the Romans, studying a process which has been completed. For them it was
completed before the fifth century saw the dissolution of the western
half of the Empire. For India it is still in progress. Little more than
a century has elapsed since English rule was firmly established; only
half a century since the Punjab and (shortly afterwards) Oudh were
annexed. Although the Indian Government has prosecuted the work of
codification much less actively during the last twenty years than in the
twenty years preceding, and seems to conceive that as much has now been
done as can safely be done at present, still in the long future that
seems to lie before British rule in India the equalization and
development of law may go much further than we can foresee to-day. The
power of Britain is at this moment stable, and may remain so if she
continues to hold the sea and does not provoke discontent by excessive
taxation.
Two courses which legal development may follow are conceivable. One is
that all those departments of law whose contents are not determined by
conditions peculiar to India will be covered by further codifying acts,
applicable to Europeans and natives alike, and that therewith the
process of equalization and assimilation will stop because its natural
limits will have been reached. The other is that the process will
continue until the law of the stronger and more advanced race has
absorbed that of the natives and become applicable to the whole Empire.
Which of these two things will happen depends upon the future of the
native religions, and especially of Hinduism and of Islam, for it is in
religion that the legal customs of the natives have their roots. Upon
this vast and dark problem it may seem idle to speculate; nor can it be
wholly dissevered from a consideration of the possible future of the
religious beliefs which now hold sway among Europeans. Both Islam and
Hinduism are professed by masses of human beings so huge, so tenacious
of their traditions, so apparently inaccessible to European influences,
that no considerable declension of either faith can be expected within a
long period of years. Yet experience, so far as it is available, goes to
show that no form of heathenism, not even an ancient and in some
directions highly cultivated form like Hinduism, does ultimately
withstand the solvent power of European science and thought. Even now,
though Hinduism is growing every day, at the expense of the ruder
superstitions among the hill-folk, it is losing its hold on the educated
class, and it sees every day members of its lower castes pass over to
Islam. So Islam also, deeply rooted as it may seem to be, wanes in the
presence of Christianity, and though it advances in Central Africa,
declines in the Mediterranean countries. It has hitherto declined not by
the conversion of its members to other faiths, but by the diminution of
the Muslim population; yet one must not assume that when the Turkish
Sultanate or Khalifate has vanished, it may not lose much of its present
hold upon the East. Possibly both Hinduism and Islam may, so potent are
the new forces of change now at work in India, begin within a century or
two to show signs of approaching dissolution. Polygamy may by that time
have disappeared. Other peculiar features of the law of family and
inheritance will tend to follow, though some may survive through the
attachment to habit even when their original religious basis has been
forgotten.
In the Arctic seas, a ship sometimes lies for weeks together firmly
bound in a vast ice-field. The sailor who day after day surveys from the
masthead the dazzling expanse sees on every side nothing but a solid
surface, motionless and apparently immoveable. Yet all the while this
ice-field is slowly drifting to the south, carrying with it the embedded
ship. At last, when a warmer region has been reached and the south wind
has begun to blow, that which overnight was a rigid and glittering plain
is in the light of dawn a tossing mass of ice-blocks, each swiftly
melting into the sea, through which the ship finds her homeward path. So
may it be with these ancient religions. When their dissolution comes, it
may come with unexpected suddenness, for the causes which will produce
it will have been acting simultaneously and silently over a wide area.
If the English are then still the lords of India, there will be nothing
to prevent their law from becoming (with some local variations) the law
of all India. Once established and familiar to the people, it will be
likely to remain, whatever political changes may befall, for nothing
clings to the soil more closely than a body of civilized law once well
planted. So the law of England may become the permanent heritage, not
only of the hundreds of millions who will before the time we are
imagining be living beyond the Atlantic, but of those hundreds of
millions who fill the fertile land between the Straits of Manaar and the
long rampart of Himalayan snows.
We embarked on this inquiry for the sake of ascertaining what light the
experience of the English in India throws upon the general question of
the relation of the European nations to those less advanced races over
whom they are assuming dominion, and all of whom will before long own
some European master[55].
-----
Footnote 55:
Among the ‘less advanced races’ one must not now include the Japanese,
but one may include the Turks and the Persians. The fate of China
still hangs in the balance. It is not to be assumed that she will be
ruled, though she must come to be influenced, and probably more and
more influenced, by Europeans.
