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JUSTINIAN IN COUNCIL
Photogravure from the Painting "by Jean Joseph Benjamin-Constant.

This famous painting was originally exhibited in the Paris Salon of 1888,
and was presented in 1890 by G. Mannheimer to the Metropolitan Museum of
Art in New York. Justinian, surnamed the Great, was the last Emperor of
Constantinople, who in the sixth century, by his dominion over the whole of
Italy, reunited in some measure the ancient Empire of the Caesars. The glory
of his reign is the famous digest of Roman law, known to fame as the Justinian
Code. The scene depicted in Benjamin-Constant's painting is a slave reading
before Justinian and his Cabinet some portion of this celebrated code.

•

INTERNATIONAL CONGRESS

OF

ARTS AND SCIENCE

EDITED BY

HOWARD J. ROGERS, A.M., LL.D.

DIRECTOR OF CONGRESSES

VOLUME XIV

JURISPRUDENCE AND SOCIAL SCIENCE

COMPRISING

Lectures on International Law, Private Law, Legislation,

Constitutional Law, The Rural Community,

The Urban Community, The Family,

The Industrial Group, and

Industrial Evolution

UNIVERSITY ALLIANCE

LONDON NEW YORK

COPYRIGHT 1906 BY HOUGHTON, MIFFLIN & Co.

ALL RIGHTS RESERVED
COPYRIGHT 1908 BY UNIVERSITY ALLIANCE

ILLUSTRATIONS

VOLUME XIV

FACING
PAGE

JUSTINIAN IN COUNCIL ....... Frontispiece

Photogravure from the painting by JEAN JOSEPH BENJAMIN-CONSTANT

DR. JOHN W. BURGESS 457

Photogravure from a photograph

PORTRAITS OF SIGNOR ATTILIO BRUNIALTI AND COMMENDATO G. B. ZEGGIO 550
Photogravure from a photograph

THE MISSIONARY'S STORY 814

Photogravure from the painting by J. G. VIBERT

TABLE OF CONTENTS

VOLUME XIV

JUEISPEUDENCE

The Fundamental Ideas and Conceptions of Jurisprudence . . 459
BY PRESIDENT CHARLES WILLIS NEEDHAM, LL.D.

Jurisprudence: Its Development during the Past Century . . 470
BY PROF. JOSEPH HENRY BEALE, JR., LL.D.

INTERNATIONAL LAW.

The Legal Nature of International Law ...... 485

BY JAMES BROWN SCOTT, A.M., J.U.D.

The Present and Future State of International Law . . . 494
BY PROF. HENRI LA FONTAINE, LL.D.

Some Problems of International Law ...... 509

BY CHARLES NOBLE GREGORY, LL.D.

The Juridical Nature of the Relations between Austria and Hungary . 529
BY COUNT ALBERT APPONYI

CONSTITUTIONAL LAW.

Constitutional Law ......... 554

BY COUNCILLOR ATTILIO BRUNIALTI

The Present Problems of Constitutional Law ..... 574
BY JOHN WILLIAM BURGESS, PH.D., LL.D.

The Separation of Powers and the Judiciary in France and the United

States ........... 602

BY PROF. FERDINAND LARNAUDE, LL.D.

PRIVATE LAW.

Jurisprudence and Legislation ....... 619

BY PROF. ERNST FREUND, J.U.D., PH.D.

The Doctrine of Stare Decisis ....... 636

BY EDWARD B. WHITNEY, B.A.

Reference Worlds relating to Jurisprudence ..... 654
Reference Works to accompany Constitutional Law . . . 657

TABLE OF CONTENTS

SOCIAL SCIENCE

The Relation of Ethics to Social Science ...... 663

BY PEOF. FELIX ADLER, PH.D.

Social Tendencies of the Industrial Revolution . . . . 682
BY PEOF. GRAHAM TAYLOR, D.D., LL.D.

THE FAMILY.

Social Control and the Function of the Family. .... 699
BY PROF. GEORGE ELLIOTT HOWARD, PH.D.

The Problem of the Family 709

BY SAMUEL WARREN DIKE, LL.D.

THE RURAL COMMUNITY.

The Relations of the Rural Community to Other Branches of Social

Science .......... 725

BY PROF. MAX WEBER, DR. JUR.
The Social Problems of American Farmers ..... 747

BY PRESIDENT KENYON LEECH BUTTERFIELD, M.A.

THE URBAN COMMUNITY.

The Relations of the Urban Community to Other Branches of Social

Science .......... 763

BY PROF. J. JASTROW, PH.D.

The Problems of the Urban Community ...... 775

BY PROF. Louis WUARIN

THE INDUSTRIAL GROUP.

The Industrial Group . . . . . . . . . 791

BY PROF. WERNER SOMBART, PH.D.

Certain Psychological Phases of Industrial Evolution . . . 800
BY PROF. RICHARD T. ELY, PH.D., LL.D.

THE DEPENDENT GROUP.

The Definition of a Social Policy relating to the Dependent Group . 817
BY PROF. CHARLES RICHMOND HENDERSON, D.D., PH.D.

The Problem of Poverty 833

BY EMIL MUENSTERBERG, DR. JUR.

THE CRIMINAL GROUP.

The New Criminology ' 851

BY REV. FREDERICK HOWARD WINES, LL.D.

Works of Reference for Social Science ...... 869

Works of Reference relating to the Family ..... 871

Additional Works of Reference relating to the Family . . . 873

Special Works of Reference relating to the Industrial Group . . 874

Works of Reference relating to the Dependent Group . . . 875

Additional Works of Reference relating to the Dependent Group . 876

JOHN W. BURGESS, Ph.D., LL.D.,

Professor of Political Science and Constitutional Law at Columbia University.

(First incumbent of the chair of "American History and

Institutions" in the University of Berlin.)

DEPARTMENT XXI — JURISPRUDENCE

(Hall 3, September 20, 4.15 p. m.)

CHAIRMAN: PROFESSOR GEORGE W. KIRCHWEY, Columbia University.
SPEAKERS: PRESIDENT CHARLES W. NEEDHAM, The George Washington Uni-
versity.
PROFESSOR JOSEPH H. BEALE, Harvard University.

THE FUNDAMENTAL IDEAS AND CONCEPTIONS OF
JURISPRUDENCE

BY CHARLES WILLIS NEEDHAM

[Charles Willis Needham, President of The George Washington University, b.
Castile, Wyoming County, New York, September 30, 1848. B.L. Albany
Law School, 1870; LL.D. University of Rochester and Georgetown College,
Kentucky. Trustee of Columbian University, 1893-98; Dean of School of
Comparative Jurisprudence and Diplomacy, 1898-1902; Professor of Trans-
portation and Interstate Commerce, Trusts, and Trade-Unions, Columbian
University; appointed by President McKinley in 1900 a delegate to Congres
Internationale du Droit compare. Member of American Bar Association;
Geographic Society; American Economic Society; Cosmos Club, Washington,
D. C.]

THE limit of this paper will not permit me to state, certainly not
to discuss, the definitions and opinions of many distinguished
authors who have written upon this subject. My aim shall be to
state and illustrate what seems to me to be the true fundamental
ideas and conceptions of what is called jurisprudence.

Like all concepts, the idea conveyed by the word "jurisprudence"
has passed through stages of change and development. To define
clearly the present, and may I say the highest, conception, it is
necessary to review briefly these changes and thus arrive at a defini-
tion of the subject to be discussed.

In its earlier, if not its original use, this word " jurisprudence " sig-
nified simply a knowledge of the laws of state. Among the Romans
it meant the knowledge of the laws recognized, administered, and
enforced under the Roman rule. This idea required the student
pursuing the subject to learn the rules of human conduct, of rights,
of obligations, and of remedies laid down by the juris-consults and
enforced by the courts within the Roman dominion. The study of
jurisprudence meant the study of the positive, municipal law en-
forced or enforcible within a given territory. In short, it was the
" study of law," using a phrase now in common use and familiar
to every member of the profession. This original use of the word
marks the beginning of what is termed the systematic study of the
laws of a nation — the classification and codification of law.

460 JURISPRUDENCE

With the growth of the philosophical spirit and the scientific
method in the domain of learning, this original and practical con-
ception of jurisprudence gradually changed. Scholars and writers
arose who wanted to know the reasons for these rules of human
conduct and the sources of the positive law enforced by the state.
The spirit of investigation led to metaphysical discussions as to
what the law ought to be, and not a little speculation as to the
original source of authority. The philosophical spirit was strong
and prevalent; the scientific method was of slower growth. Specu-
lative theology was dominant among the educated classes in the
early development of systematic law; its theories, dogmatic rules,
and creeds were sacred and therefore above human authority, and
by some thought to be above ordinary criticism. All human au-
thority must, it was urged, conform to the letter of the conception
and statement in creeds of divine power and divine will. The
growth of the state and the increasing complexity of human affairs
requiring new rules of conduct, together with a widening spirit of
inquiry after truth, led to the discussion and the development of
what was termed the law of nature. This phrase was at least less
sacred, and opened the field of politics and law to freer discussion,
and the human mind began its search after right as disclosed, in
some degree at least, by human experience.

Other theories arose which need not be mentioned; speculation
was everywhere seeking authority for government and sources of
law outside of the human mind and will. These metaphysical
studies are interesting as a part of the history and development of
the subject, but time will not permit, nor does my aim require us to
review them. It is sufficient and a relief to observe that in the
course of human affairs some theologians and many jurists discov-
ered the truth contained in the statement, " The letter killeth, but
the spirit maketh alive." Then investigation and search after the
spirit of the law — the principle within the rule, a knowledge of
right — became the aim and work of some of the most profound
writers. Then the scientific method began to develop, and with
some to supersede the speculative spirit. The principle of a law
was sought by a study of the rule, and its Tightness determined by its
beneficial operation in human society and its harmony with other
principles embodied in other rules of conduct. These principles, as
they are discovered and stated, form a body of fundamental truth
pertaining to the character and operation of positive human law.
The principles are not formulated rules of conduct, for they can be
stated in a variety of phrases, but they are the essence of all formu-
lated law.

Behind the manifestation of every visible thing there is the con-
ception of it in the human mind. Is it a painting or a statue? If

IDEAS AND CONCEPTIONS OF JURISPRUDENCE 461

so, it lived in the mind of the artist before his hand ever touched
the brush or the chisel. We call this an ideal, and sometimes ideals
are spoken of with derision; but ideals are as real and as essential
as the things we touch and handle. Within every living organism
there is the spirit or unseen force that we call the principle of life.
The form remains when the spirit is gone out of it, but there is no
longer a living organism. So every rule of conduct expresses more
or less accurately a principle — a theory of right — and by this
principle or theory the visible or formulated rule must be known and
judged. The principle is the source of the rule more or less definitely
fixed in the mind or minds that formed the rule, but in a much
higher sense, because more clearly understood by the study and con-
sideration of the rule and its operation, the principle becomes the
measure or standard by which the Tightness or wrongness of the rule
is finally determined.

Architecture is a science. There may be speculation as to its
origin, but we know as a matter of fact that the science grew out of
the study of structures. Man ceased to be a savage when he became
a carpenter; he became civilized when he became an architect. The
science grew out of a study of many visible subjects, the work of
men's hands. It involved the adaptation of things to some need in
civilized life, right proportions and some adornment. The concep-
tions and principles which were the result of this study and compari-
son came into being; the study and the comparison of things cultured
and enriched the mind, and in that unseen and mysterious workshop
created new and higher ideals and conceptions, which in time were
manifested in new visible forms. These principles, systematized,
formed a body and made the science which became the standard
by which all structures are judged. Looking at a building we in-
quire, Is it good architecturally? That depends upon its adapta-
tion to the uses to which it is to be put; its ability to stand the
strains that will come upon it; proper proportions and conformity
in all its lines to the beautiful. We measure or determine it by the
rules of the science. This same intellectual process is equally true
in the domain of formulated law. Is the rule expressed in a given
formula adapted to establish and maintain a right or to cure an evil?
Does it fit into and become an harmonious part of the general system
of law? These inquiries must be answered by applying as a test
the principle which ought to govern in the particular case and which
presumably it was sought to make prevalent by the formulated
rule. It will be observed, therefore, that there is a study that is
deeper and more far-reaching than the mere memorizing «f rules.
The rule is the visible sign; it may be committed to memory and
mechanically applied to a condition or to conduct in human society;
but the true conception of the rule and its right application in nearly

462 JURISPRUDENCE

all cases arising under it require a knowledge of the conception or
principle behind the formulated rule. These rules are the facts
that are to be investigated, and in these, or by their aid, the princi-
ples of law are to be found and a true science established. Every
science must rest upon the facts within its realm. As the facts
multiply in a given sphere of human knowledge, the conceptions
increase in number, and as these are fitly joined together a body
of principles is created, and this constitutes a science; it may be of
astronomy, or geology, or of law.

We have now reached a definition which is the modern conception
of the word "jurisprudence." It is the science of law; not the
body of positive laws enforced by a particular state, but the body
of principles and generalizations regarding all those " relations
of mankind which are generally recognized as having legal conse-
quences."

But our definition must be defined. To say the science of law
raises the question at once, What laws are included? To be scien-
tific the field of inquiry must have reasonably clear boundaries.
There are many laws. The word is sometimes misused, but we
need not stop for the purposes of this definition to notice these
inaccuracies. We have spoken of the divine law, the natural law,
and we may now add the moral law and the laws of polite society.
Are these within the field of investigation and study in constructing
this science? They are in themselves important, but they certainly
do not fall within the meaning of the word " law " as used in our de-
finition. It is difficult to formulate a definition exactly covering the
field of inquiry, and excluding that which belongs in the field of pure
philosophy or metaphysics. Take that old definition, law is " a rule
of civil conduct prescribed by the supreme power in a state, com-
manding what is right and prohibiting what is wrong " — a very
good one for some purposes, assuming that all laws are prescribed
and are commands of the state ; but there are rules of conduct to be
studied which cannot be called commands of the state. If we say
all laws are commands determining what is right and prohibiting
what is wrong, we shall find ourselves limited to public law, statutory
law, and judicial determination. This definition, therefore, is too
narrow.

The moral law and what are termed the laws of polite society are
certainly worthy of study and are to be observed; but these laws do
not fall within our definition.

I do not say that an understanding of what is termed ethics is not
necessary for the student of the science of law; it is important;
without it the reasoning of the scholar will be quite wanting in essen-
tial quality and strength. But these laws fall within another science
and do not come within our definition. Like most of the principles

IDEAS AND CONCEPTIONS OF JURISPRUDENCE 463

of science, this word " law " may be defined in a variety of ways, and
taken together these definitions may include all that is to be con-
sidered; but it seems preferable to have some fixed guide outside
the wording of a rule; therefore, adding international law, I like the
definition of Sir Frederick Pollock, who says law is " the sum of those
rules of conduct which courts of justice enforce, the conditions on
which they become applicable, and the manner and consequence of
their application." This refers us to the jurisdiction of courts.

I do not say that in determining the principles contained in the
rules of conduct to be studied we may not call to our aid as tests
rules and recognized principles that lie outside of this definition.
What I claim is that to constitute the science of law, as the phrase
is here used, it must be a system or group of principles which pertain
to and should be embodied in the rules coming within this definition
of law. To determine whether a given rule comes within the general
definition quoted, we have only to inquire whether it be, first, an
international law recognized by the civilized nations of the earth,
a principle which dominates states in their intercourse with each
other; or, second, whether it be a rule which the courts of justice
of a civilized nation enforce, or follow in determining the conditions
on which the substantive law becomes applicable, and the manner
and consequence of its application. This includes the whole field
of the judicial and professional action of judges and lawyers.

Having limited the science to the laws falling within this juris-
diction, we may now say that the first and highest conception of
jurisprudence is, that it is the knowledge of a body of principles co-
ordinated and systematized, pertaining to the fundamental laws
which states and the courts of states recognize and enforce in deter-
mining the conduct of a state in its dealing with other states, the
privileges of citizens temporarily within foreign territory, the rela-
tions and obligations of inhabitants to the state, and the relations
of these inhabitants with each other.

This conception gives a well-defined field to jurisprudence. It is
not the " study of law " as that phrase is usually and properly under-
stood, meaning the study of formulated law stated in maxims,
constitutions, statutes, opinions, and decrees of court, but it is the
field which in a sense lies back of all this; it is the body of principles,
the spirit of the law, which enlightened authority will seek to embody
in the visible formula.

And now let me ask whether there is not another meaning, sec-
ondary it is true, that may properly be given to this word " juris-
prudence." It is a science; may it not also be called an art? The
proper application of a science to the construction of visible things
is something more than the putting together of material. A car-
penter can build a house, but only an architect can apply the princi^

464 JURISPRUDENCE

pies of the science of architecture in the building of a house. The
carpenter and the architect in common use stone, brick, mortar,
and wood; the structure made by the carpenter may be strong and
may serve as a shelter from the storm; but the architect puts some
things into his building which are not material. We call this adapta-
tion to a particular use; proper proportion, adornment. The one
has a knowledge of a body of principles which the other does not
possess. This knowledge is science- The application of it in the
construction of a building is an art. Is there an art in formulating
law for the conduct of peoples? A tyro may put together words
and create a law. It will have authority, and may chance to ex-
press some true principle of government, but it will not have proper
limitations; it may disregard conditions; it may destroy or impair
the operation of other principles of equal value, or create the very
evil it seeks to destroy.

Suppose a legislature, impelled by some sentimental reason, exer-
cising its political and legislative power, should undertake to deter-
mine the primary evidence of a contract in an action thereon between
principal and agent, and should enact that the paper containing
the order to which the principal affixed his name with his own hand
should be the best evidence of the authority given. This would
give expression to a very sound principle, for is not my letter to my
agent the true and best evidence of what he is to do for me? But
what about orders by telegraph under such a statute? This great
agency of commerce is overlooked. The agent will not act upon
the message delivered to him, for it is not the best evidence of his
authority under such a statute. Wise jurists have worked the pro-
blem out differently in the best interest of trade by making the dis-
patch delivered and to be acted upon the best evidence. Under
a statute such as we have supposed, the use of one of the greatest
facilities of commerce would be practically destroyed, while under
the rule formulated by the jurists the telegraph has become an effi-
cient factor in modern business.

Again, a legislative body determines hi its legislative capacity
that it will prevent the formation of industrial " trusts " and passes
an act declaring all contracts, combinations in the form of trusts or
otherwise in restraint of trade, void, and the persons making them
guilty of a misdemeanor; now, suppose that the common carriers,
the railroads, to protect themselves against the demands of powerful
corporations for special rates and privileges, enter into contracts
fixing a fair rate to be charged all shippers alike, and providing heavy
penalties to be paid by the company violating the contract. A case
comes before the proper tribunal involving the contract between
the railroad companies, and this act by its wording is declared to
apply not only to the trusts but also to the railroads — these quasi-

IDEAS AND CONCEPTIONS OF JURISPRUDENCE 465

public corporations carrying On the business of transportation — and
the railroad contracts are declared void. Thereupon a great cor-
poration, which the legislature so much feared, now demands special
rates and privileges over the public highways; it insists upon lower
rates and better services than are accorded to its competitors in order
that by such favoritism it may crush out competition and secure a
monopoly. It sends millions of tons of freight, and the manager of
every line of railroad is anxious to get the business. Will the mana-
ger yield to the demand and give the special rate to get the business?
Will he give better rates and facilities than his competitor across
the way in order to secure the traffic of this producer and shipper of
enormous quantities? It is competition, and that is what the legis-
lature wanted. There is now no mutual contract between these
quasi-public servants, with penalties attending the violation of the
agreement, to prevent acceding to the demand. The special rate
will be given and the industrial trust which this legislation sought to
curb thrives under the law. The great corporations could hardly
have done better for themselves had they formulated the statute.

All who formulate law, be they legislators or jurists, must use
words; but the jurist, having a knowledge of the science of law, will
put into his formula limitations which will recognize existing agen-
cies and conditions in society, and while he gives force to the prin-
ciple invoked he will not allow its operation, through the careless
wording of the rule, to destroy or impair the operation of other
principles of equal value. He has a knowledge of the science of
law and formulates his rule according to its principles, using words
covering all the conditions and principles involved. This is the use
of the science; the application of the science; the ART of jurispru-
dence.

We may next inquire whether it is proper to affix any territorial
limits to the investigation. In other words, can there be a juris-
prudence of a particular state? Is it proper to speak of the juris-
prudence of England, or of France, or of Germany, or of any other
nation? Can there be more than one science of law? We must
recognize that there is a diversity in the forms of government which
formulate and enforce rules of conduct. Peoples differ in language,
pursuits, knowledge, and many of the things embraced within the
word " civilization." May there not, therefore, be a principle good
for one nation, which is error, or at least half truth, for another
nation?

Take the two great systems, — the Roman law and the English
common law. The Roman, at least as finally codified, was the pro-
duct of cultured minds selecting and creating rules according to
their best judgment of right and expediency. On the other hand,
the common law was the product of the people adjusting themselves

466 JURISPRUDENCE

to community life, and in the adjustment contending, one class
insisting upon a certain rule of conduct and another class claiming
another rule with reference to a particular matter; neither party
obtained what it claimed, but they agreed at last upon a rule that
should be observed by both. A common practice was thus estab-
lished, which in time was recognized and enforced by the courts and
became a common law. For illustration, the feudal lord demanded
unlimited service from his vassal with undefined rights in the land,
and the vassal made like demands upon those under him. The
sturdy Saxon, loving definiteness, demanded that the amount of
service which he was to render to his overlord should be defined and
for that service he should have a particular interest in the soil.
Out of these controversies, extending through years of time, there
came at last a complex system of real-estate law, with its multitudi-
nous tenements and rights. Again, the king contended for absolute
sovereignty; the lords and their followers asked for certain liberties
and rules of conduct, to be obeyed not only by the people, but by
the king himself. There was stubborn contention, and out of it
came the English constitution. These differences hi origin between
the two great systems would certainly give the greatest opportunity
for two sciences of law. But can it be said that the fundamental
principles of right which control those relations of men, generally
recognized as having legal consequences, are so very different in the
two systems? There may be a difference of theory, difference of
application, possibly a difference of condition upon which the law
becomes applicable, but, so far as substantive right is concerned,
there is remarkable similarity in the two systems.

Doctor Holland, in his admirable work upon jurisprudence, says:
" A science of law might undoubtedly be constructed from a know-
ledge of the law of England alone, as a science of geology might be,
and in great part was, constructed from an observation of the strata
in England only; yet as there is no particular science of geology, so
neither is there a particular science of law. For a science is a system
of generalizations which, though they may be derived from obser-
vations extending over a limited area, will nevertheless hold good
everywhere; assuming the object-matter of the science to possess
everywhere the same characteristics." It is true, as again stated,
that " the wider the field of observation, the greater, of course, will
be the chance of the principles of a science being rightly and com-
pletely enunciated; but, so far as they are scientific truths at all,
they are always general and of universal application."

After careful study of the subject, the foregoing position taken
by this distinguished author seems to be correct in speaking of
jurisprudence as a science. We shall find, as the science of law
develops, that the tendency will be to a clear statement and co-

IDEAS AND CONCEPTIONS OF JURISPRUDENCE 467

ordination of principles which will be of universal application, and
this will tend to the unity of the spirit of the law in all civilized
nations, and the result will be of world-wide benefit to mankind.

As to the art of applying the science — my second definition —
a different use of the word may be permitted. In America the
formulation of statutory law is performed by the legislator chosen
from political considerations and not because of juristic attainment;
in England, having determined that a law shall be formulated, the
work of doing this is turned over to lawyers. Again, in America
the judge or member of the court formulates the opinion of the court
and it is published without change; in England, a distinguished
jurist edits the opinions, or quite often formulates in writing the
opinion delivered orally by the court. ' In other countries there are
other variations in practice. I do not say which system is the best;
I simply note the difference in the method of applying the science
in the business of formulating law. In painting there is a science
made up of generalizations regarding color, shading, perspective, but
in the application of these universal principles in putting a picture
upon the canvas, there are differences which constitute schools of
art, as the French, the Flemish, and others; so when jurisprudence
is spoken of as an art we may, I think, properly speak of the English,
the French, the German, or the American jurisprudence.

Having now defined our definition, we may next inquire as to
the best methods of obtaining the principles which go to make up
and which form the body of this science. First, there is the meta-
physical method — the attempt to arrive at these conceptions by
pure philosophy or reasoning. This method begins with the divine
law, or the law of nature, so called, and traverses the field of ethical
study, reaching certain conclusions; it is largely speculative, in
that it does not rest upon experience as a test of its Tightness; it is
theory, not practice, that forms the basis of this method. The
theory of the structure of the earth and of the heavens was at one
time determined in this way, but it is found that more accurate and
correct results are reached from the study and observation of strata
of earth and rock. It was a better astronomy that came from careful
observation of the motion of the planets. Safer conclusions are
reached in all sciences by the study of simple known facts; things
visible to the eye; matter which can be touched and handled; prac-
tices which can be investigated. So we have learned to arrive at
the true principles of law by studying actual rules of conduct which
are or have been enforced by courts of justice. Each rule is con-
sidered not as a perfect rule, but as an attempt to establish some
right; to prevent some evil in society; to confer a remedy. Ana-
lyzing the rule and noting its operation in human relations and condi-
tions, it has been discovered that it had a certain amount of truth,

468 JURISPRUDENCE

and that in certain particulars it failed to attain the purposes in-
tended. Like the lines which the surveyor first runs, which are not
expected to be right, they are studied in order to find out how far
wrong they are and thus determine where right lies. Thus funda-
mental principles or generalizations are reached which are derived
from and rest upon human experience in the administration of
states. The study of the rule itself, its applicability, and its opera-
tion are the only facts from which we may determine at last the
true principle which ought to govern in a particular case.

All law, wherever administered, has a certain object in view.
Generally speaking, it is the well-being of society; the greatest pos-
sible freedom of action to the law-abiding; the establishment and
clear definition of rights and obligations; the righting of wrongs —
all in the interest of the peace and the integrity of the community.
Does a given law tend toward these results in any particular, as
shown by its operation in any state? If so, we may assume that
there is in it a true principle which may be taken into the account.

We are not only to discover principles, but the operation of each
must be clearly observed in order to put it in right relations with
others, and thus form an harmonious system. Every principle has
its limitations; it cannot work independently. For example, the
rule that all law shall be equally applied to every person within the
state is good, but the moment we undertake to apply this principle
we find that its operation is limited by what is called the status of
persons. It applies with all its force to persons of normal status,
but must be suspended to some extent where the status of the in-
dividual is abnormal, as, for instance, where he is a lunatic or an
infant. Other principles must be taken into consideration in deter-
mining the rights or the protection which should be extended to these
persons occupying an abnormal status. Conditions also change the
operation of law. Take, for illustration, the rule that certain con-
tracts in restraint of trade are against public policy and void. Under
the old and simple conditions of business and the very limited terri-
tory of competition, the rule needed very little safeguarding, but
with the modern development of trade and commerce, the intro-
duction of steam, the extension of territory, and the growth of popu-
lation, the word " reasonable " must be introduced and defined and
given its proper force and effect in applying this rule. Not all •
contracts in restraint of trade are void, but only those contracts
which are an unreasonable restraint of trade.

The method, therefore, must be the historical investigation of
formulated law, a careful analysis of each rule, with close observation
of its operation and of the ever-changing conditions of society.
This method will give us the true foundation for generalization and
an harmonious system.

IDEAS AND CONCEPTIONS OF JURISPRUDENCE 469

The comparative study of law is of the greatest importance, for
in the wider observation of law and of its operation under varying
social conditions, the better and sounder will be the conclusions
reached.

This science will never become fixed and determined; it is neces-
sarily progressive. Conditions of life are continually changing, and
laws must be modified and changed to meet the new conditions.
There are certain great principles governing the relations of man-
kind which will always remain the same, but in their application the
formulated rule will have to be changed to meet the growing and
developing life of man.

The science is adaptable, easy of administration, for it is not
bound by any mere verbal statement; here the spirit, not the letter,
of the law prevails. The formulated rule may need revision, but
a system made up of true principles, all in right relation to each other,
will meet changes in social, industrial, and economic conditions in
any state, and form the basis and right standard for rules of conduct
in every nation. The world may not realize the dream of the poet
for the federation of man under one universal government, nor may
we expect, under varying forms of government and different methods
of applying the science, a uniformity in formulated rules, but it is
not unreasonable to hope that in the development of jurisprudence
as a universal science there will come a unity of the spirit of the law
throughout the civilized world.

JURISPRUDENCE: ITS DEVELOPMENT DURING THE PAST

CENTURY

BY JOSEPH HENRY BEALE, JR.

[Joseph Henry Beale, Jr., Bussey Professor of Law, Harvard University, b.
Dorchester, Mass., 1861. A.B. Harvard, 1882 ; A.M. ibid. 1887 ; LL.B. ibid.
1887; LL.D. University of Wisconsin, and University of Chicago. Professor
of Law, Harvard University, University of Chicago, and Dean of the Law
School. Author of several legal treatises and books of cases for the use of
students of law.]

I. Introduction

THE term " jurisprudence " has been used with so many meanings
and each meaning is so vague, that it is necessary at the outset
of any discussion of it to limit in some way the meaning intended
to be put upon it. By jurisprudence, as used in the programme of
this Congress, I understand to be meant the whole body of law
of the European and American nations, regarded as a philosophical
system or systems; in short, the science of justice, as practiced
in civilized nations. My own topic, therefore, is to describe the
changes in the law or in the understanding of law in the civilized
world during the past century.

So broad a subject cannot, of course, be treated exhaustively
nor can any part of it be examined in detail. My effort will be
merely to suggest, in case of a few branches of law where the changes
seem to be typical, the course and reason of the changes.

II. General Description of the Amount of Change

If we compare the condition of the law at the beginning of the
century with its present condition, we shall gain some idea of the
amount of change in the law itself and its administration. In
England conservatism and privilege and the dread inspired in the
heart of the people by the excesses of the French Revolution con-
spired to retain in the law the medieval subtleties^ and crudities,
though the reason of them had been forgotten and the true applica-
tion of them often mistaken. The criminal law was administered
with ferocity tempered by ignorance; all the anomalies and mistakes
which have disfigured its logical perfection are traceable to the
period just before the beginning of the last century. Criminal
procedure was still crude and cruel. The accused could neither
testify nor be assisted by counsel; death was the legal, a small
fine or at most transportation the actual, punishment for most seri-

DEVELOPMENT DURING PAST CENTURY 471

ous offenses. The amount of crime in proportion to the population
was enormously greater than now; there were no preventive meas-
ures, no police, not even street lights. The law of torts occupied
almost as small a place as it did in the proposed codes; the law of
contracts was so unformed that it was not certain whether Lord
Mansfield's doctrine that a written commercial agreement needed
no consideration would prevail or not. Business corporations were
hardly known; almost the whole field of equity was hidden by a
portentous cloud. Lord Eldon had just become chancellor. What
the law of England was, such with little difference was the law of our
own country. Its application to the complex life of the present was
not dreamed of; and it must be greatly changed before it could be
adapted to the needs of the present. Yet to say of it, as did Ben-
tham, that it was rotten to the core and incapable of amendment,
was grotesquely incorrect; to say as one of his latest disciples did
that it was the laughing-stock of the Continental nations is strangely
to misread history. In 1803, with all its imperfections and crudities,
it was probably the most just and humane system of law under
which human beings were then living.

On the Continent, feudal rights characterized civil law; torture
was the basis of the administration of criminal law. And in no coun-
try of any size had the people yet obtained what had been given to
Englishmen by their greatest king more than six hundred years
before, — a common law. Each province throughout southern and
western Europe had its custom, each land-owner his own jurisdic-
tion. The rigor of the criminal law had been somewhat modified in
France by the legislation of the Revolution, and just at the begin-
ning of our century the Civil Code, first of the French codes, was
adopted. These codes, temporarily or permanently impressed on
a large part of Europe outside of France, constituted the beginning
of modern legislative reform.

III. General Direction of Change

The spirit of the time molds and shapes its law, as it molds
and shapes its manner of thought and the whole current of its life.
For law is the effort of a people to express its idea of right; and
while right itself cannot change, man's conception of right changes
from age to age, as his knowledge grows. The spirit of the age,
therefore, affecting as it must man's conception of right, affects
the growth both of the common law and of the statute law. But
the progress toward ideal right is not along a straight line. The
storms of ignorance and passion blow strong against it; and the
ship of progress must beat against the wind. Each successive tack
brings us nearer the ideal; yet each seems a more or less abrupt

472 JURISPRUDENCE

departure from the preceding course. The radicals of one period
become the conservatives of the next, and are sure that the change
is a retrogression; but the experience of the past assures us that it
is progress.

Two such changes have come in the century under consideration.
The eighteenth had been on the whole a self-sufficient century;
the leaders of thought were usually content with the world as it
was, and their ideal was a classical one. The prophets of individ-
uality were few and little heeded. But at the end of the century,
following the American and French revolutions, an abrupt change
came over the prevailing current of thought throughout the civil-
ized world ; and, at the beginning of the period under discussion,
the rights of man and of nations became subjects not merely of
theoretical discussion, but of political action. The age became one
of daring speculation. Precedent received scant consideration.
The American Revolution had established the right of the common
people to a voice in the government. The French Revolution had
swept feudal rights from the civilized world. The French Republic
was, to be sure, just passing into the French Empire; but it was an em-
pire which belonged to the people, and one of which they were proud.
The Emperor was the representative and the idol, not of an aristo-
cracy, but of his peasants and his common soldiers. The dreams
of Napoleon himself, to be sure, were not of an individualistic
paradise, where each man's personality should have free play and
restraint on his inclinations be reduced to the minimum; but so far
as he was able to put his centralizing ideals into execution he raised
but a temporary dam, which first spread the flood of liberty over all
Europe and was finally swept away by the force of the current.

Starting from this point, the spirit of the time for more than a
generation was humanitarian and individualistic. In political affairs
independence was attempted by almost every subordinate people
in the civilized world, and was attained by the South American
colonies, by Greece, and by Belgium. In religion free thinking
prevailed, and every creed was on the defensive. In society women
and children were emancipated. Slavery was abolished and the
prisons were reformed. It was rather a destructive than a con-
structive age, and its thinkers were iconoclasts.

But a change, beginning with the second third of the century, was
gradually accomplished. The application of the forces of steam
and electricity to manufacture and transportation has had a greater
effect on human life and thought than any event of modern times.
The enormous power exerted by these forces required great collec-
tions of labor and capital to make them effective. Association
became the rule in business affairs, and as it proved effectual there,
the principle of association became more and more readily accepted

DEVELOPMENT DURING PAST CENTURY 473

in social and political affairs, until it has finally become the dom-
inating idea of the time. The balance has swung; the men of our
time are more interested in the rights of men than in the rights of
man; the whole has come to be regarded as of more value than the
separate parts. Beginning with the construction of railroads, the
idea attained a firm standing in politics in the sixties. Whereas,
before that time, the movement had been toward separation, now
it was toward consolidation. People felt the tie of nationality
stronger than the aspiration for individual development. The uni-
fication of Italy and of Germany, the federation of Canada, the pre-
valence of corporate feeling in America which, first passionately
expressed by Webster, prevailed in 1865, mark the principle of
association in political affairs. In business, the great combinations
of capital have been the salient features of the change.

