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.
These two tendencies, which I have referred to as Obedience and
Individualism, are so familiar, and the former is a disposition of human
nature so generally pervasive, as to need no further discussion. The
other tendencies which may operate either centrifugally or centripetally
may be classed under the two heads of Interest and Sympathy. Under the
head of Interest there fall all those influences which belong to the
sphere of Property, including of course Industry and Commerce as means
of acquiring property. These influences usually make for consolidation
and assimilation. It is a gain to the trader or the producer that the
area of consumers which he supplies without the hindrance of an
interposed customs tariff should be as wide as possible. It is a gain
that communications by sea and land should be safe, easy, swift, and
cheap, and these objects are better secured in a large country under a
strong government. It is a gain that coinage, weights, and measures
should be uniform over the largest possible area and that the standard
of the currency should be upheld. It is a gain that the same laws and
the same system of courts should prevail in every part of a State—and
the larger the State the better, so far as these matters are
concerned—and that the law should be steadily enforced and complete
public order secured. All these things make not only for the growth of
industry and the spread of trade, but also for the value of all kinds of
property. And all these influences, derived from the consideration of
such gains, which play upon the citizen’s mind, are usually aggregative
influences, disposing him to desire the extension of the State and the
strength of its central authority. Considerations of Interest,
therefore, usually operate as a centripetal force. It was through
commercial interests that the States of Germany were, after the fall of
the old Romano-Germanic Empire, drawn into that Zollverein which became
a stage towards, and ultimately the basis of, the present German Empire.
It was the increase of trade, after the union of Scotland and England,
that by degrees reconciled the Scotch to a measure which was at first
most unpopular among them as threatening to extinguish their national
existence. It is the absence of any strong commercial motives for
political union that has hampered the efforts of those who have striven,
so far successfully, to keep Norway and Sweden united.
In exceptional cases, however, the influences of Interest may be
centrifugal. A particular group of traders or landowners, for instance,
living in a particular district, may think they will gain more by having
the power to enact special laws for the conduct of their own affairs or
for the exclusion of competing persons than they will by entering or by
remaining under the uniform system of a large State[100]. Trade
considerations counted for something in making the planters of the Slave
States of America desire to sever themselves from a government in which
the protectionist party was generally dominant. It is partly on economic
grounds that the various provinces of the Cis-Leithanian part of the
Austro-Hungarian Monarchy have been allowed, and desire to maintain,
each its autonomy. It was largely a divergence of economic views and
interests that so long deterred the free trade colony of New South Wales
from linking its fortunes in a federation with the protectionist
colonies; nor were there wanting industrial grounds which made the
adhesion of Queensland long doubtful.
-----
Footnote 100:
The case of Ireland shows the same forces of industrial or commercial
interest, real or supposed, operating partly as centripetal, partly as
centrifugal. The Nationalist party conceive that economic benefits
would result from a local legislature, which could aid local
industries. The mercantile class, especially in the north-eastern part
of the island, fear commercial loss from anything which could hamper
their trade intercourse with Scotland and England, or which might be
deemed prejudicial to commercial credit. With the soundness of either
view I am not concerned; it is sufficient to note the facts.
-----