-----
These races fall into two classes, those which do and those which do not
possess a tolerably complete system of law. Turks, Persians, Egyptians,
Moors, and Siamese belong to the former class; all other non-European
races to the latter.
As to the latter there is no difficulty. So soon as Kafirs or Mongols or
Hausas have advanced sufficiently to need a regular set of legal rules,
they will (if their European masters think it worth while) become
subject to the law of those masters, of course more or less
differentiated according to local customs or local needs. It may be
assumed that French law will prevail in Madagascar, and English law in
Uganda, and Russian law in the valley of the Amur.
Where, however, as is the case in the Musulman and perhaps also in the
Buddhist countries belonging to the former class, a legal system which,
though imperfect, especially on the commercial side, has been carefully
worked out in some directions, holds the field and rests upon religion,
the question is less simple. The experience of the English in India
suggests that European law will occupy the non-religious parts of the
native systems, and will tend by degrees to encroach upon and permeate
even the religious parts, though so long as Islam (or Brahmanism)
maintains its sway the legal customs and rules embedded in religion will
survive. No wise ruler would seek to efface them so far as they are
neither cruel nor immoral. It is only these ancient religions—Hinduism,
Buddhism, and especially Islam—that can or will resist, though perhaps
only for a time, and certainly only partially, the rising tide of
European law.
X. PRESENT POSITION OF ROMAN AND ENGLISH LAW IN THE WORLD.
European law means, as we have seen, either Roman law or English law, so
the last question is: Will either, and if so which, of these great rival
systems prevail over the other?
They are not unequally matched. The Roman jurists, if we include Russian
as a sort of modified Roman law, influence at present a larger part of
the world’s population, but Bracton and Coke and Mansfield might rejoice
to perceive that the doctrines which they expounded are being diffused
even more swiftly, with the swift diffusion of the English tongue, over
the globe. It is an interesting question, this competitive advance of
legal systems, and one which would have engaged the attention of
historians and geographers, were not law a subject which lies so much
outside the thoughts of the lay world that few care to study its
historical bearings. It furnishes a remarkable instance of the tendency
of strong types to supplant and extinguish weak ones in the domain of
social development. The world is, or will shortly be, practically
divided between two sets of legal conceptions of rules, and two only.
The elder had its birth in a small Italian city, and though it has
undergone endless changes and now appears in a variety of forms, it
retains its distinctive character, and all these forms still show an
underlying unity. The younger has sprung from the union of the rude
customs of a group of Low German tribes with rules worked out by the
subtle, acute and eminently disputatious intellect of the Gallicized
Norsemen who came to England in the eleventh century. It has been much
affected by the elder system, yet it has retained its distinctive
features and spirit, a spirit specially contrasted with that of the
imperial law in everything that pertains to the rights of the individual
and the means of asserting them. And it has communicated something of
this spirit to the more advanced forms of the Roman law in
constitutional countries.
At this moment the law whose foundations were laid in the Roman Forum
commands a wider area of the earth’s surface, and determines the
relations of a larger mass of mankind. But that which looks back to
Westminster Hall sees its subjects increase more rapidly, through the
growth of the United States and the British Colonies, and has a prospect
of ultimately overspreading India also. Neither is likely to overpower
or absorb the other. But it is possible that they may draw nearer, and
that out of them there may be developed, in the course of ages, a system
of rules of private law which shall be practically identical as regards
contracts and property and civil wrongs, possibly as regards offences
also. Already the commercial law of all civilized countries is in
substance the same everywhere, that is to say, it guarantees rights and
provides remedies which afford equivalent securities to men in their
dealings with one another and bring them to the same goal by slightly
different paths.
The more any department of law lies within the domain of economic
interest, the more do the rules that belong to it tend to become the
same in all countries, for in the domain of economic interest Reason and
Science have full play. But the more the element of human emotion enters
any department of law, as for instance that which deals with the
relations of husband and wife, or of parent and child, or that which
defines the freedom of the individual as against the State, the greater
becomes the probability that existing divergences between the laws of
different countries may in that department continue, or even that new
divergences may appear.
Still, on the whole, the progress of the world is towards uniformity in
law, and towards a more evident uniformity than is discoverable either
in the sphere of religious beliefs or in that of political institutions.