Professor Dicey, in a most suggestive series of lectures a few years
ago, pointed out many ways in which the English law had been
affected by this progress of thought during the nineteenth century;
but since the thought of the whole world has been similarly affected
we should expect to find, and we do find, that not merely English
law but universal jurisprudence has developed in the direction of
the progress of thought: during the first period in the direction of
strengthening and preserving individual rights, both of small states
and of individuals; in the second period in the direction of creat-
ing, recognizing, and regulating great combinations, whether of
states or of individuals. Let us develop this line of thought by
examining the progress of law in a few striking particulars.

IV. International Law

The most striking development of the law of nations during the
last century has been in the direction, if I may so call it, of inter-
national constitutional law rather than of the substantive private
law of nations. At the beginning of the period, the fundamental
doctrine of international law was the equality of all states, great or
small, and this idea, as one might expect, was fully recognized and
insisted on during the first fifty years of the century. There was
little development in the law otherwise. Each nation adopted and
enforced its own idea of national rights, and was powerless to force
its ideas upon other nations; when, at the beginning of the century,
France set up her absurd notions of her own national rights, the
other nations were powerless to restrain or to teach her. There was
no international legislature or court; no method of declaring or of
developing the law of nations. Each state was a lav to itself; giv-
ing little more than lip service to a vague body of rather generally
accepted principles. The alliance to conquer Napoleon, to be sure,

474 JURISPRUDENCE

brought several great nations into a common undertaking, but this
alliance, while of political importance, added nothing to the develop-
ment of the law.

In the last half of the century, however, there has been an enor-
mous development of combinations, both to affect and to enforce
law; and resulting therefrom a development of the substance of
the law itself. The associations of civilized nations to suppress
the slave trade both made and enforced a new law. The concert on
the Eastern Question, the Congress of Paris, the joint action of the
powers in case of Greece and Crete, and in the settlement of the
questions raised by the Russo-Turkish and Japanese wars, the
Geneva and Hague conventions, are all proofs of the increasing
readiness of the great powers to make, declare, and enforce doctrines
of law, and they have not hesitated, in case of need, to make their
action binding upon weaker states, disregarding, for the good of the
world, the technical theory of the equality of all states. While all
independent states are still free, they are not now regarded as free
to become a nuisance to the world. Perhaps the most striking
change in the substance of international law has been the extraor-
dinary development of the law of neutrality. A hundred years
ago the rights and the obligations of neutrals were ill defined and
little enforced. To-day they form a principal theme of discussion in
every war; and the neutral nations, for the good of the whole world,
force the belligerents to abate somewhat from their freedom of
action.

It may be worth while, in order to see how far this constitutional
change has progressed, to look for a moment at the present condition
of the constitutional law of nations. We have, in the first place,
a body of states known as the " Great Powers," which have taken
to themselves the regulation of the conduct of all nations. In this
hemisphere the United States is sponsor for all the smaller independ-
ent nations. In Europe the Great Powers exercise control over
the whole of Europe and Africa, and a large part of Asia, while in
the extreme Orient, Japan seems likely to occupy a similar position
to our own in the Western hemisphere. The constitutional position
of this confederation of powers is not unlike that of the states of the
American Confederation of 1780, and in certain ways it is even
further developed. Its legislation is not in the hands of a single
permanent congress, but it is accomplished by mutual consultation.
For action, as Lord Salisbury once informed the world, " unanimous
consent is required," as was the case in our confederation. Execu-
tive power has been exercised several times, either by the joint show
of force by two or more powers, or by deputing one power to accom-
plish the desired result. The judiciary, as a result of The Hague
Convention, is much further developed than was that of the Confed-

DEVELOPMENT DURING PAST CENTURY 475

eration, even after 1781. All of this has been accomplished in fifty
years, and the prospect of peace and prosperity for the whole world
as a result of its further development is most promising.

V. Codification

The progress that has been described is well indicated by the
course of the movement for codification.

Just a hundred years ago the first of the French codes was adopted.
These codes had two purposes, first to unify the law, which, before the
adoption of the codes, had differed in every province and every com-
mune of France; second, to simplify it so that every one might know
the law. The first purpose appealed most strongly to lawyers and
to statesmen. The second appealed to the people generally. What-
ever reason weighed most with Napoleon, there is no doubt which
made the codes permanent. The people of France, and of the other
countries where they were introduced, hailed them as creating a law
for the common people. They persisted in most countries where
they had been introduced by Napoleon's arms in spite of the later
change of government; whether the country on which they had been
imposed was Flemish, German, Swiss, or Italian, it retained the codes
after the defeat of Napoleon, and they have remained almost the sole
relic of his rule, the only governmental affairs which retain his name,
and, except Pan-Germanism, the only lasting monument of his labor.
They persisted because they were in consonance with the individ-
ualistic feelings of the times.

Bentham urged codification on England for the same reason.

" That which we have need of (need we say it?) is a body of law,
from the respective parts of which we may each of us, by reading
them or hearing them read, learn, and on each occasion know, what
are his rights and what his duties."

The code, in his plan, was to make every man his own lawyer; and
the spirit of individualism could go no farther than that. Conserva-
tive England would not take the step which Bentham urged; but
a code prepared by one of his disciples upon his principles was finally
adopted (by belated action) in Dakota and California, and was
acclaimed as doing away with the science of law and the need of
lawyers.

The result of the adoption of the French codes and the Benthamite
codes has been far from what was hoped and expected. They were
to make the law certain and thus diminish litigation and avoid judge-
made law. That litigation has not been diminished by codification
can easily be shown by comparing the number of reported cases in
the states which have adopted the codes and in states which have
not adopted the codes. As a result of this comparison, we find that

476 JURISPRUDENCE

France has over 15 volumes a year of reports of decisions on points
of law, 4 of them containing over 2500 cases each; England has
about 10 volumes a year of reports of decisions on points of law con-
taining about 900 cases. California has from 3 to 4 volumes of re-
ports of decisions on points of law each year, 100 since the adoption
of the Code in 1871; Massachusetts has 2 to 3 volumes of reports
of decisions on points of law, 76 in all during the same period. As
bearing on the avoidance of judge-made law, which, by a curious
ignorance one is perhaps not quite justified in calling insane, Ben-
tham regarded as inferior to legislature-made law, the result of the
codes in one or two points will be instructive. The French code
provided that all actions ex delicto should be decided by the court
as questions of fact, without appeal for error of law. Notwithstand-
ing this provision, recourse has been had to the Court of Cassation
and a system of law has been built up on judicial decisions similar
in character and comparable in amount to that built up in England
in the same way during the same period. There is, for instance,
a French law of libel which must be learned, not from the code, but
from the pages of Dalloz and the Pandectes Fran$aises, just as our
law of libel must be studied in the law reports and the digests.
Even if a point is apparently covered by an express provision of the
code, judicial decisions may affix a meaning to the provision which
can only be known to a student of law. Thus the French code
appears to lay down the proposition that capacity to contract is
governed by the law of the party's nation, yet the French courts
refuse to apply this principle and instead of it apply the French law
of capacity in each case where the other party to the agreement is
a Frenchman who acted bona fide or where the party to be bound
was commorant and doing business in France. These are two ex-
amples only out of many that might be cited of the failure of the
code to fulfill the hopes of its individual sponsors. If we leave the
French code and come to those in our own country, we shall find
the same process going on. The law of California has been 'devel-
oped in much the same way since the adoption of the code as before,
and the common-law decisions of other states are as freely cited by
her courts as authority as if their own law had never been codified.
The uncertainty and confusion caused by the adoption of the New
York Code of Civil Procedure is a well-known scandal.

It is true that Bentham objected to the French code as imper-
fect and made upon the wrong principle, and that Field objected to
the New York Code of Civil Procedure as finally adopted. These
objections were most characteristic. Every codifier desires not
merely a code, but his own code, and will not be satisfied with any
other. Hence, it follows that no complete code can be adopted
which would be satisfactory to many experts in law. Furthermore,

no codifier will be satisfied to accept the judgment of a court or any
body of other men upon the meaning of his code, nor to accept the
interpretation of the executive department on the proper execution
of the law. It will follow that each codifier of the Benthamite type
must be legislature, judge and sheriff, and the logical result (like
the logical result of all individualism carried to an extreme) is an-
archy.

This failure of the hope of the individualistic codifiers and the
change in the spirit of the age have affected our ideal of codification.
The purpose of the modern codifiers is not to state the law com-
pletely, but to unify the law of a country which at present has many
systems of law, or to state the law in a more artistic way. In other
words, the spirit of the modern codifiers is not individualistic, but
centralizing. Thus the modern European codes of Italy, Spain,
and Germany were adopted in countries where a number of different
systems of law prevailed, and the purpose of codification in each
state was principally to adopt one system of law for the whole
country and incidentally to make the expression of the law conform
to the results of legal scholarship. The same purpose is at the basis
of the American Commission for the Uniformity of Legislation.
The purpose of the English codifiers appears to be merely an artistic
one. It cannot be better expressed than by the last great disciple
of Bentham, Professor Holland. The law expressed in a code, he
says, has "no greater pretensions to finality than when expressed
in statutes and reported cases. Clearness, not finality, is the object
of a code. It does not attempt impossibilities, for it is satisfied with
presenting the law at the precise stage of elaboration at which it
finds it; neither is it obstructively rigid, for deductions from the
general to the particular and the competition of opposite analogies
are as available for the decision of new cases under a code as under
any other form in which the law may be embodied." " It defines
the terminus a quo, the general principle from which all legal argu-
ments must start."

" The task to which Bentham devoted the best powers of his
intellect has still to be commenced. The form in which our law is
expressed remains just what it was."

Such a code as he describes is really very far from the ideal of
Bentham. It does not do away with judge-made law; it does not
enable the individual to know the law for himself; its only claim
is that it facilitates the acquisition of knowledge by the lawyer by
placing his material for study in a more orderly and logical form.
The cherished ideals of the reformers of a hundred years ago have
been abandoned, and an ideal has been substituted which is quite
in accordance with the spirit of our own times.

478 JURISPRUDENCE

VI. Individual Rights

The most striking characteristic of the progress of jurisprudence
in the first half of the century was its increasing recognition of in-
dividual rights and protection of individuals. Humanity was the
watchword of legislation; liberty was its fetich. Slavery was abol-
ished, married women were emancipated from the control of their
husbands, the head of the family was deprived of many of his arbi-
trary powers, and the rights of dependent individuals were carefully
guarded. In the administration of criminal law this is seen notably.
At the begnining of the century torture prevailed in every country
outside of the jurisdiction of the common law and the French codes,
but torture was abolished in every civilized state during this period.
Many crimes at the beginning of the century were punishable with
death. Few remained so punishable at the end of fifty years. The
accused acquired in reality the rights of an innocent person until he
was found guilty. He could testify, he could employ counsel, and
could be informed of the charge against him in language that he was
able to understand; and, even after conviction, his punishment was
inflicted in accordance with the dictates of humanity. Imprison-
ment for debt was abolished. Bankruptcy was treated as a mis-
fortune, not a crime.

As with the emancipation of individuals, so it was with the emanci-
pation of states. The spirit of the times favored the freedom of
oppressed nations as well as of individual slaves. The whole civil-
ized world helped the Greeks gain their independence. The Ameri-
can people hailed with touching unanimity the struggles of Poland
and of Hungary for freedom, and even the black republics of the
West Indies were loved for their name, though they had no other
admirable qualities.

While there has been little actual reaction in the last half-century
agaiast this earlier development of the law in the direction of liberty,
there have been few further steps in that direction. The zeal for
emancipation has in fact spent its force, because freedom, quite as
great as is consistent with the present state of civilization, has already
been obtained. So far as there has been any change of sentiment and
of law in the last generation it has been in the direction of disregard-
ing or of limiting rights newly acquired in the earlier period. France,
which secured the freedom of Italy, threatens the independence of
Siani : England, which was foremost in the emancipation of the slaves,
introduces coolie labor into the mines of South Africa; America,
which clamored for an immediate recognition of the independence
of Hungary, finds objections to recognizing the independence of
Panama and refuses independence to the Philippines. In the crimi-
nal law there has been no reform, though there has been much im-

DEVELOPMENT DURING PAST CENTURY 479

provement since 1850. Married women have obtained few further
rights, principally because there were few left for them to acquire,
and while we have freed our slaves, we have encouraged trade-
unionism. In short, the humanitarian movement of two genera-
tions ago, which profoundly affected the law of the civilized world
for fifty years, has ceased to influence the course of jurisprudence.

VII. Association

The most characteristic development of the law during the last
fifty years has been in the direction of business combination and
association. A few great trading companies had existed in the
Middle Ages; the Hanse merchants, the Italian, Dutch, and English
companies wielded great power. They were exceptional organ-
izations and almost all had ceased to act by 1860. The modern form
of business association, the private corporation with limited liability,
is a recent invention. Such corporations were created by special
action of sovereign or legislature, in small though increasing numbers,
all through the last century; but during the last generation every
civilized country has provided general laws under which they might
be formed by mere agreement of the individuals associated. Now
the anonymous societies of the Continent, the joint-stock companies
of England and her colonies, and the corporations of the United
States, all different forms of the limited liability association for
business, have engrossed the important industries of the world.
Different countries are competing for the privilege of endowing these
associations with legal existence. Corporations are formed in one
state to act in all other states or in some one other state; or it may
be anywhere in the world except in the state which gave them being ;
and so in the last fifty years an elaborate law of foreign corporations
has grown up all over the civilized world. But the corporation is
only one form of business combination which has become important.
Greater combinations of capital have been formed, that is, the so-
called trusts; great combinations of laboring men have been formed,
the so-called unions; and the enormous power wielded by such com-
binations has been exercised through monopolies, strikes and boy-
cotts. All these combinations have been formed under the law as
it has been developed, and all are legal. Furthermore, the great
business operations have come to depend more and more upon
facilities for transportation, and great railroads and other common
carriers have come to be equal factors with the trusts and the unions
in the operations of modern business. The first effect, then, of the
ideals of the present age upon the law is its development in the direc-
tion of forming great commercial associations into legal entities
wielding enormous commercial power.

480 JURISPRUDENCE

If such associations had been formed seventy-five years ago, the
spirit of the age would have left them free to act as they pleased.
Freedom from restraint being the spirit of the times, it would have
been thought unwise to restrain that freedom in the case of a power-
ful monopoly as much as in the case of a poor slave. But at the
present time we are more anxious for the public welfare than for
the welfare of any individual, even of so powerful a one as a labor
union or a trust, and in accordance with the genius of our age the law
has developed and is now developing in the direction of restraint
upon the freedom of action of these great combinations, so far as such
restraint is necessary to serve the public interest. For centuries
innkeepers and carriers have been subject to such control, though
little restraint was in fact exercised until within the last fifty years.
To-day the law not only requires every public service company to
refrain from discrimination and from aggrandizing itself at the ex-
pense of the public, but the trusts and the unions also are similarly
restricted. The principle of freedom of action, the courts in all
questions now agree, rests upon the doctrine that the interests of
the public are best subserved thereby, and applies only so far as that
is true. When freedom of action is injurious to the public, it not
only may be but it must be restrained in the public interest. That is
the spirit of our age and that is the present position of the law when
face to face with combinations such as have been created in the last
generation. An interesting example of restriction is that almost
universally placed upon foreign corporations; in the competition of
certain states for the privilege of issuing charters, great powers and
privileges have been conferred, which were regarded as against the
public policy of the states in which the corporations desired to act.
Strict regulations for the action of such corporations have resulted,
imposed in the European countries usually by treaty, in England
and America by statute.

VIII. Scientific Study of Law

A summary of the history of jurisprudence in the last hundred
years would be incomplete without a consideration of legal scholar-
ship during the period, and of the results of the scientific study of
law. The reformers of a hundred years ago were profoundly in-
different to the history of law. Bentham, the founder of so-called
analytic jurisprudence, wished not to understand the existing law,
but to abolish it, root and branch, and to build a new system, the
principles of which should be arrived at merely by deductive rea-
soning. It seems to us now almost impossible that such a man
should have believed himself more capable of framing a practicable
and just system of law than all his wise predecessors, but Bentham

DEVELOPMENT DURING PAST CENTURY 481

was a marvel of egotism and self-conceit, and his reasoning powers
were far from sound. He seems to have been incapable of under-
standing the nature of law. " If," he said, " we ask who it is that
the common law has been made by, we learn to our inexpressible
surprise that it has been made by nobody; that it is not made by
King, Lords and Commons, nor by anybody else; that the words
of it are not to be found anywhere; that, in short, it has no existence;
it is a mere fiction; and that to speak of it as having any existence
is what no man can do without giving currency to an imposture."
Employing the same reasoning he would have concluded that jus-
tice, not being made by King, Lords or Commons, nor by anybody
else, had no existence; that truth, since the words of it are not to
be found anywhere, is a mere fiction. But these defects are too
often found in reformers. The humanitarian age brought enormous
benefits to the world, but its ideas were often ignorant, crude, and
impracticable, and needed to be modified by the better instructed
minds of the present constructive age. While Bentham was at
the height of his power, the historical school of jurists in Germany
was beginning its great work. Savigny was already preaching the
necessity of understanding the history of law before it was reformed.
Mittermaier and Brunner were to follow and carry on the work of
the master. The unity of the past and present, and the need of
conforming the law of a people to its needs were among their funda-
mental principles. Bentham had said, " If a foreigner can make
a better code than an Englishman, we should adopt it." Savigny
said, with greater truth and knowledge of human nature, that " no
system of law, however theoretically good, could be successfully
imposed upon a people which had not by its past experience become
prepared for it."

The impulse given to legal study by the work of Savigny and his
school has in the last generation spread over the civilized world and
profoundly influenced its legal thought. The Italians, the natural
lawyers of the world, have increased their power by adopting his
principles. In England a small but important school of legal thinkers
have followed the historical method, and in the United States it has
obtained a powerful hold. The spirit of the age here too has supported
it. We are living in an age of scientific scholarship. We have
abandoned the subjective and inductive philosophy of the Middle
Ages, and we learn from scientific observation, and from historical
discovery. The newly accepted principles of observation and in-
duction, applied to the law, have given us a generation of legal
scholars for the first time since the modern world began; and the
work of these scholars has at last made possible the intelligent
statement of the principles of law.

SECTION A - INTERNATIONAL LAW

SECTION A — INTERNATIONAL LAW

(Hall 14, September 22, 10 a. TO.)

CHAIRMAN: PROFESSOR JAMES B. SCOTT, Columbia University.

SPEAKERS: PROFESSOR HENRI LA FONTAINE, Member of the Senate, Brussels,

Belgium.

PROFESSOR CHARLES NOBLE GREGORY, University of Iowa.
COUNT ALBERT APPONYI, Hungary.

SECRETARY: ASSISTANT PROFESSOR WILLIAM C. DENNIS, Leland Stanford Jr.
University.

THE LEGAL NATURE OF INTERNATIONAL LAW 1

BY JAMES BROWN SCOTT, A.M., J.U.D. 2

ASSEMBLED as we are to discuss various phases of international
law, we naturally assume its existence, and we need no argument
to convince us that as international law has the force of law, it is
and must be law. To state the case is to prove it; yet the legal
nature of international law has been seriously questioned and de-
nied by a few Continental jurists and by the analytical school of
English jurisprudence.

The law of nations, it is insisted, cannot be law in the technical
sense, for law is a rule of civil conduct prescribed and enforced by
a superior. The rule of law contemplated in the definition must, it
is said, be certain, precise, and universal in its application within
the given jurisdiction. Tried by this standard, even municipal law
fails, because it is anything but certain and precise except in rare
instances. The existence of courts of appeal negatives the idea of
certainty and precision. If it be admitted that the law of nations
is still less certain, is less precise, that means only that international
law is less perfect than municipal law, but imperfect law is never-
theless law. The universality of international law appears from its
name, and the common law of nations is a fact, not a phrase or
myth.

In the next place, even admitting the existence of an ill-defined
law of nations, still there is, it is said, no supreme court of nations

1 The Chairman of this Section, Professor James Brown Scott, of Columbia
University (recently appointed Solicitor for the Department of State, Washing-
ton), opened the proceedings by an introductory address so comprehensive and
so valuable to the general treatment of the subject, and so in keeping with the
theory underlying the sectional work of our Congress, that it is reprinted in full.

2 For a more elaborate treatment of the same subject, see two articles by the
present writer in the Columbia Law Review for June, 1904, and February, 1905.

486 INTERNATIONAL LAW

or international tribunal in which it can be enforced, as is the case
with municipal law. If we point to The Hague as a partial refu-
tion of the objection, the immediate and triumphant reply is that
the international sheriff is lacking or powerless to execute the
judgment, and necessarily so, for is not the law of nations based
upon the equality of states? It is evident, therefore, that neither
superior nor inferior can exist. There is doubtless much in this
criticism, but in fact as well as in theory international law does
exist and is accepted, applied, and observed in its entirety by all
civilized nations in their constant and common intercourse. We
may readily admit that force may be necessary to cause the observ-
ance of municipal law; but if we find international law observed
as a whole we must presume that a sanction lies back of it, whether
it be physical or moral force, or the force of public opinion. The
compelling force is, in any case, a sufficient and satisfactory sanc-
tion.

Nor is this the dream of the enthusiast; it is the sober claim
of the patient and unemotional jurist. To quote von Savigny:
" There may be developed among different peoples a community
of legal consciousness analogous to that created in a single people
by positive law. The foundation of this intellectual community is
constituted partly by a community of race, but principally by a
community of religious belief. Such is the basis of international
law, which obtains principally among the Christian and European
states, but which was not unknown to the peoples of antiquity, as
is evident by the Roman Jus feciale. This law we may consider as
positive law, although it is not yet a completed legal system."
(System des Heutigen Romischen Rechts (1840), vol. i, sec. 11.)
To which may be added the statement of one hardly less distin-
guished, Von Jhering, who states his opinion unhesitatingly and
unequivocally in a single sentence: " The legal nature of inter-
national law cannot be doubted." (Zweck im Recht (1877), vol. i,
p. 223.)

If we reject the testimony of the civilian and question the inter-
national lawyer, the answer is equally positive and convincing.
For example, the late Professor Rivier thus expressed the prevail-
ing view of Continental specialists: " The law of nations, founded
not upon simple abstractions, but upon facts, is a system of posi-
tive law. Its principles are veritable legal principles, recognized
as such and consequently as binding by the common conscience
of the states forming the family of nations." (Droit de Gens, vol. i,
p. 18.)

If we turn now from the Continent to the English-speaking
world, the answer is indeed even more positive, if less reasoned and
philosophical. In England, international law has been declared by

LEGAL NATURE OF INTERNATIONAL LAW 487

the highest authorities known to the law to be a part of the muni-
cipal or common law of the realm. In the case of Triquet v. Bath
(1764), 3 Burr. 1478, Lord Mansfield, in commenting upon the
case of Buvot v. Barbut (1736), Talbot's Cases, 281, tried before
Lord Talbot, said: " Lord Talbot declared a clear opinion: 'That
the law of nations, in its full extent, was part of the law of Eng-
land. . . . That the law of nations was to be collected from the
practice of different nations ; and the authority of writers.' Accord-
ingly, he argued and determined from such instances, and the
authority of Grotius, Barbeyrac, Brinkershoek, Wiquefort, etc.,
there being no English writer of eminence upon the subject. I was
counsel in the case, and have a full note of it." His Lordship
also remarked: " I remember, too, Lord Hardwicke's declaring his
opinion to the same effect; and denying that Lord Chief Justice
Holt ever had any doubt as to the law of nations being part of the
law of England, upon the occasion of the arrest of the Russian
ambassador." When it is noted that Messrs. Blackstone, Thurlow,
and Dunning appeared for the plaintiff, it is at once evident that
the case was carefully argued, thus giving additional weight to the
measured judgment of the court. Three years later, in Heath-
field v. Chilton (1767), 4 Burr. 2015, the same learned judge said:
" The privileges of public ministers and their retinue depend upon
the law of nations, which is part of the common law of England.
And the Act of Parliament of 7 Anne, chap. 12 [concerning the im-
munities of diplomatic agents], did not intend to alter, nor can alter,
the law of nations." 1

And in Blackstone's Commentaries, published in the four years
from 1765 to 1769, the learned commentator, who had been of
counsel in Triquet v. Bath, and, therefore, spoke with peculiar
knowledge and authority, said : " The law of nations (wherever
any question arises which is properly the object of its jurisdiction)
is here adopted to its full extent by the common law, and is held
to be a part of the law of the land. And those Acts of Parliament
which have from time to time been made to enforce this universal
law, or to facilitate the execution of its decisions, are not to be con-
sidered as introductive of any new rule, but merely as declaratory
of the old fundamental constitution of the kingdom, without which
it must cease to be a part of the civilized world."2 (Commentaries,
bk. iv, chap. 5, p. 67.)

1 The language of our own Supreme Court is in point: " Sections 4062, 4063,
4064, and 4065 were originally sections 25, 26, 27, and 28 of the Crimes Act of
April 30, 1570, chap. 9, I Stat. 118; and these were drawn from the statute of
Anne, chap. 12, which was declaratory of the law of nations, which Lord Mans-
field observed in Heathfield v. Chilton, 4 Burrow, 2015, 2016, did not intend to
alter, and could not alter." Per Fuller, C. J., in Re Baiz (18S9), 135 U. S. 403, 420.

2 It may not be without interest to note that Sir Robert Phillimore, likewise
commentator and judge of wide experience, says briefly in confirmation of

488 INTERNATIONAL LAW

And such is the language of the law courts in the Great Britain
of to-day, although the contrary was held by a majority of one in
Regina v. Keyn (1876), L. R. 2 Ex. Div. 63. To overrule this de-
cision and make the laws of England conform to the law of nations,
the declaratory Act of 41 and 42 Viet. chap. 73 was passed within two
years of this discredited and universally criticised judgment. The
important part of the Act for the purposes of this article is as fol-
lows: " The territorial waters of her Majesty's dominions, in refer-
ence to the sea, means such part of the sea adjacent to the coast of
the United Kingdom, or the coast of some other part of her Ma-
jesty's dominions, as is deemed by international law to be within
the territorial sovereignty of her Majesty." The preamble declares
that " the rightful jurisdiction of her Majesty . . . extends and
has always extended " over such bodies of water.

Or to quote the language of Sir Henry Maine: " In one celebrated
case [Regina v. Keyn], only the other day, the English judges,
though by a majority of one only, founded their decision on a very
different principle, and a special Act of Parliament was required
to reestablish the authority of international law on the footing on
which the rest of the world had placed it." (International Law,
pp. 38 et seq.)

But the matter does not rest here, for in the year of grace, 1905, an
English court has had occasion to consider carefully the nature and
relation of the law of nations to the law of England. The various
decisions of Lords Talbot and Mansfield in Buvot v. Barbut, Triquet
v. Bath, Heathfield v. Chilton, were referred to and followed as
correct and, therefore, binding expositions of the law.

The far-reaching importance of the case makes it advisable to
state in some detail the facts as well as the opinion of the court in
West Rand Central Gold Mining Company v. The King (1905),
L. R. 2 K. B. 391. It appeared that, within the month preced-
ing the outbreak of the war between the South African Republic
and Great Britain, certain officials, acting on behalf of the Trans-
vaal Government, seized a quantity of gold, the product of the
plaintiff's mine, and it further appeared as a matter of law that
the Transvaal Government was liable to return the gold or its value
to the plaintiff.

The counsel for plaintiff based the right to recover upon three
grounds: first, that by international law the sovereign of a con-

Blackstone : " In England it has always been considered as a part of the law
of the land." (CommentarieR on International Law, vol. I, p. 78.)

And tho late Mr. Joel P. Bishop cites this very passage as representing the
law in hi.s own as well as Blackstone's day. " Governments," Mr. Bishop says,
" like individuals, cannot exist together without law to regulate their mutual
relations; hence the law of nations. It is in truth common law (4 Bl. Com.);
or, rather, the common law has appropriated the law of nations, making it a part
of itself." (1 New Crim. Law, 8th ed. (1892), sec. 483.)

LEGAL NATURE OF INTERNATIONAL LAW 489

quering state is liable for the obligations of the conquered; secondly,
that international lav,* forms part of the law of England; and,
thirdly, that rights and obligations, which were binding upon the
conquered state, must be protected and can be enforced by the
municipal courts of the conquering state.

Inasmuch as the court took jurisdiction of the case, it is evident,
therefore, that both the nature and status of international law were
necessarily involved, as well as its binding effect upon British
courts of justice.

A portion of the opinion of Lord Chief Justice Alverstone, well
known as Sir Richard Webster to international tribunals, follows:
"The second proposition urged, that international law forms part
of the law of England, requires a word of explanation and comment.
It is quite true that whatever has received the common consent of
civilized nations must have received the assent of our country, and
that to which we have assented along with other nations in general
may properly be called international law, and as such will be ac-
knowledged and applied by our municipal tribunals when legitimate
occasion arises for those tribunals to decide questions to which doc-
trines of international law may be relevant. But any doctrine so
invoked must be one really accepted as binding between nations,
and the international law sought to be applied must, like anything
else, be proved by satisfactory evidence, which must show either
that the particular proposition put forward has been recognized and
acted upon by our own country, or that it is of such a nature, and
has been so widely and generally accepted, that it can hardly be
supposed that any civilized state would repudiate it. The mere
opinions of jurists, however eminent or learned, that it ought to be
so recognized, are not in themselves sufficient. They must have
received the express sanction of international agreement, or gradu-
ally have grown to be part of international law by their frequent
practical recognition in dealings between various nations. We
adopt the language used by Lord Russell of Killoween in his ad-
dress at Saratoga in 1896 on the subject of International Law and
Arbitration: ' What, then, is international law? I know no better
definition of it than that it is the sum of the rules or usages which
civilized states have agreed shall be binding upon them in their
dealings with one another.' In our judgment, the second propo-
sition for which Lord Robert Cecil contended in his argument
before us ought to be treated as correct only if the term ' Interna-
tional Law ' is understood in the sense, and subject to the limita-
tions of application, which we have explained. The authorities
which he cited in support of the proposition are entirely in accord
with, and, indeed, well illustrate, our judgment upon this branch of
the arguments advanced on behalf of the suppliants; for instance,

490 INTERNATIONAL LAW

Barbuit's Case, Cas. t. Tal. 281; Triquet v. Bath, 3 Burr. 1478,
and Heathfield t?. Chilton, 4 Burr. 2016, are cases in which the
courts of law have recognized and have given effect to the privilege
of ambassadors as established by international law. But the ex-
pressions used by Lord Mansfield when dealing with the particular
and recognized rule of international law on this subject, that the
law of nations forms part of the law of England, ought not to be
construed so as to include as part of the law of England opinions
of text-writers upon a question as to which there is no evidence
that Great Britain has ever assented, and a fortiori if they are
contrary to the principles of her laws as declared by her courts.
The cases of Wolff v. Oxholm, 6 M. & S. 92; 18 R. R. 313, and
Rex v. Keyn, 2 Ex. D. 63, are only illustrations of the same rule,
namely, that questions of international law may arise, and may
have to be considered in connection with the administration of
municipal law."

If we now consider the status of international law in the United
States, we shall find the American in strict accord with the English
doctrine. The first craft that carried an English settler to the
New World was freighted with the common law, of which, as we
have seen, the law of nations was and is an integral part. Revo-
lution might and did repudiate British sovereignty, but the com-
mon law as the measure of individual rights and liabilities with-
stood the storm and stress of agitation. The nation was born into
the family of nations and promptly professed obedience to the law
of nations " according to the general usages of Europe." (Ordi-
nance of 1781, Journals of Congress, vn, 185; 1 Kent's Commen-
taries, p. 1.) Upon the permanent organization of the govern-
ment, international law was recognized in the Constitution as in
the Ordinance of the Revolutionary Congress. In Article I, Sec-
tion 8, Congress is specifically empowered to " define and punish
piracies and felonies committed on the high seas, and offenses
against the law of nations; to declare war, grant letters of marque
and reprisal, and make rules concerning captures on land and water."

Now technical words and expressions used in the Constitution,
and borrowed from the English system of jurisprudence, such as
the common law, equity, admiralty, the law of nations, are to be
understood and interpreted as in the system from which they are
borrowed, for which no authority need be cited. Were not this so,
the time-honored system of trial by jury would not be our heritage
as it is that of our ancestors across the water. For as Mr. Jus-
tice Harlan well says: " It must consequently be taken that the
word ' jury ' and the words ' trial by jury ' were placed in the
Constitution of the United States with reference to the meaning
affixed to them in the law as it was in this country and in England

at the time of the adoption of that instrument." Thompson v. Utah
(1898), 170 U. S. 343.

The law of nations was not something newly created by this
clause of the Constitution; it is recognized as existent, to determine
whose nature and extent resort must be had to English jurispru-
dence.

The English cases previously cited and the paragraph quoted
from Blackstone show, it is believed, that international law was a
part of the common law. As, therefore, the lawyers who framed
the provisions of the Constitution were trained in the common law,
and were familiar with its principles from a careful study of the
Commentaries, it is impossible to consider the law of nations other
than as a part of the common law of England, and by the Constitu-
tion of the United States it is, therefore, a fundamental and integral
part of our jurisprudence.

But there is another not less potent argument for this view.
Congress is given power to punish offenses against the law of na-
tions. The law of nations is thus contemplated as an existing
system and part of our municipal law. Else why is Congress given
power to punish the violation? For it is elementary that nations
do not, as a rule, punish breaches of foreign law. Infractions of
the municipal code are a sufficient tax for judge and legislature^
It is likewise elementary that Congress may indeed vary the law of
nations in so far as our citizens are concerned, and that the courts
would be compelled to give effect to the statute; but it is equally
clear that the Act of Congress in such cases would be construed
with evident reluctance and great strictness.

Even before the formation of the present Constitution, the
Federal Court of Appeals admitted, in a single and well-chosen
phrase, the superiority of international over municipal law: "The
municipal laws of a country cannot change the law of nations so
as to bind the subjects of another nation." (The Resolution, 1781,
2 Dallas, 1, 4.) But, if nations may not alter international law,
they may, by their municipal law, according to Chief Justice
M'Kean, in the case of Ross v. Rittenhouse (1792), 2 Dallas, 160, 162,
"facilitate or improve the execution of its decisions, by any means
they shall think best, provided the great universal law remains
unaltered."

