FROM CONTRACT TO STATUS? 1. Herbert Spencer. By HUGH ELLIOT. Constable. 1917. 2. The Decline of Liberty in England. Grant Richards. 1916. By E. S. P. HAYNES. 3. Ancient Law. By Sir H. S. MAINE. With Introduction and Notes by Sir FREDERICK POLLOCK. Murray. 1906. 4. The New Democracy and the Constitution. MCKECHNIE. Murray. 1912. 5. Peers and Bureaucrats. By RAMSAY MUIR. THE By W. S. Constable. HE problems, political and social, that will require to be solved when peace returns are many and intricate. The fabric of society has been shattered, and the plan of reconstruction will undoubtedly be much affected by the recent rapid development of democratic feeling in this country. Democracy has a natural tendency towards State control; and of all the perplexing questions of the future one of the most difficult will be how to reconcile a democratic régime with the traditional liberty of our people. That liberty will be attacked after the war is certain, and the object of this article is to call attention to a menace to personal liberty which has attracted but little notice hitherto. The nature of this danger is as is suggested by the title-that our social policy, which from time immemorial has steadily progressed from Status to Contract, is now showing a tendency to move in the opposite direction. Status, according to the New English Dictionary, means the legal standing or position of a person as determined by his membership of some class of persons legally enjoying certain rights or subject to certain conditions.' In this article the word is used in antithesis to Contract, as a convenient way of describing the tendency of social policy as affecting personal liberty and freedom of contract. In his work on ancient law, Sir Henry Maine traces the history of Status from its first appearance in the form of 'family 'dependency'; he shows how, as humanity advanced, Status was gradually superseded by Contract, and he came to the conclusion that the march of progressive societies has always 'been from Status to Contract.' Slavery was formerly the most complete form of Status; but since slavery has practically disappeared, State servitude-such, for instance, as that which for many generations has existed in Prussia-represents its fullest development in modern times. Sir Frederick Pollock says of Maine's dictum that it is certainly just, and has not 'ceased to be significant.'* In this country the supersession of Status by Contract was carried so far that, by the middle of the nineteenth century, it could be asserted with truth that ' a degree of individual liberty has been reached greater than ' ever before existed since nations began to be formed: men 'could move about as they pleased, work at what they pleased, 'trade with whom they pleased.'† It seems incredible that the English people, in whom the love of freedom is so deeply rooted, could be induced to adopt a policy which implies a progressive encroachment upon their liberties; and there can be no doubt that if the effect of such a policy were understood it would be indignantly rejected. The danger lies in the fact that the knowledge does not exist. At first the interference of this policy with personal liberty is slight only small sections of the population are affected by it, and the tendency is unnoticed by the general public. Such a policy is, however, capable of indefinite extension, and there are many parties in this country by whom its continuous development is ardently desired. It is probable that the bodies, who under various names and for different reasons advocate State control of private activities, may think that the difficulties of the political and industrial situation when peace returns will offer a good opportunity for attaining their common object, and may agree to sink their differences for the nonce, and combine their forces in the hope of securing it. A few years ago such an attack upon liberty would have been obviously futile, but it is doubtful whether this can be said with equal confidence now. The fact that the British Constitution is unwritten has great advantages, but the last few years have made its corre Maine's Ancient Law,' p. 183. ↑ Elliot's Herbert Spencer,' p. 180. lative weakness conspicuous. The great merit of an unchartered system is the facility with which it can be modified and adapted to meet new requirements. As De Tocqueville said, 'En 'Angleterre la constitution peut changer sans cesse '; but he showed his perception of the fact that this facility was due to the absence of safeguards, and was therefore a danger, by adding 'Ou plutôt elle n'existe pas.' Recent events have only too fully justified his prevision, and since 1911 it may be said that the British Constitution, as an integral system, has been in abeyance. Up to the time of the passing of the Parliament Act it was generally believed that adequate protection against hasty constitutional innovations was secured by the procedure always followed when Bills were introduced in either House. No measure could be placed upon the Statute Book until it had received the assent of both Houses of Parliament and of the Crown. The veto' of the Crown has for many years been only nominal; but with this modification the procedure described has been followed for more than two hundred years without any untoward result caused by the absence of written safeguards; and the practical working of the British Constitution was so successful that it became the admiration of the world. Sir Henry Maine attributed this success to the fact that by a series of undesigned changes it had arrived at a condition under which satisfaction