legislature, but under conditions which oblige it to act in a special way, different from that by which ordinary statutes are passed. There may, for instance, be required a fixed quorum of members for the consideration of amendments. Belgium fixes this quorum at two-thirds of each House, while also requiring a two-thirds majority of each House for a change. Bavaria requires a quorum of three-fourths of the members of each House; Rumania one of two-thirds. Or again—and this is a very frequent provision, found even when that last-mentioned is wanting—a specified minimum majority of votes may be required to carry an amendment. Sometimes this majority is three-fourths (as in Greece and Saxony, and in the German Empire for a vote of the Federal Council): more frequently it is two-thirds, as in the United States Congress, in the Mexican Chambers, in Norway, Belgium, Rumania, Servia, Bulgaria. Another plan is to require a dissolution of the Legislature, so that the amendments carried in one session may come under the judgement of the electors at a general election, and be thereafter passed, or rejected, by the newly chosen Legislature. This arrangement, often combined with the two-thirds majority rule, prevails in Holland, Norway, Rumania, Portugal, Iceland, Sweden (where the amendment must have been passed in two ordinary successive sessions), and several other States, including some of the republics of Spanish America. It is in substance an appeal to the people as well as to their representatives, and therefore adds a further guarantee against hasty change. Finally, the two Houses of the 211Legislature may sit together as a Constituent Assembly. Thus in France (Constitution of 1875) when each Chamber has resolved that the Constitution shall be revised, the two are for the moment fused, and proceed to debate and pass amendments. Haiti (Constitution of 1899) has a similar plan, which, oddly enough, was not borrowed from France, but is as old as 1843. Few will suspect France of borrowing from Haiti.

A second plan is to create a special body for the work of revision. In the United States, where a vast deal of constitution making and revising goes on in the several States, such a body is called a Convention, and is usually elected when it is desired to re-draft the whole constitution, the ultimate approval of the draft being, however, almost always reserved for the people^[81]. In Servia and Bulgaria, after amendments have been twice passed by the ordinary Legislature, a sort of Special Assembly, similarly elected, but twice as large, called the Great Skuptschina (in Servia) or Great Sobranje (in Bulgaria), receives and finally decides on the proposed amendments.

The republics of Paraguay, Guatemala, Honduras, Nicaragua, and Salvador also prescribe Conventions, preceded in each case by votes of the Legislature, such votes usually requiring a two-thirds majority^[82].

A third plan is to refer the new constitution, or 212the amendments proposed (if the revision is partial), to a number of minor or local authorities for approval. This course is an obviously suitable one in a federation, and has accordingly been adopted by the United States, by Mexico, by Colombia, by Switzerland, and by the new Australian Commonwealth, in all of which the component States are consulted, the United States requiring a three-fourths majority of States, Switzerland, Australia, and Mexico a bare majority. (Switzerland and Australia also require a majority of the citizens generally.) It is not, however, invariable in federal countries, for the Argentine Confederation entrusts amendment to a Convention, following on a three-fourths majority vote of the Legislature, and Brazil (now a federal country) leaves it to the Legislature alone, acting by a two-thirds majority in three successive debates. Neither is such a plan necessarily confined to a federation, for the existing Constitution of Massachusetts was (in 1780) submitted to the Towns (i.e. townships) of the State, acting as communities, and enacted by the majority of them.

The fourth plan is to refer amendments to the direct vote of the people. Originating in the New England States of America, where democracy earliest prevailed, this method has spread to Switzerland and to Australia, both of which require for alterations in the Fundamental Instrument a majority of the electors voting as well as a majority of the States. It prevails now not only in these two federations, but also in the several States of the United States (with very rare exceptions). A bare majority of votes is sufficient, except in Rhode Island, where three-fifths are required, and in Indiana 213and Oregon, which require a majority of all the qualified voters. The popular vote is also in use in the several Cantons of Switzerland. It was repeatedly employed in France during the first Revolution, and again (under the name of plébiscite) by Louis Napoleon under the Second Empire.

These variations in the mode of amending are interesting enough to deserve a few comments.

Broadly speaking, two methods of amendment are most in use: that which gives the function to the Legislature, usually requiring something more than a bare majority, and that which gives it to the People, i.e. the qualified voters. The former of these methods often directs a dissolution of the Legislature to precede the final vote on amendments, and in this way secures for the people a means of delivering their judgement on the questions at issue. The latter method is, however, a more distinct and emphatic, because a more direct, recognition of Popular Sovereignty; and it has the advantage of making the constitution appear to be the work of the Nation as a whole, apart from faction, whereas in the Legislature it may have been by a party vote that the amendments have been carried. Thus it supplies the broadest and firmest basis on which a Frame of Government can rest. The Convention system is intermediate between the two others, and has struck no deep roots in the Old World, while in the United States it has been virtually superseded (as respects enactment) by that of the direct Popular Vote.

Geographically regarded, the method of revision by Legislature prevails over Europe and over most of Spanish America (being in the latter region sometimes 214combined with the Convention method). The Constitution which has most influenced others in Europe and become a type for them in this respect is that of Holland (1814), because it was the earliest one established after the revolutionary period. On the other hand, the United States (except the Federal Government) and the democratic governments of the Swiss and Australian Federations are ruled by the Popular method. The Constitution which has set the type of this method is that of Massachusetts of 1780.

As respects facility of change, it is interesting to note that the Constitutions which are most quickly and easily altered are those of Prussia, which prescribes no safeguard save that of two successive votes separated by an interval of at least twenty-one days, and that of France, which requires an absolute majority of each House for a proposal to revise, and an absolute majority of the two Houses sitting together for the carrying of any amendment. The omission of the French Chambers in 1875 to submit to the people the constitution then framed, or to provide for their sanction to any future amendments, was due to the doubt which each party felt of the result of an appeal to the nation. The Republicans, though able to prevent the establishment of a monarchical constitution by the Legislature, were not quite sure that a republican one would be carried if submitted to a popular vote. Thus it has come about that France, which went further towards popular sovereignty in 1793 than any great country has ever done, has lived since 1875 under an instrument never ratified by the people, and which was originally regarded as purely provisional.

215The Constitution which it is most difficult to change is that of the United States. It has in fact never been amended since 1809, except thrice between 1865 and 1870, immediately after and in consequence of the Civil War, and then under conditions entirely abnormal, because some States were under military duress.