If that be the measure of municipal power, it follows that any
attempt to enlarge the boundaries of municipal at the expense of
international law will be regarded with suspicion. Thus, in the
case of The Charming Betsy (1804), 2 Cr. 64, 118, Mr. Chief Justice
Marshall said: " It has also been observed that an Act of Con-
gress ought never to be construed to violate the law of nations
if any other possible construction remains, and consequently can

492 INTERNATIONAL LAW

never be construed to violate neutral rights, or to affect neutral
commerce, further than is warranted by the law of nations as under-
stood in this country."

And in The Nereide (1815), 9 Cr. 388, 423, the same eminent
authority said: " Till such an Act [of Congress] be passed, the court
is bound by the law of nations, which is a part of the law of the land."

And as Mr. Bishop has gravely and impressively expressed it:
" Doubtless if the legislature, by words admitting of no interpreta-
tion, commands a court to violate the law of nations, the judges have
no alternative but to obey. Yet no statutes have ever been framed
in form thus conclusive; and if a case is prima fade within the legis-
lative words, still a court will not take the jurisdiction should the
law of nations forbid." Again: " AU statutes are to be construed
in connection with one another, with the common law, with the
Constitution, and with the law of nations." (Criminal Law, 7th ed.,
60, 69. See also 8th ed., sec. 124.)

If the matter rested here, the true construction of this funda-
mental passage might well be in doubt, but the courts have passed
upon it and its meaning in numerous cases. The binding effect of
international law has been held in a variety of cases from the institu-
tion of our federal courts to the present day, and there is not a well-
considered case to be found in the books that declares international
law to be other than municipal law of the United States. An early
and carefully considered case is United States v. Smith (1820), 5
Wheat. 153, in which the Supreme Court held, per Story, J., that an
Act of Congress of 1819, referring to the law of nations for the crime
of piracy, is a constitutional exercise of the power of Congress to
define and punish that crime; and that the crime of piracy is defined
by the law of nations with reasonable certainty. In the Act of
Congress referred to, the act of piracy as defined by the law of nations
was held sufficient without further definition because international
law is part of our municipal law.

In the case of The Scotia (187 1) , 14 Wall. 170, Strong, J., held that
our courts take judicial notice of international law. "Foreign
municipal laws," he says, " must be proved as facts, but it is not
so with the law of nations."

But a more recent and by much the most authoritative case on
the subject is the Paqucte Habana v. United States (1899), 175
U. S. 677, in which the late Mr. Justice Gray of the Supreme Court
squarely held the doctrines advanced by Lords Talbot, Hardwicke,
Mansfield, and Sir William Blackstone, and incorporated in numerous
decisions of the august tribunal of which he was a member. The
case arose out of a capture in the recent Spanish-American war of
two Spanish boats, the Paqucte Habana and the Lola. The question
before the courts was, Are fishing smacks in the absence of municipal

LEGAL NATURE OF INTERNATIONAL LAW 493

law or treaty protected from capture by the law of nations, and is
such a law of nations part of the municipal law of the United States?
In deciding the first question in the affirmative, the learned Justice
said: " International law is part of our law, and must be ascertained
and administered by the courts of justice of appropriate jurisdiction,
as often as questions of right depending upon it are duly presented
for their determination. For this purpose, where there is no treaty,
and no controlling executive or legislative act or judicial decision,
resort must be had to the customs and usages of civilized nations;
and, as evidence of these, to the works of jurists and commentators,
who by years of labor, research, and experience have made them-
selves peculiarly well acquainted with the subjects of which they
treat. Such works are resorted to by judicial tribunals, not for
the speculations of their authors concerning what the law ought to
be, but for trustworthy evidence of what the law really is."

In this remarkable opinion, not only is international law held to be
law in the legal sense of the word, but the sources of that international
law binding upon our courts are sketched with a masterly hand.
It is submitted that this case settles the question for an American
law}'er as fully and clearly as a decision of a court of final resort
can ever settle a matter properly before it, namely, that interna-
tional law is law; that it is part of our municipal law; that our
courts take judicial notice of it as such.

The conclusion, therefore, is irresistible, whether the point of
approach be the reason and philosophy of the civilian, the theory of
the international specialist, or the practical standpoint of the bench
and bar, that international law is law and as such binding upon nation
and citizen alike.

THE PRESENT AND FUTURE STATE OF INTERNATIONAL

LAW

BY HENRI LA FONTAINE
(Translated by Maurice Lton, Esq., of the New York Bar)

[Henri La Fontaine, attorney of the Court of Appeals, Senator of the Kingdom
of Belgium, Brussels, b. April 22, 1854. LL.D. Free University of Brussels.
Professor of International Law at the New University of Brussels, 1894;
Director of the International Bureau of Bibliography, 1895. Member of the
International Bureau of Peace, 1893. Author and editor of The Rights and
Duties of Builders of Public Works; Treatise on Counterfeiting; International
Pasigraph;/; Compendious and Chronologic History of International Arbitra-
tion; Bibliography of Peace and Arbitration.]

THE legal needs of men are modified in the course of centuries, as
are their material and intellectual needs. Laws have been multiplied
like products and works, and out of primitive, shapeless, and chaotic
custom have sprung successively all the legal categories, the law of
private rights, the law of commerce, admiralty law, constitutional
law, administrative law, penal law, industrial law.

The easy communications, the universal exchange of merchandise,
the very recent organization of the world market, have almost
suddenly given to the category which entered last the legal domain,
to international law, a considerable and dominating importance.
Internationalism is now ubiquitous; it is becoming difficult to under-
take an enterprise or create an institution, the expansion of which
will not perforce be international, and that word has henceforth
conquered such favor that it is applied to the least international
matters. Law is fated to follow the general evolution. It is the
plastic armor of humanity, and that armor has modeled itself at all
times upon humanity with extraordinary precision.

Therefore, international law is not, strictly speaking, a law dis-
tinct from all others. It is only the enlargement, according to the
size of the whole world, of the divers legal categories. It is as vast
of itself as all the national legislations, over which it is superposed
and which it is destined to absorb and unify. Its domain is immense,
and one understands easily how it is that the societies and publica-
tions, which are devoted solely to the study of questions relating
to international law, have multiplied to a singular extent these last
years.

The problems of international law relate essentially to two main
and traditional subdivisions, — private international law, which
regulates the legal relations between individuals of different nation-
alities or the private rights of the individuals who are regarded as

PRESENT AND FUTURE OF INTERNATIONAL LAW 495

isolated from the .point of view of the legislations of the countries
in which they have their domicile or residence; public international
law, which regulates the relations between states, whether in times
of peace or during conflicts and wars, and the legal organization of
the society of nations.

Private international law is, as we think, more than public inter-
national law, destined to be the law of the future. It would be the
law of the twentieth century, were it possible to suppress with one
stroke of the pen or one act of the will the sixty historical centuries,
the atavistic and hereditary influences of which place an almost
insuperable obstacle in the way of the early unification of private
law. This is apparent in a really striking way in the midst of the
vast American Republic. Although each of the states which form
the united republic is composed of elements almost identical, derived,
for the most part, from the distant lands of Europe, nevertheless, each
of these states preserves, with jealous care, the right to enact its
own law and to differentiate it from that of the neighboring states.

Though it may be easy to understand and explain the diversity
of local and cantonal laws of countries like Germany or Switzerland
by the diversity of their races, or the influence of the feudal system,
it is more difficult to understand and to explain how such a differ-
entiation is produced among men who have been freed from the
nationalistic prejudices which have still so strong a hold in the old
world. In fact, it may be seen that one of the most serious difficul-
ties in the way of making private law international will arise from
the diversity of the legislations adopted by the states of the American
Union.

This situation calls for most serious thought, for the old countries
of Europe have all successively followed the example given by
France when that country, carried away by the great humanitarian
wave of the Revolution of 1789, and led by the steel will of Napoleon,
decided to unify its local legislations and to endow the world with
a civil code. Since then the other countries of Europe, first Italy,
and last Germany, have unified their private law. Switzerland will
before long possess a single civil code, the draft of which has already
passed through the various stages preliminary to its final adoption.

This very phenomenon of national unification of the private law
leads us to look for its international unification. It must not be
forgotten that it is the countries where conflicts between local laws
have been most strenuous in the course of the last centuries, where
the statutory literature has been richest and most ingenious, namely
Italy, France, and Belgium, which were the first to feel the incon-
venience of multiplied legislations, and put an end to the regrettable
controversies of former days amounting to veritable dialectical
games and inconsiderate waste of intellectual forces. It would be

496 INTERNATIONAL LAW

worthy of the great American Republic, the economical instrument-
ality of which tends to render the use of natural and physical forces
as sparing as possible, to apply the same principles to its legal in-
strumentality, and to make of American law what it has made of
American industry.

Even now, besides, humanity is proceeding, too slowly, as we think,
toward the unification of private law. This movement, begun by
the Paris International Convention of March 20, 1883, on industrial
property (patents and trademarks) has been continued by the inter-
national convention of September 9, 1886, entered into at Berne
regarding authors' rights (copyright). It is strange to see that it is
precisely in that part of the law which has been codified most recently
by the various nations, that of intellectual rights, that the need of
legislation by international convention made itself felt first, and with
the greatest intensity. This legal phenomenon appears, in a way,
as the symbol of the nearing evolution of law.

A movement which is not less powerful has taken shape on the
other side, in the course of the last quarter of the last century, in that
part of the law which relates to the economical relations between
nations. It will suffice that I recall the congresses which took up
the bill of exchange, and the organization in 1896 of the Interna-
tional Maritime Committee, and its successive resolutions regarding
collisions at sea, the liability of ship-owners, salvage and life-saving,
all being the work of the conferences of Brussels (1897), Antwerp
(1898), London (1899), Paris (1900), and Hamburg (1902). Here
again it may be said that this phenomenon is symbolic of the human
legal state of mind.

But while the intellectual life of the world and its economic life
tend toward the unification of law, it is certain that as regards rights
in rem, on the one side, and rights in personam on the other, unifica-
tion will be realized only with the greatest effort.

Rights in rem have their origin in the nature of cultivation and
development (of the soil), and often belong also to the manner in
which the family is constituted. It will be sufficient to allude to
the common ownership of pastures and woods, so frequent still in
Switzerland and Belgium, to the parceling of lands in France, to the
right of primogeniture in England, to the freedom of the home from
seizure or attachment, proclaimed by various legislations, in order
to realize how difficult it would be to secure at this time any unifica-
tion in this matter.

As for rights in personam, which relate to guardianship, to major-
ity, to marriage, divorce, to the rights between husband and wife,
and between them and their children, to the matrimonial status,
it is certain that difficulties, which are not less great than the diffi-
culties relating to the rights in rem, are opposed to a near unification.

PRESENT AND FUTURE OF INTERNATIONAL LAW 497

But the need of reducing to a minimum the realm of conflicts in
these particularly delicate matters caused the calling by the govern-
ment of Holland of a conference, which met in divers sessions and
brought about the convention signed June 12, 1902, relating to
marriage, divorce, separation, and the guardianship of minors.
This convention will soon be followed by other similar conventions,
which will cover the whole field of rights in personam.

On the other side the conference had already adopted, during a
previous session, a convention signed November 14, 1896, relating
to ticklish questions of civil procedure, particularly in matters of
proving of judiciary and extrajudiciary documents, of rogatory
commissions, security for costs, legal aid, and civil arrest.

What may likewise be considered as a sign of the times and a first
step toward conventions of a still more extended reach than those
which we have just noted is the convention agreed upon July 8, 1899,
between France and Belgium regarding judicial jurisdiction, and
the authority and execution of judiciary decisions, arbitrations,
and also notarial documents. It is really certain that forms of
procedure when so varied and special are one of the means most
effectually availed of by persons of bad faith to render more pre-
carious the economic relations between the several nations. Under
the pressure of necessity, in this matter so strongly formalized and
routine-like, the spirit of reform and reciprocal confidence has taken
hold, and this again is a circumstance which, more than those we
have enumerated, permits us to believe in human unity, and the
unification of the law of the world.

It is pertinent to recall and proclaim here that the states of South
America, by the memorable convention of Montevideo, entered into
in January and February, 1889, had the honor and glory of giving
the world a good example in the realm of private international law.
When we examine the manner in which the unification of law has
been accomplished among the several nations, we find that it was
not brought about, with all the fullness which it involves, until the
day when each people became definitely constituted in national
unity. The private law of a nation was codified when the adminis-
trative and political instrumentality of that nation had become an
accomplished fact.

We think that the same thing will occur for the family of nations,
and that the private international law code will become a reality
only on the day when the international administration will be defin-
itely organized, and when the public law of nations will have been
wholly formulated. We have the profound conviction that that
is the duty nearest at hand of jurists and legislators, and already
many conventions lead us surely toward the organization of a
universal federation of nations.

498 INTERNATIONAL LAW

The stages to be gone through from that point of view may, as we
think, be summarized as follows: The creation of international
offices, the organization of an international court, the preparation
of a public international law code, the organization of an inter-
national parliament, the formation of a permanent international
cabinet, and the adoption of an international budget to be voted on,
universal disarmament and the creation of a force of international
police, the selection of a world capital.

At first blush such an enumeration will cause many a smile and
will arouse many doubts; but it is important to remember that the
first international convention, which may be considered as the very
first step upon the road, the itinerary of which we have made bold
to indicate, dates back only to 1864, and that since then the number
of similar conventions has increased with extreme swiftness. The fact
is that in Geneva, on August 22, 1864, the Red Cross Convention for
the purpose of improving the conditions affecting wounded soldiers
belonging to armies engaged in campaigns was signed, and it is in
this domain of war, which is in principle a negation of all humanita-
rian and brotherly thoughts, that a regulation was first attempted
and accomplished.

Is not such a fact of a nature to destroy all doubts and justify every
hope? Humanity, which acclaimed the performance of such an
act and assured its execution, could not refuse to regulate, on an
international scale, its innumerable material and intellectual needs,
nor did it refuse; we might almost dispense with the mention of
what has been accomplished from this point of view, for the work
accomplished is contemporaneous, and surely present in all memories.
But we deem it useful to sketch, in general lines, a synthetic picture
of what has been done.

This work is above all evidenced at this day by the creation of
international offices, the usefulness and value of which are not now
contested by any one.

It is in the realm of transportation that the most important
treaties have been signed and successively examined and agreed upon:
The question of marine signals in the conferences of London and
Paris in 1864, and that of uniform navigation rules studied from
1879 to 1897, in meetings called likewise in these two capitals; that
of telegraphy and submarine telegraphic cables settled by the Paris
Conventions of May 17, 1865, and May 14, 1884; that of the mails
settled by the Berne Convention of October 9, 1874 ; that of railway
transportation of merchandise settled by the Berne Convention of
October 14, 1890. Mails, telegraphy, and railroads since then have
at Berne special international offices.

This matter of the conveyance of ideas, men, and things has, thanks
to the mails and to telegraphy specially, made of the earth a single

PRESENT AND FUTURE OF INTERNATIONAL LAW 499

city, and permits us to be the terrified spectators of eruptions in
Java and Martinique, of cyclones in Louisiana, and battles in Man-
churia; thanks to steamers and locomotives it has made of the world
a single market, the fluctuations of which, being felt as far as the .
antipodes, prove more than any other phenomenon the fact of the
world solidarity; to this matter the question of weights and meas-
ures, which also was the subject of an international convention,
the metric convention signed in Paris May 20, 1875, and for which
a permanent office was established in France, is made to relate
directly. It is to be hoped that this last convention, which proved
so important in facilitating relations between men will, at an early
day, bind all the nations that have not yet adopted the unity of
metric measure. We are tempted to express a similar wish, though
one which, alas! is more Platonic and the realization of which is
more problematical, in favor of a universal monetary unity, and of
an international monetary convention similar to that from which
have sprung the Latin and Scandinavian monetary union agreements
which were signed respectively in Paris December 23, 1865, and in
Copenhagen May 27, 1873. At least, the legitimate hope may be
expressed that the moneys of the various nations will be struck so
as to establish simple relations between them, and thus facilitate
their circulation upon the whole surface of the globe.

Humanity has pondered likewise over the question of regulating
the struggle against the gravest diseases, which come from the un-
healthy regions of the far-away Orient. The conventions entered
into regarding this matter are numerous already, and have been
signed successively in Dresden, April 15, 1893, in Paris, April 3, 1894,
and in Venice, April 19, 1897. It is probable that similar conventions
will come into existence for the purpose of attenuating endemic
diseases like tuberculosis and syphilis. We may also refer to the
phylloxeric convention reached in Berne, September 17, 1878, and
which belongs to the same category. It is known that the conven-
tions relating to cholera and the plague have brought about the
creation of international stations of inspection.

This matter of social defense against diseases is intimately bound
with the acceptance of an international pharmacopoeia, the prepar-
ation of which has been intrusted to a special commission by a con-
ference which met in Brussels in September, 1902.

Another convention, which also deserves having attention called
to it, is that which was signed July 2, 1890, for the purpose of putting
an end to the slave trade in Africa; the international office charged
with the duty of having the provisions of this treaty carried out has
its headquarters in Brussels.

In Brussels also is found the headquarters of the international

500 INTERNATIONAL LAW

office for the publication of customs tariffs. This office was organ-
ized under a convention of July 5, 1890.

The international geodetic bureau, the headquarters of which is
at Berlin, in accordance with the terms of a convention signed in
that city October 27, 1886, may also be alluded to. To that con-
vention, which is of a more particularly scientific character, may be
said to be due the understanding reached between the main observa-
tories of the world for photographing the skies in a uniform
manner.

The intellectual ponderings which are at the basis of the geodetic
and astronomic conventions, to which we have just referred, are
likewise responsible for the signing of an international convention at
Brussels, March 15, 1886, for facilitating the exchange of official
documents and of scientific and literary publications. In each of
the countries which became parties to said convention is found an
office charged with assuring such exchange.

Finally, the conventions relating to industrial rights (patents and
trademarks) and to copyright, to which reference has been made
above in connection with the evolution of private international
law, has likewise resulted in the creation of two permanent offices
established at Berne.

Thus, it is seen, the international administrative instrumentality
is in full formation. Although the international offices have been
organized until now in a sporadic and scattered manner in many
places, it is none the less certain that they already form an imposing
whole, and everything presages that new offices will be added to those
already established. It is sufficient to draw attention to the exist-
ence of the international offices created now without preliminary
international conventions: The international colonial office and the
international bibliographic office at Brussels, also the international
labor office at Berne. To these may be added the permanent offices
of a large number of international congresses which evidently are
destined to become transmuted into official international bureaus
recognized by the governments.

The establishment of an international court, which we consider
as an essential element of the second stage, is also almost an accom-
plished fact. Henceforth that court possesses its headquarters and
its palace. It virtually exists, though it may not be effective, for
a court may be looked upon as existing only if it has judges and
a procedure, and if it is permanent and can compel submission to its
powers. As it is now organized, the international court is but a
court of arbitration, the judges of which are selected by the parties
in interest, and the intervention of which is essentially brought
about by consent.

It is certain, however, that, although so organized, the court of

PRESENT AND FUTURE OF INTERNATIONAL LAW 501

arbitration constitutes a considerable progress over what existed
previous to its creation. Recourse to arbitration dates back to
distant periods; traces of it have been found in the institutions of
ancient Greece, and historians have proved its usage during the
Middle Ages. But arbitration became an international custom in
a somewhat regular way only after 1794, when the United States of
America and Great Britain intrusted to arbitrators the solution
of the first differences which arose after the War of Independence.
Since that time these two nations have remained faithful, in a large
measure, to that peaceful mode of settling international conflicts.
Until the end of the last century, Great Britain and the United
States were interested in and parties to seventy and fifty-six compro-
mises, respectively, while all the European states together have
had recourse to the jurisdiction of arbitration only eighty-nine times.
This shows that the practical propaganda in favor of arbitration
has been most followed by the nations of Anglo-Saxon origin.

It is interesting to note that recourse to arbitration has been
singularly frequent in the course of the last century. There were but
eleven arbitrations from 1801 to 1820, eight from 1821 to 1840;
thenceforth their number increased as follows; twenty from 1841 to
1860, forty-four from 1861 to 1880, ninety from 1881 to 1900. Fur-
thermore, recourse to arbitration was included, from 1823 to 1900, in
numerous treaties by compromise clauses of either special or general
character, numbering one hundred and thirty-eight. Finally, from
1880 to 1900 eleven permanent arbitration, treaties were concluded.
It was natural that the idea of a permanent institution should arise
in the minds of jurists, and it is known that the creation of an inter-
national court had been suggested and discussed long before the
organization of the court of arbitration of The Hague. This discus-
sion was mainly the work of volunteers, who, since 1815, have insti-
tuted an untiring propaganda in favor of peaceful ideas. The innu-
merable societies which they have created in all the countries of the
world, and which have been grouped, since 1891, about the Interna-
tional bureau of peace in Berne, the congresses called by them since
1838, which have become regular and annual since 1889, have con-
tributed largely, with the interparliamentary union, — the sessions of
which, since its creation in 1889, have had from year to year greater
importance and publicity, — to accustom the public and diplomacy to
the idea of an international court.

It is known how the arbitration court was evolved from the de-
liberations of the Peace Conference. It will be recalled what pro-
found world-wide emotion was aroused by the since famous rescript
issued by the Emperor of Russia in 1898. While the enthusiasm
of nations was great, the incredulity of diplomats was thorough.
The failure of the conference was predicted and discounted, and those

502 INTERNATIONAL LAW

who met on May 18, 1899, in the " Maison au Bois " certainly did not
anticipate that a work endowed with life would spring from their
deliberations.

Two months later, namely, July 9, 1899, thanks to the sincerity
and energy of a few men, thanks to the atmosphere created by per-
sistent peace-lovers, a convention for the peaceful settlement of
international conflicts was entered into. It is divided into three
chapters devoted respectively to good offices and mediation, to
international commissions of inquiry, and to arbitration.

Arbitration was thus solemnly proclaimed as the normal and
best mode of reaching a solution regarding differences between
nations. Since then that procedure has become familiar to the public
everywhere, and the expression, often misunderstood in the past,
has taken its full value and acquired a rare force of penetration.

The official staff of diplomacy did not hesitate, nevertheless, to
ignore the arbitration court. They were inspired by the hope of
allowing the new institution to die through desuetude and to bury
it beneath indifference and silence. But the United States of
America, by their firm attitude, furnished to the arbitration court
the opportunity of passing upon its first cause, and the difference
relating to the California Pious Fund will remain, owing to that fact,
a celebrated case under the law of nations, as famous as that of the
Alabama controversy. Since then the conflict between Venezuela
and a large number of powers, that between Japan and Germany,
between France and Great Britain, have brought before the bar of
the arbitration court most of the nations of the first rank in the
order of their population and economic standing.

As has been said above, despite the fact of its existence and despite
its activity, the arbitration court is not an international tribunal.
Therefore the jurists and peace-lovers have taken up again their
propaganda with new vigor: Recourse to this international juris-
diction must be compulsory, all nations must be able to appeal to
its high intervention, and, finally, its competency must extend to all
future conflicts, whatever their nature.

It is possible even now for the states which have not been ad-
mitted to take part in the deliberations of 1899, owing to a voluntary
and unjustifiable forgetfulness, for which they may never be suffi-
ciently blamed, to profit from the advantages of the convention relat-
ing to arbitration, as shown by Article xxvi thereof, which states
that the court of arbitration is open to states not signatory which
are in conflict with signatory states. It is under this provision that
Venezuela was admitted to be heard before the arbitration court.
Besides, Article xix authorizes states to conclude arbitration
treaties of greater scope than the arbitration convention of 1899.
Moreover, it is permissible for all states to conclude arbitration

PRESENT AND FUTURE OF INTERNATIONAL LAW 503

treaties declaring that in case of a conflict the proper course will be
to refer the matter to the judgment of the arbitration court of The
Hague.

It is by reason of these provisions that Denmark and Holland, in
their remarkable treaty of February 12, 1904, rendered arbitration
as between them compulsory, and recourse to the arbitration court of
The Hague possible, whatever the cause of conflicts bringing about
disagreements. They took care, besides, to declare that all states
may adhere to said convention by means of a simple notice.

Henceforth it is possible for all states, without a new meeting of
the Peace Conference, to bring about a considerable progress in
matters of arbitration jurisdiction. Henceforth the road is open to
the formation of an arbitration union, and we shall be happy to see
here again the United States in the role of giving anew in this case
the example of a complete adherence to the principles adopted by
Denmark and Holland.

But, as we think, such a progress is not entirely sufficient. It
will be necessary that procedure before the international tribunal
be modeled after the procedure before ordinary tribunals. It will be
necessary that it be possible to summon, and also to give judgment
by default, where a state is in default. No reason in principle is
opposed to the introduction of that power in public international
law, and no really effective jurisdiction can be conqeived without it.
It will also be proper to have the judges who will form the inter-
national tribunal irremovable. At the present time the arbitrators
are chosen by each of the parties among persons who are devoted in
advance to the interests of the party which has appointed them;
the odd arbitrator thus becomes the sole judge who decides with
either one or the other set of judges. In order to assure their com-
plete independence, it may become necessary to completely dena-
tionalize the international judges, and to place them in a state of
absolute neutrality and incompatibility.

In order that the international court may be in a position to render
decisions with full impartiality, not only must its formation be as-
sured and its procedure regulated, but the law which it is to apply
must be laid down for it. At the present time the international
custom and the provisions of international conventions alone have
served to guide the decisions of arbitrators. They, no doubt, will
continue to have their guide, but there are general principles of
international law which it would be well to formulate in precise
texts. The body of these texts should form the international code.
Drafts of such a code have already been prepared by eminent
jurists, so that this is not a matter of striving after a vain Utopia.
The only important question to be faced is that of knowing if such
a code will be the work of diplomacy or of a juridical international

504 INTERNATIONAL LAW

committee. Or yet, whether it will be necessary to wait for its
preparation until an international parliament shall become a real-
ity.

If one is to refer to what has been done hitherto, it is evident that
this care will be intrusted to diplomacy assisted, perhaps, by a
special commission. It is a fact that diplomacy has definitely
formulated in the Convention of July 9, 1899, the laws and customs
of war on land, as it had previously formulated the rules relating
to the care to be given to the wounded belonging to land military
forces, and extended its scope by the special Convention of July
9, 1899, also to the wounded in naval war. The laws and customs
of war had been drafted long before by the Institute of International
Law, and had been adopted, in fact, by most of the governments of
civilized countries.

The work to be performed by diplomacy in codifying the rules of
the law of nations would not offer greater difficulties than the draft-
ing of the laws of war, brought about by the deliberations of the
Peace Conference. This will be mainly a work of coordination, for
all the ticklish questions of the law of nations have been studied
by notable jurists, and an almost complete understanding exists
between them upon the essential points.

We had noted, shortly before, that the calling of an international
parliament should, perhaps, precede the adoption of an international
code which would essentially be the work of such a deliberating
assembly. But the answer might be made that the gathering of
such an assembly hardly seems probable. As for us, we deem that
the calling of such a parliament has become a necessity, and that,
therefore, it may become an early reality. Such an assembly exists
even now, and though it has limited its work to the few questions
of more immediate importance, it constitutes none the less an inter-
national deliberating body, created out of the various parliaments
of the world. We are now alluding to the Interparliamentary
Conference, constituted in 1899, and which held its twelfth session in
St. Louis in 1904. This session has been particularly remarkable
in that its object was precisely the adoption of a resolution to the
effect that the states be requested to call an international parliament,
a congress of nations. It is interesting to note that it is upon this
American land, at the outset of the movement for peace, that a
competition was opened on the question of what would be the best
mode to employ for the purpose of assuring the organization of a
congress of nations. It is from the land of America, one century
after, that a call for identically the same purpose has just been issued
with the approval of the representatives of fifteen divers parliaments.
This shows that the idea is not Utopian, and that it appears as the
logical consequence of all international evolution.

PRESENT AND FUTURE OF INTERNATIONAL LAW 505

A question might be asked, nevertheless, namely, In what manner
will the members of such an assembly be appointed? It seems to us
that the various parties in the different parliaments might be called
upon to appoint their delegates in proportion to their size, and the
number of members to be appointed would be proportionate to
the number of the inhabitants of each country, while assuring,
however, a minimum number of representatives to countries with
a small population.

It is hardly possible to conceive a parliament without a permanent
delegation, charged with executing its decisions and bringing about
the preliminary study of the problems to be resolved. Such a 'dele-
gation will constitute in reality an international cabinet, and will be
composed essentially by those at the head of the various organisms
of international life. The importance of international offices at
present established, and which are, as we think, the embryonic ele-
ments of the future department of the international cabinet, is now
apparent. For it is difficult to conceive of such a cabinet otherwise
than as a vast administration for international needs.

It is, of course, not easy to indicate at the present time how such
a cabinet would be organized. But it may be anticipated as to
some of its main departments. The department of land and marine
transportation, first of all, will absorb the present post, telegraph,
and railroad offices. That of hygiene will supervise the struggle
against epidemics and epizootic diseases of all kinds, and of what-
ever origin, and will be charged with the carrying out of the inter-
national sanitary convention. That of the arts and sciences will
absorb the offices relating to international exchanges, industrial
inventions, intellectual works, the bibliographical international
office, and the geodesic bureau. The special mission of supervising
the formation of an international library and of a world university
might also be given it. The department of justice would supervise
the normal progress of the international tribunal, would prepare
works of international codification, and insure the execution of the
judgments reached over conflicts between states. It might be well
to intrust to it the carrying out of the conventions relating to inferior
races and African tribes.

Such a ministry or cabinet would, in fact, be only an enlarge-
ment and a coordination of the international administrations now
existing, and the resources placed at present at the disposal of the
various international offices might be considered as the elements for
an international budget to be voted on by the international parlia-
ment. That budget, which would include only expenditures for
peaceful purposes, would, by that very fact, be of modest size. At
the present time the appropriations for the various international
bureaus reach hardly the sum of a million francs. This small budget

506 INTERNATIONAL LAW

for works having a world-wide bearing is in happy contrast with the
enormous budgets of the various civilized nations.

We will now refer to a last point before ending this sketch of the
work to be accomplished in the field of public international law.
The present armies form, in times of peace as well as in times of war,
an essential element of the life of nations. Will it always be thus?
We make bold to affirm the contrary. All the arduous problems,
half of which at least constitute the domain of public international
law and which have for their object the rights of belligerents and
neutrals, will be definitely eliminated. Even now the disarmament
of nations appears as a work of paramount utility, despite number-
less difficulties which seem to be in the way of its realization.

We need not recall that this disarmament was the main preoccu-
pation of the Emperor of Russia in his rescript of 1898, and while
its discussion has disappeared from the order of the day of the Peace
Conference, it has, nevertheless, been solemnly declared by the
diplomats gathered at The Hague that military burdens constitute
for the nations an unbearable evil. Numerous publicists have not
hesitated to face the problem, and the solutions suggested by them
may be summarized as follows: Truce in armaments, partial and
simultaneous disarmament, final disarmament. A truce in arma-
ments would of itself bring about tremendous relief, for it would put
an end to the competition in armaments which drags nations into
making ever renewed expenditures, always becoming larger and
weightier, leading toward irremediable bankruptcy.

Partial and simultaneous disarmament would, no doubt, be the
nearest and most reasonable solution, and it does not appear hence-
forth as an impossibility, in view of the arrangements reached between
Chile and the Argentine Republic, which had for their object the
reduction of the naval forces of both countries.

There remains the question of final disarmament. Regarding
this delicate matter the last Interparliamentary Conference did not
hesitate to declare itself in favor of a thorough study. As has been
said above, the question of disarmament has not been stricken off
the programme drafted by the Czar; its discussion alone has been
adjourned. The Interparliamentary Conference has but recently
invited the governments to bring about the meeting in a new session
of the members of the Peace Conference with a view to discussing
the questions belonging to it, among which final disarmament
figures in the first rank of international matters. This invitation
was unanimously agreed upon, and it will have, as we hope, consid-
erable weight with statesmen when they are considering taking action.
How may such a disarmament be conceived? It is known that
the present armies have, in time of peace, only a limited size. The
men who are freed from active service are thereafter incorporated

PRESENT AND FUTURE OF INTERNATIONAL LAW 507

into civil life, and their final liberation could bring about no economic
disorder. As for the troops under arms, it would be possible to
maintain them in active service by transforming their mission of
defense into one of police. Part of the troops of each of the states
would form the nucleus of an international police, charged with
assuring the carrying out of the decisions of the international court.
Already at the time of the troubles in Crete, an international naval
force was organized for the purpose of assuring in this conflict
respect for the unanimous will of Europe.

This was only, of course, an ephemeral and passing event, and the
gathering in one spot of armed soldiers of various nations, between
which no unfortunate animosity exists at present, might not be
free from a certain danger. But the example given recently by
France and Great Britain shows that the most inveterate animosities
may be effaced with a little good will. International interpar-
liamentary visits, such as those of London and Paris, may be made
more frequent and the friends of peace will spare no effort to
bring them about. It is possible to create a peaceful opinion as
an aggressive public opinion was created systematically in former
days.

We firmly believe that it is in the interest of all, of governments
and of nations, to guide definitely the course of world-politics in
that direction, and it is not in vain, as we hope, that for the carrying
out of these resolutions the last Interparliamentary Conference
has appealed to the energetic and firm intervention of the head of
the American Republic.

We have now come to the end of this swift enumeration, in the
course of which we have striven to show what international law,
private and public, now is and towards what goal it is proceeding.
It is certain that its essential mission is to pacify the world. As the
duel has degenerated from its primitive function of settling private
conflicts until it has become an offense and a crime, war to day,
though still the object of legal rules which ratify its legality, will be
transmuted into a crime committed by the many, and will be brought
to the level of individual assaults vi et armis and become the object
of provisions in an international penal code.

Only when really pacified will humanity formulate definite inter-
national law. It is for this reason that we have been brought to
examine, in the course of this study, many questions of rather polit-
ical than juridical character. But law is essentially an epiphenome-
non. It is only the formula which is placed upon the fact. The
jurist, being intimately convinced of this truth, is compelled to inter-
est himself in events, to follow them and to influence them as far
as possible, that he may assure by their realization the triumph of
law in the world.

