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.
The sacred beauty of the marriage tie no people hold higher than
do the Pan-Angles. With them it is not a status imposed from
without, but the voluntary union of two individuals. John Stuart
Mill voiced an aspiration of the entire Pan-Angle civilization
when he wrote: "What marriage may be in the case of two persons
of cultivated faculties, identical in opinions and purposes,
between whom there exists that best kind of equality, similarity
of powers and capacities with reciprocal superiority in them--so
that each can enjoy the luxury of looking up to the other, and
can have alternately the pleasure of leading and of being led in
the path of development--I will not attempt to describe. To
those who can conceive it, there is no need; to those who
cannot, it would appear the dream of an enthusiast. But I
maintain, with the profoundest conviction, that this, and this
only, is the ideal of marriage; . . . "[73-1]
In no sphere is the individualism of the Pan-Angle more rampant
than in matters of religion. Liberty of conscience to him is as
necessary as liberty of body, and he has struggled to obtain it
with the same persistency.
Once the status of nationality carried with it {74} automatic
inclusion in the national church. A diversity of faiths in one
nation was unthinkable. Any who refused to conform, in semblance
at least, were considered by the group as outsiders and enemies,
to be harried and pillaged, perhaps slaughtered. Later, though
leave to live was granted to those of minority creeds, they were
debarred from the exercise of certain civil privileges. In the
British Isles, not until 1858 were Jews able to take oaths as
members of the Houses of Parliament. Still later, though all
might share equally in the duties and rights of citizenship, all
were compelled to contribute directly or, indirectly to the
support of the state church, and, unless openly avowing
otherwise, were presumed to belong to it. Some Pan-Angles still
linger in this stage--those, for example, who reside in Quebec
or England. This is the significance of the state church to-day.