The tendency of recent years has been towards easier and swifter methods than those which were in favour during the first half of the nineteenth century: and in Germany lawyers and publicists are now disposed to minimize the difference between constitutional changes and ordinary statutes, partly perhaps because doctrines of popular sovereignty obtain little sympathy from the school dominant in the new Empire. That Empire itself presents quite peculiar phenomena. So far as the Reichstag or Federal Assembly is concerned, the constitution can be altered by ordinary legislation. But in the Federal Council a majority is required large enough to enable either Prussia on the one hand or a combination of the smaller States on the other to prevent any change. This is because the component members of the Federation are not republics, as in America, Switzerland, and Australia, but are (except the three Hanse cities) monarchies, so that the Upper Federal House represents not the people but the governments of the several German States.

It is evident that the greater or less stability of any given constitution will (other things being equal) be determined by the comparative difficulty or ease of carrying changes in one or other of the above methods. As one at least of them, that of committing the function of revision to a Constitutional Convention not followed 216by a popular vote, seems to interpose no more, and possibly even less, difficulty or delay than does the ordinary process of law-making by a two-chambered legislature, it may be asked why a constitution changeable in such a way should be called Rigid at all. Because inasmuch as the method of changing it is different from that of passing ordinary statutes, the people are led to realize the importance of the occasion, and may be deterred, by the trouble and formalities involved in creating the special body, from too lightly or frequently tampering with their fundamental laws. It seems a more momentous step to create this convention ad hoc than to carry a measure through a legislature which already exists, and is daily employed on legislative work. Experience has, moreover, shown in the United States, the country in which this method has been largely used for redrafting, or preparing amendments to, the Constitutions of the several States^[83], that a set of men can be found for the work of a Convention better than those who form the ordinary legislature of the State, and that their proceedings when assembled excite more attention and evoke more discussion than do those of a State Legislature, a body which now receives little respect, though perhaps as much as it deserves. Nowadays, however, a draft constitution prepared by a Convention is in an American State almost always submitted to the people for their approval.

The French plan of using the two Houses sitting 217together as a Constituent Convention has a certain interest for Englishmen, because the suggestion has been made that disputes between their House of Lords and House of Commons might be settled by a vote of both sitting together, i.e. of the whole of the Great Council of the Nation^[84] as it sat in the thirteenth century before it had formed the habit of debating and voting in two Houses. It still meets (but does not debate or vote) as one body when the Sovereign, or a Commission representing the Sovereign, is present, as happens at the beginning and at the end of each session.

To examine the distinctive qualities of Rigid Constitutions, as I must now do, is virtually to traverse again the same path which was followed in investigating those of the Flexible type, for the points in which the latter were found deficient are those in which Rigid Constitutions excel, while the merits of the Flexible indicate the faults of the Rigid. The inquiry may, therefore, be brief.

The two distinctive merits claimed for these Constitutions are their Definiteness and their Stability.

XI. The Definiteness of Rigid Constitutions.

We have seen that the distinctive mark of these Rigid Constitutions is their superiority to ordinary statutes. They are not the work of the ordinary legislature, 218and therefore cannot be changed by it. They are embodied in one written document, or possibly in a few documents, so that their provisions are ascertainable without doubt by a reference to the documentary terms. This feature is a legitimate consequence of the importance which belongs to a law placed above all other laws. That which is to be the sheet-anchor of the State, giving permanent shape to its political scheme, cannot be left unwritten, and cannot be left to be gathered from a comparison of a considerable number of documents which may be confused or inconsistent. Whether it spring from the agreement of the citizens or from the free gift of a monarch, it must be embodied if possible in one, if not, at any rate in only a few solemn instruments. That which is to be a fundamental law, limiting the power of the legislature, must be set forth in specific and unmistakable terms—else how shall it be known when the legislature is infringing upon or violating it? A Flexible Constitution, which the legislature can modify or destroy at its pleasure, though it might conceivably be embodied in one document only, is in fact almost always to be collected from at least several documents, and is often, like the Flexible Constitution of England, scattered through a multitude of statutes and collections of precedents. But the benefits expected from a Rigid Constitution would be lost were its provisions left in similar confusion.

It is not, however, to be supposed that the citizen of a country controlled by a Rigid Constitution who desires to understand the full scope and nature of his government will find all that he needs in the document itself. No law ever was so written as to anticipate and 219cover all the cases that can possibly arise under it^[85]. There will always be omissions, some left intentionally, because the points not specifically covered were deemed fitter for the legislature to deal with subsequently, some, again, because the framers of the constitution could not agree, or knew that the enacting authority would not agree, regarding them. Other omissions, unnoticed at the time, will be disclosed by the course of events, for questions are sure to arise which the imagination or foresight of those who prepared the constitution never contemplated. There will also be expressions whose meaning is obscure, and whose application to unforeseen cases will be found doubtful when those cases have to be dealt with. Here let us distinguish three classes of omissions or obscurities:—

The first class includes matters, passed over in silence by the written constitution, which cannot be deemed to have been left to be settled either by the legislature or by any other organ of government, because they are too large or grave, as for instance matters by dealing with which the legislature would disturb the balance of the constitution and encroach on the province of the Executive, or the Judiciary, or (in a Federal Government) of the component States. Matters belonging to this class can only be dealt with by an amendment of the constitution itself.

The second class includes gaps or omissions relating to matters not palpably outside the competence of the legislature as defined by the constitution. Here the proper course will be for the legislature to regulate 220such matters by statute, or else to leave them to be settled by the action of the several organs of government each acting within its own sphere. These organs may by such action create a body of usage which, when well settled, will practically supplement the defects of the constitution, as statutes will do in like manner, so far as they are passed to cover the omitted cases.