508 INTERNATIONAL LAW

It is thus that we are led to ask ourselves a last question: In what
place shall the administrative, legislative, and judiciary organs of
humanity, having definitely entered into the juridical era, be situ-
ated ? Where shall the world-parliament deliberate ; in what city
shall the international administrations be gathered; where shall the
international court sit? We have already been invited to give our
opinion regarding this problem, and we have not hesitated to give it
a solution which would seem bold and audacious at first blush. In
our opinion the most serious obstacle in the way of pacification of
the world and of its submission to the sole force of law arises from
the situation created by the war of 1870 between Germany and
France. The colonial appetites, so acutely sharpened during these
last years, did not succeed in creating serious misunderstandings
between the civilized nations. The Berlin Convention of February
26, 1885, has shown that Europe was capable of viewing such diffi-
culties with wisdom and moderation. But the conquest of Alsace
and Lorraine has been the direct cause of the inconsiderate develop-
ment of contemporaneous armaments. With a really exemplary
courage, the study of this situation has been taken up anew during
these last years, both to the east and the west of the Rhine, and
various propositions have been suggested. The division or exchange
of the conquered provinces has won over the most authoritative
elements. It has seemed to us that the idea of neutralization was
more fruitful if connected with the ideas here presented. The
Reichsland of the German Empire would become the Weltland of the
world-empire and Strassburg might become the modern Cosmopolis.

Where war has raged and triumphed, there should law be enacted
and its respect assured by world-administration and an international
court. About these political organisms would rapidly be grouped
international scientific and intellectual institutions. There the main
congresses might have their center of irradiation; there a universal
library and a world-university might be organized most usefully;
there the Association of Academies might have its main head-
quarters, and the dismantled fortress might become the vast human
city open to all nations and all races.

There would be upon the earth only vast provinces of a vast em-
pire, ruled by a single law, common to all men and all states.

SOME PROBLEMS OF INTERNATIONAL LAW

BY CHARLES NOBLE GREGORY

[Charles Noble Gregory, Dean of the College of Law since 1901, State University
of Iowa. b. Unadilla, Otsego County, New York, August 27, 1851. A.B.
University of Wisconsin, 1871; LL.B. ibid. 1872; A. M. ibid. 1874; LL.D. ibid.
1901. Associate Dean of the College of Law, State University of Wisconsin,
1894-1901. Member and a Vice-President of American Bar Association ; Inter-
national Law Association ; and one of the Vice-Presidents of its Antwerp Con-
ference, 1903; Political Science Association. Author of numerous legal articles
in leading law publications of the United States and England.]

WHEN Hugo Grotius published his great work on international
law he entitled it Concerning the Law of Peace and War, That obvi-
ous division of this great subject continues after the lapse of nearly
three centuries.

" The law of war," says Professor Holland, " as is well known,
consists of two great chapters, dealing respectively with the relations
of one belligerent to the other and with the relations of each bellig-
erent to neutrals." 1 He goes on to show that the former has been
discussed for at least six centuries, not to mention classical antiquity.
The latter is comparatively modern, dating as a separate subject
only from the eighteenth century, " though it has already come far
to surpass in complexity and importance the law of belligerency."

It is with some problems in this surpassing branch of the law of
war, " the relations of each belligerent to neutrals," that we wish
to deal.

The Treatment of Neutral Blockade Runners

In discussing in print during the last year the law of blockade,
the writer said that while " the older writers approved of the corporal
punishment of the blockade-runner," yet " this is now wholly
obsolete, and a confiscation of the ship, and, by the rule of infection,
of any cargo belonging to the ship-owner, and of any portion of the
cargo belonging to an owner cognizant of the blockade or who
makes the master his agent, is the sole punishment." 2

A very eminent and gifted English judge, whose name has for
two generations been especially and most honorably identified with
public law, — Sir Walter Phillimore, — by letter, courteously dis-
cussing the proposition, suggested to the writer that the rule could
hardly be considered as settled; that it must be held at least in doubt.
Sir Walter cited the practice of the United States in the war with
the Confederacy, and especially the imprisonment of the late Sir

1 Studies in International Law, by T. E. Holland (Oxford, 1898), p. 113.

2 Yale Law Journal, April, 1903.

510 INTERNATIONAL LAW

William Allan, M. P., and his published reminiscences of the same.
Sir William, by birth a Scotchman, lived for years in the United
States, but returned to his native country and was later captured by
a United States cruiser in Savannah Harbor while serving as chief
engineer on a vessel engaged in running the blockade. He was held
in prison for six weeks, until he bribed a sentry to take a letter to
Lord Lyons, British Minister at Washington, and was then released
on parole.1

Unfortunately, I have been unable to find Sir William's published
reminiscences. Neither is the State Department nor the Navy
Department able to refer me to the facts in the case, nor has the
incident been observed in a very extended examination of the printed
volumes containing the history of the Federal and Confederate
navies. However, Sir Walter quotes to me a letter from Sir Wil-
liam, written just before the latter's death in December last: " The
United States authorities did imprison men taken in blockade-run-
ning. Our vessel (Diamond) was taken to Washington. We were
turned over from the naval to the military authorities there, . . .
marched to the provost marshal's quarters. Answered our names
there, then our commitments to the old Capitol Prison were made
out." There they were " quartered with prisoners and had hard
usage." Eventually he was paroled out and given a written " pa-
role " describing him as a prisoner of state, which parole he retained
through life.

It must be freely admitted that owing to unfamiliarity with inter-
national law and to the suspension, as a war measure, of the writ
of habeas corpus, so that our courts could not intervene, numbers of
cases like the above seem to have occurred. That the situation was
complicated by the fact that it was a matter of constant controversy,
first, as to the neutrality of the ships, often claimed to be Confed-
erate ships and onl> colorably sailing under a neutral flag; secondly,
as to the nationality of the members of the crew, who were largely
British, speaking the same language with the people of the United
States, and who had often, like Sir William, lived for years in the
United States. The rule excepting from imprisonment applies only
to neutrals upon a neutral ship, and not to belligerents, or subjects,
or to those operating a vessel of the belligerent government.

So the commandant of the Philadelphia Navy Yard wrote Acting
Rear-Admiral Lee March 31, 1863: " I have disposed of the crews
of the captured vessels — foreigners sent on shore, and citizens of the
United States confined."2

March 24 in the same vear, Captain Boggs of the Sacramento,
one of the blockading ships off Wilmington, wrote to the rear-ad-

1 The Daily Chronicle, London, December 29, 1903.

2 Official liec. U. S. and Confed. Navies, series i, vol. vm, p. 643.

PROBLEMS OF INTERNATIONAL LAW 511

miral in command, asking instructions as to the disposition of persons
" taken out of vessels seized as a prize for violating the blockade.
To send them north in the vessel would require a much larger prize
crew than the exigency of the fleet will permit. They are generally
a daring set of men, and the compensation to them would be the
strongest inducement to attempt a recapture." * The rear-admiral
instructed him in reply to send those known, or for good cause sus-
pected, to be citizens of the United States, north to the commandant
of the navy yard to which the vessel conveying them might be
bound. " Those against whom no such proof or suspicion is enter-
tained, if they are not needed as witnesses in the adjudication, Mail
be released from the blockading vessel as soon as practicable/' 2

Certain of the crew of the captured British blockade-runner
Adeline were released on signing an engagement not to be again
employed in like proceedings. Secretary Welles instructed the flag
officer of the blockading squadron that the Secretary of State held
this not warranted by public law and that the crew could not be held
as prisoners of war and that they were absolved from the obligation.3

On July 25, 1863, President Lincoln instructed the Secretary of
the Navy as follows:

" You will not in any case detain the crew of a captured neutral
vessel or any other subject of a neutral power on board such vessel,
as prisoners of war or otherwise, except the small number necessary
as witnesses in the prize court.

" NOTE. — The practice here forbidden is also charged to exist,
which, if true, is disapproved and must cease. [The President adds:]
What I propose is in strict accordance with international law, while
if it do no other good, it will contribute to sustain a considerable por-
tion of the present British Ministry in their places, who, if displaced,
are sure to be replaced by others more unfavorable to us.
" Your obedient servant,

"ABRAHAM LINCOLN."

The right as a reasonable precaution to place the captured crew
in irons lest they rise and overpower the prize crew was maintained
in an elaborate letter of Secretary Seward to Lord Lyons in 1861. 4

The crew of the Emily St. Pierre, taken off Charleston, did retake
the ship, gagging and putting in irons the prize officers and crew.5

In January, 1864, the Department of State sent to the Secretary
of the Navy intercepted correspondence showing that vessels oper-

1 Official Eec. U. S. and Confed. Navies, series i, vol. vm, p. 625.

2 Ibid. vol. vm, p. 804.

3 Ibid. vol. xii, p. 462.

4 Ibid. vol. xii, p. 407 et seq.
6 Ibid. vol. xn, p. 814.

512 INTERNATIONAL LAW

ated by the Confederacy in blockade-running were under orders to
conceal their nationality, and suggesting that it would be proper
to direct that henceforth British blockade-runners be detained in
custody and not released as heretofore. Secretary Welles ordered
accordingly and countermanded inconsistent orders,1 but this was
in turn revoked by the Secretary of the Navy May 16, 1864, and full
instructions issued in accord with the views of President Lincoln,
before expressed,2 exempting bona fide neutrals on neutral ships from
treatment as prisoners of war, and holding them " entitled to imme-
diate release." 3

The modern doctrine that neutral blockade-runners on a neutral
ship are not subject to bodily punishment is not contravened, it is
submitted, by the ultimate practice of the United States in its
blockade of the Confederate coast, by all odds the greatest blockade
known to history. It is believed that it is sustained by the text-
writers generally.4

In the second great blockade of the past eighty or ninety years,
that of the Cuban coast, the Instructions of Blockading Vessels and
Cruisers, issued by the Secretary of the Navy of the United States
in 1898, and prepared by the State Department, expressly declare :
" 9. The crews of blockade-runners are not enemies and should
be treated not as prisoners of war, but with every consider-
ation."

The whole subject is most admirably reviewed by Calvo. The
older practice is shown and that of the United States in the war with
the Confederacy, and at the close he justly observes : "The usage
concerning the non-infliction of bodily punishment on persons
guilty of violation of blockade has become uniform enough so that
we can consider confiscation of the property captured as now the
sole punishment." 5

The consul-general of the United States at Yokohama, by letter
of July 27, 1904, kindly advises me that in the present Russo-
Japanese war the Japanese have treated neutrals captured in attempt-
ing to run the blockade at Port Arthur in the same way, holding
them as witnesses, it might be, but not as prisoners of war. That
is, however, not strictly a blockade. The legation of Japan at
Washington, under date of August 13, 1904, advises me of like
practice by Japan as to officers and crews of neutral ships recently
captured while carrying contraband, which is comparable to breach

1 Official Rec. U. S. and Confed. Navies, series I, vol. ix, p. 285.

2 Ibid. vol. ix, p. 405.

3 Ibid. vol. x, pp. 60, 61.

4 Gaulaudet on Inter. L. (condensed from Calvo), p. 298; T. J. Lawrence, Prin.
Inter. L, p. 502; Walker's Inter. L., p. 525; Woolsey, Inter. L. (1899), p. 351;
Hairs Inter. L. (1904), p. 710; 3 Phillimore's Inter. L., p. 506 et seq.

1 Calvo, Le Droit International, tome v, sec. 2899.

PROBLEMS OF INTERNATIONAL LAW 513

of blockade, and such persons have been treated in the same way by
Russia.

The rule as quoted from Calvo, that great and authoritative writer
on public law, seems, it is submitted, to meet with continued and
universal acquiescence.

Contraband of War

On the 14th of February, 1904, Russia, by proclamation, an-
nounced that in the war with Japan she would treat as contraband
combustibles of all kind, such as coal, naphtha, alcohol, and other
like materials. Also all materials for the installation of telegraphs,
of telephones, or railroads. This proclamation, together with an
explanatory instruction of March 6, also declares contraband
anything capable of serving as food or forage for the Japanese army,
and especially rice and fish and its different products, beans and their
oil.1 By ordinance of April 26, cotton was added to the list.
Under these declarations and ordinances, Russian war-ships have
seized neutral vessels bound for Japanese ports and claimed as
prize of war articles of the character listed. For instance, they have
seized and caused to be condemned a cargo of American flour on a
neutral ship not consigned to the Japanese Government or in any
way ear-marked for belligerent use except by its destination to a port
of Japan.

The doctrine that articles which may serve alike the uses of peace
or war are not contraband unless intended for the military uses of
a belligerent rests on two broad principles:

First. That neutrals under modern usage cannot be hindered in
their general right to trade in innocent articles of commerce with
belligerents except by an actual blockade, never by a proclamation.

Secondly. International law forbids a belligerent to make war
upon the civil or noncombatant population of its opponent, and, as
Hall says: " Hence seizure of articles of commerce becomes illegiti-
mate so soon as it ceases to aim at enfeebling the naval and military
resources of the country and puts immediate pressure upon the civil
population." 2

The claim of Russia has been at once controverted. The Depart-
ment of State of the United States, in a communication to the
ambassadors of the United States of June 10, took the ground that
articles of double use (ancipitis usus) are contraband if they are
destined for the military uses of a belligerent. It points out that
the principle of the Russian declaration " might ultimately lead to

1 Revue Generate de Droit International Public, Mai et Juin, Documents, p. 12
s International Law, (5th ed. 1904), p. 656.

et sea.
2 Hall'

514 INTERNATIONAL LAW

a total inhibition of the sale by neutrals to the people of belligerent
states of all articles which could be finally converted to military use,"
and adds that such principles " would not appear to be in accord
with the reasonable and lawful rights of a neutral commerce."
Queen Elizabeth would not allow the Poles and Danes to furnish
Spain with provisions, alleging that by the rules of war " it is lawful
to reduce an army by famine."1 But the present government of
England has expressed its accord with the views of Secretary Hay
by an official note of protest, dated August 1, against the claim that
food is absolutely contraband.2 Lord Lansdowne, in the Lords,
August 11, said that the Russian declaration " greatly amplified
the definition of contraband, including much England regarded as
innocent. England would not consider herself bound to recognize as
valid the position of any prize court which violated the recognized
international law." And Mr. Balfour in the Commons, on the same
day, said as to the doctrine that a belligerent could draw up a list of
articles it would regard as contraband and that prize courts must
decide accordingly: " If that doctrine were accepted without
reservation, neutrals would be at a serious disadvantage." August
25, in reply to the shipping deputation, Mr. Balfour said there
was no possibility of Great Britain receding, inasmuch as she knew
she stood " on the basis of all recognized international law to be
found in all the text-books and in accordance with the general prac-
tice of civilized nations."

The English view, and it is believed it is the view of the world,
is well put by the Law Times of London.3 It declares " the position
of Russia as to contraband cannot be accepted for a moment by
Great Britain," and says the point is well summed up by the London
Times in a leading article: " To entitle a belligerent to treat goods as
contraband, there must be a fair presumption that they are intended
for warlike use, and such presumption does not arise from the mere
fact that they are consigned to a belligerent port. In other words,
non-blockaded ports should be open to the legitimate trade of neu-
trals, and belligerents who . . . have not the power to establish an
effective blockade cannot be suffered to attain the object of such
blockade by an ... extension of the definition of contraband."

At least, since the Declaration of Paris of 1856, a paper blockade is
of no legal force, and a blockade to be recognized by the law of
nations must be " maintained by a force sufficient really to prevent
access to the coast of the enemy." 4 This immensely increased the

1 Taylor's International Law, p. 736; Grotius, Droit des Gens, in, sees. 112, 117,
and note to soc. 112.

2 Boston Evening Transcript, August 9, 1904.
* Law Times, August 13, 1904, p. 330.

MVhcaton's Inter. L., 4th Eng. ed., 1904, p. 691. See this also declared in

PROBLEMS OF INTERNATIONAL LAW 515

security of neutral commerce and ought not, by the device of declar-
ing an extension of the list of contraband articles, to be done away
at any time by any belligerent. The Russian declaration, which
seeks to treat as contraband substantially all fuel and food arid the
staple from which clothing is made, would certainly have this effect
if enforced, and the most objectionable harrying of neutral commerce
and deprivation of noncombatant belligerents would be liable to
follow. That this is no small matter to neutral trade is shown by
a very simple consideration of the facts. If we regard the excessive
number of two or even three millions of persons as engaged in or by
location or otherwise infected by the warlike operations of Japan,1
then neutral ships cannot carry supplies of food or fuel or clothing
to those three millions without liability to seizure, but they may still
carry such supplies with entire immunity to some forty-two millions
of Japanese, constituting the civil population. The extension by
the terms of the Russian proclamation is of a limitation, lawful as to
one fifteenth of the people, to the whole people, and it seems an un-
warranted invasion of the plain rights of neutrals to trade in these
great staples with forty-two millions of people.

It is certainly customary for belligerents to announce what articles
they will treat as contraband, and the Institute of International
Law resolved in 1877 that belligerent governments should determine
this in advance on the occasion of each war,2 and Prince Bismarck
so stated in reply to a complaint of Hamburg merchants; but no
substantial alteration of the rules of international law can be so made.

If a belligerent, commanding the sea, can thus paralyze the neutral
transport of food, fuel, and the staples of clothing, the suffering and
death inflicted on the millions of noncombatants in such island
nations as Great Britain or Japan are appalling and quite unwar-
ranted by public law, and the blow to neutral commerce is utterly
destructive.

Considering the greatly improved facilities for inland transit, the
test of noxious or not according to the character of the port of con-
signment may require modification, but such articles are, by the
great weight of authority and practice, not, as Russia would make
them, absolutely contraband, but conditionally so, if intended for
warlike use.

So late as December, 1884, Russia, at the Congo Conference,
declared that she would not regard coal as contraband,3 and food-
stuffs were not in her list of contraband in 1900. 4

Russian Declaration of February 14, 1904, " Le blocus, pour ctre obligaloire doit
etre effectif."

1 The entire number of persons in the army and navy of Japan, including
reserve and landwehr, as appears by the Statesman's Year-Book of 1904, p. 864,
was 667, 362.

2 Hall's International Law, 5th ed. 1894, p. 653; Annuaire for 1878, p. 112.

3 Lawrence's JJ'ar and Neutrality in the Far East, p. 158. * 1

Ibid. p. 166.

516 INTERNATIONAL LAW

His Excellency, Count Cassini, the ambassador of the Czar at
Washington, on the 15th of September, kindly called my attention
to the fact that: " As to the question of one of the belligerents
declaring absolute contraband goods, not generally recognized as
such, it cannot be regarded as something quite unusual. During
the Franco-Chinese war, for instance, the French Government
declared rice absolutely contraband without consideration to its
use, which declaration was left unprotested by any neutral power."

With deference it is submitted that the action of France was in
that case promptly protested by England and that Lord Granville
gave notice that Great Britain would not consider herself bound by
a decision of any prize court in support of the claim of France, and
no seizure of rice was in fact made.1

Supplies of American canned meats bound for Port Arthur and
Vladivostock were, at the opening of the war, seized by the Japan-
ese, but they were plainly contraband as destined for the use of the
enemy's armed force.2

As Dr. Lawrence shows, England imports about four fifths of
the wheat and flour she consumes, and, as he says, " The value of
our food trade to other nations secures that we shall receive powerful
assistance in our efforts to keep it open. It is a matter of life and
death for us to prevent any change in international law which shall
make the food of the civilian population undoubtedly contraband,
and if arguments and protests will not do it, force must." 3

The United States is a great exporter of cotton (she produces
about two thirds of the world's supply) and of food products. About
one half of her population is directly engaged in agriculture, or con-
stitutes the households of those who are so engaged. As a result,
no government can maintain itself in that republic which does not
use all possible efforts to keep open this foreign trade in field products.

Against earnest and concurrent action on the part of these two
powers it would seem strange if Russia should successfully carry out
her plan for extending the definition of contraband, and so turn
back the happy progress of neutral right. In so far as condemnations
have already taken place, they will undoubtedly be the source of
claims for damages which will not be easily satisfied.

The fact that cotton was declared contraband by the United
States in its war with the Confederacy seems hardly in point, as
cotton was then substantially a government monopoly in the Con-
federacy and almost its only source of revenue.3 Cotton and its
seed are the most considerable item in the imports of Japan, being

1 Hall's International Law, 1904, pp. 662, 663; Lawrence's War and Neutrality
in the Far East, p. 164; Wheaton's International Law, 4th Eng. ed. 1904, p. 672.
J Lawrence's H ar and Neutrality in the Far East, p. 167.
» Ibid. p. 171.

PROBLEMS OF INTERNATIONAL LAW 517

almost twice as great again in value as sugar, the second article in
value in the list.

The whole record as to claims and rulings as to contraband is
singularly confused and conflicting, but the claim advanced by
Secretary Hay seems so clearly within the practice and the weight
of authority of the past half-century that it is hoped it may prevail.
Neutral rights are the rights of the vast majority, and they should
not be lightly prejudiced for those of the belligerents, who are
always a small minority. The disturbance to trade, moreover,
caused by a state of belligerency between any two maritime nations
is now world-wide. Steam and electricity have made us all near
neighbors, and exactly as the peace and order of a closely-settled
urban community must be kept by far more stringent regulations
than that of a community of scattered shepherds and farmers, just
so the peace and security of the vastly increased and greatly more
connected and interwoven commerce of the modern seas must be
preserved by correspondingly adequate rules.

The St. Petersburg dispatches of September 12 seem to intimate
that Russia, upon the advice of the commission of eminent persons
appointed by her to consider this matter, is inclined to modify her
declaration as to absolute and conditional contraband in substan-
tial accord with the American and British notes, except as to cotton,
and this is confirmed by those of the 19th. The action is received
with very wide satisfaction, and, it is believed, is in accord with
the peaceful and beneficent sentiment of the world. Russia is to
be congratulated upon the wisdom and humanity of this action,
and Secretary Hay upon his successful protest against what he well
characterized as " a declaration of war against commerce of every
description between the people of a neutral and those of a belligerent
state."

Belligerent Act in a Neutral Harbor 1

The seizure of a Russian vessel of war by the Japanese in the
Chinese harbor of Chefoo on August 12 involves most grave
questions of international law. The Russian vessel was pursued by
Japanese destroyers, but escaped from them in the night. They
later found her in the neutral harbor. The Japanese vessels waited
outside the port. The Russian failed to come out. The Japanese
commander, anticipating his escape by night and a possible attack
on merchantmen, entered the port with two destroyers. It is claimed
the Russian had been in port twenty-seven hours, and was not yet

1 A reply to this discussion was printed by Mr. K. K. Kawakami, attached to
the Imperial Japanese Commission at St. Louis, in the Japanese- American Coip,-
mercial Weekly, of September 24, 190-4.

518 INTERNATIONAL LAW

completely disarmed. A Japanese officer with an armed force was
sent on board in the night — the hour was 3 A. M. — with a mes-
sage that the Japanese expected her to leave by dawn or to
surrender. The Russian commander refused and was overheard
directing that the ship be blown up. At the same tinie he seized
the Japanese officer and threw him overboard, falling with him,
and the Japanese interpreter was thrown overboard. The forward
magazine exploded, killing and injuring several. The Japanese
being armed, and the Russians disarmed, the former prevailed in the
mclce and took possession of the vessel and removed her from the
harbor. The Japanese loss, due to the explosion, was one killed,
four mortally wounded, and nine others injured. Admiral Alexieff
informed the Czar that the vessel was disarmed the day before,
according to arrangements with the Chinese officials. The captain
and most of her officers and crew swam ashore and reported that
the Japanese fired on them as they fled. The Russian captain reports
that he had disarmed the ship, and having no arms to resist what he
calls a piratical attack in a neutral harbor, ordered the ship blown up.

Admiral Alexieff says the Russians were conferring with the
Chinese officials as to a temporary stay to repair the ship's engines,
and had given up to the Chinese officials the breech-blocks of the
guns and rifles and had lowered the ensign and pennant.1

Russia earnestly protested at Pekin against this violation of a
Chinese port. Japan retained the vessel and justified the seizure on
several grounds, claiming that the Russian ship was not effectively
disarmed; that her continuance in the harbor after the lapse of twenty-
four hours was itself a violation of the neutrality of China and so
absolved Japan; that the visit was to ascertain whether or not the
ship was in fact disarmed adequately and whether she had just claim
to remain for repairs, and to demand her departure otherwise, and
that the Russians began hostilities and thus justified the Japanese
in the capture; that the weakness of China in enforcing her neu-
trality and the nearness of the port to the seat of war all excused the
transaction.

It is respectfully submitted that none of these can be accepted
as justifying the capture without suffering serious impairment of
the sanctity, the peace, and order of neutral harbors and encouraging
a painful retrogression in the public law applicable.

As Wheaton says, Bynkershoek alone, of writers of authority,
allows the seizure of a vessel pursued into neutral waters, and even
he admits he has never seen this doctrine in any but the Dutch
writers.1 Mr. John Bassett Moore shows that Bynkershoek's doc-
trine as to right of pursuit is almost unanimously condemned col-

1 Sf-p London Times (weekly ed.), August 19, 1904, p. 532.

2 Wheaton's International Law, sec. 429 (4th ed. Eng.).

PROBLEMS OF INTERNATIONAL LAW 519

lecting the authorities upon the subject,1 and he also shows that in
1806 President Madison so held in protesting against the destruction
of a French ship L'Impetueux, disabled by a gale and destroyed by
the Melampus and two other British ships on the coast of North
Carolina. The present was, moreover, hardly a case of fresh pur-
suit, the Russian vessel having eluded her pursuers and having been
later found in the Chinese port.

The practice of powerful belligerents, and especially England,
was formerly to pay little, if any, attention to the sanctity of a neu-
tral port, yet the practice seems never to have been deemed lawful.

Here are some of the old precedents involving hostile meetings
of war-vessels in neutral waters. During the second Punic war,
Scipio, with two Roman galleys, entered the port of Syphax, king
of Numidia, to seek his alliance. There he found Hasdrubal upon
a like errand with seven Carthaginian galleys, but they "durst not
attack him in the king's haven."2 The Venetians and Genoese
being at war, their fleets met in the harbor of Tyre, " and would
have engaged in the very haven, but were interdicted by the gov-
ernor," and therefore went to sea and fought in the open.3

In 1604 James the First of England forbade acts of belligerency
in certain waters near the English coast; but in 1605 the Dutch and
Spanish fleets fought in Dover Harbor. The English castle was silent
until the victorious Dutch bound their prisoners two by two and
threw them into the sea; then at last the castle battery fired upon
the inhuman victors4. England here tardily resisted a breach of the
neutrality of a British port. However, a year later, the Dutch East
India fleet was attacked by the British in Bergen Harbor. The gov-
ernor of the town fired upon the attacking fleet.5

Four French ships of war which fled to Lagos after conflict with
the English off Cadiz, in 1759, were destroyed in that harbor by the
English. Portugal made complaint to England. Pitt was civil and
an apology was duly made by the Earl of Kinoul as special ambassa-
dor extraordinary, who promised that the British would be more
^careful in the future, but there was no restitution or compensation.6

Phillimore declares this " a clear and unquestionable violation
of the neutral rights of Portugal, and it was one of the causes of
war by France against Portugal.7

In 1781 an English squadron in Porto Praya, in the Cape Verde

1 Moore's International Arbitration, p. 1120.

2 Moore's International Arbitration, p. 1116, quoting tl 3 incident from Livy.

3 Moore's International Arbitration, p. 1117, quoting Molloy, De Jure Maritime
(5th ed.), p. 12.

4 Walker's International Law, pp. 169, 170; Grotius' Hist. vol. xiv, p. 794.

5 Vattrl, bk. in, chap, vn, sec. 132.

8 Dana's Notes to Wheaton, sec. 430; Moore's International Arbitration, p. 1127.
7 Phillimore's International Law, sec. 373.

520 INTERNATIONAL LAW

Islands, was attacked by a French fleet. The Portuguese fort
resisted the attack and no prizes were taken. The French Govern-
ment approved the attack, as Ortolan says, perhaps in retaliation
for the action at Lagos.1

The French frigate Modeste was captured by the English in the
harbor of Genoa in 1793. There was neither apology nor restitution.2

In the war of 1812 the United States frigate Essex, at anchor
and dismasted in Valparaiso Harbor, was attacked and captured by
two British ships. The Levant, a prize of the United States frigate
Constitution, was chased into Porto Praya and there captured while
at anchor by vessels from the British fleet.3

The American privateer General Armstrong, a brig of seven guns,
was attacked and destroyed by a British squadron of one hundred
and thirty guns in the harbor of Fayal in 1814.4 The resistance was
most gallant and assaults were repeatedly repulsed with great loss
of life. The Portuguese governor interposed with the English com-
mander to obtain a cessation of hostilities, but the latter claimed
that the Armstrong had fired upon the English boats without cause
and that he would take possession of the privateer in consequence,
saying that if the Portuguese interfered he would treat the castle and
island as enemies. It appeared that at evening the long-boats of
the British squadron, with a large force, apparently armed, out-
numbering the crew of the privateer, approached so as to touch her
stern with a boat-hook. They were warned off, and not desisting,
were fired on with fatal results, and returned the fire. The English
commander claimed that he intended to reconnoiter the privateer
merely, and to observe the neutrality of the port. The circum-
stances were such that the Americans thought themselves justified
in taking the approach as an attack and attempted boarding, and
in resisting accordingly. The vessel lay during most of the affray
within a half-pistol-shot of the castle. Some buildings were burned
and persons were killed upon the land by the British cannonade, well
illustrating the results of such a practice.

This was the foundation of a claim against Portugal by the United
States for failing to keep the peace of the port. On a reference to
Louis Napoleon, President of the French Republic, as arbiter, he
finally held, in 1852, a few days before he assumed the imperial
dignity, against the claim, on the ground that the Americans did
not apply for protection to the Portuguese authorities in time, and
that they fired first upon the British boats as they approached in
the night. This case has been cited as the principal case supporting
the conduct of the Japanese at Chefoo.

1 Mooro's History of International Arbitration, p. 1127; Diplomatic de la Mer,
ii, 320. 2 Hall's International Law (cd. of 1904), p. 602.

3 Dana's \otes to Wheaton, sec. 430.

4 \\ barton's Digest, G04; Snow's Cases in International Law, p. 396.

PROBLEMS OF INTERNATIONAL LAW 521

Dana says that the " decision was not satisfactory to the United
States Government, as they did not consider the fact on which it
rested as established in proof." He thinks the rule should be con-
fined to cases where the vessel " makes a fair choice to take the
chances of a combat rather than to appeal to neutral protection."1

Lawrence thinks the doctrine of the decision has been fully ac-
cepted by British publicists, while American jurists have been dis-
posed to deny or qualify it, but he reaches the conclusion that the
side which in a neutral harbor rights purely in self-defense can
hardly on that account forfeit the right to redress.2

The rule that the belligerent captured in a neutral port cannot
recover compensation from the neutral power unless he demanded
protection and there was failure to afford it, is by no means an indi-
cation that the neutral may not demand satisfaction for the invasion
of its sovereignty without any such circumstances. The basis of
recovery is the negligence of the neutral in one case, but the basis
of recovery in the other is the trespass of the offending belligerent.

Mr. Justice Story, a person quite as extensively versed in public
law as Napoleon the Third, considered that a belligerent attacked
in neutral territory is justified in using force in self-defense.3

It is impossible that international law should be so divorced
from the law of nature and all municipal law as to hold otherwise,
and in the private law of self-defense one may always justify upon
the appearance of necessity.

It is believed that later practice and decisions in no way warrant
the invasion of a neutral port even to seize or attack a hostile cruiser
harboring there. Ortolan long since, while strongly supporting the
exterritoriality of ships of war, yet declared that if the vessel of
war in territorial waters undertakes to commit any acts of aggression
or hostility or violence, it is the right of all nations immediately to
take all the measures and employ all the means necessary for a
legitimate defense.4 It is literally defense against a hostile invasion.

The more recent precedents are as follows: Near the opening of
the Franco-Prussian war, a French ship, after an unsuccessful combat
with a German ship off the harbor of Havana, escaped into the
harbor. The German vessel respected the neutrality of the Spanish
port and did not further molest the French ship, which remained
at Havana until the close of the war.5

• The United States warship Wachusett in 1864 attacked and cap-
tured the Confederate cruiser Florida in the harbor of Bahia and

1 Dana's Notes to Wlieaton, sec. 430.

2 T. J. Lawrence's International Law, p. 540.

3 Hall's International Law (ed. of 1904), p. 625, and note citing The Anne, 3
Wheaton, 477. See also T. J. Lawrence, International Law, p. 540.

4 Diplomatic de la Mer, ix, 218.

8 Harper's Weekly, August 27, 1904, p. 1309.

522 INTERNATIONAL LAW

towed her to sea. In that case, also, there was resistance and shots
were exchanged and three men were injured on the attacking vessel.1
She was pursued by a Brazilian man-of-war, but escaped by superior
speed. Although feeling against vessels of the class of the Florida
and against countries harboring them was most intense, yet the act
was repudiated wholly by the United States, the commander of the
Federal vessel was court-martialed, the consul who had advised him
dismissed, and the Supreme Court held that Brazil was justified by
the law of nations in demanding the return of the captured vessel and
proper redress otherwise, and that the captors acquired no rights.2

In like manner, in the case of the American steamer Chesapeake,
which was, it was claimed, piratically seized on a voyage between
New York and Portland in 1863 by certain alleged Confederate
partisans, who took passage on her in New York, she having been
pursued by a warship of the United States into Nova Scotian waters
and there seized, and two men on board and one of the leaders of
the partisans on a neighboring vessel taken into custody; the vessel
and the men were surrendered by the United States and an apology
made for violating British territory.3

Dispatches from Buenos Ayres of August 28, 1904, show that rela-
tions between Argentina and Uruguay have become strained through
an attack by Uruguay on an insurrectionary force directed against
her, but in Argentine waters.

The cases holding the seizures of merchant vessels in neutral
waters void are too numerous to collate and are therefore omitted.

The fact that the Russian ship had remained more than twenty-
four hours in the Chinese harbor shows a possible violation of the
twenty-four-hour limit adopted by China in her declaration of
neutrality, if the Russian ship was not, as claimed, detained for
necessary repairs and already disarmed.

The limit of twenty-four hours was one which China could adopt
or not in her discretion and therefore could enforce or not.4 No
other power had the right to enter her ports to enforce it. It is
usual, but not a legal obligation, for neutral nations to fix such a
limit for the stay of belligerent ships of war in their ports. Though
such a rule seems in process of formation as a requirement, yet dur-
ing the present operations, though many have, numerous nations
appear not to have announced such a limit.

In the case of a Russian gunboat in the harbor of Shanghai which
failed to withdraw on the demand of China, Dr. Lawrence says that
Japan " might have given notice to China that she would no longer

1 Marliiy's Hislort/ of the Navy, vol. u, p. 557.

* The Florida, 101 U. S. 37; Hall's International Law (ed. 1904), p. 620.

3 Hall's International Law (ed. 1904), p. 620; Wheaton's International Law
(4th ed. Enjc.), p. 580.

* Dana's .Votes to Wheaton, sec. 429.

