however, to the examination of that second type of Constitution; and will be considered when we have surveyed some further features characteristic of the Flexible type.

VI. ARISTOCRACIES AND FLEXIBLE CONSTITUTIONS.

Flexible Constitutions have a natural affinity for an aristocratic structure of government. I do not mean merely that they spring up at times when power is in the hands of the well-born or rich, for the stage of society in which constitutions, properly so called, begin to exist, is nearly always oligarchic, even if there be a monarch at the head of it. But there is a sort of natural attraction between an aristocracy and an undefined and elastic form of government, as there has begun to be, in most modern countries, a natural repulsion between such a form and a pure democracy. It needs a good deal of knowledge, skill and experience to work a Flexible Constitution safely, and it is only in the educated classes that these qualities can be looked for. The masses of a modern nation seldom appreciate the worth of ancient usages and forms, or the methods of applying precedents. In small democratic communities, such as are the Forest Cantons of Switzerland, this attachment to custom may be found, because there traditions have passed into the life of the people, and the maintenance of ancient forms has become a matter of local pride. But in a large nation it is only educated men who can comprehend the arrangements of a complicated system with a long history, who can follow its working, and themselves apply its principles to practice. The uninstructed like something plain, simple and direct. The arcana imperii inspire suspicion, a suspicion seldom groundless, because the initiated are apt to turn a knowledge of secrets to selfish purposes. Now a Common Law Constitution with its long series of precedents, some half obsolete, some of doubtful interpretation, is full of arcana. Even to-day, though the process of clarification and simplification has gone on fast

since 1832, dark places are still left in the British Constitution.

There is, however, a further reason why Common Law Constitutions accord better with aristocratic than with democratic sentiment. They allow a comparatively wide discretion to the chief officials of State, such as the higher magistrates at Rome and the Ministers of the Crown in England. The functions of these officials are not very strictly defined, because legal enactments, though they limit power in certain directions (far more rigidly now in England than was the case at Rome), do not draw a completely closed circle round it, but leave certain gaps, through which tradition and precedent permit it, so to speak, to shoot out and play freely. Aristocracies prize this latitude. They prize it because it is mainly to prominent members of their class that offices fall, and these persons are then able to act with freedom, to assert their individual wills, to carry out their views unchecked by the dread of transgressing a statute. On the other hand, the less conspicuous members of the upper class have at any rate little reason to fear harm from the wide authority of the officials, because their social position, and the influence of their family connexions, protect them from arbitrary treatment. The masses of the people have neither advantage. Very few of them can hope to enjoy power. Any one of them may suffer from an exercise of it, which, because not positively illegal, gives him no claim for redress. They have, therefore, everything to gain and nothing to lose if they can restrict it by those definite and fixed limitations which are congenial to Rigid rather than to Flexible Constitutions. And in the history of most peoples a time arrives when, the love of equality being reinforced by the distrust of authority, there is a movement to cut down the powers of the rulers to the lowest point compatible with the safety of the State. The extent to which this process has gone is in any nation a fair test of the gains made by the democratic principle upon the aristo

cratic. But in this respect the course things have taken in England has been very unlike that which they took at Rome. One of the first events which the authentic history of Rome records is the effort of the plebeians to secure a limitation of the power of the Consuls by having statutes passed to define it. The effort failed. It is characteristic of the Romans that it should have failed. Statutes, known afterwards as the Laws of the Twelve Tables, were enacted, statutes which doubtless on the whole improved the position of the plebeians. But the powers of the Consuls remained wide and legally indefinite down till the time when life went out of them under the shadow of an autocrat who ruled for life. Limited of course these powers had to be as time went on and the popular element in the constitution was developed, but the limitations were imposed, not by narrowing the powers themselves, but by the introduction of new factors. The two Consuls, being chosen from a circle less narrow than in the old days, were more frequently at variance with one another. Other officials were set up over against the Consuls, who could (if they pleased) interfere to restrain the Consuls. And thirdly, the permanent non-representative Council of Elders (the Senate), composed mainly of ex-officials, increased its influence, and could generally hold the magistrates in check. Things went very differently in England. There the prerogative of the Crown was the force of which the nobles as well as the commons stood in dread, and they united in the effort to restrict it down till a time when the commons were strong enough to dispense with the help of more than a section of the landowning magnates. In steadily reducing the prerogative of the Crown, in lopping off some parts of it and strictly defining others, they restricted the powers of the Crown and its Ministers, until at last they had so firmly established the right of the representative assembly to prescribe to the Crown what persons it should employ as Ministers that the old motive for limiting the prerogative vanished. Those who had been

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feared as masters were now trusted as servants. people no longer disliked what was left of the royal prerogative, because their representatives could control the persons who wielded it, and the members of the ruling assembly began to feel that it was in the public interest, and not against their own personal interest, to maintain the powers of Ministers, because many things could be done more easily and more promptly through these powers than by the passing of statutes for dealing with each matter in detail. There may even be a danger, in this new condition of things, that the royal prerogative will be used too freely, because that prerogative now means the will of the leaders of the parliamentary majority, whose action might at a moment of excitement be applauded and sustained by their followers even should it transcend the limits fixed by constitutional usage.

It has been already remarked that the system of checks in the Roman Constitution differed essentially from that employed in the English. Every constitution must of course have a system of checks, else it will quickly perish, or, to vary the metaphor, it must so dispose the ballast as to enable the vessel to recover her equilibrium after a violent oscillation. At Rome the checks consisted in the coexistence of various magistrates who could arrest one another's action, and in a permanent Senate with a large though somewhat ill-defined control, while the popular assembly, in theory omnipotent, was in fact restrained. by a number of curious features in its procedure which made it much less effective than was the primary popular assembly in most of the Greek republics. It could act only when convoked by a magistrate, could have its action stopped by another magistrate, and was frequently overreached or circumvented by the Senate. In England, on the other hand, the Crown, which before the conflicts of the seventeenth century had been the predominant power which needed to be checked, and which frequently was checked, by Parliament, becomes after that time capable only of occasionally baffling (and

that less and less as time went on) the now predominant Parliament, while the restraint on hasty or violent action by Parliament was found, partly in the division of Parliament into two Houses, and partly, especially after the Upper House had begun to lose moral weight, and had passed more and more under the control of one party in the State, in the fact that an assembly of representatives, nearly all of whom belonged to the wealthier and so-called upper classes, was pervaded by a conservative temper. A representative body, the members of which are mostly satisfied with the world as it is, and who are sufficiently instructed to respect the traditions of administration, is, except where a question arises which stirs class passions, less prone to ill-considered action than is an assembly of all the citizens, such as was the Ecclesia of Athens or Syracuse, where the large majority were humble folk, and where the sympathy of numbers made the ascendency of emotion over reason doubly dangerous. Thus, as compared with the democracies of the city-states of antiquity, the representative character of the assemblies of modern Europe has been a moderating factor. But these assemblies are now changing their character, as the countries in which they exist have changed. The progress of science has, through the agency of railways and telegraphs, of generally diffused education, and of cheap newspapers, so brought the inhabitants of large countries into close and constant relations with one another and with their representatives, that the conditions of a small city-state are being reproduced. A man living at Kirkwall knows what happened last night in London, eight hundred miles away, sooner and more fully than a man living in Marathon (distant eight hours' walking) knew what had happened the day before in Athens. The same news reaches all the citizens at the same time, the same emotion affects all simultaneously, and is intensified by reverberation through the press. The nation is, so to speak, compressed into a much smaller space than it filled three centuries ago, and has