their historical Cabinet and Parliamentary system. England has never yet made any constitutional change either on grounds of theory or from a fear of evils that might arise in the future. All the modifications of the frame of government have been gradual, and induced by actually urgent needs.

But there is another set of causes and forces at work which may, as some think, affect the question. It has already been noted that Rigid Constitutions have arisen where States originally independent or semiindependent have formed Confederations. These States, finding the kind of connexion which treaties had created insufficient for their needs, have united themselves into one Federal State, and expressed their new and closer relation in the form of a documentary Constitution. Such a Constitution has invariably been raised above the legislature it was creating, because the States which were uniting wished to guard jealously such autonomy as they respectively retained, and would not leave those rights at the mercy of the legislature. This happened in the United States in 1787-9, in Switzerland after the fall of Napoleon, in Germany when the North German Confederation and German Empire were created in 1866 and 1870-71. It has happened also in Canada and in Australia.

Two proposals of a federalizing nature have recently been made regarding the United Kingdom, one to split it up into a Federation of four States, the other to make it a member of a large Federation. Neither seems likely to be carried out at present, but both are worth mentioning, because they illustrate the occasions on which, and methods by which, constitutions may be

transformed. The United Kingdom stands to its selfgoverning Colonies in what is practically a permanent alliance as regards all foreign relations, these relations being managed by the mother country, with complete local legislative and administrative autonomy both for each Colony and for the mother country1. Many think that this alliance is not a satisfactory, and cannot well be a permanent, form of connexion, because at present almost the whole burden-and it is a heavy one-of naval and military defence falls upon Britain, while the Colonies have no share in the control of foreign relations, and may find themselves engaged in a war, or bound by a treaty, regarding which they have not been consulted. Thus the idea has grown up that some sort of confederation ought to be established, in which there would be a Federal Assembly, containing representatives of the (at present seven) component States 2, and controlling those matters, such as foreign relations and a system of military and naval armaments, which would be common to the whole body. If this idea were ever to take practical shape, it would probably be carried out by a statute establishing a new Constitution for the desired Confederation, and creating the Federal Assembly. Such a statute would be passed by the Parliament of the United Kingdom, and (being expressed to be

This autonomy is, however, not legally complete as regards the Colonies, for the mother country may, though she rarely does, disallow colonial legislation. In Canada the Dominion Legislature cannot affect the rights of the several Provinces, the power to do so remaining with the Imperial Parliament which passed the Confederation Act of 1867. So too under the Constitution of the Australian Commonwealth the rights of each colony are protected by the instrument of federation.

2 Viz. the United Kingdom, the two great Colonial Federations (Canada and Australia), and four comparatively small self-governing Colonies, viz. New Zealand, Cape Colony, Natal, and Newfoundland.

operative over the whole Empire) would have full legal effect for the Colonies as well as for the mother country. Now if such a statute assigned to the Federal Assembly certain specified matters, as for instance the control of imperial defence and expenditure or (let us say) legislation regarding merchant shipping and copyright, taking them away from the present and future British Parliament as well as from the parliaments of the several Colonies, and therewith debarring the British Parliament from recalling or varying the grant except by the consent of the several Colonies (or perhaps of the Federal Assembly itself), it is clear that the now unlimited powers of the British Parliament would have been reduced. A part of the future British Constitution would have been placed beyond its control and to that extent the British Constitution would have ceased to be a Flexible one within the terms of the definition already given1. Parliament would not be fully sovereign; and if either the British or a Colonial Parlia ment passed laws inconsistent with statutes passed by the Federal Assembly in matters assigned to the latter, the Courts would have to hold the transgressing laws invalid. Doubtless, if such a Federal Constitution were established, a Supreme Court of Appeal on which some colonial judges should sit would be thought essential to it, and questions arising under the Federation Act

1 It may of course be observed (see p. 207, ante) that the British Parliament, while it continues to be elected as now, may be unable to divest itself of its general power of legislating for the whole Empire, and might therefore repeal the Act by which it had resigned certain matters to the Federal Assembly and resume them for itself. This is one of those apices iuris of which the Romans say non sunt iura; and in point of fact no Parliament can be supposed capable of the breach of faith which such a repeal would involve. The supposed legal difficulty might, however, be avoided by some such expedient as that previously suggested.

(as to the extent of the powers of the Federal Assembly and otherwise) would go before it, sometimes in the first instance, sometimes by way of appeal from inferior Courts.

The other proposal is to turn the United Kingdom itself into a Federation by erecting England, Scotland, Ireland, and Wales into four States, each with a local legislature and ministry controlling local affairs, while retaining the Imperial Parliament as a Central or Federal Legislature for such common affairs as belong in the United States to Congress, and in Canada to the Dominion Parliament, and in Australia to the Commonwealth Parliament. If such a scheme provided, as it probably would provide, for an exclusive assignment to the local legislatures of local affairs, so as to debar the Imperial Parliament from interfering therewith, it would destroy the present Flexible British Constitution and substitute a Rigid one for it. Care would have to be taken to use proper legal means of extinguishing the general sovereign authority of the present Parliament, as for instance by directing the elections for the new Federal Legislature to be held in such a way as to effect a breach of continuity between it and the old Imperial Parliament, so that the latter should absolutely cease and determine when the new Constitution came into force. Upon this scheme also it would be for the Courts of Law to determine whether in any given case either the Federal or one of the Local Legislatures had exceeded its powers.

Some persons have proposed to combine both these proposals so as to make the four parts of the United Kingdom each return members, along with the Colonies, to a Pan-Britannic Federal Legislature, and to place the

local legislatures of Scotland, for instance, or Wales, in a line with those of the Australian Commonwealth or New Zealand. On this plan also-a highly inconvenient one -the British Constitution would become Rigid.

The difficulties, both legal and practical, with which these proposals, taken either separately or in conjunction, are surrounded, are greater than those who advocate them have as yet generally perceived.

XVI. ARE NEW CONSTITUTIONS LIKELY TO ARISE?

The remaining question, also somewhat speculative, relates to the prospects the future holds out to us of seeing new States with new Constitutions arise.

New States may arise in one of two ways, either by their establishment in new countries where settled and civilized government has been hitherto unknown, or by the breaking up of existing States into smaller ones, fragments of the old.

The opportunities for the former process have now been sadly curtailed through the recent appropriation by a few great civilized States of some two-thirds of the surface of the globe outside Europe. North America is in the hands of three such States. Central and South America, though the States are all weak and most of them small in population, are so far occupied that no space is left. The last chance disappeared when the Argentine Republic asserted a claim to Patagonia, where it would have been better that some North European race should have developed a new colony, as the Welsh settlers were doing on a small scale. Australia is occupied. Asia, excluding China and Japan in the East, and