PROBLEMS OF INTERNATIONAL LAW 523

respect the territorial waters of a state which seemed powerless to
defend its neutrality, or she might have claimed reparation for the
indulgence shown to her opponent."1 She did neither, but after
long parley the Russian vessel was dismantled. The statement
of the rights of Japan seems extreme, and the constant assumption
that the twenty-four-hour limit is a provision of international law
which a belligerent may enforce against any neutral seems wholly
unwarranted.

A practice of declaring such limit is widespread and growing, but
the rule on this subject, as stated in the edition of Wheaton published
within the year with notes by J. Beresford Atley, is as follows: " The
reception or exclusion of belligerent cruisers and their prizes in neu-
tral ports is a matter entirely at the discretion of the neutral govern-
ment."2 He shows that the limit of twenty-four hours for the stay
of a belligerent ship of war in a neutral harbor is not half a century
old and depends on the action of the neutral power in declaring it,
and that it is not a settled obligation of international law.

Lawrence thinks the twenty-four-hour regulation admirable, and
points out that neutrals are bound to treat both belligerents alike,
but says the law of nations allows the stay of belligerent vessels in
neutral ports, and that we have no right to complain where this
regulation is not adopted. He says expressly that the common
" assumption that international law forbids belligerent vessels to
enjoy the shelter of neutral ports for more than twenty-four hours
at a time ... is an error, but one so general that those who give
expression to it have much excuse."3

A, neutral state may at will close all its ports to belligerents, and
the New York Nation says: " Norway and Sweden, we believe, have
done so in the present war." 4 It is believed that Norway and Sweden
and Denmark have excluded warships of the two belligerents from
a large number of their principal fortified ports, but not from all.
Their proclamations of neutrality seem so to provide, and this has
been their policy for half a century.5 They impose the twenty-four-
hour limit in such ports as are left open.

The fact that Japan on September 11 made protest against the
Russian auxiliary cruiser Lena remaining in San Francisco Harbor
longer than twenty-four hours brings home the question to the
United States Government. The vessel claimed that she was
detained for necessary repairs and the United States took steps to
ascertain whether or not this was well founded, and enforced very

1 War and Neutrality in the Far East, p. 138.

2 Wheaton's International Law (4th Eng. ed.), p. 587, note.

3 War and Neutrality in the Far East, p. 120.
* The Nation, August 4, 1904, p. 101.

5 Revue Generate de Droit, Mai et Juin, 1904, pp. 14 and 15 of Documents.

524 INTERNATIONAL LAW

fully its neutral regulations by directing the disarmament of the
ship. It is inconceivable that any foreign power could undertake
to investigate by force such a question and to determine for itself
the facts and thereupon precipitate a naval engagement in San
Francisco Harbor. It is not conceivable that such a practice could
be tolerated by the neutral maritime powers. The claim of the Jap-
anese consul of a right personally to inspect the Lena was not ad-
mitted by the collector of the port, who held, very justly, that such
inspection was the business of the United States authorities alone.1
A belligerent cannot have the right to police all neutral harbors for
the purpose of enforcing regulations imposed by those powers.
Any such invasion of territorial jurisdiction upon a disputed ques-
tion of fact would be lamentable in its results, and any rule naturally
leading to such consequences should be resisted absolutely on its
first appearance.

The Nation asks in this connection why all neutral ports should
not be closed except to ships in distress. It may be observed that
a neutral state does habitually close its landed territory to the forces
of a belligerent, and that a like rule applied habitually to neutral
ports would greatly limit naval warfare and tend to check the loss
and disturbance which it inflicts on neutral commerce. It would
strongly tend to localize war and avoid far-reaching complications.
The main objection to it, as has been said, is the overwhelming ad-
vantage it would give to great colonial powers like Great Britain,
having ports in all parts of the world.

Peace being the normal order of things, as Sir John Macdonell
has lately said, the disposition of the past forty years has been
that the " interest of neutrals should prevail in conflict with those of
belligerents," 2 and the recrudescence of belligerent sentiment which
Sir John reports must be abated. Commerce, after all, is the great
interest and service of the seas, and war is a minor and temporary
affair. The greater interest ought not to yield to the less, except
under the most direct necessity.

Sinking Neutral Vessels

The sinking of a neutral ship by a Russian squadron on the ground
that she was carrying contraband of war and that it was impossible
on account of the weather, lack of coal, and the neighborhood of a
Japanese fleet, to bring her in for adjudication, has led to wide and
unfavorable criticism.

The ship, the Knight Commander, was alleged to be loaded with
a cargo of railroad supplies intended for belligerent use by Japan.

1 New York Nation, September 15, 1904.
7 Nineteenth Century, July, 1904.

PROBLEMS OF INTERNATIONAL LAW 525

Her papers were preserved, her officers and crew placed in safety
and allowed to attend the condemnation proceedings at Vladivos-
tock. The court there subsequently held such proceedings a basis
for condemnation.

The criticism seems to rest on the doctrine often asserted that
although a belligerent vessel taken as a prize may be destroyed if
it cannot be brought in, yet a neutral vessel so taken must not be
destroyed, but if she cannot be brought in, must be allowed to go
free, even though carrying contraband.

The contraband articles cannot be taken from the neutral ship
for at least two reasons: First, commonly, as in the case of the
Knight Commander's cargo of railroad supplies, it is physically
impossible for the warships to accommodate them. Secondly, the
claim always is that the ship and her papers and necessary witnesses
must be brought into port as a condition for condemning the cargo.
Thus, in the Trent affair, where it was claimed that the carrying of
Messrs. Mason and Slidell was in the nature of carrying contraband,
and that therefore their seizure and removal was warranted, it was
successfully answered that until condemned by a proper prize court,
a captor has no right to do anything except bring the ship before
the court. 1

This doctrine, that a neutral vessel can never be destroyed before
adjudication, seems to rest mainly on the case of the Felicity,2 where
Sir W. Scott passed on the subject of an American merchant ship
and cargo destroyed by the English cruiser Endymion during the
war of 1812. The vessel was sailing under British license but mis-
took her captor for an American warship. She therefore concealed
this license. The weather was so boisterous and the vessel so in-
jured that she could not be brought to port, nor could the captor
spare a prize crew. She was therefore burned. The court holds, as
her license was concealed, she must be treated simply as a belligerent,
and that the destruction was legal. It is said, arguendo merely, that
if she had shown her license she would have been entitled to be treated
as a neutral, and Sir William says:

" Where it is neutral, the act of destruction cannot be justified
to the neutral owner by the gravest importance of such an act to
the public service of the captor's own state; to the neutral it can
only be justified, under any such circumstances, by a full restitution
in value. These are rules so clear in principle and established in
practice that they require neither reason nor precedent to illustrate
or support them."

This remark of an eminent judge seems largely the parent of the
rule. It is submitted, with deference, that the rule apparently

1 Wheaton's International Law (ed. 1904), sec. 109 b.

2 Dodson's Admiralty, 381.

526 INTERNATIONAL LAW

sought to be enforced by the Russian authorities and recognized
by the Vladivostock court, is more just and reasonable, namely,
that if, for good and sufficient cause, such neutral prize cannot be
brought in, there is no obligation to allow her to go free, to rein-
force the enemy with her cargo, but as a rule of necessity, to prevent
the delivery of the cargo, she may be destroyed exactly as a bellig-
erent, the crew and papers being preserved, and the question of prize
or no prize being adjudicated as if she had been brought in. It
seems too much to expect the other rule to be observed where the
cargo is plainly contraband and important to the enemy. The ob-
jection by England to the destruction of this ship, M. de la Peyre
declared recently, does not rest on a solid foundation, and that
of the United States, he says, is even less permissible, since during
the War of Secession the two parties systematically sank all the
prizes.

M. de la Peyre is under a mistake. The Federal cruisers habitually
brought in and submitted to the prize courts their captures. No
such course was open to the Confederate cruisers, since all the ports
of the Confederacy were blockaded and the ports of no other country
were open to them for such use.

Captain Semmes, of the Confederate cruiser Alabama, habitually
burned his captures,1 but he seized only vessels belonging to Ameri-
can citizens and carefully avoided neutral ships or cargoes. His
practice is therefore no precedent as to the right to destroy a neutral
vessel without condemnation.

His situation was, however, such that if he had the full rights of
a belligerent it would seem that he had as a matter of necessity the
right to destroy contraband of war even without the intervention
of a prize court. Suppose an armed British ship, fitted for bellig-
erent use, had been met on her way to a Federal port, evidently
designed for sale and likely to be bought by the Federal Government.
Would Captain Semmes have been bound by international law to
leave her unmolested since he could not bring her into port for
condemnation? The suggestion that such is the law, because of Sir
William Scott's dictum and the echo of it by the writers, cannot be
concurred in.

It must be admitted that a neutral, carrying contraband, is not
exposed by that act alone to condemnation of the -ship, but Sir
William Scott himself recognized that " the ancient practice was
otherwise," and said: " It cannot be denied that it was perfectly
defensible on every principle of justice."2 He shows that modern
policy has introduced a relaxation on this point, but that circum-

1 Records United Stales and Confederate Navies, vol. i, where conduct of both
navies is set out at length and in detail, with records and correspondence.
I he ^cutraUlet, 3 C. Robinson, 295.

PROBLEMS OF INTERNATIONAL LAW 527

stances of aggravation or misconduct may revive against the ship
the ancient penalty.

Justice Story shows that the penalty is applied to the vessel on
account of cooperation " in a meditated fraud upon the belligerents
by covering up the voyage under false papers and with a false de-
stination." l The whole right of seizure and condemnation of neutral
contraband is based, as Kent shows from Vattel, on "the law of
necessity " and " the principle of self-defense." 2

Sir W. Scott held that the penalty for carrying dispatches of a
belligerent (certainly a more noxious act), must be the condemna-
tion of the neutral ship, and argues that the confiscation of the
dispatches would be ridiculous and says: "It becomes absolutely
necessary, as well as just, to resort to some other measure of confisca-
tion, wrhich can be no other than that of the vehicle."3 If the
courts of Russia, reasoning as boldly as Sir William, Mr. Justice Story,
and Chancellor Kent, are allowed to maintain their conclusion from
the rules of justice and necessity, their position is by no means
untenable.

His Excellency, Count Cassini, the Russian imperial ambassador
to the United States, on the 15th of September, 1904, by letter,
kindly called the writer's attention to the Russian imperial order of
March 27, 1895, which reads as follows:

" In extreme cases, where the retention of ships is impossible,
owing to their bad condition, when they are of small value, in danger
of capture by the enemy, when at a great distance from a home port,
or when there is danger for the ship which has taken the prize, the
commander, upon his responsibility, may burn or sink the captured
vessel after previously having taken her crew and as far as possible
her cargo. Her documents must be preserved and witnesses can
be held for the purpose of testimony before the prize court."

His Excellency adds:

" As this last declaration has never been protested by any power,
it appears, consequently, that the commander of the Russian man-
of-war committed a perfectly lawful act in sinking the British steamer
Knight Commander, which was undoubtedly carrying contraband of
war, as was proven immediately after her being stopped. This was
confirmed later on at the trial, when the deposition of the captain
was refuted and contradicted by the presented board documents
which he supposed to be lost with the ship."

The instructions issued by the Secretary of the Navy of the United
States in 1898 to blockading vessels and cruisers, and prepared by
the Department of State, strongly resemble those of Russia.

1 Carrington v. Merchants Ins. Co., 8 Peters, 495.

2 Seton v. Low, 1 Johns. Cases, I.

3 The Atlanta, 6 C. Robinson, 440.

528 INTERNATIONAL LAW

They are as follows:

" 28. If there are controlling reasons why vessels may not be
sent in for adjudication, as unseaworthiness, the existence of infec-
tious disease, or the lack of a prize crew, they may be appraised and
sold, and if this cannot be done, they may be destroyed. The imminent
danger of recapture would justify destruction, if there was no doubt
that the vessel was good prize. But, in all such cases, all the papers
and other testimony should be sent to the prize court, in order that
a decree may be duly entered."

It is to be observed that the language is general, applicable to
neutral as well as belligerent vessels, and it is believed it in a meas-
ure supports the Russian contention.

It is submitted that this rule and the Russian practice are entirely
reasonable and in accordance with the necessities of maritime war
and that they are, therefore, able to impair the authority of a dictum
even from so eminent an admiralty judge as Sir W. Scott.

The result of this inadequate discussion of these several problems
in international law (a few of the many lately mooted) is a humili-
ating sense of the uncertainty, confusion, and conflict which still
attend the maritime rights of neutrals in the time of war. One is
forced almost to acquiesce in M. de la Peyre's recent statement that
maritime international law does not exist.1

It certainly shows the great necessity of an authoritative inter-
national conference to discuss, define, and establish the rights and
duties of neutral commerce in time of war. Now that the vast and
complicated machinery of war is of such desolating destruction, it
is more true even than a generation ago, when the late Mr. Lecky so
convincingly proclaimed it, that the rich nations are the potent ones
in war, as in a ruder age they were not. It is true, too, that the
very riches which enable them to support, powerfully persuade
them to avoid, war. These great commercial powers possess the seas
with their beneficent adventures, and they must strive to keep the
peace on those great highways of all the nations, and the ships that
bear the means of life must be considered as of interest and human
claim equal and paramount to those designed to inflict death.

1 Questions diplomatiques et coloniales, August 1, 1904, p. 185.

THE JURIDICAL NATURE OF THE RELATIONS BETWEEN
AUSTRIA AND HUNGARY

BY COUNT ALBERT APPONYI

[Count Albert Apponyi, Member of Hungarian House of Commons, b. Hun-
gary, 1846. Doctor of political and social science. Member of several literary
and scientific associations, and of The Hague Tribunal for International Arbi-
tration. Privy Councilor to His Majesty the King of Hungary. Author of
articles on public law and social science in Hungarian, German, French, and
English magazines.]

I INTEND to put before you a brief account of the juridical nature
of our connection with Austria. In doing so I must apologize for
such defects in my address as will arise from the absence of those
scientific sources which I should have been glad to have consulted
even on a subject so familiar to me as this one is. When I left Europe
I had no idea of being honored by a call to address an audience of
American jurists. I am, therefore, totally unprovided with scientific
materials and must merely rely on my memory which, however,
will hardly fail me on this subject in anything essential. For more
than thirty years of parliamentary life it has been constantly in my
mind; on no other topic have I bestowed so much time and attention.
It is not my intention, however, to trouble you with my personal
opinion on any controversial matter; I mean to state nothing but
fact, law, and what is the common creed of all my countrymen
without distinction of party.

The relations between Austria and Hungary seem to be such a
network of intricacies to foreign observers that very few of them
care to get to the bottom of the matter. In fact, the great difficulty
which is experienced in mastering this problem arises not so much
from its own nature as from the prevalence of certain false general
notions and misleading comparisons. The most widespread funda-
mental error, he Hpwrov ^euSo's as I shoul d like to call it, consists
in considering an Austrian Empire, which is understood to contain
Hungary, as the primordial fact, and whatever is known of Hunga-
rian independence as a sort of provincial autonomy conceded to
that " turbulent province " by the central power of the Empire.
Austrian court politicians and some German writers have done their
best — or rather their worst — to propagate this theory, which,
however, is radically false, and being almost daily contradicted by
facts, engenders hopeless confusion in the minds of all who choose to
be guided by it. The truth is the exact counterpart of the above-
quoted proposition; in truth, historical, legal, and material, the
primordial fact is an independent Kingdom of Hungary, which has

530 INTERNATIONAL LAW

allied itself for certain purposes and under certain conditions to the
equally independent and distinct Empire of Austria, by an act of
sovereign free will, without having ever abdicated the smallest
particle of its sovereignty as an independent nation, though it has
consented to exercise a small part of its governmental functions
through executive organs common with Austria. If the term of
" concession " is to be used at all, it is Hungary who has granted
some concessions, by concurring in the creation of such common
organs of government; she had none to ask for, as there is no earthly
power placed above her entitled to control her, and as she is possessor
of all the attributes of a sovereign nation. That Austrian Europe
which is supposed to include Hungary has no existence except in
false theory and in former oppressive practice; in public law it
always was and now in fact is a nonentity. Even the term " Austro-
Hungarian Empire " - what the German calls Das Reich — is a
false one; and the officially used term " Austro-Hungarian Mon-
archy" (not a very happy because a misleading one) can be accepted,
as we shall see, only in the sense of their personal union under a
monarch, physically one, but representing two distinct personalities
of public law, the Emperor and the King, and of their joint action
in questions of peace and war; but an objectively unified body
containing both Hungary and Austria does not exist.

From the moment you have well grasped these fundamental
truths, on which no Hungarian even admits discussion, it is like a
falling of scales from your eyes, and everything at once becomes
clear and all facts are easily accounted for. To bring them into full
evidence I must trouble my hearers with some briefly sketched
peculiarities of our constitutional development and with a short
outline of the events which brought about and shaped our connection
with Austria.

The Hungarian constitution is as old as the Hungarian nation
herself, at least as old as anything history knows of her. No written
document exists which could be called the Hungarian constitution;
no illustrious lawgiver or set of lawgivers is entitled to the praise
of having framed her. She is the product of organic evolution,
worked out through centuries by the genius of the nation, in uninter-
rupted continuity; her principles and rules must be collected from
numbers of laws, customs, and precedents, reaching as far back as
the eleventh century. In this respect there is an analogy between
the growth of the English and of the Hungarian constitution, which
is the more striking because the two racial individualities are as
dissimilar as they well could be, and because there is no trace of
mutual influence in their development. Even some dates happen

RELATIONS BETWEEN AUSTRIA AND HUNGARY 531

to coincide. In 1222, seven years after the Magna Charta, appeared
the Golden Bull of our King Andrew II, which, like the older
British document, laid no claim to being considered as a new enact-
ment, but was meant to be a confirmation of old liberties. The
legal distinction between constitution and law, that chief feature of
American institutions, is unknown to Hungarian public law. It
is within the power of our legislature to effect constitutional changes
through simple legislative acts, just as she can alter a tariff or legis-
late on railway matters. In fact, the strongest conservatism pre-
vails in dealing with constitutional questions, and that compound
of time-hallowed prescriptions which bears the collective name of
constitution is cherished with a respect nowhere to be surpassed.
Some aspects of our constitutional growth will be placed now before
this distinguished audience preparatory to the subject proper of my
present address.

From the day when our forefathers were converted to Christianity
(at the end of the tenth century) we find at the head of the nation
a king with a vast prerogative, which it was necessary to invest him
with, because the constant dangers threatening our country from
the west as well as from the east could be faced only by a strenuous
concentration of power. But that prerogative was subjected from
the beginning to several checks. There was the national assembly
- the gathering of all freemen - — soon to evolve into national
representation, the assent of which was needed to give permanent
force to royal enactments, and which became an openly recognized
and organized factor of legislative power in the second part of the
thirteenth century. There was the semi-elective character of the
Crown which, though vested in a reigning dynasty, could be trans-
ferred by election to any member of that dynasty, making it advisable
for the King to conciliate public opinion if he wished to insure suc-
cession to his son. There was, moreover, that remarkable clause
of the Golden Bull, which remained in effect till 1686, conferring in
so many words on the Estates of the realm a right of resistance to
the King should he infringe their liberties. There are two laws
more remarkable still, considering their date, which are 1235 and 1298,
enacting, the first of them, that the Palatine (head of the King's
Government) should be dismissed on a vote of the National Assembly
adverse to his administration, while the second one states that no
royal ordinance should take legal effect if not signed by certain
dignitaries designated by the National Assembly. In what other
country do we find at so early a date such full-grown elements of
parliamentary government?

Medieval Hungary could reach such a high state of constitutional
development for the same reason as made the power of Hungarian
Kings the most efficient one of that epoch, and that reason was the

532 INTERNATIONAL LAW

absence of feudalism. No doubt, infiltrations of feudalism, as
prevalent throughout Europe, are to be found in our old institutions,
but as an accidental intermixture only, not as their essence and
chief feature. That blending of public prerogative with rights be-
longing to the sphere of private law, which is the essence of feudal-
ism, never prevailed in the organization of our public powers, never
broke their action on the nation as a whole. To this early prevalence
of public law in the government of the country do we owe not only
a superior efficiency, not detrimental to liberty, of our public
powers, but in connection with it an early growth of conscious
national unity, of patriotism on broad lines, at a time when tribal
feeling and feudal allegiance subdivided all European nations into
small units which paralyzed each other, and into a corresponding
fractional mentality adverse to the very idea of state and to national
feeling. But for this happy peculiarity of her old institutions
Hungary could never have been able to hold her own against schem-
ing neighbors of tenfold her material power.

In 1686 the Hungarian Crown became hereditary; henceforth,
she missed the guarantee contained in free election; but in the
mean time some substitute for it had grown up in the institution of
coronation and the legislative acts by which that august ceremony
is attended. Old laws require the heir to the throne to get himself
crowned within six months of his accession and they suspend some
important part of his prerogative (we name only his participation
in legislative power) till he has done so. But crowned he can be
only with the assent, or, to state it more correctly still, through
the agency of the national representation, which puts thereon such
conditions as it thinks necessary. Every coronation, then, is founded
on a new agreement between king and nation, embodied in a docu-
ment called " inaugural diploma " and accompanied by a solemn
oath of the King to observe the terms of that document and the
general enactments of the constitution. By these proceedings the
fundamental principle of our institutions, the principle that
every power, the prerogative of our Kings included, has its source in
the nation, and comes to those in whom it is vested through dele-
gation from the nation, is constantly reasserted and held in evidence;
it is the nation which crowns the King, under the sanction of God's
most holy Majesty; the prerogative of the King, his very title to
reign, is blended into one with popular rights and their guarantees;
both together, prerogative and people's right, are designated in their
joint force and sacredness by the name of " the holy Hungarian
Crown," of which every Hungarian citizen is a member, this mem-
bership not being a mere metaphor, but implying the great princi-
ple that there is no difference as to inviolability and sacredness
between the King's exalted prerogative and the poorest subject's

RELATIONS BETWEEN AUSTRIA AND HUNGARY 533

individual and public rights, and that there is no prerogative apart
from or in opposition to the nation.

I have insisted at some length on the peculiar character of the
Hungarian monarchy because it contains the most distinctive feature
of our constitution and may be considered as the masterpiece of
that political genius in which few nations, if any, have surpassed
our people. Placed in a situation where a strong executive was
essential to national safety, our forefathers had to solve the problem
to make prerogative as efficient as could be for its national mission,
and at the same time innocuous to liberty. And either I am totally
misled by patriotic self-conceit, or that difficult problem found a
better solution in Hungary than in any other country placed in
similar circumstances.

Time fails me to expatiate on the development of the other con-
stitutional powers, to show how national assemblies (originally
mass meetings of all freemen) evolved into representative bodies;
how these bodies grew gradually stronger and extended the sphere
of their rights; how a powerful organism of county, town, and city
self-government was developed on quite original principles, and
became in hard times an unconquerable stronghold of national
liberty. But a few words must be said as to the question: Whom
do we refer to by the name of the Hungarian people? In other words,
In whom were all those rights vested which formed the popular branch
of the constitution?

To an American — now, even to a modern European — audience,
such a question may seem preposterous. In whom, indeed, should
popular rights be vested but in the whole people, including every
citizen of the country? But we are considering now a medieval
constitution, and a political establishment founded on conquest;
which means that we speak of an epoch which knew liberty only in
the form of privilege and of circumstances peculiarly adverse to
universal equality.

Now, and this is one of the most important facts in our history,
privilege in a racial sense never existed in Hungary. When our
forefathers conquered their new home, they found different races on
its soil, and as late as the eighteenth century, immigration brought
new racial intermixture into our country. How, then, did we deal
with that mass of heterogeneous elements? National unity — just
like concentration of power — was, and still is, essential to the
permanence of any political establishment in that part of Europe,
which has to face the first onset of all eastern dangers; that there
should exist a strong national unity on that particular spot was,
and is even, a condition of safety to all occidental Europe. But
how was it to be effected among a chaotic mass of racial individuality?
History of conquest shows two typical ways of solving that problem.

534 INTERNATIONAL LAW

In almost all states founded in Western Europe by invaders of
Teutonic origin, a new race grew out of the fusion between conqueror
and conquered, the racial individuality of the latter generally pre-
vailing. So the Franks, the Visigoths, the Longobards became
Latin in France, Spain, and Italy; the Normans, Latinized in France,
became Saxon after the conquest of England. Turkish conquest
on the other hand, being founded on theocratic principles, does not
tend to racial assimilation; it simply lays a new racial stratum on
the old ones, granting the latter a sort of contemptuous toleration,
but domineering over them with all the might of religious and poli-
tical exclusiveness. Our forefathers adopted neither of these two
courses. They kept their owrn race unaltered, and respected the
racial individuality of the conquered as well as of later immigrants;
but they absorbed them into political unity by conferring upon the
deserving among them all the privileges of a Hungarian freeman,
privileges which, on the other hand, were forfeited by many members
of the conquering race. By these proceedings — wrhich remind us
of ancient Rome, conferring her citizen right on provincials — racial
difference soon disappeared from public law, every man on our
territory being subjected to the same laws, enjoying the same
capacities of public life, being equally able to become an active
agent in national evolution, but disabled from evolving any sort
of particular racial history; being in a word tied to the whole com-
munity by every material and moral tie which, in the course of time,
engenders feelings of solidarity and union. National unity, the unity
of the great political Hungarian nation, was effected on the most
liberal base, and towers up to our days in unconquerable height
and strength above those abortive attempts to foment discord on
the ground of misguided racial instinct, of which you may have heard
some rumors even here, among part of our immigrants. From the
beginning, then, of the Christian Era in our country, that is, for nine
hundred years, the rights of the people have been vested in the
whole undividable Hungarian political nation, irrespective of racial
distinctions.

But class divisions and class privileges, Hungary, like all medieval
Europe, has certainly known. Still, I can claim a certain kinship
to democracy on behalf of our old constitution.

When medieval Hungarian public law had reached maturity,
there was a class of nobiles — which term would be very inaccu-
rately translated into the English word " noblemen " — I should
rather call them " freemen," or " franchise-men," in whom all public
rights were vested. To these the clergy, the members of some other
liberal professions, and the burgesses of a great number of towns
became assimilated. Access to that privileged class was easy; it
numbered many thousand members, whose social status did not

RELATIONS BETWEEN AUSTRIA AND HUNGARY 535

differ from that of the peasantry; sometimes the peasantry of whole
counties became enfranchised by one single act of prerogative or of
legislation. Gradually it became so numerous that the number
of our franchise-men in the eighteenth century — and probably at
an earlier date, too, but of this we have no statistics — was com-
paratively larger than the French electorate under Louis Philippe
and perhaps even the English one before the great parliamentary
reform of 1830.1 Within that large body of privileged citizens, so
large as to bear a distinctly popular stamp, there was no further
class distinction. And this is the most characteristic fact in our old
constitution ; it is the fact which chiefly warrants me in calling that
constitution quasi-democratic. There existed, of course, vast
differences of wealth and of social influence (I suppose even modern
America knows something of .the kind), but legally recognized and
fixed subdivisions of privilege there were none. It was only in
much later time, under the Hapsburg kings, that German titles were
bestowed on Hungarian nobles, and that an hereditary aristocracy
sprang up and began to sit in an Upper House, which was legally
recognized in 1608; originally, the national representatives consisted
of one House only, which might not unfittingly be compared to the
English Commons. And so, while in England the Lords were fore-
most in seizing upon some part of public power and the Commons
slowly and gradually followed to the front, in Hungary, what we
may call the Commons were powerful from the beginning, and no
such thing as Lords existed till, at a much later date, that institution
was to some extent imported from without. Where England beats
us, as it beats the greatest part of our Continent, is the early growth
of a free peasantry; but then she has almost wholly lost that most
valuable class, while we have kept it in full vigor and look to it as an
inexhaustible source of national strength.

The reign of privilege certainly took its mildest form in Hungary;
true, it lasted longer than most in other countries. It was ultimately
abolished by the glorious legislation of 1848, which has been effected
through no uprising or agitation among the disfranchised people, who
persisted in perfect political apathy, but through a spontaneous resolve
of the privileged class itself. Class magnanimity is a feature unknown
to general history; that we can show a sample of it in our annals is
perhaps the proudest, certainly the purest, glory of our nation.

1 Since he delivered this address, the author has been enabled to add a few
figures which make good the above statements. At the epoch of the French Re-
volution we find in Hungary 75,000 families (corresponding to 325,000 individuals)
belonging to the privileged class, out of a total population of 6,000,000, while at
the same time France numbered only 28,000 such families against a population
of 26,000,000. In 1805 we find 340,000 " nobiles " (or as we call them freemen)
against a total population of 7,500,000; in 1848 they numbered 675,000 out of
nearly 12,000,000. But to these numbers must be added the clergy (numbering
by itself 16,000 voters in 1805), the members of other enfranchised liberal pro-
fessions, and the burghesses of privileged cities.

536 INTERNATIONAL LAW

And here my digression to the field of general constitutional history
must be stopped; l enough has been said to bring into evidence the
peculiar nature, the originality of our institutions, and to enable
my hearers to draw inferences as to the vigorous individuality of
the people whose national genius has created those institutions.
That such a national individuality can hardly be absorbed into an
artificial political settlement, that independence is the very law
of her nature, seems to be the clear result of even so much insight
into the workshop of her historical evolution. Thus prepared, we
can now consider the problem which is to be the subject of my present
address with a clearer perception of its constitutive elements.

II

The Austrian dynasty, the dynasty of Hapsburg, was called to the
Hungarian throne in 1526, after the disastrous battle of Mohacs,
in which the Turks annihilated the military force of Hungary. It
was the epoch of Charles V, that Emperor of Germany and King of
Spain who boasted that in his domains the sun never set. His
brother Ferdinand was elected King of Hungary in the hope that
the power of this mighty dynasty would assist us against the Turks.
But not only was there no intention of melting the old Kingdom of
Hungary into the Austrian domains, but the election and coronation
of Ferdinand took place on the express condition that the independ-
ence of the Hungarian Crown and the constitution of the realm
should remain unimpaired. That condition was accepted and sworn
to by the new king; it has been confirmed by the coronation
oaths of all his successors belonging to the same dynasty; whatever
practical encroachments may have occurred, this legal state of things
never became altered.

During the first period of the Hapsburg rule in Hungary, which
period extends to the year 1723, no sort of juridical tie was formed
between her and the other domains of the dynasty, which, to simplify
matters, we shall henceforth call by their later collective name,
Austria. It was even impossible that such a tie should exist, because
Hungary remained the semi-elective kingdom she had been, while
those other domains were hereditary possessions. The connection
was at this time a merely casual one, like that which existed for
some time between England arid Hanover.

Matters took a different aspect when hereditary right to the
Hungarian Crown was conferred on the Hapsburg dynasty, first on

1 To those readers who wish for ampler information on this matter, the
author recommends Professor Akos v. Timon's most valuable history of Hun-
garian law, published this year in a very good German translation. The Ger-
man title of the book is Unyarische Verfassungs und Rechtsgeschichte. von Akcs
v. Timon. (Berlin, 1904: Puttkammer und Miihlbrecht.)

RELATIONS BETWEEN AUSTRIA AND HUNGARY 537

its male lineage (1686), and afterwards on the feminine descendants,
too, in 1723. This was effected through the celebrated transaction
known to history as the Pragmatic Sanction of Emperor Charles VI
(Charles III as King of Hungary), which, being the basis on which
our present relation to Austria rests, has to be considered here with
some accuracy.

The Pragmatic Sanction consists of several instruments, diplo-
matic and legislative, of which the Hungarian Law I, II, and III of
1723 alone has legal value and practical importance for Hungary.
In that law the legislature of the realm settled the question of suc-
cession to the Hungarian throne in accordance with King Charles
Ill's wishes by the following enactments:

1. Hereditary right to reign as kings in Hungary is confirmed to
the male and female descendants of the Kings Leopold I, Joseph I,
and Charles III in conformity with the law of primogeniture already
in vogue in the Austrian domains, to the effect that as long as the
above-mentioned lineage lasts, the same physical person must infal-
libly reign in both countries, Hungary and Austria, with no legal
possibility of division (inseparabiliter ac indivisibiliter possidenda
are the words of the law). The other collateral branches of the
Austrian house have no right to succession in Hungary, though they
may be possessed of it in Austria.

2. Notwithstanding that personal union, the independence of
the Hungarian Crown and the old liberties of the kingdom are sol-
emnly recognized and reasserted. •

3. When the above-described lineage becomes extinct, Hungary
will use again her ancient right of free election to the throne, irre-
spective of what Austria, or any part of Austria, may choose to do in
that emergency.

4. As long as this lineage lasts and the same physical person reigns
in both countries, Hungary and Austria are bound to assist each
other against foreign aggression.

On analyzing this fundamental transaction we must take notice of
its contents and of its form.

In the contents there is nothing to take away any particle of
Hungary's independence and national sovereignty. A personal tie
is formed, it is true, with another country. I call it personal because
it lasts only as long as a certain set of persons, a certain lineage, exists
and becomes ipso facto severed whenever those persons disappear.
But that personal tie, the identity of the ruler, does not affect the
juridical independence of the country, because that identity exists
only with respect to the physical person, while the personality of the
King of Hungary remains quite as distinct in public law from the
personality of the Austrian ruler as it had been before; as King of
Hungary that monarch, physically one, is possessed of the preroga-

538 INTERNATIONAL LAW

tive, checked and controlled by the nation, which we have already
considered in its chief outlines; as ruler in Austria he wields —
or wielded at that time — a power almost absolute, grown of a
combination of feudal and Roman law, both unknown in Hungary.
There is no possibility of melting into one these two prerogatives so
widely different in origin and character. To that personal tie,
which only means that two different and distinct prerogatives are
vested in the same physical person, a solemn league and covenant
was added, a mutual obligation to assist each other against foreign
aggression.1 Is there anything in the nature of such a covenant
which should of necessity impair the independence of the nations
who are parties to it? That, now, depends wholly on the form of
the transaction, on the sources from which it derives its binding
character, on the forces which insure its execution. Should that
obligation to mutual defense have been laid upon Hungary by a power
outside of her own public powers and superior to them, or should
there be any sort of such superior legal organization able to enforce
its execution against Hungary's free will or to interpret its meaning
in a way binding upon her, then, indeed, Hungary would be no more
a sovereign nation. But of all this there is not even a trace. Hun-
gary entered that compact of mutual defense by an act of her sov-
ereign will, and its execution as well as its interpretation — let me
emphasize this point, because it absolutely settles the question —
depends entirely on her good faith and on her discretion. Neither
before, nor in, nor after the solemn transaction called " Pragmatic
Sanction " will anybody be able to discover even the trace of some
power superior to the public powers of Hungary, entitled to control
her, able to force on her what she does not choose to accept or to do.
Now this way of entering and of keeping compacts exactly answers
to the idea of national sovereignty. We shall see later on that these
characteristic features of our legal status suffered no alteration
whatever through more recent transactions.

