Part 21

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

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

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

Footnote 95:

As to Italy, however, see above, pp. 202 and 208.

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

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

Footnote 96:

Ἅπανθ’ ὁ μακρὸς κἀναρίθμητος χρόνος φύει τ’ ἄδηλα καὶ φανέντα κρύπτεται. Soph. _Ajax_, 646.

NOTE TO ESSAY III

CONSTITUTIONAL AND OTHER GOVERNMENTS

The races and nations of the world may, as respects the forms of Government under which they live, be distributed into four classes:—

I. Nations which have created and maintain permanent political institutions, allotting special functions to each organ of Government, and assigning to the citizens some measure of participation in the business of Government.

In these nations we discover Constitutions in the proper sense of the term. To this class belong all the States of Europe except Russia and Montenegro, and, outside Europe, the British self-governing Colonies, the United States and Mexico, the two republics of South Africa, Japan and Chili, possibly also the Argentine Republic.

II. Nations in which the institutions aforesaid exist in theory, but are seldom in normal action, because they are in a state of chronic political disturbance and mostly ruled, with little regard to law, by military adventurers. This class includes the republics of Central and South America, with the exception of Chili, and possibly of Argentina, whose condition has latterly been tolerably stable.

III. Nations in which, although the upper class is educated, the bulk of the population, being backward, has not begun to desire such institutions as aforesaid. Such Nations therefore remain under autocratic monarchies. To this class belong Russia and Montenegro. Japan has lately emerged from it: and two or three of the newest European States might, but for the interposition of other nations, have remained in it.

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

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

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

IV

THE ACTION OF CENTRIPETAL AND CENTRIFUGAL FORCES ON POLITICAL CONSTITUTIONS[97]

As every government and every constitution is the result of certain forces and tendencies which bring men together in an organized community, so every government and every constitution tends when formed to hold men together thenceforth, training them to direct their efforts to a common end and to sacrifice for that purpose a certain measure of the exercise of their individual wills. So strong is the aggregative tendency, that each community naturally goes on by a sort of law of nature to expand and draw in others, whether persons or groups, who have not previously belonged to it: nor is physical force the prime agent, for the great majority of mankind prefer some kind of political society, even one in whose management they have little or no share, to mere isolation. As this process of expansion and aggregation continues, the different political groups which it has called into being come necessarily in contact with one another. The weaker ones are overcome or peacefully absorbed by the stronger ones, and thus the number of groups is continually lessened. Where two communities of nearly equal strength encounter each other, each may for a time succeed in resisting the attraction of the other. But in this changeful world it almost always happens that sooner or later one becomes so much stronger that the other yields to it: and thus in course of time the number of detached communities, _i.e._ of groups each with its own centre of attraction, becomes very small, because the weak have been swallowed up by the strong. This is the general, though, as we shall see, not the universal course of events. There is also another force at work, which has at some moments in history developed great strength.

Footnote 97:

This Essay was composed in the early part of 1885. It has been revised throughout, but the substance remains the same.

I. HOW THE TENDENCIES TO AGGREGATION AND TO DISJUNCTION RESPECTIVELY AFFECT CONSTITUTIONS.

Of the many analogies that have been remarked between Law in the Physical and Law in the Moral World, none is more familiar than that derived from the Newtonian astronomy, which shows us two forces always operative in our solar system. One force draws the planets towards the sun as the centre of the system, the other disposes them to fly off from it into space. So in politics, we may call the tendency which draws men or groups of men together into one organized community and keeps them there a Centripetal force, and that which makes men, or groups, break away and disperse, a Centrifugal. A political Constitution or frame of government, as the complex totality of laws embodying the principles and rules whereby the community is organized, governed, and held together, is exposed to the action of both these forces. The centripetal force strengthens it, by inducing men (or groups of men) to maintain, and even to tighten, the bonds by which the members of the community are gathered into one organized body. The centrifugal assails it, by dragging men (or groups) apart, so that the bonds of connexion are strained, and possibly at last loosened or broken. That no community can be exempt from the former force is obvious. But neither can any wholly escape the latter. For every community has been built out of smaller groups, and the members of such groups have seldom quite lost the attraction which each had to its own particular centre, such attraction being of course dissociative as regards the other groups and their members[98]. Moreover in no large community can there ever be a complete identity of views and wishes, of interests and feelings, between all the members. Many must have something to complain of, something which sets them against the rest and makes them desire to be, for some purposes, differently treated, or (in extreme cases) to be entirely separated. The existence of such a grievance constitutes a centre round which a group is formed, and this group is in so far an element of disjunction. Accordingly the history of every community and every constitution may be regarded as a struggle between the action of these two forces, that which draws together and that which pushes apart, that which unites and that which dissevers.

Footnote 98:

In the pages that follow the word Group is used to denote the section of persons within a larger community who maybe held together by some tie, whether of interest or sentiment or race or local habitation, which makes them a sort of minor community inside the larger one.