The third class consists not of omissions but of matters which are referred to by the constitution, but in terms whose meaning is doubtful. Here the question is what interpretation is to be given to its words by the authority entitled to interpret, that authority being in some countries the legislature, in others the judicial tribunals. To the subject of Interpretation I shall presently return. Meantime, it must be noted that both Legislation and Usage in filling up the vacant spaces in the constitution, and Interpretation in explaining its application to a series of new cases as they arise upon points not expressly covered by its words, expand and develop a constitution, and may make it after a long interval of time different from what it seemed to be to those who watched its infancy. The statutes, usages, and explanations aforesaid will in fact come to form a sort of fringe to the constitution cohering with it, and possessing practically the same legal authority as its express words have. And it thus may happen that (as in the United States) a large mass of parasitic law grows up round the document or documents which contain the Constitution. Nevertheless there will still remain a distinction between this parasitic law and usage and the provisions of the constitution itself. The latter stand unchangeable, save by constitutional 221amendment. Statutes, on the other hand, can be changed by the legislature; usage may take a new direction; the decisions given interpreting the constitution may be recalled or varied by the authority that pronounced them. All these are in fact Flexible parasites growing upon a Rigid stem. Thus it will be seen that the apparent definiteness and simplicity of Documentary Constitutions may in any given case be largely qualified by the growth of a mass of quasi-constitutional matter which has to be known before the practical working of the constitution can be understood.

XII. The Stability of Rigid Constitutions.

The stability of a constitution is an object to be much desired both because it inspires a sense of security in the minds of the citizens, encouraging order, industry and thrift, and because it enables experience to be accumulated whereby the practical working of the constitution may be improved. Political institutions are under all circumstances difficult to work, and when they are frequently changed, the nation does not learn how to work them properly. Experiment is the soul of progress, but experiments must be allowed a certain measure of time. The plant will not grow if men frequently uncover the roots to see how they are striking. Constitutions embodied in one legal document and unchangeable by the legislature, are intended to be, and would seem likely to be, peculiarly durable. Being definite, they do not give that opening to small deviations and perversions likely to arise from the vagueness of a Flexible or ‘unwritten’ Constitution, or from the 222probable discrepancies between the different laws and traditions of which it consists. They may be battered down, but they cannot easily (save by a method to be presently examined) be undermined. When an attack is made upon them, whether by executive acts violating their provisions, or by the passing of statutes inconsistent with those provisions, such an attack can hardly escape observation. It is a plain notice to the defenders of the constitution to rally and to stir up the people by showing the mischief of an insidious change. The principles on which the government rests, being set forth in a broad and simple form, obtain a hold upon the mind of the community, which, if it has been accustomed to give those principles a general approval, will be unwilling to see them tampered with. Moreover the process prescribed for amendment interposes various delays and formalities before a change can be carried through, pending which the people can reconsider the issues involved, and recede, if they think fit, from projects that may have at first attracted them. Both in Switzerland and in the States of the American Union it has repeatedly happened that constitutional amendments prepared and approved by the legislature have been rejected by the people, not merely because the mass of the people are often more conservative than their representatives, or are less amenable to the pressure of particular ‘interests’ or sections of opinion, but because fuller discussion revealed objections whose weight had not been appreciated when the proposal first appeared. In these respects the Rigid Constitution has real elements of stability.

223Nevertheless it may be really less stable than it appears, for there is in its rigidity an element of danger.

It has already been noted that a constitution of the Flexible type finds safety in the elasticity which enables it to be stretched to meet some passing emergency, and then to resume its prior shape, and that it may disarm revolution by meeting revolution halfway. This is just what the Rigid Constitution cannot do. It is constructed, if I may borrow a metaphor from mechanics, like an iron railway-bridge, built solidly to resist the greatest amount of pressure by wind or water that is likely to impinge upon it. If the materials are sound and the workmanship good, the bridge resists with apparent ease, and perhaps without showing signs of strain or displacement, up to the highest degree of pressure provided for. But when that degree has been passed, it may break suddenly and utterly to pieces, as the old Tay Bridge did under the storm of December, 1879. The fact that it is very strong and all knit tightly into one fabric, while enabling it to stand firm under small oscillations or disturbances, may aggravate great ones. For just as the whole bridge collapses together, so the Rigid Constitution, which has arrested various proposed changes, may be overthrown by a popular tempest which has gathered strength from the very fact that such changes were not and under the actual conditions of politics could not be made by way of amendment. When a party grows up clamouring for some reforms which can be effected only by changing the constitution, or when a question arises for dealing with which the constitution provides no means, then, if the constitution cannot be amended in the legal 224way, 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 225countries ruled by these Constitutions, the one of which tends to strengthen, the other to weaken them. The first is the growth of respect for the Constitution which increasing age brings. The remark is often made that if husband and wife do not positively dislike one another, and if their respective characters do not change under ill-health or misfortune, every year makes them like one another better. They may not have been warmly attached at first, but the memories of past efforts and hardships, as well as of past enjoyments, endear them more and more to one another, and even if jars and bickerings should unhappily recur from time to time, the strength of habit renders each necessary to the other, and makes that final severance which, at moments of exasperation, they may possibly have contemplated with equanimity, a severe blow when it arrives. So a nation, though not contented with its Constitution, and vexed by quarrels over parts of it, may grow fond of it simply because it has lived with it, has obtained a measure of prosperity under it, has perhaps been wont to flaunt its merits before other nations, and to toast it at public festivities. The magic of self-love and self-complacency turns even its meaner parts to gold, while imaginative reverence for the past lends it a higher sanction. This is one way in which Time may work. But Time also works against it, for Time, in changing the social and material condition of a people, makes the old political arrangements as they descend from one generation to another a less adequate expression of their political needs. Nobody now discusses the old problem of the Best Form of Government, because everybody now admits that the chief merit of 226any form is to be found in its suitability to the conditions and ideas of those among whom it prevails. Now if the conditions of a country change, if the balance of power among classes, the dominant ideas of reflective men, the distribution of wealth, the sources whence wealth flows, the duties expected from the administrative departments of government, all become different, while the form and constitutionally-prescribed methods of government remain unmodified, it is clear that flaws in the Constitution will be revealed which were previously unseen, and problems will arise with which its arrangements cannot cope. The remedy is of course to amend the Constitution. But that is just what may be impossible, because the requisite majority may be unattainable; and the opponents of amendment, entrenched behind the ramparts of an elaborate procedure, may succeed in averting changes which the safety of the community demands. The provisions that were meant to give security may now be dangerous, because they stand in the way of natural development.

Even where no strong party interest is involved it may be hard to pass the amendments needed. The history of the United States again supplies a case in point. Two defects in its Constitution are admitted by most political thinkers. One is the absence of power to establish a uniform law of marriage and divorce over the whole Union. The other is the method of conducting the election of a President, a method which in 1876 brought the country to the verge of civil war, and may every four years involve the gravest risks. Yet it has been found impossible to procure any amendment on either point, because an 227enormous force of united public opinion is needed to ensure the concurrence of two-thirds of both Houses of Congress and three-fourths of the States. The first of these two changes excites no sufficient interest among politicians to make them care to deal with it. The second is neglected, because no one has a clear view of what should be substituted, and neither party feels that it has more to gain than has the other by grappling with the problem.