To give more weight to the present comments on the Pragmatic
Sanction I shall quote its authentic interpretation given in a law
enacted by the Hungarian legislature in 1791, after an attempt of
Joseph II to subvert the constitution. In Hungary, as in England,
laws of this kind, reasserting and putting into evidence national or
popular rights, generally follow practical encroachments on those
rights; their purpose is not to create but to declare law; to this
family of declaratory laws, the most celebrated scions of which are

1 It is generally admitted that the Pragmatic Sanction, with all its enactments,
has tlic character of a bilateral compact l>etween the Hungarian nation and the
reigning dynasty. Most authorities of public law hold it to be at the same time
a compact between Hungary and Austria, the latter having been represented on
its conclusion by her (then) absolute ruler. But as this is controversial matter,
the author, though holding the first-mentioned opinion, did not think fit to insist
upon it in the text; his argument holds good on either supposition.

RELATIONS BETWEEN AUSTRIA AND HUNGARY 539

the Magna Charta, the Bill of Rights, the Petition of Rights, - — to that
same family belongs the law which I am about to quote :

" Law I of the year 1790-1791, Emperor and King Leopold II,
Article 10.

" On the humble proposal of the estates and orders of the realm, his
most holy Majesty has been pleased to recognize:

" That, though the succession of the feminine branch of the Aus-
trian house, decreed in Hungary and her annexed parts by the
Laws I and II of 1723, belongs, according to the fixed order of suc-
cession and in indivisible and inseparable possession, to the same
prince whose it is in the other kingdoms and hereditary domains,
situated in or out of Germany; Hungary with her annexed parts is
none the less a free and independent kingdom concerning her whole
form of rule (including therein every branch of administration), which
means submitted to no other kingdom or people, but possessed of her
own consistence and constitution; therefore, she must be ruled by
her hereditary and crowned kings; consequently by his most holy
Majesty too, and by his successors, according to her own laws and
customs, and not after the example of other provinces, as is already
enacted by the Laws III, 1715; VIII and XI, 1741."

The clear and forcible language of this fundamental law requires
no additional explanation. We must now only inquire into the
nature of later transactions, and see how they bear on our problem.

And here we are first brought face to face with a fact which,
though irrelevant in itself, has wrought much confusion, and is still
a rich source of misunderstandings. I mean the assumption, in the
year 1804, of the title of " Emperor of Austria " by Francis I, when
the "Holy Roman Empire of German Nationality" had collapsed.
Many people think that this imperial title extends over all his
Majesty's domains, Hungary included, and that it represents a
collective sovereignty superior to that of the Hungarian Crown.
The corresponding territorial idea is that of an Austrian Empire,
including Hungary. Now, these conceptions are absolutely false.
The new imperial title has nothing whatever to do with Hungary,
it has legal existence only with respect to those other domains which,
from that date, can be properly called Austria, to the exclusion
of the Kingdom of Hungary. As ruler of those other domains his
Majesty may call himself whatever he pleases, but in Hungary the
King alone reigns, and never will the time-hallowed majesty of our
old Crown be melted into the splendors of a brand-new imperial
diadem, never will it be controlled by any fancied superior power.
Hungary never suffered mediatization, no act of her legislative body
points that way, and no act of prerogative can achieve it. The title
of " Emperor " is simply a collective designation for the portion of
sovereignty enjoyed by his Majesty in his other domains; in Hun-

540 INTERNATIONAL LAW

gary he is merely King; the two titles, imperial and royal, are
distinct and equal in dignity; they designate (as my hearers will
remember) two widely different prerogatives, the mixture of which
is hardly conceivable even in juridical fiction. It is quite as absurd
to think of the Emperor of Austria as ruler of Hungary as it would
be absurd to fancy the King of Hungary as reigning in Austria or any
part of her. To our public law the Emperor of Austria is a foreign
sovereign.

The next striking fact is the above-mentioned legislation of 1848,
which, by giving precise shape to parliamentary government in
Hungary, and by making every act of royal prerogative dependent
in its legal value on the signature of Hungarian constitutional
advisers, made the distinctness and diversity of the two juridical
personalities meeting in one physical person, the Emperor's and the
King's, and of the two prerogatives vested in that same person,
evident to all eyes. From an abstract truth, often obscured by
the practice of a system of personal government not very anxious
to uphold it, this distinction became a living reality, no more to
be ignored. The winning of such a practical guarantee to our
national independence is, besides the democratic reform which it
has effected, the immortal glory of that legislation.

War, victorious at first, disastrous after the crushing intervention
of Russia, came next, followed by a period of absolute oppression
which lasted from 1849 till 1867. But all this belongs to the domain
of mere fact; it did in no way alter the legal continuity of the prin-
ciples on which our connection with Austria rests; it did not weaken
in right the independence of the Hungarian Kingdom, though sus-
pending it in fact for a time. There had been times of oppression,
almost as hard as this one, before; at such times Hungary, while
powerless to prevail against superior material forces, had always
stuck to legal continuity, waiting patiently until a turning of the
tide should enable her to bring practical reality in concordance with
juridical truth; but of that juridical truth she never gave up one
single atom, and she always lived to see it prevail against wholesale
oppression as well as against partial encroachments. 1867 was the
year of one of these resurrections; at the same time, it created new
rules concerning the practice of our connection with Austria, rules
which, however, left the principle of that connection — the independ-
ence of Hungary as a sovereign nation — unaltered, as a rapid survey
of them will show.

Ill

The celebrated transaction called the Compromise of 1867 is
embodied in the Law XII of that year. In its first (declaratory)

RELATIONS BETWEEN AUSTRIA AND HUNGARY 541

part this law fixes again the sense of the Pragmatic Sanction, as
stated above, emphasizing its two principles: our sovereign national
independence and the mutual obligation to mutual defense with
Austria. Then it proceeds to state that the fact of Austria's having
been endowed with a constitution which gives to her people a right
of controlling their government (as we control ours) makes some new
provision necessary in those branches of administration which bear
direct relation to mutual defense, and in which it is, therefore, to
say the least, highly desirable that the joint action of both countries
should be unfailingly secured. To that end, the two great agencies
of national defense — foreign affairs and war-administration — are
to a certain extent declared common affairs, but in the executive
sphere only, where action originates. Legislation on them (such
as assenting to international treaties, framing of laws on the con-
ditions of military service, on recruiting, etc.) is expressly reserved
to the juridically independent action of both legislatures, which are,
however, desired to do their best to agree on these matters. To
provide for these common affairs a common ministry of foreign affairs
and of war1 are called into existence; the expenses of these two
departments are jointly to be borne by both countries in proportion
to their comparative financial power — measured until now by the
results of taxation of each. Both countries have equal control over
these common departments, a control which they can exert through
ways direct and indirect, as we shall see later on.

The common ministry of foreign affairs implies a common diplo-
matic service. It is not so clear up to what point unity of the armed
force is implied in common war administration. Our law mentions
a Hungarian army as part of the whole army, which is to be unitedly
commanded and regulated as to its inner organization by the King,
in the exercise of his constitutional .prerogative. The somewhat
oracular terms of this proviso have given birth to much controversy
and to some trouble lately. But one fact towers above all contro-
versy, namely, the fact that in public law the individuality of the
Hungarian army has been expressly maintained; and this is all that
need be said about the matter here, where we are considering the
juridical aspect of things only.

Particular provision has been made for the annual vote on com-
mon, foreign and war, expenses and for a direct parliamentary control
over the respective common ministries. Anything like a common

1 I did not mention in the text the third common ministry, that of finance,
because that high-sounding title is only apt to generate confusion. In fact,
the common minister of finance has nothing to do at all with finance in the sense
of a financial policy; he is merely a cashier who receives the contributions of
Austria and of Hungary to common expenses and hands them over to the re-
spective common departments. It is merely accidental that the common minister
of finance is now generally intrusted with the government of Bosnia and Herze-
govina.

542 INTERNATIONAL LAW

parliamentary body being out of question, the most natural proceed-
ing would consist in submitting these questions to both parliaments;
but practical difficulties might arise if their votes should differ; how
could two great parliamentary bodies residing in two different
countries come to an agreement as quickly as the necessities of imme-
diate action may sometimes require? To meet this practical diffi-
culty select committees are annually chosen by both parliaments
to the number of sixty members each, called delegations, and holding
their annual meeting at the call of the Emperor and of the King, alter-
nately at Vienna and at Budapest. The delegations don't sit together;
they are two separate bodies, like the mother assemblies, only more
handy ones to adjust difficulties. In case of disagreement they
communicate through written messages, and only when it seems
impossible to settle differences through correspondence (a very rare
occurrence) do they meet for a simultaneous vote, at which meeting
no discussion can take place. What is then the juridical meaning
of that simultaneous vote? Is it to get a joint majority out of both
bodies? That would contradict the fundamental principle of the
institution, which is no sort of common parliament but only a channel
of easier communication between the two parliaments; the real
meaning of that somewhat anomalous expedient is simply to bring
face to face the two dissentient national wills and to make the more
fixed one of them prevail wrhen joint action must be secured one way
or other.

The only functions of the delegations are to fix the figures of the
budget of both common departments and to bring the controlling
power of both parliaments over these departments into direct action.
The figures as fixed by them are incorporated into the Austrian and
into the Hungarian budgets. The ratifying vote of the Hungarian
parliament is an essential condition of legal value to their resolutions,
and, though the parliaments cannot alter them, the Hungarian
parliament at least has power altogether to reject any decision of
the delegations when it thinks that the latter have gone beyond
their constitutional competence. It must ever be borne in mind
that the delegations are after all but select committees of parliament,
committees endowed with some privileges, but still committees con-
trolled and kept within their limits by the superior power of the
mother assemblies.

Parliaments, the Hungarian parliament, at least, for the Aus-
trian law gives greater power to the Austrian delegation than our
law bestows on the Hungarian one, have, as I already hinted,
indirect means, besides the direct one, of controlling the common
departments. Law and custom desire the administration of com-
mon affairs, though intrusted to common ministers, to remain, as
to its leading principles, in constant agreement with the Hungarian

RELATIONS BETWEEN AUSTRIA AND HUNGARY 543

ministry; the latter is, therefore, co-responsible for the general
conduct of foreign and war affairs to the Hungarian parliament,
which may give an adverse vote on any question touching those
departments. Such a vote, though affecting directly the Hungarian
ministry only, would most certainly have an indirect bearing on
the position of the respective common minister, or on his policy.
This indirect influence of our parliament puts it into still clearer
evidence how the common affairs and the common executive agents
are anything rather than representatives of a power higher than the
public powers of Hungary; they are, on the contrary, constantly
controlled by these powers and, as we shall see more clearly still,
entirely dependent on them.

Several other enactments of the Law XII, 1867, which express
the advisability for Austria and Hungary to agree on some matters
not exactly belonging to the sphere^of mutual defense,1 I pass by
here, because, being entirely facultative in their execution, they
can have no possible bearing on the juridical aspects of national
independence. But it is now my task to analyze the institutions
created in 1867, and to inquire whether they have impaired Hun-
gary's independence as a sovereign nation, the maintenance of which
we have followed out up to that memorable date.

That there is mutual dependence, in the political sense of the word,
between two nations which are bound to act together in certain affairs
and have created institutions to secure such identity of action, seems
perfectly clear. Mutual dependence of this kind certainly exists
between Hungary and Austria; we have a strong party in Hungary
which objects even to this, and calls itself, on that account, the party
of independence. But with this political aspect of the question I
have here nothing to do. Mutual dependence between two equals
depending on the free will of both does not affect their independent
juridical individuality, in the case of a nation this nation's sov-
ereignty. That would be impaired only should the nation be incor-
porated as a part into some larger body, or controlled by some legal
power superior to her own public powers. Now, is this the case of
Hungary since 1867?

The question put in these terms is negatived by the very nature
of the transaction which we are examining. We call it a compro-
mise and such it is politically speaking. Hungary, before creating
the Law XII, 1867, ascertained in a proper way that it would
settle the difficulties pending with the dynasty and with Austria,

1 The most important of these enactments is one which provides for customary
union to he periodically established. It is far from improbable that in a few
years that union will be dissolved and a commercial barrier rise between Hungary
and Austria. Xor will this modification of their economic relation juridically
affect the connection as established by the Pragmatic Sanction and shaped out
by the law of 1867.

544 INTERNATIONAL LAW

as common good sense required her to do. But as to its binding
force this celebrated law is no treaty, like the Pragmatic Sanction,
but simply a law like any other law, liable to be abolished or changed
at Hungary's uncontrolled pleasure. It is immaterial for the pur-
poses of our present investigation that we should certainly think the
matter twice over before tampering with that particular law: that
is the political aspect of the question; legally the whole machinery
of common affairs and common ministries can be destroyed by an
independent act of the Hungarian legislature, with which nobody
has a right to interfere. Now, I ask, how can institutions which
depend in their very existence on the sovereign will of Hungary re-
present a power superior to her, or controlling her? They are not
even a new tie between Austria and Hungary, for the simple reason
that Hungary is not tied by them. Matters are left, then, exactly
as they stood after the Pragmatic Sanction; an independent and
sovereign Hungarian nation has entered into personal union with
Austria, and both countries are bound by solemn compact to assist
each other against foreign aggression.1

Though this settles the question, let us consider the common
institutions in their activity, and let us inquire whether they repre-
sent while existing some fragment, at least, of an imperial establish-
ment, of that Reichsgedanke which certain Austrian and German
authors are striving hard to discover in them; an establishment
including both Hungary and Austria, superior to their public powers,
and, let us say, provisionally controlling them to a certain extent.
What constitutive elements of such an establishment can be found
in the machinery set up by the legislation of 1867 ? in what does that
fancied empire really consist?

It has no territory; there is a Hungarian territory and an
Austrian terrritory ; Austro-Hungarian territory there is none, as has
been declared by a resolution of parliament, when dealing with an
inaccurately worded international treaty.

It has no citizens; there are Hungarian citizens and there are
Austrian citizens, the rights of the two citizens being not only dis-
tinct, but widely different in the legal conditions of acquiring and
losing them.

It has no legislative power; we have seen that even in common
affairs legislative acts are expressly reserved to both legislatures;

1 The author lays no particular stress on the much-debated question whether
the union between Austria and Hungary is to be called a personal or a real union,
because he considers this as a question of terminology rather than as one of real
consequence. In concordance with Fr. D<f-ak he calls it a personal union with
an additional covenant of mutual defense, because the principle of the union is
merely jvrsonal; it is, as we have seen, ipso jure dissolved, when a certain set of
persons (the lineage entitled to succession in both countries) becomes extinct.
The really important aspsct of the question lies in the fundamental juridical
fact that the independence and sovereignty of the Kingdom of Hungary remains
unimpaired in that union.

we have further seen that the delegations have no legislative power,
and are, even in the sphere of their competence, nothing like Reichs-
vertretungen, " imperial representative assemblies/' as the said
authors sometimes like to call them, but simply select committees
of both parliaments, called into existence for purposes of easier
communication between them, and working under their constant
control.

It has no judiciary; questions arising between the two countries
must be settled, if agreement is impossible, by international arbi-
tration, as was done in a boundary question two years ago.

But it seems to have, and there our opponents exult, at least
an executive. What are the common ministers if not some embodi-
ment of a common, of an imperial, executive power? I own to
standing aghast at such a profundity of knowledge. Common minis-
ters, then, should represent a common, an imperial, executive power;
now, let us overlook the queer aspect of an empire-like settlement,
possessed of no other attribution, no other public power but of an
executive; let us overlook the little hand-trick which must be per-
formed imperceptibly to glide from " common," which supposes
two parties at least, into " imperial," which means one; and let
us simply state that even a common executive power does not exist,
cannot exist, between Hungary and Austria. There are common
ministers indeed, but in what constitution of the world is executive
power vested in ministries? We find it everywhere among the con-
stitutional attributes of the first magistrate, subject to more or less
restrictions, but vested in him, having its real existence personified
by him, ministers being merely his agents, though they may be
necessary agents, agents designated by the constitution. In Hun-
gary, executive power is vested in the King; in Austria, in the
Emperor; now, as we have seen, the King of Hungary and the
Emperor of Austria, though meeting in one physical person, are two
distinct personalities in public law, every part of their prerogative
being distinct and generally different. The King of Hungary can
only be invested with the executive power of Hungary, the Emperor
of Austria with the executive power of Austria; no third personality
of public law, no sort of imperial first magistrateship has ever been
conferred on his Majesty, nor does such a personality, I presume,
evolve out of nothing by a sort of generatio equivoca, spontaneous
growth. So there exists no person in whom such common, or
imperial, executive power could possibly be vested, just as there
is no source from which it could be derived, even to float in the air.
What are, then, our common ministers? They are simply common
agents, agents of both executive powers, Hungarian and Austrian;
for those branches of government in which both executives should
act together, they are ministers of the Emperor and of the King, to

546 INTERNATIONAL LAW

assist his Majesty in those acts through which he simultaneously
exercises both his executive prerogatives, imperial and royal.

And let me emphasize again that the whole machinery of common
affairs and common ministries must act in constant agreement with
the Hungarian ministry, under the constant control (direct and
indirect) of the Hungarian parliament (and Austrian, of course, too),
that it can be blown up every moment by a short law enacted by the
Hungarian legislature; and let me ask again, where can you find
in those institutions, dependent on the public powers of Hungary in
every moment of their action, in every second of their existence,
even the shadow of an imperial establishment superior to Hungary,
controlling her to any extent? Truly, that phantom of an " Aus-
trian Empire," taken in the sense in which it should include Hungary,
reminds me of the old German proverb about a knife without a
blade, the handle of which was missing.

IV

Should I have succeeded in making all this as clear to you, gentle-
men, as it seems evident to me, you will quite naturally ask me how
truths so evident came to be obscured and contrary impressions to
be almost generally prevalent throughout the world, and you may
further inquire about the bearing of such a connection between
Hungary and Austria, as between two sovereign nations, on the
international situation of either of them separately or of both taken
jointly. Of these two questions I shall try to answer the second one
first.

That Hungary taken separately has a legal personality in inter-
national law stands above doubt; it simply follows from her being
an independent kingdom, " not subject to any other kingdom or
nation," as the above-quoted law of 1791 puts it. But since she is
bound to Austria by a covenant of mutual defense, and since the
law of 1867 has declared common affairs " those foreign affairs which
affect the interests of both countries," meaning those which bear
direct relation to national defense, Hungary (as well as Austria) has for
the time being disabled herself by her own law from acting separately
in international matters of that kind; she has, with respect to these
matters, for the time being, renounced the separate use of her per-
sonality in international law, and must, in all cases of such nature,
act jointly with Austria.1 The permanent potentiality of that joint

1 This is how the matter stands in the terms of the Law XII, 1867. But even
should that law be abolished or .altered and the whole machinery of common
affairs and common ministries l>e superseded, the obligation to mutual defense
founded on the Pragmatic Sanction, which is a bilateral compact, would none
the less subsist so long as the present dynasty lasts, and the foreign affairs of
both countries would have to be conducted with constant regard to that obliga-
tion. How this could be insured under such altered circumstances is a question

RELATIONS BETWEEN AUSTRIA AND HUNGARY 547

action, the union of the two nations for that purpose, is called Austria-
Hungary, or, since their ruler is physically one monarch, the
Austro-Hungarian monarchy, though that term, as being apt to
misinterpretation, is not very felicitously chosen and will probably
fall into desuetude. Austria-Hungary, then, as is shown by the
double term itself, does not mean one empire, but the permanent
union of two nations for certain international purposes. In all
international affairs not belonging to the sphere of national defense
(such as railway conventions, extradition treaties, copyright con-
ventions, etc.), the international personality of Hungary not only can,
but must act separately, because with respect to them there is no
union with Austria, and, therefore, their joint action cannot even
be juridically constructed, except on the grounds of some (ad hoc)
convention between them. In fact, some treaties belonging to this
category have been concluded jointly by " Austria-Hungary," but
this was done by an inadvertence which is not likely to occur again.

It may be difficult practically to draw a precise boundary-line
between the matters in which the international personality of Hun-
gary acts separately, and those in which, as long as the present
law remains effective, she can act only in connection with Austria;
but juridically the distinction exists, and Hungary has availed
herself of it in several international treaties which she has independ-
ently concluded, and even where joint action is necessary it is not
the action of one empire (which, having no substance, is hardly
capable of action of any sort), but the joint action of two. Being
bound to such joint action in certain matters, the union of these
two constitutes one great power; because what is power but
potentiality of action — in our case of joint action? But it is not
necessary to invest that great power with a juridical personality of
its own; the fact that it represents a permanent obligation of two
personalities to act jointly in matters of peace and war answers to
all requirements, theoretical and practical.

We can easily see now the chief source of the erroneous views
generally prevailing about the legal status of Hungary. Our country
usually appears in joint international action with Austria, she has a
common representation with her; these facts are apt, by themselves,
to spread a false impression, which could be prevented only if the
forms of such joint action and common representation would clearly
indicate, as they ought to do, the two sovereignties which, though
acting in conjunction, are possessed each of its own personality.

of practical expediency which we need not discuss here. Some new scheme
might be devised, or the guarantee contained in the physical identity of the
monarch, whom both constitutions invest with an efficient prerogative in foreign
affairs, might be thought sufficient for the purpose. At all events, contrary to
a widespread and artificially fostered opinion, the European system of powers
would remain undisturbed.

548 INTERNATIONAL LAW

Unhappily this is not the case. In former times the unification
of its domains (Hungary included) into one empire has been the
constant aim of the dynasty. That aim could never be obtained,
owing to the firmness with which our forefathers insisted on their
independence; but wherever they failed to keep a close watch,
wherever prerogative could escape their control and find an opening,
some fragmentary appearance of such a unified empire was called
into existence. This could be achieved with the greatest ease in
foreign affairs, the administration of which was almost entirely
left to the King's discretion, and to some extent in army questions,
where much debatable ground existed, and still exists, between
prerogative and the rights of parliament. Of these opportunities
the dynasty availed itself to the largest extent; while forced to reckon
with the idea of Hungarian independence at home, it gave an entirely
pan-Austrian character to diplomacy and to all foreign action. That
lasted for two centuries at least, and fixed the impressions of foreign
opinion in a direction which can be modified only through impres-
sions of an opposite kind working on her for a considerable time.
Unhappily, not even now can we point to a complete concord between
what falls in the eyes of foreigners and what the relations between
Hungary and Austria legally are. A wholesale reform of those mis-
leading forms in foreign (and to some extent military) matters has
not yet been effected, though it has begun and will no doubt be
completed in a time the length of which depends on the degree of
forbearance with which the nation thinks fit to tolerate these last
comparatively trifling but obstinate remnants of bad times. Why
there should be such remnants at all, which can do no possible good
to any one or to any cause, but only serve to irritate and to prevent
the growth of perfect confidence and harmony, it is not my business
to inquire here, where public law and not politics is my object.

But anxious as I am to keep to that distinction, I must still conclude
with an allusion at least to the political side of my question. I should
not like to be misunderstood. My strong insistence, my whole
country's strong insistence, on her national independence, does not
in the least imply a will or a wish to break away from Austria.
We mean to keep faith to the reigning dynasty ; no nation in its
dominions is more absolutely reliable in that respect; we mean loyally
to fulfill our compact of mutual defense with Austria; in a word,
what our forefathers agreed to as being obligations freely accepted
by Hungary, we mean to adhere to, as honest men should. All we
want is that equal faith should be kept with us, that those equally
binding enactments of the Pragmatic Sanction, which make Hungary
secure of her independence as a sovereign nation, as a kingdom, nulli
alio regno vel popido subditum, as the law of 1791 puts it, should be
fulfilled with equal loyalty.

RELATIONS BETWEEN AUSTRIA AND HUNGARY 549

To such complete national existence we have as good a right as
any nation on earth, not on grounds of formal legality only, but
because we are conscious of having creditably fulfilled our mis-
sion as a bulwark of Western civilization and of liberty. We don't
see that this mission is ended, nor do we see how it could be fulfilled,
should that organic force of our peculiar national mentality and
constitution be missing, should that force which stands unshaken
after trials before which stronger empires have fallen into dust, give
way to artificial combinations and mechanical contrivances.

We are then only faithful to the supreme law of our destinies when
upholding the banner of national independence with unflinching
firmness of resolve.

SHORT PAPER

DR. BENJAMIN F. TRUEBLOOD, of Boston, contributed a paper to this Section
on " An International Advisory Congress."

AIT1LIO BKVNIALTI,

Councilor of State, Rome, Italy.

COMMENDATO G. B. ZEGGIO,

Italian Diplomat, Florence, Italy.

(Member of the International Jury, St. Louis Exposition, 1904.)

.

SECTION B — CONSTITUTIONAL LAW

SECTION B — CONSTITUTIONAL LAW

(Hall 14, September 24, 10 a. m.)

CHAIRMAN: PROFESSOR HENRY ST. GEORGE TUCKER, George, Washington Uni-
versity, Washington.
SPEAKERS: SIGNOR ATTILIO BRUNIALTI, Councilor of State, Rome.

PROFESSOR JOHN W. BURGESS, Columbia University.

PROFESSOR F. LARNAUDE, University of Paris.

IN opening the Section of Constitutional Law the Chairman,
Professor Henry St. George Tucker, of George Washington Univer-
sity, spoke as follows: " I deem it one of the greatest honors of my
life to be called upon to preside over this Section of this great Con-
gress. As I look into the faces of those gathered here from every
country of the world, distinguished for their learning in the greatest
of subjects enlisting the interest of the people of the world, I recog-
nize the fact that this Congress, in its full and free discussion of con-
stitutional questions, may be of far-reaching importance to all the
world. As an American I may be pardoned for saying that we take
a just pride in the development of constitutional law in the Republic
of the United States. With the progress of the whole world in this
subject before us, we have sought to incorporate into our system
the principles developed in each country which commended them-
selves to our conditions, and have added to them a security of civil
liberty to the citizen unequaled in any of the constitutions of the
world. We have with us representatives to-day from the kingdoms
of Belgium and Italy, who will, I doubt not, instruct as well as delight
us in the additions which they will make to our knowledge on this
subject."

CONSTITUTIONAL LAW

BY ATTILIO BRUNIALTI

[Attilio Brunialti, Councilor of State and Deputy of Parliament, Rome, Italy,
b. Vicenza, Italy, April 2, 1849. Graduate, University of Padua. Editor
of II Diritlo, Rome, 1871-82; Vice-Librarian to Parliament, and Secretary to
the Geographical Society, 1872-76; Private Secretary to the first Liberal
Minister, Depretis, 1876-80; Professor of Constitutional Law, University of
Pavia, 1880-81 ; Professor of Constitutional Law, University of Torino, 1881-
90. Member of Parliament, 1881-92; member of Parliament and Councilor
of State since 1892; member of Central Commission for Taxes, Rates, and
Duties in Rome ; member of the Lombard Aademy ; ibid, of Philadelphia, and of
the geographical societies of Rome, Paris, Lyons, and Marseilles; Vice-President
of Italian Alpine Club; General Counsel of Touring Club. Author of several
books and articles on political science and on other scientific subjects.]

IN this solemn universal Congress of Science and Arts, the con-
stitutional law must be satisfied with one of the most modest places.
Normative and historical sciences, like the physical, mental, and
utilitarian sciences, can show marvelous progresses, whilst among
all sciences providing for social regulation, constitutional law is one
of the less fortunate, because, if its actual problems are among the
most important and interesting, — liberty, justice, and welfare of
the human race, — the scientific apparatus with which it is pre-
paring itself to resolve them is one of the most insufficient. Of
course we can also glory in discoveries and progress filling us with
a just ambition and pride — the representative system, the federal
state, the bit of presidential government, the values of cabinet gov-
ernment, the participation of the people in the legislation. But if
we further our researches we have reason to blush and to feel
ashamed of our insufficiency, like the Alboino's physician, thinking
how little the science of constitutional law has advanced compared
with other sciences. We are even distinguishing the forms of gov-
ernment with the doctrines of Aristotle; we are praising the republic
uith the words of Cicero; we are preaching socialism with the areu-
ments of Uang Ngan Shi and of Plato. Th^re was a greater origin-
ality of political thought in a road of Athens in the time of Peiicles
or in a palace of Florence in Dante's time than in Rome or in New
York in the contemporary period. The reason is that other sciences
advanced with precise laws in the increasing surety of their elements,
whilst observation and experiment will give to them an ever surer
basis, and the science of constitutional law, unable to have recourse
to experiment and to find an absolute surety by observation, ad-
vanced amidst infinite doubts, admitting the most uncertain and
varying solutions for problems implicating the welfare, the progress,
and the life of all men in the world.

CONSTITUTIONAL LAW 555

Not only to be able to advance, but almost to become consoli-
dated and to live, political sciences were obliged to accept essentially
conventional laws, which appearing rather as fictions and leading
to real conventional lies, like the so-called right of might, and the
law of the greater number, as the judicial axioms for which the igno-
rance of the law is never an excuse, or the judged things are held as
absolute truth. The contrast appears even greater because politics
is one of the most noble and diffused passions of men, and in the
mean time the science of constitutional law leaves us almost indiffer-
ent, is not entered in the universal culture, and has the poorest
literature. Modern writers are often wanting in a solid, sure method,
a method knowing itself, a direction attained from higher principles,
a great and very scientific inspiration. And that happened also
because the cultivators of other sciences proceed unanimously and
compactly, like the Macedonian phalanx, and we are consuming
ourselves with isolated efforts, elevating Egyptian monoliths, which
few persons are able to appreciate. The reason of that crisis of
political science cannot be neglected; it is not possible to fix the
manner in which attention should be paid to the solution of modern
problems which are imposed on it without knowing the condition of
the soul constituting the whole of the feelings and moral tendencies
of the present generations. For too long a time are we repeating with
Cornewall Lewis,

" The forms of government let fools contest,
What is best administered is best." 1

The enthusiasms determined by the revolutions and the modern
reactions for the Republic and for the monarchy are avoided; 'every
civilized state rests in the form most convenient for it, and even those
that have experimented many forms of government, like France and
Spain, seem convinced of the truth declared in the vulgar problem,
" Plus qa change et plus c'est la meme chose." The best studied con-
stitutional arrangements are not modifying2 human nature; every
form of government has merits and demerits, leaving us little or not
at all wanting in radical changes. Consequently, the study of
constitutional law is neglected, as we neglect a plant from which
we were hoping for wonderful fruits, whilst it grows up not different
from the others in the garden of science.3

1 Tremenheere, H., A Manual of the Principles of Government as set by the
Authorities of Ancient and Modern Times, London, 1882; Brunialti, A., Le forme
di governo, Torino, 1886; and see the works of Cornewall Lewis, T. de Parieu,
Ippolite Passy, Emile de Laveleye, on forms of government; Hosmer, People and
Politics.

2 " On ne s'enthousiasme plus guere ni pour la Republique, ni pour la Monar-
chic." E. de Laveleye, Le gouvernment dans la democratic, Preface, p. vii.

3 Renan, E., Discours et Conferences, 2d ed., pp. 99-101; Scherer, E., La demo-
cratic en France, pp. 3, 4, Paris, 1884; Deslandres, La crise de la science politique,
in the Revue Politique, 1900, xm, pp. 10, etc.

556 CONSTITUTIONAL LAW . .

Apart from this skepticism, the development of the science of
constitutional law was prejudiced by the smaller part left to the
human will in the political determination of the states and the lessons
with which the greatest masters of modern thought have imbued
minds agitated by doubt. The French Revolution had .spread the
conviction that the constitution of the state may be essentially the
production of individual free will, and the peaceful and marvelous
development of the United States has proved with what restrictions
that doctrine must be accepted.

Against those bold pretensions of our science, believing to be
able to regulate the destinies of society, the standard was everywhere
raised; the theocratic school showed the influence of the divine
in the constitutions; l positivism limited the action of science to
the recognition and to the application of natural laws which are
governing the destinies of society; 2 determinism and evolutionism,
pretending to give the same form of social development, have ruined
even more the conscience of liberty, teaching that the best result
of constitutional science is to embrace the aggregate, heterogeneous
vote of the human race so that it may be seen that every social party
and every period of its existence is determined on the one hand by
its contenders, on the other hand by past and present actions that
other parties are exercising over it.3

Even without being skeptic or fatalist, we are obliged to recognize
the danger coming to science from this kind of universal conviction,
not to be able to find anything better than representative govern-
ment in its twofold form of presidential or cabinet government, with
a more or less direct intervention of people in the legislation. After
having little by little or with the violence of the revolutions broken
the chains of all tyrannies, advanced humanity found in the repre-
sentative democracy the delivering political form in which it will
be able to develop freely its forces and its activity. Ippolite Passy
and Stuart Mill, Thomas Cooley and Bigelow, Webster and Hosmer
have kept alive too much this political optimism, so that the cries
of alarm of David Syme and of Seaman, showing the vices of the
republic, are not able to trouble it as much as those of Charles Benoist,
alarmed by the crisis of the modern state and those of our numerous
critics of parliamentary government.

Constitutional law is also neglected because the political fever
agitating Europe during almost a century has left the place to the
economical excitement, so that the dominant preoccupation is not
liberty and justice, but welfare and the research of fortune. To
reach the supreme degree of production and of consummation,

1 De Maistre, X., Essai sur le principc ghitrateur des constitutions.
* A. Com to, Littro1, and other positivists.

3 Spencer, H., Sociology, vol. I, p. 590; Taine, H., L'ancien regime, Preface, and
passim.

CONSTITUTIONAL LAW 557

to approach to the social classes, to fight the privilege of riches, to
improve the condition of the miserable are questions which re-
quire most our attention arid preoccupy it almost entirely. Elec-
toral programs are almost all occupied by economical questions,
and to those questions are even adapted the names of the political
parties.

Political institutions are mediums to reach the greatest good, and
also, as means, they are not kept in great account because they did
not succeed in hindering the creation of a frightful urban proletariat,
a large inequality of fortunes, an enormous plutocracy, whilst pro-
claiming the sovereign number they give to the working-classes the
need to serve themselves with that sovereign number they are en-
joying, to be able to reach their ideals without modifying political
institutions, and whilst materialism, positivism, the declining
religious feelings are directing ever further their minds towards the
material satisfaction of comfort and riches.

Notwithstanding the constitutional law must solve in our days
the most important problems of history, the states were never so
much exposed to the action of two forces fighting together, of two
opposite principles contending one against the other the empire of
institutions. If the forces pressing on the state from without and
those governing it within would come into conflict one against the
other, they would determine a supreme crisis, in which it is permitted
to the prophets of misfortune to foretell all the horrors of anarchy
and all the reactions of despotism, not without the most audacious
transformations on the political map of Europe. The modern state
sees ever more in danger the basis on which it seemed ready to defy
the centuries, the representative government and parliamentary system,
and is directing itself towards the popular government, and mean-
while the external forces operating on it become ever more threaten-
ing, and show us in a remote light the needed peace of the united
states of Europe, through inexorable fatalities of fratricidal struggles.
of sacrifice, and blood.

