Part 5

King John in 1213 bids "discreet men" from each shire come to Oxford,[56-3] and his son Henry III. in 1254 issues a writ requiring "to cause to come before the King's Council two good and discreet Knights of the Shire, whom the men of the county {57} shall have chosen for this purpose in the stead of all and of each of them, to consider along with the knights of other shires what aid they will grant the king."[57-1] In a similar writ of 1295 the term "to be elected" is first used instead of the less specific instruction "chosen."[57-2] The word representative, to describe such a person "chosen" or "elected" "with full and sufficient power _for themselves and for the community_"[57-3] was not yet in use. It appears in print in Cromwell's time,[57-4] and was then possibly new political jargon.

The council so composed developed into the British Parliament, that name coming into use for it in 1275.[57-5] With the king it was for years the law-making power of the British Isles. The peers held their seats in the House of Lords by personal right, as did the wise men of the Witenagamot.[57-6] They acted on their own account, and were responsible to no one. The members of the House of Commons held their seats by no personal right, but as representatives of a large body of commoners {58} who could not all attend. They were chosen for this purpose, and derived authority from the people who employed them. The king in his own right gave or withheld his sanction to the measures agreed upon by the two houses. It followed that the king and peers had no vote for representatives in Parliament, as, being present to act for themselves, they needed none.

The character of the law-making power has gradually altered. Since the days of Queen Anne no sovereign has attempted to veto a bill passed by Parliament.[58-1] Since 1834 no sovereign has dismissed a ministry,[58-2] nor has he formed one,[58-3] and the ministry has come to be responsible to the representative branch of Parliament alone. From 1835 to 1911 the presentative branch was purely a revising chamber.[58-4] Since 1911 it has been permitted to delay only, but not to prevent, the passing of a law desired by the representative branch, Parliament becoming thus in essence unicameral. The king and the lords hold positions of great historical and sentimental value; their personal influence may be as great as they can make it. The House of Commons, however, is now the sole power of legislation in the British Isles. It is hence fair to say that the presentative element is negligible in the national government of the British Isles.

Across the Atlantic went the developing political structures of the Pan-Angles. The colonists, in the simplicity of their social organization, approached early Teuton conditions. They {59} had the benefit, however, of all the experience the race had accumulated since that time. In New England from the earliest settlement till to-day the town meeting has been at the basis of government. It is the folk moot flourishing in new soil, and with the House of Lords (as it existed till 1911) could claim descent from the presentative government of our political forbears in the German forests. Of Virginia it is written that in "1619 a House of Assembly 'broke out' in the colony . . . then just twelve years old. In that Assembly we see the _first-born child of the British Parliament_, the eldest brother, so to speak, of the legislatures of the United States and of the English colonies of to-day. This Assembly was composed of a council and a body of twenty-two representatives from the eleven plantations, elected by the freeholders, imposing taxes and passing laws, meeting either annually or at frequent intervals."[59-1] In this manner were our notions of representative government transplanted.

A representative is not necessarily chosen by the people he represents.[59-2] In the early parliamentary days he often was not, but was arbitrarily appointed by the king. Since then the people have taken upon themselves the right of designating who is to represent them, and an increasingly large number of any given community has gained participation in that right. In some cases the people have arranged to make their choice indirectly. An example is the election prior to 1913 of United States senators by the people of the {60} state, but through the state legislature; another, is the appointment of the upper house, as in New Zealand, by the elected members of the lower house. But as evidence of the people's wish to keep control over their representatives, one may note the agitation for direct election in both these cases, and the virtual direct election of senators in some states of the United States, even before the Seventeenth Amendment of the Constitution of the United States came into force in 1913.[60-1]

There are certain difficulties attendant upon representation. The agent may fail truly to represent, and the Pan-Angle people are constantly seeking to devise and perfect methods of minimizing this difficulty. One means toward that end has been sets of written instructions called constitutions,[60-2] adopted by the people and set over their representatives. The written Constitution of the United States and those of its original thirteen states were early edicts of the people restricting the power of the people's representatives. In the political talk of our times we find persistently recurring the words initiative, referendum, and recall.[60-3] What success will attend the movements for which they stand, movements which merely extend or return to ancient practices, it is too early to say. But the thing that is plain is that these are all efforts of the people to exercise their right to govern themselves presentatively, because they {61} think representation in present practice not entirely satisfactory.