A historical comparison of the two types as regards the smoothness of their working, and the consequent tendency of one or other to secure a quiet life to the State, yields few profitable results, because the circumstances of different nations are too dissimilar to enable close parallels to be drawn, and because much depends upon the skill with which the provisions of each particular instrument have been drawn and upon the greater or less particularity of those provisions. The present Constitution of France, for instance, is contained in two very short and simple documents, which determine only the general structure of the government, and are in size not one-twentieth of the Federal Constitution of Switzerland. Hence it follows that a far freer play is left to the legislature and executive in France than in Switzerland; and that these two authorities have in the former State more power of meeting any change in the conditions of the country, and also more power of doing harm by hasty and unwise action, than is permitted in the latter. As Adaptability is the characteristic merit and insecurity the characteristic defect of a Flexible Constitution, so the drawback which corresponds to the Durability of 228the Rigid is its smaller capacity for meeting the changes and chances of economic, social and political conditions. A provision strictly defining the structure of the government may prevent the evolution of a needed organ. A prohibition debarring the legislature from passing certain kinds of measures may prove unfortunate when a measure of that kind would be the proper remedy. Every security has its corresponding disadvantage.

XIII. The Interpretation of Rigid Constitutions.

A well-drawn Rigid Constitution will confine itself to essentials, and leave many details to be filled in subsequently by ordinary legislation and by usage. But (as already observed) even the best-drawn instrument is sure to have omitted some things which ought to have been expressly provided for, to have imposed restrictions which will prove inconvenient in practice, to contain provisions which turn out to be susceptible of different interpretations when cases occur raising a point to which the words of those provisions do not seem to be directly addressed. When any of these things happen, the authorities, legislative and executive, who have to work the Constitution find themselves in a difficulty. Steps seem called for which the Constitution either does not give power to do, or forbids to be done, or leaves in such doubt as to raise scruples and controversies. The authorities, or the nation itself, have then three alternative courses open to them. The first is to submit to the restrictions which the Constitution imposes, and abandon a contemplated 229course of action, though the public interest demands it. This is disagreeable, but if the case is not urgent, may be the best course, though it tends to the disparagement of the Constitution itself. The second course is to amend the Constitution: and it is obviously the proper one, if it be possible. But it may be practically impossible, because the procedure for passing an amendment may be too slow, the need for action being urgent, or because the majority that can be secured for amendment, even if large, may be smaller than the Constitution prescribes. The only remaining expedient is that which is euphemistically called Extensive Interpretation, but may really amount to Evasion. Evasion, pernicious as it is, may give a slighter shock to public confidence than open violation, as some have argued that equivocation leaves a man’s conscience less impaired for future use than does the telling of a downright falsehood. Cases occur in which the Executive or the Legislature profess to be acting under the Constitution, when in reality they are stretching it, or twisting it, i.e. are putting a forced construction upon its terms, and affecting to treat that as being lawful under its terms which the natural sense of the terms does not justify. The question follows whether such an evasion will be held legal, i.e. whether acts done in virtue of such a forced construction as aforesaid will be deemed constitutional, and will bind the citizens as being legally done. This will evidently depend on a matter we have not yet considered, but one of profound importance, viz. the authority in whom is lodged the right of interpreting a Rigid Constitution.

On this point there is a remarkable diversity of theory 230and practice between countries which follow the English and countries which follow the Roman law. The English attribute the right to the Judiciary. As a constitutional instrument is a law, distinguished from other laws only by its higher rank, principle suggests that it should, like other laws, be interpreted by the legal tribunals, the last word resting, as in other matters, with the final Court of Appeal. This principle of referring to the Courts all questions of legal interpretation may be said to be inherent in the English Common Law, and holds the field in all countries whose systems are built upon the foundation of that Common Law. In particular, it holds good in the United Kingdom and in the United States. As the British Parliament can alter any part of the British Constitution at pleasure, the principle is of secondary political importance in England, for when any really grave question arises on the construction of a constitutional law it is dealt with by legislation. However, the action of the Courts in construing the existing law is watched with the keenest interest when questions arise which the Legislature refuses to deal with, such, for instance, as those that affect the doctrine and discipline of the Established Church. So in the seventeenth century, when constitutional questions were at issue between the King and the House of Commons, which it was impossible to settle by statute, because the king would have refused consent to bills passed by the Commons, the power of the Judges to declare the rules of the ancient Constitution was of great significance. In the United States, where Congress cannot alter the Constitution, the function of the Judiciary to interpret the 231will of the people as set forth in the Constitution has attained its highest development. The framers of that Constitution perhaps scarcely realized what the effect of their arrangements would be. More than ten years passed before any case raised the point; and when the Supreme Court declared that an Act of Congress might be invalid because in excess of the power granted by the Constitution, some surprise and more anger were expressed. The reasoning on which the Court proceeded was, however, plainly sound, and the right was therefore soon admitted. Canada and Australia have followed the English doctrine, so the Bench has a weighty function under the constitutions of both those Federations.

On the European Continent a different view prevails, and the Legislature is held to be the judge of its own powers under the Constitution, so that no Court of law may question the authority of a statute passed in due form. Such is the rule in Switzerland. There, as in most parts of the European Continent, the separation of the Judiciary from the other two powers has been less complete than in England, and the deference to what Englishmen and Americans call the Rule of Law less profound. The control over governmental action which the right of interpretation implies seems to the Swiss too great, and too political in its nature, to be fit for a legal tribunal. It is therefore vested in the National Assembly, which when a question is raised as to the constitutionality of a Federal Statute or Executive Act, or as to the transgression of the Federal Constitution by a Cantonal Statute, is recognized as the authority competent to decide. The same doctrine 232seems to prevail in the German Empire, though the point is there not quite free from doubt, and also in the Austrian Monarchy, in France, and in Belgium. In the Orange Free State, living under Roman-Dutch law, the Bench, basing itself on American precedents, claimed the right of authoritative interpretation, but the Legislature hesitated to admit it.