III
FLEXIBLE AND RIGID
CONSTITUTIONS[56]
I. THE CONSTITUTIONS OF ROME AND ENGLAND.
Rome and England are the two States whose constitutions have had the
greatest interest for the world, and have exerted the greatest influence
upon it. Out of the republic on the Tiber, a city with a rural territory
round it no bigger than Surrey or Rhode Island, grew a World Empire, and
the framework of that Empire retained till its fall traces of the
institutions under which the little republic, circled and threatened by
a crowd of hostile States, had risen to show herself the strongest of
them all. In England a monarchy, first tribal and then feudal, developed
from very small beginnings into a second World Empire of a wholly
different type, while at the same time the ancient form of government,
through a series of struggles and efforts, guided by an only
half-conscious purpose, slowly developed itself into a system
monarchical only in name. That system became in the eighteenth century
the starting-point for all modern political philosophy[57], and in the
nineteenth the model for nearly all the schemes of free representative
polity that have arisen in the Old World as well as for many in the
newer countries.
-----
Footnote 56:
This Essay was delivered, in the form of two lectures, in 1884, and
the names Flexible and Rigid were then suggested for the two types of
Constitution here described. It has been enlarged and revised and
brought up to date, but the substance remains the same.
Footnote 57:
The interest which the English Constitution excited in Montesquieu may
be compared with that which the Roman excited in Polybius.
-----
It is, however, not merely the range of their influence, nor merely the
fact that, as the Roman Constitution worked upon the whole of the
ancient, so the English Constitution has worked upon the whole of the
modern world, that makes these two systems deserve constant study.
Constitutions are the expression of national character, as they in their
turn mould the character of those who use them; and the same causes
which made both peoples great have made their political institutions
also strong and rich, specially full of instruction for all nations in
all times. There were in the fifth century B.C. hundreds of
commonwealths in the Mediterranean countries with republican frames of
government, many of which bore a general resemblance to that of Rome.
There were in the fourteenth century A.D. several monarchies in Europe
similar in their constitutional outlines to that of England, and with
what seemed an equal promise of rich and free development. Of the
former, Rome alone survived, destroying or absorbing all the rest. Of
the latter, that of England is the only one which had at the end of the
eighteenth century grown into a system at once broad-based and strong, a
system which secured both public order and the freedom of the individual
citizen, and in which the people were able to make their voice heard and
to influence the march of national policy. All the others had either
degenerated into despotisms or remained comparatively crude and
undeveloped. Thus when, after the flood of Napoleonic conquest had
subsided, the peoples of the European continent began to essay the
establishment of free constitutions, they found in that of England the
model fittest to be followed, and sought to adapt its principles to
their own several conditions.
England, moreover, has been the parent of free governments in a further
sense. Though she has not, like Rome, stretched her system of government
till it embraced the world, she has reproduced it in those parts of her
transoceanic dominions where her children have been able to form
self-governing communities. Reduced copies of the British Constitution
have been created in seventeen self-governing colonies. Seven of these
have in North America been united in a Federation whose frame of
government is built on British lines. Six others, in Australia, have
been similarly grouped in another Federal Government of a not less
distinctively British type. And an independent Republic, far vaster in
population than all these colonies put together, has, less closely, but
yet in the main and essential points, reproduced the principles,
although not the form, of the institutions of the motherland. It is,
therefore, to Rome and to England that the eye of the student of
political constitutions will most often turn. They represent the most
remarkable developments of ordered political life for the ancient and
for the modern world respectively. And whoever attempts to classify
Constitutions and to note the distinctive features of the principal
types they present, will find that it is from Rome and from England that
illustrations can most frequently and most profitably be drawn[58].
-----
Footnote 58:
As to the countries or peoples in which Constitutions in the proper
sense can be said to exist, see Note at the end of this Essay.
-----
II. THE TRADITIONAL CLASSIFICATION OF CONSTITUTIONS.
The old-fashioned classification of Constitutions which has come down to
our own times is based on the distinction of Written and Unwritten Law,
itself an ill-expressed and rather confusing distinction, because _ius
non scriptum_ is intended to denote customs: and when customs have been
recorded in writing, they can hardly continue to be called unwritten.
This classification places in the category of Written Constitutions
those which are expressly set forth in a specially important document or
documents, and in the category of Unwritten those which began, not in
formal agreements, but in usage, a usage which lives in men’s
recollections, and which, even when it has been to a large extent
defined, and secured against error, by being committed to writing, is
recorded as embodying that which men have observed, and are deemed
likely to continue to observe, not as that to which they have bound
themselves formally by a law.