Once presentative government over even a comparatively small area was impracticable because of the time necessary to cover distances. Now the results of an election involving millions of voters and extending from the Atlantic to the Pacific can be known a few hours after the closing of the polls. Burke thought the two months' sailing between Great Britain and America an insuperable obstacle to joint representation, although Franklin and Pownall disagreed with him.[61-1] Such is our speed of travel to-day that representatives from every Pan-Angle nation could reach North America in less than a month. Not only that, but thanks to electricity, a referendum could be held all over the Pan-Angle countries to-day as successfully as the town meeting was held a hundred years ago. And the decisions it reached would be known throughout the world in a fraction of the time that was needed for the deliberations of the Witan to reach the outskirts of the kingdom.

In what proportion the governments of the seven nations are presentative and in what proportion representative, it would be difficult to tell. Easy it is, however, to recognize these forms everywhere. Whether it is the adult population of New Zealand balloting on national prohibition; the men of a New England town meeting voting its school appropriation; or the members of the House of Lords discussing federation within the British Isles--we have a purely presentative bit of {62} governing. If it is the representatives of an Australian state voting on a minimum wage bill; the members of the British House of Commons passing a compulsory insurance act; or those of a Canadian provincial legislative assembly voting to exclude Asiatics, the principle is identical. Government in these cases is representative.

The tendency is towards an increase in the presentative element, as is evidenced by growing popular control. Not only our laws but our forms of government show this. The Pan-Angle notion of an executive at the time the first colonies were forming was drawn from a kingship which then meant a permanent tenure of office. The president of the United States who holds office for a fixed length of time was created after that model. He represents, but once elected cannot be recalled.[62-1] In the British Isles changes have come about, and the prime minister who now wields executive power can be recalled any day by the people speaking indirectly through their representatives, popular opinion swaying his party adherents to relinquish their efforts in his support.[62-1] In this respect the British Isles organization has proved more sensitive than the American to the spirit of the times.[62-2]

In our governments various individuals and classes, or what would in modern days be called "interests," struggle for supremacy. When a minority is successful we dub it aristocracy or privilege. At one time the king was the privileged minority. In 1215 the barons attacked the {63} privilege of this minority; the king asked to have the matter arbitrated by a third party. The barons, who apparently understood something about arbitration, refused. They also refused to give any assurance of their own good behaviour; Magna Carta was a check on the king only. Moreover "Magna Carta can hardly be said to have introduced any new ideas. As Pollock and Maitland (_History of English Law_) say 'on the whole the charter contains little that is absolutely new. It is restorative.'" [63-1] Since then many aristocrats have enjoyed special privileges: certain churches, certain forms of industry, holders of certain kinds of property. Against all these in turn the levelling force of democracy has been hurled. It can be said in general that we are travelling, though with a wise conservatism, away from the aristocratic to the democratic, by which is meant that privileges are becoming more seldom to the few and power more usual to the many. Democracy, it seems likely, is to be our common future. But, in the meanwhile, the present stage of all our governments may truly be said to be representative action with presentative sanction.

Allied to the question of government is that of suffrage. While all are subject to the government {64} of the land, only some take active part in determining what it shall be. And here, again, the individualism of the Pan-Angles is an insistent factor. Voters, whether so presentatively or representatively, have been in our past one of the privileged minorities--all individuals reckoned. They are so still. But by constantly receiving into their ranks bodies of newly enfranchised persons, they bid fair to become the majority. Social, religious, property, and educational disqualifications long kept many men from the suffrage. Many of these disabilities have been abandoned, some in all places, others in some places only. Sex alone has kept many from voting. This disqualification has been in places and in some respects removed. Whatever one may believe as to the wisdom of entrusting the ballot to the few or to the many, it has long seemed evident that the race was advancing toward universal adult male suffrage. Now many would say instead that the goal is universal adult suffrage.

On our respective paths toward this goal our various electoral units mark various stages of progress. Identical voting qualifications may be found half a world apart, while neighbouring groups differ. No two probably agree in every slight detail, though the range of dissimilarity is narrow. Certain property and educational tests are not infrequent, especially in the older Pan-Angle organizations. The newer ones, as a rule, are the more democratic. Women hold suffrage privileges in at least some respects very extensively, the newer communities again being more liberal in this. Plural voting obtains in the British Isles. {65} These local differences produce no confusion, but keep our progress orderly.