American lawyers conceive that the strength and value of a Rigid Constitution are greatly reduced when the Legislature becomes the judge of its own powers, entitled after passing a statute which really transgresses the Constitution to declare that the Constitution has in fact not been transgressed. The Swiss, however, deem the disadvantages of the American method still more serious, for they hold that it gives the last word to the judges, persons not chosen for or fitted for such a function, and they declare that in point of fact public opinion and the traditions of their government prevent the power vested in their National Assembly from being abused. And it must be added that the Americans have so far felt the difficulty which the Swiss dwell on, that the Supreme Court has refused to pronounce upon the action of Congress in ‘purely political cases,’ i.e. cases where the arguments used to prove or disprove the conformity to the Constitution of the action taken by Congress are of a political nature.

Returning to the question of legislative action alleged to transgress the Constitution, it is plain that if the Legislature be, as in Switzerland, the arbiter of its own powers, so that the validity of its acts cannot be questioned in a court of law, there is no further difficulty. But where that validity can be challenged, as in the United States, 233it might be supposed that every unconstitutional statute will be held null, and that thus any such stretching or twisting of the Constitution as has been referred to will be arrested. But experience has shown that where public opinion sets strongly in favour of the line of conduct which the Legislature has followed in stretching the Constitution, the Courts are themselves affected by that opinion, and go as far as their legal conscience and the general sense of the legal profession permits—possibly sometimes even a little farther—in holding valid what the Legislature has done. This occurs most frequently where new problems of an administrative kind present themselves. The Courts recognize, in fact, that ‘principle of development’ which is potent in politics as well as in theology. Human affairs being what they are, there must be a loophole for expansion or extension in some part of every scheme of government; and if the Constitution is Rigid, Flexibility must be supplied from the minds of the Judges. Instances of this kind have occurred in the United States, as when some twenty years ago the Supreme Court recognized a power in a State Legislature to deal with railway companies not consistent with the opinions formerly enounced by the Court, though they disclaimed the intention of overruling those opinions^[86].

234Does not a danger lurk in this? May not a majority in the Legislature, if and when they have secured the concurrence, honest or dishonest, of the Judiciary, practically disregard the Constitution? May not the Executive conspire with them to manipulate places on the highest Court of Appeal, so as to procure from it such declarations of the meaning of the Constitution as the conspiring parties desire? May not the Constitution thus be slowly nibbled away? Certainly. Such things may happen. It is only public opinion and established tradition that will avail to prevent them. But it is upon public opinion, moulded by tradition, that all free governments must in the last resort rely.

XIV. Democracies and Rigid Constitutions.

The mention of traditions, that is to say of the mental and moral habits of judgement which a nation has formed, and which guide its political life, as the habits of each one of us guide his individual life, suggests an inquiry as to the effect of Documentary Constitutions on the ideas and habits of those who live under them. I will not venture on broad generalizations, because it is hard to know how much should be assigned to the racial tendencies of a nation, how much to the circumstances of its history, how much to its institutions. But the cases of Switzerland and the United States seem to show that the tendency of these instruments is to foster a conservative temper. The nation feels a sense of repose in the settled and permanent form 235which it has given to its government. It is not alarmed by the struggles of party in the legislature, because aware that that body cannot disturb the fundamental institutions. Accordingly it will often, contracting a dislike to change, negative the amendments which the legislature submits to it. This happens in Switzerland, as already observed; and the people of the United States, though liable to sudden and violent waves of political opinion, show so little disposition to innovate that Congress has not proposed any amendments to the State Legislatures since 1870^[87]. I may be reminded that the Constitutions of the several States of the Union are frequently recast or amended in detail. This is true, but the cause lies not so much in a restless changefulness as in the low opinion entertained of the State Legislatures. The distrust felt for these bodies induces the people to take a large part of what is really ordinary legislation out of their hands, and to enact themselves, in the form of a Constitution, the laws they wish. State Constitutions now contain many regulations on matters of detail, and have thus, in most States, ceased to be considered fundamental instruments of government. To revise or amend them has become merely a convenient method of direct popular legislation, similar to the Swiss Popular Initiative and Referendum. But the fundamental parts of these instruments are but slightly changed.

In estimating the influence of Flexible Constitutions in forming the political character of a nation, in stimulating its intelligence and training its judgement, it was 236remarked that only the governing class, a very small part of the nation even in democratic countries, are directly affected. This is less true of a Rigid Constitution. While a Flexible Constitution like the Roman or English requires much knowledge, tact and courage to work it, and develops these qualities in those who bear a part in the working of it, as legislators or officials or magistrates, a Rigid Constitution tends rather to elicit ingenuity, subtlety and logical acumen among the corresponding class of persons. It is apt to give a legal cast to most questions, and sets a high, perhaps too high, premium on legal knowledge and legal capacity. But it goes further. It affects a much larger part of the community than the Flexible Constitution does. Few even of the governing class can be expected to understand the latter. The average Roman voter in the comitia in the days of Cicero, like the average English voter at the polls to-day, probably knew but little about the legal structure of the government he lived under. But the average Swiss voter, like the average native American voter (for the recent immigrant is a different sort of creature), understands his government, can explain it, and has received a great deal of education from it. Talk to a Swiss peasant in Solothurn or Glarus, and you will be astonished at his mastery of principles as well as his knowledge of details. Very likely he has a copy of the Federal Constitution at home. He has almost certainly learnt it at school. It disciplines his mind much as the Shorter Catechism trained the Presbyterian peasantry of Scotland. As there is no mystery about a scheme of government so set forth, 237it may be thought that he will have little reverence for that which he comprehends. It is, however, his own. He feels himself a part of the Government, and seems to be usually imbued with a respect even for the letter of the instrument, a wholesome feeling, which helps to form that law-abiding spirit which a democracy needs.