These terms are, however, not happy terms, although the distinction they
aim at expressing is a real distinction. The line which they attempt to
draw between the two classes of Constitutions is not a clear or sharp
line, because in all Written Constitutions there is and must be, as we
shall presently see, an element of unwritten usage, while in the
so-called Unwritten ones the tendency to treat the written record of
custom or precedent as practically binding is strong, and makes that
record almost equivalent to a formally enacted law, not to add that
Unwritten Constitutions, though they began in custom, always include
some statutes. Moreover, these names, while they dwell on a superficial
distinction, ignore a more essential one to be presently mentioned. Let
us therefore try to find a better classification.
If we survey Constitutions generally, in the past as well as in the
present, we find them conforming to one or other of two leading types.
Some are natural growths, unsymmetrical both in their form and in their
contents. They consist of a variety of specific enactments or agreements
of different dates, possibly proceeding from different sources,
intermixed with customary rules which rest only on tradition or
precedent, but are deemed of practically equal authority. Other
Constitutions are works of conscious art, that is to say, they are the
result of a deliberate effort on the part of the State to lay down once
for all a body of coherent provisions under which its government shall
be established and conducted. Such Constitutions are usually comprised
in one instrument—possibly, however, in more than one—an instrument
solemnly enacted whose form and title distinguish it from ordinary laws.
We may provisionally call these two types the Old and the New, because
all ancient and mediaeval as well as some few recent Constitutions are
of the former kind, while most modern ones belong to the latter. The
distinction corresponds roughly to that drawn, in England and America,
between common law and statute law, or to the Roman distinction between
_ius_ and _lex_, so that we might describe the types as Common Law
Constitutions and Statutory Constitutions respectively. Yet the line of
demarcation is not always a plain one. In countries with constitutions
of the Common Law type, statutes are frequently passed, declaring or
modifying or abolishing antecedent usage, which supersede and replace
parts, possibly large parts, of the common law maxims, so that at last
most of the leading rules can be found in a few great statutes. On the
other hand, the Statutory Constitutions become developed by
interpretation and fringed with decisions and enlarged or warped by
custom, so that after a time the letter of their text no longer conveys
their full effect. It is, therefore, desirable to have some more
definite and characteristic test or criterion whereby to mark off the
two types which have been just described in general terms.
III. A PROPOSED NEW CLASSIFICATION OF CONSTITUTIONS.
Such a criterion may be found in the relation which each Constitution
bears to the ordinary laws of the State, and to the ordinary authority
which enacts those laws. Some constitutions, including all that belong
to the older or Common Law type, are on the level of the other laws of
the country, whether those laws exist in the form of statutes only, or
also in the form of recorded decisions defining and confirming a custom.
Such constitutions proceed from the same authorities which make the
ordinary laws; and they are promulgated or repealed in the same way as
ordinary laws. In such cases the term ‘Constitution’ denotes nothing
more than such and so many of the statutes and customs of the country as
determine the form and arrangements of its political system. And (as
will presently appear) it is often difficult to say of any particular
law whether it is or is not a part of the political Constitution.
Other constitutions, most of them belonging to the newer or Statutory
class, stand above the other laws of the country which they regulate.
The instrument (or instruments) in which such a constitution is embodied
proceeds from a source different from that whence spring the other laws,
is repealable in a different way, exerts a superior force. It is
enacted, not by the ordinary legislative authority, but by some higher
or specially empowered person or body. If it is susceptible of change,
it can be changed only by that authority or by that special person or
body. When any of its provisions conflict with a provision of the
ordinary law, it prevails, and the ordinary law must give way. These are
features, partly political, partly legal, which mark off the two types
of Constitution from one another; and although it will appear that in
some few cases the question to which type the Constitution of a
particular State belongs may be a nice one, still the general legal
criteria to be applied are clear and definite. In a State possessing a
constitution of the former—the older—type, all laws (excluding of course
by-laws, municipal regulations, and so forth) are of the same rank and
exert the same force. There is, moreover, only one legislative authority
competent to pass laws in all cases and for all purposes. But in a State
whose Constitution belongs to the latter—the newer—type, there are two
kinds of laws, one kind higher than the other, and more universally
potent; and there are likewise two legislative authorities, one superior
and capable of legislating for all purposes whatsoever, the other
inferior and capable of legislating only so far as the superior
authority has given it the right and function to do so.