Of the United States it has been said, "There is a great advantage in having different State governments try different experiments in the enactment of laws and in governmental policies, so that a State less prone to accept novel and untried remedies may await their development by States more enterprising and more courageous. The end is that the diversity of opinion in State governments enforces a wise deliberation and creates a _locus poenitentiae_ which may constitute the salvation of the Republic."[65-1] Equally might this have been stated of the effect of the diversity of opinion in the Pan-Angle units on the progress of the whole civilization.

In no regard more than in the question of suffrage, is seen the value and need of local option. It permits progress in whatever respect progress is possible, and prevents the misfortunes that accompany attempts to force progress where the time and conditions are not ripe for it. Through the exercise of local option the suffrage has been constantly extended, a bit here and a bit there, throughout Pan-Angle countries without seriously affecting our political stability. Any attendant shock is confined within narrow boundaries.[65-2] If Texas and Vermont, Tasmania and South Australia, Transvaal and Cape Province have different suffrage {66} requirements, it is because they differ in history and composition and hence in needs. The desires of their inhabitants could not be satisfied by a single law. To seek to establish one would be to estrange all and satisfy none.

The question of negro suffrage is in point. The northern states of America, where the negroes were comparatively few and were to some degree at least educated, felt favourably toward negro suffrage. After the Civil War the northern voters, acting through the central government, were able to give the vote to the negro, not only within their own borders but throughout the country. The results were most unfortunate. The Pan-Angle population of the southern states thereby lost their local autonomy. The men most fit to govern in these states were forced in self-defence to become law-breakers. It took many years to undo the mistake and re-establish there the will of the Pan-Angle community. Through the intelligence of the South in framing legislation, and the forbearance of the North in not overriding this legislation, it is now adequately accomplished. "Hitherto, no amount of legal ingenuity has sufficed to extract from the United States supreme court a direct, straightforward decision on the constitutionality of the 'grandfather' clauses in the election laws of many states, whereby the Negro voters have been disfranchised. The court has invariably disposed of cases designed to test the constitutionality of such laws on technical grounds."[66-1] South Africa, when the subject arose in Constitutional Convention, {67} was wiser. No part overruled another part. "In respect of the admission, of natives to the parliamentary franchise the practice of the Cape Colony was in direct conflict with that of the remaining colonies. As no agreement on the question of the admission or non-admission of natives to the Union franchise could be reached, the Convention decided that the franchise qualifications existing in the several colonies should stand as the franchise qualifications for the Union Parliament in the respective provinces of the Union. As the result of this compromise, while the native voters in the Cape Province obtained the Union franchise, practically no natives were admitted to this privilege in the remaining three provinces."[67-1] With certain temporary limitations, provision is made for the elimination of the vote of the coloured inhabitants of Cape Province.[67-2] It is now generally acknowledged that no community of Pan-Angles is to be forced to accept as voters those whom it considers non-assimilable.

Our law, like our language, has flowed from many sources and has been subjected to foreign influence. The colonists carried out with them the English common law, the sources of which "have been stated to be 'as undiscoverable as those of the Nile.'"[67-3] Quite different from this is the common law of Scotland, "based on the principles {68} of the Roman Civil and Canon law as applied and modified by a long series of statutes of the Scots Parliament and decisions of the Scottish courts. . . . A detailed comparison of the differences between the private law of England and Scotland would involve a survey of the whole domain of jurisprudence and would be the work of a lifetime;"[68-1] From 1642 to 1652 occurred the English Civil War, followed by the Commonwealth. In those stormy years which seem, as writes an Australian jurist, "to have anticipated almost every effort of modern political thought, scarcely any cry was more persistently raised by the reform party than the cry for reform of the law. It was the first great period of conscious law reform."[68-2] All the Pan-Angle nations, save only the British Isles and Newfoundland, had the stress of that period reflected in the history of their settlements, or were founded after the results of that war had been produced.

In the new countries the legal influence was predominantly British, but in some parts the colonists encountered communities of Europeans of other civilizations and of other legal theories. In Quebec and Louisiana they met French law; in western United States, Spanish; and in South Africa, a form of Roman-Dutch. Being elements in civilizations which only gradually have blended into that of the Pan-Angles, these laws have in greater or less measure survived. But in such {69} localities slowly the foreign law merges into that of the local Pan-Angles. As an example we have South Africa: "The local Dutch statute law was abandoned perforce as obsolescent, and replaced almost entirely by local enactments based upon the existing circumstances of the colony or founded upon English statutes, and the Roman-Dutch common law, broadly speaking, came to be administered concurrently with English common law. Nor was it surprising that, with judges and advocates alike versed in the decisions and practice of the English Courts, English principles were more and more closely woven into the fabric of the Colonial law. And apart from the influence of the 'case-law,' thus built up through the Colonial Reports, circumstances--or rather its greater capacity to satisfy the conditions of modern life--gave the regulation of the field of commercial intercourse almost exclusively to English law."[69-1] A like story might be told of French law in Louisiana. In other instances, where perhaps it receives no official recognition, non-English law has doubtless had its effect on what may be loosely called Pan-Angle law. As long as it suits the people and their needs better, so long a law exists regardless of its origin. But experience shows that the law of any Pan-Angle nation tends to conform to the practices of our whole civilization.