A documentary Constitution appears to the people as the immediate outcome of their power, the visible image of their sovereignty. It is commended by a simplicity which contrasts favourably with the obscure technicalities of an old common law Constitution. The taste of the multitude, and especially of that class which outnumbers all other classes, the thinly-educated persons whose book-knowledge is drawn from dry manuals in mechanically-taught elementary schools, and who in after life read nothing but newspapers, or penny weeklies, or cheap novels—the taste of this class, and that not merely in Europe but perhaps even more in the new countries, such as Western America and the British Colonies, is a taste for ideas level with their comprehension, sentiments which need no subtlety to be appreciated, propositions which can be expressed in unmistakable positives and negatives. Thus the democratic man (as Plato would call him) is pleased to read and know his Constitution for himself. The more plain and straightforward it is the better, for so he will not need to ask explanations from any one more skilled. And a good reason for this love of plainness and directness may be found in the fact that the twilight of the older Constitutions permitted abuses of executive power against which the express enactments of a Rigid Constitution 238protect the people. Magna Charta, the Bill of Rights, the Twelve Tables, were all fragments, or rather instalments, of such a Constitution, rightly dear to the commons, for they represented an advance towards liberty and order^[88].

The theory of democracy assumes that the multitude are both competent and interested; competent to understand the structure of their government and their own functions and duties as ultimately sovereign in it, interested as valuing those functions, and alive to the responsibility of those duties. A Constitution set out in black and white, contained in a concise document which can be expounded and remembered more easily than a Constitution growing out of a long series of controversies and compromises, seems specially fitted for a country where the multitude is called to rule. Only memory and common sense are needed to master it. It can lay down general principles in a series of broad, plain, authoritative propositions, while in the case of the ‘historical Constitution’ they have to be gathered from various sources, and expressed, if they are to be expressed correctly, in a guarded and qualified form. Now the average man, if intelligent enough to comprehend politics at all, likes general principles. Even if, as some think, he overvalues them, yet his capacity for absorbing them gives him a sort of comprehension of his government and attachment to it which are solid advantages in a large democracy.

Constitutions of this type have usually arisen when 239the mass of the people were anxious to secure their rights against the invasions of power, and to construct a frame of government in which their voices should be sure to prevail. They furnish a valuable protection for minorities which, if not liable to be overborne by the tyranny of the mass, are at any rate liable to be disheartened into silence by superior numbers, and so need all the protection which legal safeguards can give them. Thus they have generally been accounted as institutions characteristic of democracy, though the cases of Germany and Japan show that this is not necessarily true.

A change of view has, however, become noticeable within the last few years. In the new democracies of the United States and the British self-governing Colonies—and the same thing is true of popularly governed countries in Europe—the multitude no longer fears abuses of power by its rulers. It is itself the ruler, accustomed to be coaxed and flattered. It feels no need for the protection which Rigid Constitutions give. And in the United States it chafes under those restrictions on legislative power, embodied in the Federal Constitution or State Constitution (as the case may be), which have surrounded the rights of property and the obligation of subsisting contracts with safeguards obnoxious, not only to the party called Socialist, but to reformers of other types. As these safeguards are sometimes thought to prevent the application of needed remedies and to secure impunity for abuses which have become entrenched behind them, the aforesaid constitutional provisions have incurred criticism and censure from various sections, and many attempts have 240been made by State Legislatures, acting at the bidding of those who profess to control the votes of working men, to disregard or evade the restrictions. These attempts are usually defeated by the action of the Courts, whence it happens that both the Federal Constitution and the functions of the Judiciary are often attacked in the country which was so extravagantly proud of both institutions half a century ago. This strife between the Bench as the defender of old-fashioned doctrines (embodied in the provisions of a Rigid Constitution (Federal or State)) and a State Legislature acting at the bidding of a large section of the voters is a remarkable feature of contemporary America.

The significance of this change in the tendency of opinion is enhanced when we find that a similar change has been operative in the opposite camp. The very considerations which have made odious to some American reformers those restrictions on popular power, behind which the great corporations and the so-called ‘Trusts’ (and capitalistic interests generally) have entrenched themselves, have led not a few in England to applaud the same restrictions as invaluable safeguards to property. Realizing, a little late in the day, that political power has in England passed from the Few to the Many, fearing the use which the Many may make of it, and alarmed by the precedents which land legislation in Ireland has set, they are anxious to tie down the British Legislature, while yet there is time, by provisions which shall prevent interference with a man’s control over what he calls his own, shall restrict the taking of private property for public uses, shall secure complete liberty of contracting, 241and forbid interference with contracts already made. Others in England, in their desire to save political institutions which they think in danger, propose to arrest any sudden popular action by placing those institutions in a class by themselves, out of the reach of the regular action of Parliament. In other words, the establishment in Britain of a species of Rigid Constitution has begun to be advocated, and advocated by the persons least inclined to trust democracy. ‘Imagine a country’—so they argue—‘with immense accumulated wealth, and a great inequality of fortunes, a country which rules a vast and distant Empire, a country which depends for her prosperity upon manufactures liable to be injured by bad legislation, and upon a commerce liable to be imperilled by unskilful diplomacy, and suppose that such a country should admit to power a great mass of new and untrained voters, to whose cupidity demagogues will appeal, and upon whose ignorance charlatans will practise. Will not such a country need something better for her security than a complicated and delicately-poised Constitution resting largely on mere tradition, a Constitution which can at any moment be fundamentally altered by a majority, acting in a revolutionary transient spirit, yet in a perfectly legal way? Ought not such a country to place at least the foundations of her system and the vital principles of her government out of the reach of an irresponsible parliamentary majority, making the procedure for altering them so slow and so difficult that there will be time for the conservative forces to rally to their defence before any fatal changes can be carried through?’

242I refer to these arguments, which were frequently heard in England during some years after the extension of the suffrage in 1884^[89], with no intention of discussing their soundness, for that belongs to politics, but solely for the sake of illustrating how different are the aspects which the same institution may come to wear. A century ago revolutionists were the apostles, conservatives the enemies, of Rigid Constitutions. Even forty years ago it was the Flexibility of the historical British Constitution that was its glory in the eyes of admirers of the British system, its Rigidity that was the glory of the American Constitution in the eyes of fervent democrats.

XV. The Future of the Flexible and Rigid Types.

A few concluding reflections may be devoted to the probable future of the two types that have been occupying our minds. Are both likely to survive? or if not, which of the two will prevail and outlast the other?

Two reasons suggest themselves for predicting the prevalence of the Rigid type. One is that no new Flexible Constitutions have been born into the world for many years past, unless we refer to this class those of some of the British self-governing Colonies^[90]. The other is that no country now possessing a Rigid Constitution 243seems likely to change it for a Flexible one. The footsteps are all the other way. Flexible Constitutions have been turned into Rigid ones. No Rigid one has become Flexible^[91]. Even those who complain of the undue conservatism of the American Constitution do not propose to abolish that Constitution altogether, nor to place it at the mercy of Congress, but merely to expunge parts of it, though no doubt parts which (such as the powers of the Judiciary) have been vital to its working.