and impatience, the two great sources of political conduct, were both reasonably gratified; but he added the warning that 'the nice balance of attractions which caused the British Constitution to move evenly on its stately path is perhaps destined to be disturbed: one of the 'forces governing it may gain dangerously at the expense ' of the other.' It has for long been obvious that the unrepresentative character of the House of Lords constitutes an element of discord which, although dormant for so many years, would eventually become unendurable as democratic feeling increased. Even so long ago as 1885 there were political symptoms which led Sir Henry to anticipate a conflict between the two Houses. We are drifting,' he then wrote, 'towards a state of government associated 'with terrible events-a single assembly, armed with full *Popular Government,' by Sir H. S. Maine, 5th ed., p. 54. powers over the Constitution, which it may exercise at pleasure. By the beginning of the twentieth century the relations between the two Houses had become much strained; in 1910 a crisis was reached which was ended by the passing of the Parliament Act in 1911, and Sir Henry Maine's anticipation was to a great extent realised. Nations who have shown their admiration for the British Constitution by imitating it, have almost without exception perceived, and endeavoured to protect themselves against, the danger incurred by the absence of written safeguards. In the case of the United States these precautions are so elaborate and so complete that it is said to be practically impossible to make any alteration in the Constitution, however expedient it may be and however general may be the desire for it. On the other hand it may be said that the Parliament Act, so far from being an illustration of the disadvantages of an unwritten constitution, is strong evidence in its favour. It was inevitable that, as has been said, the authority over legislation exercised by an unrepresentative assembly would lead to conflict; and if, when the crisis arrived, our constitution, like that of the United States, had been so hedged about with safeguards as to make a prompt solution of the difficulty impossible, there might have been danger of revolution. But although it is true that the existence of a safety-valve saved the situation on this occasion it does not follow that so violent a remedy, the effect of which was to place the country under the practically supreme authority of a single chamber, was necessary; and although in this country the terrible events Sir Henry Maine had in his mind need not be feared (whatever might be the legislative vagaries of the single authority), yet the vital interests of a community may be quite as seriously and more permanently injured by unwise laws as by revolution. Impulsive and ill-considered legislation is far more to be feared under single-chamber government than when Bills have to be subjected to revision and scrutiny by a second chamber before they can become law. There does not appear to have been any reason why the country should have been exposed to this danger at all-still less why it should have been allowed to continue for six years. With some goodwill and patriotism Popular Government, p. 126. on both sides, it would surely have been possible to have agreed upon such a change in the constitution of the House of Lords as would bring it into harmony with democracy without resorting to so revolutionary a measure as the Parliament Act. But, even granting the necessity for that measure, what possible excuse can be given by the House of Commons for so long a delay in redeeming their pledge to reconstitute the House of Lords? If even now, in the midst of war, it has been found possible to take steps to carry out their promise, why should a proceeding of such vital importance to the nation have been neglected during the three years 1911 to 1914 whilst the country was still at peace? No one can say when the war will end-but the conference that has at last been appointed is not to meet until 'towards the end of the Parlia'mentary recess,' so that a considerable time must yet elapse before the reformed second chamber can be constituted; and it seems only too probable that, at a time when the future of the British Empire will depend on the wisdom with which our legislators deal with the work of political and social reconstruction, the nation will still be at the mercy of a single chamber. To people who are outside political life the only explanation of this long continued failure to redeem the pledge given by the House of Commons seems to be that men once in possession of power are extremely reluctant to part with it. But the public who, whether from ignorance or indifference, have allowed so dangerous a political situation to continue without effective remonstrance must share the blame for the delay. No doubt there are many persons in whose eyes a second chamber, however it may be constituted, is obnoxious, and who agree with Sieyès' well-known epigram: 'If it dissents from the first, it is mischievous; if it agrees, it is superfluous." Sir Henry Maine suggests that this epigram is a parody, conscious or unconscious, of the reply of the Caliph Omar which caused the Alexandrian library to be burnt, If the books differ from the books of the Prophet, they are impious: if they agree, they are useless,' and points out that the reasoning is precisely the same in both cases. If the Koran is the inspired and 'exclusive word of God, Omar was right: if "Vox populi Vox 'Dei" expresses a truth, Sieyes was right.' But, so far as * Popular Government, p. 178. |