You may remark that if the science of constitutional law is import-
ant for all, it is necessary to pay attention to the different nature and
different problems it is offering in America and in Europe. Well
wrote A. V. Dicey: " If I speak of the constitutional law of the
United States I know precisely what is the subject of my teaching
and what is the proper mode of dealing with it. It is a definite
assignable part of the law of the country ; it was recorded in a given
document to which all the world had access; the articles of this
constitution fall, indeed, far short of perfect logical arrangement,
and contain, in a clear and intelligible form, the fundamental law
of the Union. This law is made and can only be altered or repealed
in a way different from the method by which other enactments are

558 CONSTITUTIONAL LAW

made or altered. Story and Kent, therefore, knew with precision
that the nature and limits of the department of law which they
intended to comment, must be guided by the same rules as in any
other branch of American jurisprudence, and their work, difficult
as it might prove, was a work of the kind to which lawyers are
accustomed and was to be achieved by the use of ordinary legal
methods." l

Otherwise it happened with English constitutions and with all
others inspiring themselves in it, and which, although the^ letter is
different, were modeling themselves on it in the whole development
of parliamentary system. To comment on English constitution,
Blackstone may search the statute-book from beginning to end
and will find no enactment wrhich purports to contain the articles
of the constitution, no test by which to discriminate laws which
are constitutional or fundamental from ordinary enactments; the
same term of constitutional law is of comparatively modern origin.

Notwithstanding, the English constitution is, in the quaint lan-
guage of George the Third, " the most perfect of human formations," 3
which had not been made, but had grown; which was not the fruit
of abstract theory, but of the instinct of the people. The celebrated
quotations of Burke and Hallam 3 and many others recall with
singular fidelity the spirit with which those institutions were
regarded.

The Romans spoke of constitutio principis, and in some statutes
of the Middle Ages the same word is repeated, although it is more
frequently spoken of as the charta or the statute. Constitutional
laws called for the first time in the science are those promulgated in
1643 from Sweden; the word acquires a real importance in the
United States, becomes popular in France, and thus becomes the
denomination of all fundamental laws of free peoples. The constitu-
tion in the Union remains a precise text, completed from the consti-
tutions of the states and of the decisions of a judiciary authority,
which is the only one in the world, a real, high, respected political
power; the constitutions of England and, in smaller part, that of
Hungary, are instead the result more or less definite of a succession
of legislative acts or ordinances, of judiciary decisions, of precedents,
of traditions. The other states have written constitutions : of
popular origin, as America, France, and Switzerland; granted by
the sovereigns, as Germany, Austria, and Scandinavia; of a mixed
character, as many others and as the Italian constitution, which
was formerly accorded by the King Charles Albert, and afterwards
became a sacred pact between prince and people, sanctioned with

1 Lectures Introductory to the Study of the Law of the Constitution, London, 1886,
pp. 5. 6.

2 Stanhope, Life of Pitt, i, App. p. 10.

3 Burke, Works, in, p. 114; Hallam, Middle Ages, 1st ed., n, p. 267.

CONSTITUTIONAL LAW 559

the popular universal suffrage. It follows the different degree of
importance and of precision of the constitutional law among the
various peoples, the different way in which to conceive its essence,
its nature, the possible reforms, the problems, the extreme difficulties
of a scientific synthesis, to which the American constitution is yield-
ing itself as those of Europe are rebelling. Because not only Eng-
lish constitutional law is formed from texts and customs, from
laws and conventions, partly written, partly unwritten, but also in
the European states that we can truly call constitutional states,
besides the written law there is the tradition, having sometimes even
abrogative force. So in Italy, according to constitutional laws, the
King calls and recalls the Ministers, but according to the convention
he is obliged to call as Premier that one who is designated by the
parliamentary majority, and who will select the Ministers as your
President selects and recalls them; and our Premier is obliged to
give notice to the King, as your President to the Senate, although
King and Senate are retained authors of the revocation. Thus the
King is able to put the veto on a law, but in merit of the action of
parliamentary machinery need not do it, and if he should do it, we
could say that he has violated the convention of the constitution,
although remaining faithful to the constitutional law.

The fundamental problem of our science of constitutional law
regards its own existence. Thomas Paine said that a constitution
cannot exist until every citizen can have it in his pocket. But
just the principal defect of written constitutions is the facility with
which so many have been put in their pocket by European princes
because they were not initiated into the ideas, into the lives, into
the habits of the people. X. de Maistre used to judge a constitution
as frail as the number of its written articles,1 and Mackintosh said
that the constitutional laws must not be constructed with a slow
result of secular evolutions, but let them increase of themselves. On
the other hand, a written constitution is not the simple codification
of the customs and of the forms of a government, but is also a guar-
antee that customs and forms will never be such without the ap-
probation of those who have solemnly confirmed them. Besides
written constitutions there exist always customs, habits, traditions,
capable of having the greatest importance, and meanwhile it is not
possible to say that the shortest and most concise are the best. The
United States, for instance, is ever more feeling the necessity of
protecting itself against the abuses of legislatures and the intrigues
of politicians, and therefore your modern constitutions are all longer
than the ancient constitutions and have differences altogether more
complex. Beside precepts very statutory, I can read rules limiting

1 De Maistre, Essai sur le principe generateur des constitutions ecrites, CEuvres,
Lyon, 1884, i, 243.

560 CONSTITUTIONAL LAW

the tax of interest or the hours of labor, the use of alcoholic drinks,
and the provision of note-paper and firewood for the assemblies. The
constitution of Missouri of 1865 has 26,000 words, whilst that of New
Hampshire of 1776 was all included in 600 words; the following con-
stitutions of Virginia filled 4 pages, afterwards 7 and 18, and the last
occupies now 22 pages and has 17,000 words, whilst the first had but
3200 words. Notwithstanding, it seems to me necessary to remark
that these constitutional laws have a greater political importance,
a juridical character not different from other laws. A state is not able
to change its form of government, especially if it is established on a
very fundamental pact, as in different ways it happened in the United
States as well as in Italy, as it changes the dispositions of electoral
laws, and cannot modify this one with the frequency with which it
changes the legislation on sugars. But the two elements of consti-
tutional, formal, and substantial law are to be distinguished, but not
separated; confusing them, we would have an inexact knowledge of
the laws themselves, because leaving aside the material element, con-
stitutional laws are understood as the mediums with which the sover-
eignty, with free choice, with a complete faculty to change them,
becomes self-ruling in order to be able to reach its aims. Consti-
tutional laws distinguished from the others because of their juridical
nature, instead of being determined experimentally, are in such a
case the effect of a scientific abstraction or an experiment founded
on presumptions, and we are knowing the results of this method to
understand them. On the other hand, the reactions against this
doctrine led to confusing constitutional laws with ordinary laws,
giving to the charters an apparent solidity and even a pretension
of durability, \vhilst it was taking from the constitutional law its
true, secure, juridical basis.

In the modern state it is necessary, indeed, that the fundamental
written constitution have a juridical stability superior to other
laws, but meanwhile it may be modified without excessive diffi-
culties, because fundamental principles of the constitution have
a greater importance, and may be modified without the larger con-
course of public conscience, with caution and with a consideration
which, with other laws, is neither possible nor desirable. But it
must be always possible to maintain harmony between the words
of the text and the spirit of the institutions.1 " If a written consti-
tution is not frequently amended," wrote your A. Jameson, " it
ceases to answer to the necessity of the political development of a
people; and, on the other hand, if it is too easy to introduce new

1 A. Jameson, A Treatise on Constitutional Conventions; their History, Powers,
and Modes of Proceeding, 4th ed., Chicago, 1887; Bourgeaud, Etablissements et
Revision de* Constitutions Politiques en Amerique et en Europe, Paris, 1885;
Brunialti, Formazione e Revisione delle Costituzioni Politiche, Torino, Tip. ed.j
1894.

CONSTITUTIONAL LAW 561

amendments, they are the cause of the continued agitation of political
parties. The written constitution less changeable is less elastic, less
apt to assure the political progress of a people, especially if its education
is elevated and its public spirit developed and energetic." l On the
other hand a written constitution is almost a bridge leading to better
time, an easier and quicker means of giving civil dignity and po-
litical conscience to a people. It increases its juridical sense; it is
a watch-tower showing when its liberty is in danger; it offers him a
text which can always be recalled and returned after the agitations
of revolution and the violence of reaction.2 I perceive, also, only
two moods suitable to reform constitutional law: that embodied in
the American Federal Constitution and that one followed in England
and in Italy. Among you, consent of the majority sanctions the
difficult machinery of the amendments; among us the constitution is
surrounded with the highest respect, considered as something not to
be touched in its fundamental principles, subjected to the constant
action of social and political progress, and is transforming itself in a
manner that will enable it to provide for all needs and all exigencies,
joining to the most venerated traditions the novelties which are better
providing for the wishes, the needs, and the interests of the greatest
number, to the very assiduous, fruitful expression of the national
conscience.

The English constitution, as we have seen, consists of two different
parts; one part is made up of rules, which are enforced by the courts,
and which, whether embodied in statutes or not, are laws in the
strictest sense of the term and make the true law of the constitution;
the other part is made up of understandings, customs, or conventions,
which, not being enforced by the courts, are not laws in the true
sense of the word. The law of the constitution is the result of two
guiding principles: "the sovereignty of parliament and the rule of
law." The first principle means, in effect, the gradual transfer
of powTer from the crown to a body which has come more and more
to represent the nation, with two effects: namely, the end of the
arbitrary power of the monarch and the preservation of the supreme
authority of the state. The second principle, the supremacy through-
out all institutions of the ordinary law of the land, determines the
substance of English constitution which is, more truly than any other
polity in the world, except the constitution of the United States,
based on the law of the land. The rule of law is a conception within
the United States which indeed has received a development beyond
that which it has reached in England, but it is an idea not so much
unknown to as deliberately rejected by the constitution-makers of
France, Italy, and other Continental countries. The supremacy

1 Brunialti, op. cit. pp. 79, 80.

2 A. Jameson, op. cit. pp. 77, 78.

562 CONSTITUTIONAL LAW

of the law of the land, the authority of the courts of law can, there-
fore, hardly coexist with the separation des pouvoirs and with the
system of droit administratif as it prevails in France and in coun-
tries which have followed the French guidances.

Not even Anson, in saying this, asserts that foreign forms of gov-
ernment are necessarily inferior to the English and American con-
stitutions or unsuited for a civilized and free people.1 But the
question of method acquires a singular importance, and the consti-
tutional law in Continental Europe has problems more unknown
among you than in England, such that we are obliged to give our
attention also to the question of method, as to one of the cardinal
points of the science.

Struggle is always strong in the sciences and even in the practice
of political institutions, between idealists and sociologists, between
the followers of juridical method and those upholding the compara-
tive. The ideal method advances with the rapidity of classic
spirit, following every research, with an unlimited confidence, the
principles of the mathematic. It extracts, limits, isolates some
simple and general notions, it compares and combines them, and
from the artificial result thus obtained deduces with reason the
consequences it perceives to be contained therein.2 It is the meta-
physical manner of proceeding,3 or the dogmatic manner, because
it derives from principles elevated to dogmas 4 with an unlimited
faith in a truth dominating political science, and determines all its
solutions. From the Heaven's Star of the Persian Vishnu Das
and from the Republica of Plato, with their numerous imitators,
to the Utopia of Thomas M6re, the New Atlantis of Bacon, the
Oceana of Harrington, and the Cities of the Sun of Campanella, to the
Looking Backward of Edward Bellamy, to the Freiland of Theodor
Hertzka, and to the other social modern romances, we perceive
a wealth of literature which has deluded, seduced, deceived, and
corrupted humanity.

The mathematical constitution given by J. Locke to South Caro-
lina or that imposed by the Jesuits in Paraguay, and in Europe
the aberrations of the social contract of Jean Jacques Rousseau, have
shown of what corruption this literature is capable. When we assert
with presumption that the constitutions are the work of our reason
which is conceiving the fundament and deducing the system, and
of our will, which actuated the conceits of reason; when we admit
that the human mind enjoys principles, absolute truths, imposed

1 Op. tit. pp. 397, 398.

1 Taine, II., Les Origines de la France contemporaire, vol. i. L'ancien Regime,
pp. 262, ct seq.

3 Liard, La Science Politique et la Mftaphysique, p. 47.

4Deslandres, op. cit. vol. xy, p. 395; and more diffusively, Vacherot, E.,
La Democratic, preface, pp. viii, ix.

CONSTITUTIONAL LAW 563

by an enlightened internal evidence to our mind, with solutions
valuable for all the world we are not able to establish anything
firmly. Who will deny that the surest and most durable political
creations are just those which were more distant from dogmatism, like
your constitution, the result of transitions and compromises between
different tendencies, imposed by the necessity of facts, with absolute
abstraction from all idealism whatsoever? * Nevertheless we do
not wish to deny, therefore, the existence of the moral law;2 we may
also admit a certain ideal even in the constitution, until it remains
lively and concrete and the ideal may be rooted in the reality, may
be as the synthesis of the noblest aspirations of the people, and may
correspond to its history, its temperament, and its needs.3

The juridical method has had in Italy illustrious precursors who
had but a vague idea of it, as G. Romagnosi, but it was specially
proclaimed, affirmed, and pushed to its utmost exaggerations in
Germany. The state in relation to the law, the Rechtsstaat, is a
German result tending to exclude politics or to limit them to the
totality of offentlichenrechtlicher Verhdltnissen, never losing the recht-
liche Natur, going ever upwards towards allgemein Rechtsbegriffe.
For this method the constitutional law, the political regime, is a vast
juridical system, a totality of relations, rights, obligations, domi-
nated by essentially juridical principles. Promised the analysis
der offentlichcnrechtlichen Verhdltnisse, this method is looking for
die Feststellung der juristischen Natur derselben and goes afterwards
surely zur Auffindung der allgemeineren Rechtsbegriffe denen sie unter-
geordnet sind to return from this ascending generalization, to deduce
from the principles regulating the natural consequences die aus den
gefundenen Principien sich erzdhlenden Folgerungen. Thus Paul
Laband, Georg Meyer, Philips Lorn, A. Gerber, and other German
writers are proceeding,4 guided from pure reason and moreover from
logic with a firm faith in the existence of general juridical conceits,
believing it impossible to create in any other way, eines neues Rechts-
institut, wie die Erfindung einer neuer logischer Kategorie oder die
Entstehung einer neuern Naturgraft.

Such a method is leading to consequences which are possible only
in Germany, and by chance in vain are invoked in France and in
Italy. Germany has not the science of constitutional law, or rather

1 Rousseau, J. J., Contrat Social; Condorcet, Esquisse d'un Tableau Historique
des Progres de I' esprit humain, (Euvres, vr, p. 186; Vacherot, E., La Democratic;
Bouald, de, Theorie du pouvoir politique et religieuse; Brunialti, II Diritto Cos-
tituzionale e la Politica nella Scienza e nelle Istituzioni, vol. i, chap, iii; Klein-
wachter. Die Staatsromane, Wien, 1891; B. von Mohl, Geschicht und Literatur der
Staatswissenschaften in Monographien dargestellt, Erlangen, 1855-58.

2 Secre"tan, C., Les Droits de I'Humanite; Cournot, Considerations sur la Morale
des Idees, n, pp. 86, et seq.

3 Fouillee, A., L'ldee du Droit, Paris, 1883; Secr&an, op. cit., in Deslandres,
op. cit. xv, pp. 425, et seq.

4 Laband, P., Die Staatsrecht des deutschen Reichs, and others.

564 CONSTITUTIONAL LAW

confuses it with the science of the administration, in which the
Emperor and the administration of the Post-Office Department,
the Reichstag and the Kreisordnung, are treated in the same manner,
to the absolute expulsion of every political judgment. The method
exercises a remarkable witchery in Italy l and in France 2 as a reaction
of the juridical rigorism against the intervention of parliamentarism
in the justice and in the administration and also for the importance
and the worth of German works of public right, for the ever magnifi-
cent and classic construction of the theories, but it cannot be received.
It has succeeded in Germany in order to the federal constitution of
the Empire, juridical fundament like all the powers and the organ
of the state, and to the juridical means informing all the German
science. But the Emperor did not consent to the development
of parliamentary government, conserved even a kind of half-abso-
lutism, which we can approve of with a clever and active monarch,
but would become dangerous with any other. And before adopting
this method it is well to consider how badly founded is the belief
in the reign of logic in political institutions leading us towards all
the errors of the dogmatic constitutions and how vain the effort to
give to politics an exclusively juridical basis, the science of consti-
tutional law is not able to obey in its development the only juridical
criterion and would suffice to test it, the deformations to which in
fact are subjected the most particular and severe constitutions.3

The juridical method would give a false direction to whatever
constituent works ; meanwhile it leaves political science disarmed in
face of the conditions and of the needs of the nation in the encom-
passing of which severe juridical formalism cannot follow all trans-
formations. Nevertheless, we cannot contradict wholly the tendencies
of parliamentary states, to give ever more to their institutions a
juridical foundation so that politics may be able to breathe in it, like
a vivifying air, but unable, however, to rust the machinery or to beget
injustices, violence, or any other kind of abuses.4 Some others are
considering all political sciences as a branch of social science, or with
a greater exaggeration, perceiving in the state the most complex and
the most delicate organism, is acquiring for itself a place in the natural
history, speaking of its evolution, like that of other beings, and as-
serting audaciously that politics will become a science only with the

1 Orlando, V. E., Trattato di Diritto Amministrativo, Milano, in 10 vols; Ma-
jorana, A., Lo Stato Giuridico; Stato Costruzionato.

2 Hauriou, Principes de Droit A dministratif et de Droit Politique, Paris, 1903,
pp. 137, et sea.; La Conception Juridique de VEtat.

3 Also for tne American Federal Constitution see J. Bryce, American Common-
wealth, vol. i, p. 101 : " So hard is it to keep even a written and rigid constitution
from bending and working under the actual forces of politics."

4Gumplowicz, Sociology; Bendant, R., Sur I Application des Mcthodes Socio-
logiques a V Etude des Sciences Sociales, in the Revue de Droit Public, 1896, vol. v,
pp. 334-456; Deslandres, op. cit. xm, p. 297.

CONSTITUTIONAL LAW 565

aid of sociology.1 It is true that even sociologists are agreed in
determining the characters of the method they are applying to social
facts; they are only asserting that social phenomena are identical
with the natural or even less bound to their form. An inflexible
relation of causality, gathered from a severe determinism, in
relation to which science respecting it is essentially positive, and
determines with observation and investigation the laws of phenom-
ena. " Science studied," said Spencer, " the increasing, the develop-
ment, the structure, and the functions of the social aggregate, for
the reason that it is a result of the mutual action of the men." 2 Some
writers are making a natural history of human societies, determining
and classifying genders and kinds, describing the anatomy of their
organs, analyzing the physiology of their functions, tracing the
curves of their evolution.3 Others again are studying social facts
and looking for the laws which are mechanically governing them,
with a greater objectivity, following more scrupulously the traces of
this experimental method, going back to Aristotle, perfected by
Galileo, and which led to the most important discoveries of modern
science.4 Metaphysical sociologists like A. Comte, anthropologists
like Letourneau, psychologists like Espinas, historians like Spencer,
have already demonstrated what is the worth of the method, until
it is limiting itself to observation. Not one of them is offering us
a sure conclusion; they are agreeing neither on the substratum of
science, nor on its end, nor on the essence of social facts, nor on any
political application. Conservation or progress, liberty or authority,
individualism or socialism, — such a method has for every one a
solution, but there is no sure and positive conclusion. Until it is
handling of past and of present, the collection of facts is important,
observation complete, but when we are looking for the secret of the
future, when we will remove the criterions of the constitutional law
and of its development we perceive the absolute impotency of it,
which is giving us middle types existing everywhere, providing
solutions which are not finding applications.

To correct this impotency of the sociological method, the com-
parative method is lending its aid. After the detailed observation
of social facts, their comparison is necessary, which Montesquieu
was already opposing to the dogmatism of Rousseau, investigating

1 Baleoki, Staatsobligatorische organisation der Politischen Gesellschaft; La-
tourneau, L' Evolution positive dans les races humaines ; Espinas, Les societ£s
anirnalcs; Spencer, H., Social Science and Sociology; De Roberty, La sociologie;
Fouillee, La science sociale contemporaine.

2 Social Science, pp. 5, et seq.

3 Espinas, Les society's animales; Schiiffle, Bau und Lcben des Socialen Korpers;
De Lilienfeld, La socicte humaine consideree comme un organisme vivant; E.
Perrier, Les colonies animales; Bourdier, Vie des societes.

4 FouiuY-e, Balecki, op. cit.; De Greef, Les lois sociologiques ; Duguet, Le droit
constitutionnd et la sociologie.

566 CONSTITUTIONAL LAW

the esprit des lois, and proposing the imitation of England, as later
did A. de Tocqueville and Edouard Laboulaye that of the United
States of America.1 But in that manner we are falling again into
idealism; meanwhile the real comparative doctrine inaugurated
from Le Play observes all special facts to be able to ask, with
serene impartiality, fruitful examples from the various free peoples,
as Aristotle gathered and studied the seventy constitutions of the
Grecian world to reform that of Athens.2 So some modern writers
are succeeding in a kind of common constitutional law, of relative
ideal, which make them penetrate into the edifice of national right,
the data admitted on the territory of comparative law, almost a
quintessence of the various institutions.3 A general political science,
obliged to study all political forms for determining and classifying
all the various types in which may be combined the institutions
governing the states; to examine the correspondence between these
institutions and the conditions of the ambient, the races, the periods
in which the different peoples can meet to examine the worth of the
different organism, the measure in which they are satisfying the
needs of society, and to study the general laws of their development.
A so conceived general political science requires, of course, the com-
parative study of the greatest number of political arrangements.
We cannot deny that the method is on its part alone insufficient and
unable to give us complete solution. The imitation inspired from
the best comparisons can resolve itself into a pure dogmatism, and
we must not forget what Montesquieu himself wrote, that political
laws must be so much adapted to the people for whom they are made
that it is a very strange case if those of one nation can be convenient
for another.

It is useless to stop at other scientific methods that some might
find in the application of common good sense and others might find
in the application of the laws of history. What we have said is
sufficient to show that to be able to resolve the present scientific
problems of constitutional law, in their variety, and in their import-
ance, we are obliged to move by observation and with the guidance
of history and will gather the greatest number of facts. It is neces-
sary to study these facts in themselves, in the cause determining
them, in their consequences, aiding ourselves in this second study
with scientific research. On this investigation must follow the ex-
periment, guided by common good sense, with almost no dogmatic

1 De Tocqueville, De la Dfmocratie en Am&rique, 3 vols.; E. Laboulaye, Paris
en Amtrique, Questions constitutionnelles; Conferences sur les Etats Unis
d'Amcrique.

2 Le Play, La rf forme sociale.

3 See the Reports of the International Congress of Comparative Legislation in
1900, and generally the reports made by Lambert, Larnaude, Soleilles, and
others ; Conception et objet de la science du droit compare?, in Bulletin de la
Sociitf de Legislation comparee, 1900, pp. 389-405.

CONSTITUTIONAL LAW 567

spirit, without pride and obstination, in a manner to be able to con-
serve and to perfect the convenient political institutions, to abandon
and reform the others.

Therefore political science considers as particularly adapted for
its purpose the federal states, which is a very laboratory of political
experiment. Thus and not otherwise perfect and spread itself the
homestead, the holidays, the legislative referendum, the municipal-
ization of some public services, whilst other reforms, which seemed
destined for a great future did not succeed to prevail in a like meas-
ure. I will only recall the woman suffrage, the proportion of repre-
sentation. A state of the union, a canton of Switzerland, adopts
the reform, another one studies and perfects it, and experiments are
following various parallels contemporaneously; they may study and
compare with the aid of investigation and results correct them-
selves or advise the abandonment of an idea which appeared sur-
rounded with all possible seductions. Old England in merit of its
internal composition and of its numerous colonies became, like the
federal states, a political laboratory, but now, even the nations most
devoted to uniformity are putting themselves in this way. In Italy
we have at last understood that unity can exist only in variety,
that the agrarian laws of Lombardy cannot be suitable for the Roman
Campagna; the industrial provisions sufficient in Turin are not so
in Naples; the laws for the fishing of sardines on the Adriatic cannot
serve for the fishing of tunny or of sponges ; and overcoming an in-
stinctive repulsion, we made many special laws for the Roman Cam-
pagna, for the basilicata, for the acid-fruits of Sicily, for the indus-
tries of Naples, and for building water aqueducts for Apulia.

So the modern problems imposing themselves on the constitutional
law are keeping us farther from dogmatic abstractions, from classical
types, from prejudices, and from unilateral conclusions, whilst the
common fund of the science is ever increasing. It would be suffi-
cient to show, therefore, the modern transformation of the public
law of England. Whilst the European Continent was admiring self-
government, the constant active participation of the leading classes
in the general and local government, and all those singularities,
agreeing in a secular, historical evolution, more than in the theo-
retical conceptions of the studious, England was reforming its ar-
rangements, shaking the most ancient basis of the constitution and
of the administration, destroying their aristocratic character, yield-
ing to the prevailing democracy, and approaching to the institu-
tions of the Continent by new concentrations of power, by the simpli-
fication of old institutes, by the continued substitution of paid
functionaries to the honoraries, by the increasing of public expenses.
It is true that as R. Gneist observed, "the transformation happened
easier in England because the state had obtained during the centu-

568 CONSTITUTIONAL LAW

ries, a complete supremacy in matters of war, justice, police, finance,
and its relations with the Church." l The House of Lords is trans-
forming itself, and the House of Commons has become the expres-
sion of the conscience of the nation, as in a most complete demo-
cracy; the control of finance is perfected, the action of parliament
is ever farther extending itself to the Church, to the school, to
economical reforms, increasing the state's protection in the interest
of the weak; giving to all social legislation a development which
overcomes the most audacious aspirations of the leges agrariae, and
anticipates sometimes the same requests of socialism, never neglect-
ing to appeal to all individual energies. The conferring of offices as
well as all that which concerns the civil service is transformed,
keeping in account the examples of the Continent; the self-govern-
ment followed the increasing interventions in sanitary police, in the
beneficence, in the administration itself with numerous boards, dis-
posing of enormous powers. The ancient squire finds himself at the
mercy of the rural majority, and the allotments, the surveyance, and
the inspections of the unhealthy dwellings, the direction of charities,
the roads, are offering ground for new struggles, raising new pro-
blems, determining consequences hardly foreseen in the distribution
of feudatory ownerships, in the power of the ancient leading classes,
and in all social arrangements.

Therefore, who will understand the English constitution with
Montesquieu, or also with Macaulay and Hallam, and even with
Bagehot, would prove the same deceits, like your students if they
would continue to follow the lessons which Francis Lieber dictated
in the year 1853 on civil liberty and self-government for South Caro-
lina and perfected in 1859 from the chair of Columbia College. When
we think of the modifications to which even this ideal of liberty was
subjected, we are obliged to recognize that you have acted wisely
without giving any definition of liberty in the federal constitution
and causing it to enlighten the world like a supreme watch-tower
in the port of New York. Of course no one will deny that what is
beautiful, great, and useful in the world is due to liberty; it is the
reign of the right, but there is no right without liberty. It is the con-
quest of centuries, during which the weak was subjected to the strong,
the debtor to the creditor, the laborer of the land to his feudal lord,
the infidel to the torture of the Inquisition, a whole human herd
to a few audacious and lawless men. Liberty has changed the
slave treated like things, the prisoner sacred to the inhuman heca-
tombs, the vast populations voted to the sacred springs, the slaves
bent on the feudal soil, the subjects watched by a suspicious police
into citizen legislators of modern democracies.

1 Englische Venvallungsrechl der Gegcnwart, Berlin, 1882, 1st ed.; Englische
Communalursprung, Berlin, 1883, 1st ed.; Geschichte der Englische Parliament,
Berlin, 1890.

CONSTITUTIONAL LAW 569

I beg you yet to consider how that conception of liberty, appearing
so simple and undoubted to our fathers, was modified in face of the
new necessity of the modern state, and with its modifications exer-
cises the most decisive influence on the development of constitu-
tional law. Many of your constitutions, like those of Alabama,
perhaps the most explicit, are still openly declaring that the sole
object and only legitimate end of government is to protect citizens
in the enjoyment of life, liberty, and property, and adds that when
the government assumes other functions it is usurpation and oppres-
sion. In analogy to such principles all your political machinery
asks essentially from the government to assure the general well-
being and considers as an enemy whoever is contrasting in this way
the opinion of the majority, although that majority has in our days,
as in the time of A. de Tocqueville, its tyrannies.1 But meanwhile
in America, also, this classic conception of the state is modifying
itself, and new constitutional laws, always more detailed and com-
plicated, are joined to those already existing.

You know it, but to a European it helps remembering it syn-
thetically. Here no one thinks of restraining the political suffrage
that we can now call universal, and it would be an enterprise more
difficult than to change the course of the Mississippi, but under the
old forms of the restrained and partisan caucus rouses the conceit of
public preparatory elections; in almost all states the registration
of the electors becomes obligatory, and the lists are every year
examined with an ever serious guaranty, the electoral chairs are
presided over by citizens named by the judges and assisted by the
representatives of the candidates; the ballot is always more guar-
antied. Thus becomes prevalent the system of assigning different
days for the different elections, whilst the number of elective offices
is notably restricted. Developing the fruitful germs embodied in
your first constitutions, you are increasing ever more the prohibition
to make laws on determinate subjects, to preserve untouched the
uniform action of the regulating laws of persons and properties
condition, preventing the guaranties in the manner of proceeding
from being altered, whilst the same constitutions are limiting or
regulating the assessment of the tax and the faculty to contract
debts.

To the annual sections are substituted the biennial sections, re-
nouncing to that which seemed to the colonies such a supreme
guaranty to induce them to rebel against the third Stuart ; the
duration of these sections is always brief, so that only the necessary
laws be passed; even the ancient Roman wisdom considered too
many laws as a corruption of republic: Corruptissima republica
plurimae leges. Finally, the bills in extremis and the political riders
1 Dtmocratie en Am&rique, part n, chap, vii, sec. 3.

570 CONSTITUTIONAL LAW

are not allowed, as England had forbidden the taking bills. On the
other hand, the people are called upon to take a more active part
in the work of the legislature, with the referendum, of which we have
always more numerous applications even in Europe, and with local
option.

More remarkable than all is the progressive increasing of the
powers of the executive, that is the government. That which in
the time of Jackson seemed a constitutional usurpation, is now con-
sidered as a necessity. And in the states as in the smaller local
organisms, the executive, much more than in the federal govern-
ment, was able to develop and reinforce in the houses its two func-
tions of cooperation and of antagonism. The exercise of the veto
is an ever serious and efficacious bridle and a far greater influence
is deriving to the executive from the right of appointing to the public
offices, which, in spite of many and lively oppositions, is always more
subjected to guaranties and to controls of undoubted efficacy. A
more strict chain of proceedings is accenting itself ever more strongly,
even in the federal government, between the executive and the legis-
lative power. Burgess 1 prophesied that these United States will be
induced to temper the presidential government with some rules of
the cabinet government, as this one has already the greatest inde-
pendence from the parliament. In conclusion, if Williams could
write 2 that an American citizen can pass his whole life without
invoking the federal laws, and putting into action the Union's
powers, to-day it is more exact to repeat with Wilson 3 that the
federal government is knocking at the door of every citizen with the
same authority of the state's government.

Some find such a development of the authority of the American
government not existing without serious dangers. But you smile
at the new prophets of misfortune as at the old ones when, pre-
occupied with any anarchical phenomena, they elevated to the gospel
the letter in which T. Babington Macaulay described with dark colors
your future, like those who, seeing elected and reflected to the
presidency a general haloed with the glory of recent victories, had
already seen the democracy almost wrapped around as Laocoon
in the mortal coils of imperialism. To-day, for example, some one
preaches in the action of the trusts the sure victory of socialism.

It is true that Charles Marx foretold a seeming capitalist concen-
tration as a sure preparation for the actuation of his doctrines.
But the trusts are reducing apparently the production to unity; in
reality they are multiplying it indefinitely with all the power of the
machinery of the joint-stock companies, because to three, ten, twenty

1 Vol. n, pp. 38, et seq.

2 Cited in Boutmy, chap. 2, p. 166.

3 Congressional Government, p. 25.

CONSTITUTIONAL LAW 571

producers, the}' substitute five, twenty, a hundred thousand stock-
holders, and where we may seem to perceive the struggle, there is
interested a great quantity of citizens, especially the humble and
incapacitated, women, minors, shopkeepers, even beneficent insti-
tutions, even universities and great scientific societies, a larger
system of participation in benefices, than we might even have
imagined. To think a concentration of all capitalist forces, which
may necessarily correspond a general league for the most violent
struggle of classes to the bloody social revolution, is an exaggeration.
Here, more than elsewhere, helps a proverb of the ancient Greeks
who were comparing the liberty governed by the law to the lance of
Achilles, which had the twofold virtue of wounding and of healing.
In fact President Roosavelt gives to his state the New York
Business Company Act of 1900; afterwards creates the federal
ministry of commerce and finds in Philander Knox his Merlin.
Putting aside the trial of an always extremely difficult reform of the
federal constitution, the battle will continue in the courts of justice
which, armed with the anti-trust law of Sherman, are striking inexor-
ably; and therefore, beginning from the Beef Trust and the Railroad
Trust, provoked the summary justice of the Stock Exchange. Such
frightful institutions, appearing at the beginning of social revolution,
are falling down like paper castles built by children. Nicolo Mac-
chiavelli, who left us precious political instructions, says: " That the
things beyond their natural foundation are not lying, neither resist."

The American plutocracy will not be mightier than Caesar and
Charlemagne, than Gregory VII or Napoleon, if it will pretend to
check the laws of nature or to change the course of history. What
did not succeed among despots who could glory that they were
descended from Jupiter, who could dispose of an unlimited power
and proclaim themselves to be the state in face of an ignorant and
subjected mob, without energy and even political conscience, cannot
succeed in a free land to an only potency, even the greatest, as it
did not succeed with John Locke to transfer to South Carolina the
English feudalism, or to the Jesuits of Paraguay the celebrated
constitution regulating even the hours of conjugal debt, as criminal
sociology will never succeed to suppress the born delinquents, or
electoral legislations to prevent the bribery.