Against these two arguments may be set the fact that popular power has in most countries made great advances, and does not need the protection of an instrument controlling the legislature and the executive, which are already only too eager to bend to every breeze of popular opinion. If we lived in a time of small States, as the ancients did, the people would themselves legislate in primary assemblies. Why then, it may be asked, should they care to limit the powers of legislatures which are completely at their bidding? The old reasons for holding legislatures and executives in check have disappeared. Why should the people, safe and self-confident, impose a check on themselves? In this there may be some truth. But it must be remembered that since modern States are larger than those of former times, and tend to grow larger by the absorption of the small ones, legislatures are necessary, for business could not be carried on by primary popular assemblies, even with the aid of ‘plébiscites.’ Now legislatures are nowhere rising in the respect and confidence of the people, and it is therefore improbable 244that any nation which has a documentary Constitution, holding its legislature in subjection, will abolish it for the benefit of the legislature, although it may wish to do more and more of its legislation by the direct action of the people, as it does in Switzerland and in some of the States of the American Union. On the whole, therefore, it seems probable that Rigid Constitutions will survive in countries where they already exist.

Two other questions remain. Will existing Flexible Constitutions remain? Are such new States as may arise likely to adopt Constitutions of the Rigid or of the Flexible type?

An inquiry whether countries which, like Hungary and Britain, now live under ancient Flexible Constitutions will exchange them for new documentary ones would resolve itself into a general study of the political prospects of those countries. All that can be said, apart from such a study, is that our age shows no such general tendency to change in this respect as did the revolutionary and post-revolutionary era of the first sixty years of the nineteenth century. Still, a few lines may be given to considering whether any such alteration of form is likely to pass on the Constitution which has long had the unquestioned pre-eminence in age and honour, that, namely, of the United Kingdom, which is really the ancient Constitution of England so expanded as to include Scotland and Ireland.

So far as internal causes and forces are concerned, this seems improbable. The people are not likely, despite the alarms felt and the advice tendered by the uneasy persons to whom reference has already been made, to part with the free play and elastic power of 245their historical Cabinet and Parliamentary system. England has never yet made any constitutional change either on grounds of theory or from a fear of evils that might arise in the future. All the modifications of the frame of government have been gradual, and induced by actually urgent needs.

But there is another set of causes and forces at work which may, as some think, affect the question. It has already been noted that Rigid Constitutions have arisen where States originally independent or semi-independent have formed Confederations. These States, finding the kind of connexion which treaties had created insufficient for their needs, have united themselves into one Federal State, and expressed their new and closer relation in the form of a documentary Constitution. Such a Constitution has invariably been raised above the legislature it was creating, because the States which were uniting wished to guard jealously such autonomy as they respectively retained, and would not leave those rights at the mercy of the legislature. This happened in the United States in 1787-9, in Switzerland after the fall of Napoleon, in Germany when the North German Confederation and German Empire were created in 1866 and 1870-71. It has happened also in Canada and in Australia.

Two proposals of a federalizing nature have recently been made regarding the United Kingdom, one to split it up into a Federation of four States, the other to make it a member of a large Federation. Neither seems likely to be carried out at present, but both are worth mentioning, because they illustrate the occasions on which, and methods by which, constitutions may be 246transformed. The United Kingdom stands to its self-governing Colonies in what is practically a permanent alliance as regards all foreign relations, these relations being managed by the mother country, with complete local legislative and administrative autonomy both for each Colony and for the mother country^[92]. Many think that this alliance is not a satisfactory, and cannot well be a permanent, form of connexion, because at present almost the whole burden—and it is a heavy one—of naval and military defence falls upon Britain, while the Colonies have no share in the control of foreign relations, and may find themselves engaged in a war, or bound by a treaty, regarding which they have not been consulted. Thus the idea has grown up that some sort of confederation ought to be established, in which there would be a Federal Assembly, containing representatives of the (at present seven) component States^[93], and controlling those matters, such as foreign relations and a system of military and naval armaments, which would be common to the whole body. If this idea were ever to take practical shape, it would probably be carried out by a statute establishing a new Constitution for the desired Confederation, and creating the Federal Assembly. Such a statute would be passed by the Parliament of the United Kingdom, and (being expressed to be 247operative over the whole Empire) would have full legal effect for the Colonies as well as for the mother country. Now if such a statute assigned to the Federal Assembly certain specified matters, as for instance the control of imperial defence and expenditure or (let us say) legislation regarding merchant shipping and copyright, taking them away from the present and future British Parliament as well as from the parliaments of the several Colonies, and therewith debarring the British Parliament from recalling or varying the grant except by the consent of the several Colonies (or perhaps of the Federal Assembly itself), it is clear that the now unlimited powers of the British Parliament would have been reduced. A part of the future British Constitution would have been placed beyond its control: and to that extent the British Constitution would have ceased to be a Flexible one within the terms of the definition already given^[94]. Parliament would not be fully sovereign; and if either the British or a Colonial Parliament passed laws inconsistent with statutes passed by the Federal Assembly in matters assigned to the latter, the Courts would have to hold the transgressing laws invalid.

Doubtless, if such a Federal Constitution were established, a Supreme Court of Appeal on which some colonial judges should sit would be thought essential to it, and questions arising under the Federation Act 248(as to the extent of the powers of the Federal Assembly and otherwise) would go before it, sometimes in the first instance, sometimes by way of appeal from inferior Courts.

The other proposal is to turn the United Kingdom itself into a Federation by erecting England, Scotland, Ireland, and Wales into four States, each with a local legislature and ministry controlling local affairs, while retaining the Imperial Parliament as a Central or Federal Legislature for such common affairs as belong in the United States to Congress, and in Canada to the Dominion Parliament, and in Australia to the Commonwealth Parliament. If such a scheme provided, as it probably would provide, for an exclusive assignment to the local legislatures of local affairs, so as to debar the Imperial Parliament from interfering therewith, it would destroy the present Flexible British Constitution and substitute a Rigid one for it. Care would have to be taken to use proper legal means of extinguishing the general sovereign authority of the present Parliament, as for instance by directing the elections for the new Federal Legislature to be held in such a way as to effect a breach of continuity between it and the old Imperial Parliament, so that the latter should absolutely cease and determine when the new Constitution came into force. Upon this scheme also it would be for the Courts of Law to determine whether in any given case either the Federal or one of the Local Legislatures had exceeded its powers.