Because the English common law forms so large an element, and because it has among us been modified only by English-speaking people, the Pan-Angle law, though drawn from many sources, {70} still presents a certain homogeneity. "An English barrister . . . when once he enters an American court, or begins debating legal questions with American lawyers, . . . knows that he is not abroad, but at home; he breathes again the legal atmosphere to which he is accustomed. The law of America, he finds, is the law of England carried across the Atlantic, and little changed even in form. In all legal matters it is the conservatism, not the changeableness, of Americans which astonishes an English observer. Old names and old formulas meet us in every law court. Some twenty-six years ago there were to be found in Chicago in daily use forms of pleading which had long become obsolete in England."[70-1]

It is in our common tendencies, however, that the legal attitudes of the seven nations show most striking accord. Jenks, quoted earlier, concludes that we are in favour of uniformity, simplicity, greater freedom of the individual, and more fluidity of capital and labour, so much so, that "The courts will not even enforce effectively a contract of service. To do that, it is said, would be to legalize slavery, and the fact that the slave has become such by his own act makes no difference. It is considered that the perfect spontaneity of labour is of more value than the sacredness of contract."[70-2] Further than this, actual legislation repeats itself in the many Pan-Angle law-making bodies. The British Isles, {71} Massachusetts, New Zealand, and Australia test the merits or demerits of a minimum wage law. Compulsory insurance, old age pensions, maternity benefits, and arbitration statutes spring up everywhere. In efforts to solve some problems one part of the Pan-Angles leads; in others another part. Whether this is regarded as reform or experimentation is not under present discussion. The whole Pan-Angle civilization appears headed towards what is called by some social amelioration and by others paternalism. Whatever its true name, this race progress starts from a greater recognition of the individual and hopes for his greater comfort and welfare.

Of law among the Pan-Angles it may be said that it shows plainly its relation to English common law; that it is affected by local conditions resulting from historical causes; that it exhibits certain common tendencies, and among those is a regard for the individual and a passing from the viewpoint of status to that of contract.

All this can be seen in the laws regarding marriage and divorce. These, as well as our prejudices in such matters, are still largely determined by the dead hand of the Middle Ages. But the Teutonic ideal of the equality of the marriage partnership has survived the accumulation of dogma. Our release from its grip has not depended on the divorce of an English king, nor the accompanying religious schism. There is in us that which was destined to carry us up through the pains of changing social conditions to more satisfactory relations between the husband and the wife and society.

{72}

In our efforts to attain our ideals we are using many local laws. The British Isles have three: English, Scottish, and Irish. If the Channel Islands and the Isle of Man were considered, there would be six. Besides this, members of the royal family are subject to special restrictions. Newfoundland and New Zealand have marriage laws of their own. Canada has eleven, the Union of South Africa has four, and Australia six.[72-1] In the United States there are forty-eight. This makes a total of seventy-four sets of laws in the seven self-governing nations regarding who may marry and divorce and how.

These seventy-four different sets are not, however, strange and dissimilar. As in the case of suffrage, each one has many points identical with many others, and the range of variation is small. All are monogamous; all allow freedom of choice to the marrying parties; all hold marriage and divorce to be civil matters, and consider ministers and priests of religious denominations as civil officials for the legalizing of marriages. All prohibit marriage within certain degrees of relationship, the tendency being not to include among them the relationship-by-marriage impediments surviving from medieval practice, such as the various deceased spouse's brother or sister laws. The majority allow divorce, although in some, like Newfoundland and South Carolina, marriage is by law indissoluble. The trend at present seems to be towards safe-guarding marriage, but to make easier the means of divorce. Men and women are coming more {73} nearly to an equality before the law. Such enactments as that of New South Wales permitting a husband and wife to contract financially with each other shows the trend of our beliefs in the rights of any individual to be a distinct personality.