This subject, it may be thought, belongs either to History, in so far as history attempts to draw general conclusions from the facts she records, or to that branch of political science which may be called Political Dynamics, and is one with which the constitutional lawyer is not directly concerned. The constitutional lawyer, however, must always, if he is to comprehend his subject and treat it fruitfully, be a historian as well as a lawyer. His legal institutions and formulae do not belong to a sphere of abstract theory but to a concrete world of fact. Their soundness is not merely a logical but also a practical soundness, that is to say, institutions and rules must represent and be suited to the particular phenomena they have to deal with in a particular country. It is through history that these phenomena are known. History explains how they have come to be what they are. History shows whether they are the result of tendencies still increasing or of tendencies already beginning to decline. History explains them by parallel phenomena in other times and places. Thus the lawyer who has to consider and advise on any constitutional problem, and still more the lawyer who has to contrive a constitutional scheme for grappling with a political difficulty, must study the matter as a historian, otherwise he will himself err and mislead those whom he advises. Great lawyers often have so erred, and with lamentable results. A lawyer who shall deal with a constitutional problem as he would deal with a technical point in the law of real property will be as much astray as an advocate who should prosecute or defend a political prisoner with a sole regard to the law of treason or sedition which he may find in his books, heedless of the temper and opinion of those from among whom the jury will be drawn.

An obvious illustration may be found in the fact that when any particular community is studied from the constitutional point of view, and the inquiry is raised whether it ought to have a Flexible or a Rigid Constitution, the question of the comparative actual strength of these two forces becomes a vital one. Where the centripetal force is palpably the stronger, either sort of constitution will do to hold the community together: and the choice between the two sorts may be made on other grounds. But where the centrifugal force is potent, and especially where there are reasons to apprehend its further development, the establishment of a Rigid Constitution may become desirable, and yet may be a matter of much delicacy and difficulty. If the constitution be framed in the interests of a centralizing policy, there is a danger that it may assume and require for its maintenance a greater strength in the centripetal forces than really exists, and that for the want of such strength the constitution may be exposed to a strain it cannot resist. Amid the constant change of phenomena, a Rigid Constitution necessarily represents the past, not the present; and if the tendencies actually operative are towards the dissociation of the component groups of the community, a frame of government which fails to provide scope for these tendencies will soon become out of date and unfit for its work. Where, on the other hand, the existence of distinct groups, each desiring some control of its own affairs, is fully perceived and duly admitted as a factor in the condition of the community, and where it is desired to give legal recognition to the fact, and to protect the other local groups or sub-communities from being overridden by the largest among the groups, or by the community as a whole, the creation of a Rigid Constitution offers a valuable means of securing these objects. For such a constitution may be so drawn as to place the local groups under the protection of a fixed body of law, making their privileges an integral part of the frame of government, so that the whole Constitution must stand or fall with the maintenance of the rights enjoyed by the groups[99]. The familiar instance of such a form of Rigid Constitution is a Federal Constitution. It is specially adapted to the case of a country where the centrifugal forces are so strong that it is clear that the groups will not consent to be wholly merged and lost in one community, as under a Flexible Constitution might befall them, yet where they are sufficiently sensible of the advantages of combination to be willing to enter into a qualified and restricted union. And in these cases it has sometimes proved to be an efficient engine for further centralization. That is to say, the best way of strengthening in the long run the centripetal tendencies has been to give so much recognition and play to the centrifugal as may disarm them, and may allow the causes which make for unity to operate quietly without exciting antagonism.

Footnote 99:

Subject of course to any provisions for amending the Constitution which may have been inserted. See Essay III, p. 207 sqq.

It appears accordingly that the historian who studies constitutions, and still more the draftsman who frames them, must have his eye constantly fixed on these two forces. They are the matter to which the legislator has to give form. They create the state of things which a Constitution has to deal with, so laying down principles and framing rules as on the one hand to recognize the forces, and on the other hand to provide safeguards against their too violent action. Their action will preserve or destroy the Constitution,—preserve it, if it has given them due recognition and scope, destroy it, if its provisions turn out to be opposed to the sweep of irresistible currents. The forces that move society are to the constructive jurist or legislator what the forces of nature are (in the famous Baconian phrase) to man. He is their servant and interpreter. They can be overcome only by obeying them. If he defies or misunderstands them, they overthrow his work. If he knows how to use them, they preserve it. But his difficulty is greater than that of the physicist, because these social forces are more complex than those of inanimate nature, and vary in their working from generation to generation.

II. TENDENCIES WHICH MAY OPERATE EITHER AS CENTRIPETAL OR AS CENTRIFUGAL FORCES.

Now let us see what are the chief among the tendencies which in political society are capable of playing the part either of centripetal or of centrifugal forces.

So far as individual men are concerned, all the tendencies that work on them may be said to be associative tendencies, that is to say, everything tends to knit individual men together into a band or group, and to make them act together. The repulsion of man from man is so rare that we may ignore it. Even the keenest individualist desires to convert other men to his individualism, and forms a league for the purpose with others who are like-minded.

As regards political societies, the subject wherewith we are here concerned, the tendencies I am going to enumerate may be either associative or dissociative. Whether in the case of any given State they act as agglutinative and consolidating forces or as splitting and rending forces depends upon whether they are at the moment giving their support to, or are enlisted in the service of, the State as a whole, or are strengthening the group or groups inside the State which are seeking to assert either their rights within the State or their independence of it. Even obedience, the readiness to submit and follow, which might seem primarily a centripetal force, may be centrifugal as against the State if it leads the partisans of a particular recalcitrant group to surrender their wills to the leaders of that group. Even the love of independence, the desire to let each man’s individuality have full scope, may act as a centripetal force if it disposes men to revolt against the tyranny of a faction and maintain the rights and interests of the whole people against the attempts of that faction to have its own way. There are always two centres of attraction and two groupings to be considered, the larger, which we call the State, and the smaller, which may be either a subordinate community, such as a province, district or dependency, or only a party or faction. And the centripetal force which draws men to the smaller centre is a centrifugal force as regards the larger.