Some persons have proposed to combine both these proposals so as to make the four parts of the United Kingdom each return members, along with the Colonies, to a Pan-Britannic Federal Legislature, and to place the 249local legislatures of Scotland, for instance, or Wales, in a line with those of the Australian Commonwealth or New Zealand. On this plan also—a highly inconvenient one—the British Constitution would become Rigid.

The difficulties, both legal and practical, with which these proposals, taken either separately or in conjunction, are surrounded, are greater than those who advocate them have as yet generally perceived.

XVI. Are New Constitutions Likely to Arise?

The remaining question, also somewhat speculative, relates to the prospects the future holds out to us of seeing new States with new Constitutions arise.

New States may arise in one of two ways, either by their establishment in new countries where settled and civilized government has been hitherto unknown, or by the breaking up of existing States into smaller ones, fragments of the old.

The opportunities for the former process have now been sadly curtailed through the recent appropriation by a few great civilized States of some two-thirds of the surface of the globe outside Europe. North America is in the hands of three such States. Central and South America, though the States are all weak and most of them small in population, are so far occupied that no space is left. The last chance disappeared when the Argentine Republic asserted a claim to Patagonia, where it would have been better that some North European race should have developed a new colony, as the Welsh settlers were doing on a small scale. Australia is occupied. Asia, excluding China and Japan in the East, and 250the two dying Musulman powers in the West, is virtually partitioned between Britain and Russia, with France holding a bit of the south-east corner. So Africa has now been (with trifling exceptions) divided between five European Powers (Portugal, England, France, Germany, Italy). Thus there is hardly a spot of earth left on which a new independent community can establish itself, as the Greeks founded a multitude of new commonwealths in the eighth and seventh centuries B.C., and as the Teutonic invaders founded kingdoms during the dissolution of the Roman Empire.

If we turn to the possibilities of new States arising from the ruins of existing ones, whether by revolt or by peaceful separation, the prospect is not much more encouraging. There is indeed Turkey. Five out of the six new States that have arisen in Europe during this century have been carved out of the territories she claimed—viz. Greece, Rumania, Servia, Bulgaria, Montenegro: and there is material for one or two more in Europe and possibly for one or two in Asia, though it is more probable that both the Asiatic and European dominions of the Sultan will be partitioned among existing States than that new ones will spring out of them. The ill-compacted fabric of the Austro-Hungarian monarchy may fall to pieces. Parts of the Asiatic dominions of Russia may possibly (though in a comparatively distant future) become independent of the old Muscovite motherland, and the less civilized among the republics of Central and South America may be broken into parts or combined into new States, though the saying ‘plus cela change, plus c’est la même chose’ is even more true of those countries than of that to which it was originally 251applied, and gives little hope of interesting novelties. But on the whole the tendency of modern times is rather towards the aggregation of small States than towards the division of large ones. Commerce and improved facilities of communication are factors of constantly increasing importance which work in this direction, and this general tendency for the larger States to absorb the smaller forbids us to expect the rise, within the next few generations, of more than a few new Constitutions which will provide matter for study to the historian or lawyer of the future.

What type of Constitution will these new States, whatever they be and whenever they come, be disposed to prefer? Upon this point it is relevant to observe that all the new States that have appeared since 1850 have adopted Rigid Constitutions, with the solitary exception of Montenegro, which has no Constitution at all, but lives under the paternal autocracy of the temporal ruler who has succeeded the ancient ecclesiastical Vladika^[95]. Each of them, on beginning its independent life, has felt the need of setting out the lines of its government in a formal instrument which it has consecrated as fundamental by placing it above ordinary legislation. Similar conditions are likely to surround the birth of any new States, similar motives to influence those who tend their infancy. The only cases in which a Flexible Constitution is likely to arise would be the division of a country having such a Constitution into two or more fragments, each of which should cleave to the accustomed system; or the revolt of a people or community among whom, as they grow into a State, 252usages of government that had naturally sprung up might, when independence had been established, continue to be observed and so ripen into a Constitution. The chance that either of these cases will present itself is not very great. New States will more probably adopt documentary Constitutions, as did the insurgent colonies of England after 1776 and of Spain after 1811, and as the Christians of South-Eastern Europe did when they had rid themselves of the Turk. Upon the whole, therefore, it would seem that the future is rather with Rigid Constitutions than with those of the Flexible type.

It is hardly necessary to close these speculations by adding the warning that all prophecies in politics must be highly conjectural. Circumstances change, opinion changes; knowledge increases, though the power of using it wisely may not increase^[96].

The subtlety of nature, and especially the intricacy of the relations she develops between things that originally seemed to lie wide apart, far surpasses the calculating or predicting wit of man. Accordingly many things, both in the political arrangements of the world and in the beliefs of mankind, which now seem permanent may prove transitory. Democracy itself, though most people treat it as a thing likely to grow stronger and advance further, may suffer an eclipse. Human nature no doubt remains. But human nature has clothed itself in the vesture of every sort of institution, and may change its fashions as freely in the future as it has done in the past.

253

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 254the level of intellectual life and outside the sphere of ideas which the permanent political institutions aforesaid presuppose and need for their proper working. This class includes all the remaining peoples of the world, from intelligent races like the Chinese, Siamese, and Persians, down to the barbarous tribes of Africa.

Constitutions, in the sense in which the term is used in the preceding Essay, belong only to the first class, and in a qualified sense to the second. In the modern world they are confined to Europe and her Colonies, adding Japan, which has imitated Europe. In the ancient world they were confined to three races, Greeks, Italians, and Phoenicians, to whom one may perhaps add such races as the Lycians, who had learnt from the Greeks. Their range is somewhat narrower than that of law, that is to say, there are peoples which, like the Musulmans of Turkey, Egypt, and Persia, have law, but have no Constitutions.

No race that has ever lived under a regular constitutional Government has permanently lost it, except those parts of the Roman Empire which now form part of the Turkish Empire; and the Roman Empire, though its Government never ceased to be in a certain sense constitutional, ultimately extinguished the habit of self-government among its subjects.

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