The solutions are perhaps easier in Europe, where there is accorded
to the state a more complete action, in merit of which it appears
more organic and stronger and is able to strike severely, as yesterday
in Germany, socialism; to-day the religious congregations in France;
to-morrow, perhaps, in England or elsewhere, the trusts or other
social manifestations. And yet there continues among us, especially
on the Continent, the doctrine of patriarchal government of society;
therefore the greatest interests, of which here voluntary associations,

572 CONSTITUTIONAL LAW

incorporated and authorized by the law, are taking care, are among
those directed by governmental authority. Such an intervention
appears more necessary because it is wanting among us and it would
not be possible to organize in the same manner as a real political
power the judiciary authority, so as to be able to have this sure pro-
tection it is offering to your institutions, and, on the other hand,
this individual energy became weakened governing the whole Amer-
ican political life, infusing into it force, making it admirable through-
out the most terrible crisis.

The increasing necessity of protecting the most feeble in face of
industrial organizations, of the power of capital, of the same struggle
for welfare is determining the new developments of the action of the
state and of municipal corporations. Therefore we are disputing
in Italy if we must confide to the government even the control of
the railroads, although the experiences of some European states
and the peculiar difficulties of administration and control granted
to the exigencies of parliamentary system should not let us advance
in this direction. So we have recent laws which allow the munici-
pality to exercise the monopoly of the most different enterprises,
light and water, trolleys and telephones, hygiene and moving force,
bread and meat, ice and funeral pomps.

There follows a number of new problems, imposing themselves on
the governing constitutional law: organizations of the referendum,
administrative and financial controls of the new managements,
bits to the new rules on political and municipal elections. There
arises the twofold necessity of a more detailed development of the
legislation, so that to the administrative arbiter, who has a great
action in the silence of the law, may happen a precise disposition,
able to be a rule for authority, a defense for the citizens, and of a
judiciary authority unknown to the Anglo-Saxon law, almost new
to our institution, the administrative justice with which the state that
cannot and will not be subjected to the ordinary judges in adminis-
trative matters concerning not the right, but the interest, became
judge and party, yet granting to the citizens, with these administra-
tive tribunals, such guaranties not to be neglected.

Gentlemen: History and reason are teaching us that the science
of constitutional law must not preoccupy itself more than once
with possible reactions or revolutions. We are convinced that our
forms of government, although not approaching the ideal in a general
interest, to give to every citizen force proportionate to his effective
worth, whatever may be his social condition. The struggle of the
classes is nonsense where the majority rules, where it depends on
this majority, made up of working-men, to modify the laws, which
in some states favor concentration, protect usury, and are exposing the
working-classes to the unlimited struggles of competition. The law

CONSTITUTIONAL LAW 573

is the expression of the public conscience, the formula of that which
the nation recognizes as necessary and useful, and to which it submits
itself freely. We must not ask from politics what it cannot give.
Persuaded that the ideal state does not exist, perceiving that in this
modern age liberty is greater, justice surer, morals higher, the general
well-being more widely spread, that the defects of our political
institutions seem to us greater because we can censure them freely,
we are obliged to look for the future, from what we are now in
comparison to past times, from the progress reached in so many
centuries and amid so many difficulties. So well as from the ancient
city, across the aberrations of the great Asiatic and Roman mon-
archies, the invasions of the barbarians, the brilliant feudal anarchy,
the struggle for the supremacy of the Empire and of the Church, the
patrimonial state and the police state, we have arrived at the
national state, the progress of constitutional law will lead us to
the universal state, which before being the aspiration of modern
society has been the promise of the Gospel, the tentative of the
Empire, the belief of the Church, and it remains ever the regret of
the intellect which struggles with the reforms of the law, the most
beautiful dream of the men of heart, longing for the infinite pro-
gress of humanity.

THE PRESENT PROBLEMS OF CONSTITUTIONAL LAW

BY JOHN WILLIAM BURGESS

[John William Burgess, Professor of Political Science and Constitutional Law
since 1876, and Dean of the Faculty of Political Science since 1890, Columbia
University, b. Conersville, Giles County, Tenn., August 26 1844; A.B. Am-
herst, 1867; Ph.D., LL.D.; Po^t-graduate of Universities of Gottingen, Leipzig,
and Berlin. Professor of History and Political Economy, Knox College,
Illinois, 1869-70; Professor of History and Political Science, Amherst
College, 1873-76. Member of American Historical Association; American
Economic Association. Author of Political Science and Constitutional Law;
The Middle Period of American History; The Civil War and the Constitution;
Reconstruction and the Constitution. Co-editor of Political Science Quarterly.]

TEN years ago one was accustomed to hear the proposition confi-
dently advanced and stoutly maintained that the period of develop-
ment of constitutional law had closed, and that the civilized world
was in the period of administrative development. I knew then
that this proposition, if not an error, was at least an exaggeration,
and everybody knows it now. If the devotees of administrative
law and theory had been content to say that constitutional law had
reached a much fuller development than administrative law, and that
its unsolved problems, though highly important, were fewer in num-
ber than those of administrative law, no fault could have been found,
or could now be found, with the contention. But the events of
the last six years especially have shown most conclusively that the
work of the constitution-makers is far from completion, and that we
have entered, or are about to enter, upon a new period of consti-
tutional development. Facing this situation, let us, in the short
hour allowed to this paper, discuss a few of the more important
problems which await solution or a new solution.

All questions of constitutional law, as of political science, may be
classified under three grand divisions, viz., sovereignty, government,
and liberty.

I will not enter upon a philosophical treatment of the term and
concept " sovereignty." I will only say that in every constitution
there should be a workable provision for its own amendment, and
that in every perfect, or anything like perfect constitution, this pro-
vision should constitute organs for accomplishing this purpose
which shall be separate and distinct from, and supreme over, the
organs of the government, which shall truly represent the reason and
the will of the political society and the political power upon which
the constitution rests, and which shall operate according to methods
and majorities which will always register the well-considered pur-
pose of that society and that power. I hold the first problem of

PROBLEMS OF CONSTITUTIONAL LAW 575

the constitutional law of the present to be the fashioning of the clause
of amendment so as to correspond with these principles.

If we examine the constitutions of the great states of the world,
and contemplate their history during the last twenty-five years, we
shall see at once how pressing this necessity is.

Leaving out of account the British constitution as being, in the
ordinary conception, an unwritten instrument, and the Austro-
Hungarian Ausgleich as partaking more of the character of a treaty
than of a constitution, we shall find that the constitutions of three of
these states, viz., Spain, Italy, and Hungary, contain no provisions
at all for their own amendment; that all the rest, including Great
Britain and excepting France and Switzerland, use exclusively the
organs of their governments for making constitutional changes;
that France uses the personnel of her legislature, but under different
organization, for this purpose; that Switzerland accords her legis-
lature a power of initiating such changes, which in practice frequently
creates embarrassments to the prompt and certain action of the
popular will; and finally that all except Great Britain, France,
Switzerland, and perhaps Norway, require such majorities for action
as to make these provisions generally practically unworkable, except
in times of great excitement, the very moments, if any, when they
should not work.

Let us take, for example, the provision of amendment in the
constitution of the United States as being the one in which the
majority of this audience is probably most interested, and as being
the provision made by that great state which more than any other
professes to develop through the methods of gradual and peaceable
reform rather than through the European and South American
methods of revolution and reaction. This constitution was framed
originally, without any warrant of existing law, by a general con-
vention of delegates selected by the legislatures of the different
states of the Confederation, except the legislature of Rhode Island,
and it was adopted originally, also without warrant of any existing
law, by conventions of delegates chosen by the people within these
several states. The general convention proposed, or more correctly
ordered, and that, too, without any warrant of existing law, that
the proposed constitution should go into operation when ratified
by conventions of the people in nine of the thirteen states of the
Confederation, and it actually went into operation when conven-
tions of the people in only eleven of these states had ratified it.

I shall not enter upon any criticism or any scientific explanation
of these procedures. I will only say that to my mind they were
entirely extra-legal, and, therefore, revolutionary, but were necessary,
necessary because of the absence of any workable method of amend-
ment in the Articles of Confederation.

576 CONSTITUTIONAL LAW

Warned by this experience, the framers of the new constitution
wrote a method of amendment into this instrument which they
expected could be and would be effectively exercised.

It VMS exercised, first, to limit the powers of the central govern-
ment in behalf of the individual, to perfect the realm of individual
immunity against the powers of the central government, which
was in the line of true progress. It was applied, in the second place,
in behalf of the exemption of the states from the jurisdiction of the
United States courts, which was the first result in constitutional law
of the reaction of 1793 against the national movement of 1787.
And it was employed in the third place to cure some of the defects
in the election of the president and vice-president. Then for more
than sixty years, while the mightiest changes were being realized
in the social, political, industrial, commercial, and educational
conditions of the "country, not one trace of any of them found its
way into the constitutional law of the nation.

We may say that the main direction of the movement in the social,
political, and economic elements down beneath the constitution
was, whether consciously recognized or not, towards limiting the
powers of the states of the Union in behalf of the powers of the cen-
tral government and the liberty of the individual. The pressure of
the movement was so strongly felt by so great a portion of the
people of the country, and so strongly resisted by another great
portion, that it led to the appeal to arms of 1861. The method of
amendment, intended for every exigency, had proved itself unequal
to the emergency, and when employed again in the last three consti-
tutional changes, it simply registered the results of battle. In the
main, what was then and thus accomplished was correct in sub-
stance, but the method which was necessitated showed again that
nothing like the perfect principle and form of constitutional amend-
ment had been reached.

And now, again, for thirty-five years mighty changes have been
wrought in the structure of our political and civil society, and. in
our commercial and industrial relations, and yet not one of them
has been registered, by the process of amendment, in our constitu-
tional law.

From this brief review it seems entirely manifest that the method
of amendment provided in the constitution of the United States is
ordinarily unworkable, and that the first problem of the constitu-
tional law of the present in this country, as well as in almost all
other countries, is the revision of the provision for constitutional
amendment. Let us now scrutinize a little more closely the details
of the provision in order to make its defects clear and definite. At
the very first glance we discover that really four methods of amend-
ment are legalized by the provision. The first method authorizes

PROBLEMS OF CONSTITUTIONAL LAW 577

the initiation of an amendment by a constitutional convention of
the United States, called by Congress on demand of the legislatures
of two thirds of the states of the Union, and ratification by con-
ventions of the people in three fourths of the states. The second
method authorizes the initiation of an amendment in the same
manner and by the same body as the first, and ratification by the
legislatures of three fourths of the states. The third method au-
thorizes initiation of the amendment by a two-thirds vote in both
houses of Congress and ratification by conventions of the people in
three fourths of the states. And the fourth . method authorizes
initiation of the amendment in the same manner and by the same
body as the third, and ratification by the legislatures of three fourths
of the states. Only one of these methods, however, has been em-
ployed, viz., the last. Convenience has dictated this, and conven-
ience is ordinarily stronger than principle in a country which moves
so fast as ours does.

Now it is evident that what makes these methods of amendment
almost practically unworkable is the extraordinary majorities' re-
quired both in the initiating and in the ratifying bodies. The idea
was, of course, to make constitutional change conservative, a laud-
able purpose indeed, but a dangerous thing when that conservatism
is mechanical and artificial, and it always becomes such when it
permanently prevents the will of the undoubted permanent majority
of the whole people in a democratic republic from realizing its well-
considered and well-determined purposes in its organic law. There
is a natural way to secure and preserve true conservatism, a way
which does not contradict the fundamental principle of majority
right, and that way should always be followed.

This matter of the majority is not, however, the sole element in
the problem of a proper provision for constitutional amendment.
There are several other points of great importance. One I have
already adverted to, viz., the error in sound political science of using
the governmental organs for the making of constitutional law. To
illustrate this let us consider the process of constitutional amend-
ment in the German imperial constitution. According to the pro-
vision of amendment in that instrument, constitutional law can be
made by a simple majority, vote in the Reichstag sustained by forty-
five of the fifty-eight voices in the Bundesrath, while the two bodies
by simple majority vote in each make ordinary law. Now it is
the impulse of the Reichstag to call every measure which it desires to
see passed ordinary law, and it is the impulse of the minority in
the Bundesrath to call every measure which it desires to defeat
constitutional law, and the constitution provides no organ for deter-
mining a hermeneutical contest over this point, unless the Emperor's
power of promulgating the laws covers the question. Some of the

578 CONSTITUTIONAL LAW

commentators upon that instrument contend that it does. Some
say that in the exercise of his power of promulgating the laws,
the Emperor may look into the content of any measure, and that,
if in his opinion the measure is one of constitutional law and has not
received the proper majority in the Bundesrath for making consti-
tutional change, he may refuse promulgation. But the Reichstag
does not accept this doctrine. Moreover, it is the practice in the
Imperial legislature to allow the passage of a law by that body
which is not authorized by any power at the time vested in that body
by the constitution,, provided it has received the necessary majority
in the Bundesrath to make a constitutional change. Such a law
is not inserted in the text of the constitution as an amendment
to that instrument, but it is incorporated in the ordinary statutes,
and the question arises at once as to how it may be repealed, whether
by the method for making or repealing ordinary law or by that neces-
sary for making constitutional changes.

Under such a practice, the whole question as to what is constitu-
tional law and what is ordinary law becomes confused. From the
point of view of written constitutions, constitutional law is the law
provided in the constitution. From the point of view of unwritten
constitutions, on the other hand, constitutional law is that part of
the law which ought to be regarded as fundamental and organic.
There is sufficient opportunity for difference of opinion in regard to
the first kind of constitutional law, but in regard to the second
there is no complete agreement on the part of any two minds.
Of course, the two kinds of constitutional law ought to agree exactly.
What, from a true philosophical point of view, is fundamental and
organic ought to be in the constitution, and, vice versa, what is in
the constitution ought to be fundamental and organic, nothing more
and nothing less. But in practice there is a wide difference as to
result between the interpretation of a written instrument and indi-
vidual opinion, or popular opinion, or legislative opinion, or execu-
tive opinion, as to what part of the law ought to be regarded as
fundamental and organic and what as ordinary. In the first there is
some measure of certainty and continuity; in the second, on the other
hand, there is very little. And when the two processes of deter-
mination are authorized in the same political system, they are bound
to introduce inextricable confusion. The root of the difficulty is to
be found in making the governmental organs the organs for constitu-
tional amendment. The personnel of the government, especially of
the legislature, may be used for making constitutional law. It
would be inconvenient, and perhaps injurious, if it could not be.
But it is not necessary that this should be effected through the govern-
mental organizations. That personnel may be specially organized
for this purpose, as the French constitution provides, by uniting all

PROBLEMS OF CONSTITUTIONAL LAW 579

the members of both legislative Chambers in one national constitu-
tional convention with constituent power. The body authorized
to make constitutional law and constitutional law only being en-
tirely distinct from the body authorized to make ordinary law and
ordinary law only, even though composed of the same individual
persons, there can be no possibility of confounding the two kinds of
law in any system.

Finally, there is a grave problem of constitutional law involved
in the exception, to be found in some of the constitutions, of certain
subjects from the general power of amendment. This occurs
usually in the constitutions of those states which have the federal
form of government, as in the constitutions of the United States and
of the German Empire, where the existing relations of representation
of the States of these Unions in the upper chamber of the legislature
is excepted from the ordinary course of amendment and made subject
to a still more impossible process, and strangely, and in an even
more exaggerated form, this defect is to be found in the French
constitution, where two subjects are excepted from any method of
amendment whatsoever, viz., the form of the government and the
disqualification of the descendants of former reigning houses for the
presidency of the republic. These exceptions to the power of
the legal sovereign in amendment are rotten spots in any constitu-
tion, and if not rooted out will spread and spread until their mold-
ering influence will be felt throughout the entire system.

The practical and all-important question, however, is as to the
way in which they can be eradicated, regularly and lawfully, and
without recourse to revolutionary means. Take for example again
the constitution of the United States, which declares, in the article
of amendment, that " no state, without its consent, shall be deprived
of its equal suffrage in the Senate." This means, of course, that
if the attempt should be made to reduce the representation of any
state in the Senate in relation to that of the other states, by the
process of constitutional amendment, — and that is the only way,
of course, in which it can be lawfully done, — this can be effected
only with the consent of the legislature of, or of the convention in,
the state whose relative representation it is proposed to reduce,
together with the consent of one or the other of these bodies in
enough of the other states to make out a three-quarters majority
of the whole number; and that if the attempt should be made to
increase the relative representation of any state, this can be effected
only with the consent of every other state of the Union, given
through its legislature or convention.

There is thus, theoretically, a way provided for expunging from
the constitution this exception to the ordinary operation of the
legal sovereign, the amending power, but practically it is utterly

580 CONSTITUTIONAL LAW

unworkable. If we are ever to rid ourselves of this obstacle we must
find some other way than that which I have just outlined as the
apparently legal way. But is there any other legal way? Can the
amending clause itself be revised by the ordinary course of amend-
ment so as to omit the exception in behalf of the equal representation
of the states in the Senate? It certainly can be so revised as to
anything and everything else. But I am quite persuaded that the
framers of the constitution never intended to provide any means
whereby this exception could be set aside. I am quite sure that they
intentionally placed this obstacle in the way of the legal sovereign, as
they organized it for ordinary action. I do not feel sure that they
realized the fact that they were sowing the seeds of revolution upon
this subject by erecting an insurmountable barrier to regular con-
stitutional progress concerning it. The great natural, universal,
and irresistible principle of development was not then understood
as now. Men really believed, at that stage in the growth of philo-
sophic thought, that they could construct institutions for all time,
which would need no change or improvement.

There is, indeed, good ground in political philosophy for holding
that the amending clause in a constitution may itself be revised by
the general process provided therein. These grounds are that there
cannot be logically two legal sovereigns within a constitution any
more than there can be two original sovereigns behind the constitu-
tion, and that there cannot be logically any exceptions from the
power of the legal sovereign any more than there can be from the
power of the original sovereign. Different methods of governmental
action in regard to the same subject, and exceptions from the powers
of the government, are all scientifically legitimate, but the exercise
of sovereignty is an entirely different matter. One body and only
one can possess it at any given time within a given state, and from
its operation nothing whatsoever can be logically excepted. But
when we shift from the legal to the political in respect to this subject,
are we not committing a revolutionary act? I think this must be
acknowledged. It must be conceded that we are committing the
same kind of a revolutionary act as that committed by the national
constitutional convention of 1787 and the ratifying conventions
within the states of the Confederation. If that was justifiable,
this would be, and upon exactly the same grounds, viz., that existing
legality upon this subject does not comport with the social, political,
and economic conditions of a national democratic state, but contra-
dicts them in an unendurable way and to an unendurable extent.
Sound political theory demands that the amending power within
the constitution, the legal sovereign, should be an organization
faithfully representing the original sovereign behind the constitution,
separate from, independent of, and supreme over, the powers of

PROBLEMS OF CONSTITUTIONAL LAW 581

the government and the liberty of the individual, subject to no
limitations or exceptions sufficiently facile in its action to meet all
important exigencies, and when using the governmental organs at
all in the making of constitutional law, using them in a ministerial
but not in a discretionary capacity. And sound constitutional law
demands the same things. Without them the system of constitu-
tional government and constitutional liberty will not be able to
stand in permanence. The invincible principle of development
will force changes upon any and every constitutional system, as
upon everything else in the universe, and if these changes cannot
be made by amendment, by the legal sovereign, they will inevitably be
made by the government or some part of the government, in Europe
by the legislature as a rule, and in the United States by judicial
approval of legislative or executive acts. But, by whichsoever
of these two methods, it comes to the same thing, viz., gradual
governmental usurpation against the limitations of the constitution,
the ultimate destruction of the constitutional system.

These are the considerations which lead me to hold that the first
great problem, logically, of the constitutional law of the present
is the construction of a proper provision for amendment which shall
have the qualities which I have just outlined. Not a single great
state in the world had such a provision in its constitution, and not
a single one has anything approaching it, except, as I have said,
France and Switzerland. Of these two, Switzerland has come
nearest to it in the provision which allows an amendment to be
proposed by fifty thousand Swiss voters and to be ratified and
adopted by a majority of the Swiss voters, provided this national
majority includes a majority of the voters in a majority of the can-
tons, and using the governmental organs at one or two points only
and then only in a ministerial way. The great defect here is that
throughout the whole process there is no place nor opportunity
for any sufficient discussion of the project, and that is fatal to any
sound development in human affairs.

The second great problem of the constitutional law of the present
is, in my judgment, the proper construction of the upper legislative
chamber.

With the exception of the princely power itself this is the oldest
among national political institutions. The lower legislative chamber
in the states of the present is a modern institution, based upon
manhood suffrage, or very nearly that, and upon representation
according to numbers; but the Senates are, in most cases, relics of
medievalism, based upon a variety of sources as to tenure, and
with little pretense of a distribution of the representation according
to modern principles. These defects are to be found even in the
Senates of some states which have been founded since the close of

582 CONSTITUTIONAL LAW

the Middle Ages. I think it may be broadly affirmed that of the
seventeen states of the civilized world worthy of mention as having
a constitutional law, only four of them have solved the problem of
the upper legislative chamber with anything like a fulfillment of the
demands of modern theory or modern conditions, and these four
are not states of the first rank in power. They are Sweden, Norway,
the Netherlands, and Belgium. Moreover these four are all states
with centralized governments, that is, states which are better situ-
ated than those having federal governments for the solving of this
problem. Of these four, Sweden has come nearest, in my judgment,
to the ideal modern solution, providing, in its constitution, for the
election of the senators by the provincial assemblies and the muni-
cipal assemblies of such cities as are not under provincial government,
all of which bodies are elected by the voters, and distributing the
representation in the Senate according to population. This is both
conservative and democratic, conservative in the method of the
election, and democratic in the method of the distribution of the
representation. In the Swedish legislature there is also absolute
parity of powers between the two houses, both in the initiation and
passage of legislation. Both houses come ultimately from the
people, both represent the whole people, both rest upon the same
principle of distribution of seats, viz., population, and both exercise
the same power in legislation, fulfilling thus the four chief require-
ments for the Senate of a modern state.

Apparently the Norwegian Senate approaches as near the solution
of the modern problem as the Swedish. But a little consideration of
the details will show that this is not quite true. The Norwegians
elect all of their legislators as one body; and when they all assemble
as one body, the separation into two bodies is effected by drawing
lots, one fourth of the whole number constituting in this manner the
Senate, and three fourths the other chamber. The main defect in
this method of organizing a Senate consists in the fact that the
Senate will be composed entirely of members . coming from parlia-
mentary districts not represented at all in the other chamber, and
vice versa; that is, three fourths of the parliamentary districts are
entirely represented in one chamber and one fourth in the other.
This tends to the sectionalizing of views and to the weakening of
the national consciousness and spirit, or, at least, to the hindering
of the development of the national consciousness and spirit. Then
there is another defect. The one fourth selected in this way and
representing directly only one fourth of the parliamentary districts
cannot maintain a parity of power with the other chamber composed
of members directly representing three fourths of these districts.
This is manifest in the provision of the constitution itself respecting
the mode of legislation. If the two chambers cannot agree upon

PROBLEMS OF CONSTITUTIONAL LAW 583

a project of law, the constitution orders that they shall, at last, unite
in the one original assembly from which they proceeded and deter-
mine the matter there. This means, of course, that after a certain
time the Senate must practically always succumb to the will of the
other chamber. These are serious defects, so serious as almost to
take Norway out of the category of states that have made most
progress in the solution of the problem.

The members of the Netherlands Senate are chosen in the same
manner and by the same kind of bodies as those of the Swedish
chamber, but in the distribution of the seats some consideration is
paid to the provincial lines, the distribution not being in exact accord
with the principle of population, though not far away from it.

Finally, in the Belgian system, there is a complexity both in the
method of choosing the senators and in the distribution of the seats,
which amounts to a defect, in each respect. Most of the senators
are chosen directly by the voters, and in the election of these, two
deputy-parliamentary districts constitute one senatorial district.
This is simple and democratic, although somewhat radical. The
others are chosen by the provincial assemblies, and in the distribu-
tion of these among the several provinces much consideration is
had to the provincial lines, the less populous provinces being favored.
The purpose of this device is to offset the radicalness of the other
part. This is certainly a makeshift. It would have been far more
in accord with sound theory to have provided for the choice of all
the senators by the provincial assemblies, while distributing the
seats among the provinces according to population. There is
nothing necessarily undemocratic in the practice of indirect election,
but it is quite undemocratic to distribute the seats in any legislative
body except in accordance with the principle of population, or at
least something approaching that.

When now we turn to the construction of the Senate in the other
thirteen constitutions, we find ourselves in the midst of a chaos in
the practice with no consistent principle to guide us. Seats by
virtue of hereditary right, as, most largely in the British, Austrian,
and Hungarian constitutions, and partly in the Spanish, which is
certainly medieval both in origin and spirit; seats by virtue of office,
as in the same constitutions, which besides being, for the most part,
also, medieval, conflict with the modern principle of the incom-
patibility of office with legislative mandate; seats by royal appoint-
ment, as partly in the four systems just mentioned, with that of
Denmark; as almost the exclusive principle in the construction of the
German Bundesrath, and as the exclusive principle in the construction
of the Italian and Portuguese Senates, excepting the seats of the
princes of the royal house, as a rule, the weakest sort of a Senate,
being generally a sort of royal appendage, affording the crown no

584 CONSTITUTIONAL LAW

support, but bound to go down with it under popular assault; and
finally seats by election, practically always in the indirect form,
as partly in the systems of Spain, Hungary, Denmark, and Great
Britain, and the exclusive principle in the systems of France, Switzer-
land, and the American states. The elective element in the British
House of Lords and in the Hungarian Magnaten-Tafel is slight. In
the Spanish system one half of the senators are elected, and elected
for a term of ten years; and in the Danish system fifty-four of the
sixty-six members are elected, and. elected for a term of eight years.
These two are headed in the right direction in so far as the senatorial
tenure is concerned.

But in neither of these cases, and in none of the cases where election
is the sole source of the tenure, except, of course, the first four
already treated of, and, of course, in none of the other cases, is there
any approach to the modern democratic principle of distribution in
legislative chambers.

It is about as certain as anything human can be that all the
species of senatorial tenure, except that by election, will pass away.
It may be expected that the tenure by hereditary right in Great
Britain and that by royal appointment in Germany will be the last
to yield. But they must all go sooner or later, and it is one of the
great problems of constitutional law in all of these states to find the
proper and natural substitutes for these antiquated forms or these
modern makeshifts. It is also a great problem in those states which
have already established the senatorial tenure, in part, by election, so
to reform the senatorial electoral bodies as to make them more
representative of modern conditions. As I have, said there is no
sound objection in modern political theory to the indirect election of
senators, but the electoral bodies must be truly representative
bodies of the original voters, and they must exercise power in the
election proportionate to the population which they represent. This
is not the case in any of these. In all of them the original electorate
for the senators is much narrower than for the members of the other
chamber, and the weight exercised by the different electoral colleges
is far from being proportionate to the population of the districts for
which they act.

In the five states with republican governments, the ultimate source
of the senatorial tenure is, naturally, the same as that of the member-
ship of the other chamber, and in so far as that point is concerned
they may be said to have solved this part of the senatorial problem.
But when we come to the provisions of these constitutions which relate
to the distribution of the senatorial representation, we find ourselves
confronted with one of the gravest questions of their constitution law.

Let us consider briefly the facts in each case, beginning
with France, as being a centralized government, and not having,

585

therefore, the same reason for making concessions to the line
of local government or administration as states with systems of
federal government. The extremes in the senatorial representation
are the Departement of the Hautes Alps and the Departement of the
Seine. From the point of view of population, the mountaineers of
the former district are about six times more strongly represented
in the Senate than the inhabitants of the highly civilized city of
Paris. The average discrepancy, however, is not at all so great.
Nevertheless it is true that a minority of the population of France
is represented by a majority of the seats in the Senate. It is a minor-
ity not far removed from the middle line, but still always a minority.
It may also be said that the advantage lies, on the whole, rather
with the Departements which are moderately populous, although the
greatest advantage lies with the least populous, and the greatest
disadvantage with the most populous. While there is here a problem
for the French statesmen, it is not of a very serious nature. More
serious is the problem for them of regulating the weight of the com-
munes in the senatorial electoral college for each Departement.
Here the smaller communes are, as a rule, much over-represented.

When now we turn from France to the states with federal govern-
ments, we become immediately aware that, in the distribution of the
senatorial seats, other considerations than the modern doctrine of dis-
tribution according to population have been in all cases determinant.

In the first place, in democratic Switzerland, we find the Canton
Uri about thirty times more strongly represented in the Standerath,
or Senate, than the Canton Bern, and that the population in the
twelve least populous cantons, not amounting to quite one third of
the population of the whole of Switzerland, is represented in the
Senate by a majority of the voices.

Secondly, in the leading state of South America, Brazil, and in the
leading state of Central America, Mexico, we find about the same
conditions. The Brazilian commonwealth of Matto Grosso is, from
the point of view of population, about thirty-four times more strongly
represented in the national Senate than the rich and populous
commonwealth of Minas Geraes, and the population of the eleven
least populous commonwealths of the Brazilian Republic, numbering
about 3,000,000 of souls, are represented by a majority of the voices
in the national Senate, while the other ten commonwealths with
a population of almost 12,000,000 of souls are represented by a
minority of the senatorial seats. Likewise in the Mexican Republic,
the commonwealth of Colima is, from the point of view of population,
about eighteen times more strongly represented in the national
Senate than the commonwealth of Jalisco, and the population of
the fifteen least populous commonwealths, numbering less than
3,500,000 of souls, are represented in the Senate by a majority of

586 CONSTITUTIONAL LAW

the voices, while the population of the thirteen more populous
commonwealths, amounting to more than 10,000,000 of souls, are
represented by a minority of the senatorial voices.

But it is the democratic republic of North America which ex-
hibits the most thoroughgoing rotten borough Senate of any state
in the civilized world. In this Union the smallest commonwealth,
from the point of view of population, is Nevada, with 42,335 inhabi-
tants, according to the last census, and the largest is New York, with
7,268,894. On the basis of representation according to numbers,
the inhabitants of Nevada are about one hundred and seventy-five
times more strongly represented than the inhabitants of New York.
Again, there are now forty-five commonwealths in this Union, with
a population of over 76,000,000 of souls. Of them about 14,000,000
reside in the twenty-three least populous commonwealths, and over
62,000,000 in the twenty-two more populous commonwealths.
That is, 14,000,000 of people aie represented in the United States
Senate by forty-six senators, while more than 62,000,000 are repre-
sented by only forty-four senators. Of course, it may be said, and
it is said, that in states with systems of federal government the mem-
bers of the national Senate do not represent the people but the com-
monwealths of the Union, and that, therefore, the principle of repre-
sentation according to population does not apply to the Senates of
such states. Well, what is a commonwealth or state in a democratic
republic with a federal government? Is it anything more than the
organization of the people within a given district for their autono-
mous local government? And is there any sound reason why a few
people so organized in one district should be equally represented in
either house of the national congress with a great many more people
organized in another district for the same purpose? If it were always
true that the smaller population possessed all the elements of intel-
lectual and moral culture to a higher degree than the larger, it might
be held, perhaps, as a principle of political ethics, that the representa-
tion of the smaller number should be relatively stronger than that
of the larger. But who will say, for example, that the peasants and
mountaineers of Uri are superior in knowledge and virtue to the
citizens of Bern, or the miners of Nevada to the inhabitants of New
York ? I understand only too well that there are still those who will
say that the reason for the equal representation of the common-
wealths in the national Senate is that they are sovereign states, and
that sovereignties are equal in representative right no matter what
may be their relative strength in population or any of the other
elements of power. My answer to this is that this is a principle of
international law, not of constitutional law; that the common-
wealths in these four systems which we are considering are not
sovereign states; that in two of them they never were sovereign

PROBLEMS OF CONSTITUTIONAL LAW 587

states nor anything like sovereign states; that in one of them,
Switzerland, the most of them were once something like petty
sovereignties under the Eidgenossenschaft and the Confederation
of 1815-1848, but were deprived of that quality by the Swiss nation
in 1848; and that in the other one, the United States, thirteen of
them possessed something which they called sovereignty under the
Articles of Confederation of 1781-1789, but were deprived of that
quality by the national popular movement of 1787, culminating in
the establishment of the national constitution instead of the quasi-
international confederation, and that by the trial of arms of 1861-1865
the claim to sovereignty by any commonwealth of this Union was
put forever to rest.

According to modern views, principles, and conditions, no rule
of distribution of legislative seats in either chamber except that of
population can rightfully prevail in a national democratic republic,
no matter whether the governmental system be centralized or federal.
Some concessions can, of course, be made to administrative con-
venience, but they must never amount to the permanent investment
of a minority of the people with a majority of the voices in either
branch of the law-making body, especially where this minority,
and also the majority, are sectional in their composition and not
general. Even if we accept the doctrine of minority representation,
it would not justify the practice of sectional overweight, which we
are considering.

As I have indicated in another connection, it will not be easy to
deal with this problem in the United States and the German Empire.
In the other states with federal governments this defect may be cured
by the ordinary course of amendment, but in the United States and
the German Empire this subject is excepted from the ordinary course
of amendment and placed under the protection of a procedure which
can, in all probability, never be applied so as to effect any change.
Nevertheless, the question will have to be met, and the problem will
have to be solved here as well as elsewhere. It may not be done, it
probably cannot be done with exact legality, but we have the prece-
dent in American constitutional history for a convention of the United
States acting with conventions of the people in nine thirteenths of the
commonwealths to disregard the prescripts of the existing law in the
amendment or revision of the organic law. We can bring such bodies
together by means and through forms already provided in the
constitution, and we can go back to the principle, as in 1787, that
they are the sovereign behind the constitution and are not, therefore,
bound by the exceptions from the legal power of amendment pro-
vided in the constitution. You may call this revolutionary. I
think we shall have to concede the point, but it would be a revolution
standing on the border-line between original sovereign action and

588 CONSTITUTIONAL LAW

legal procedure, and would, probably, be as bloodless as that of
1787.

The third great problem of the constitutional law of the present
is, as I conceive it, the fixing of the fundamental relation between
the legislative and executive branches of the government. The
experience of the world has developed three fundamental systems
of practice in regard to this subject. We may term them the presi-
dential system, the parliamentary system, and the directorial system.
The principle of the first is substantial independence between the
executive and the legislature, both in tenure and procedure. The
tenure of the executive does not, according to this principle, originate
in the legislature, and cannot for merely political reasons be deter-
mined by the legislature; that is, the legislature cannot impeach, or
require the resignation of, the executive or his ministers merely
on account of political disagreement with them. Nor, on the other
hand does the tenure of the legislative members originate in the
executive nor can the executive terminate their term by dissolution.
Neither the executive nor any of his ministers have seat or voice or
vote in the legislative chambers, but, on the other hand, the execu-
tive is furnished with a veto power upon all legislative acts prac-
tically strong enough to secure his prerogatives against legislative
encroachment.

The principle of the second, the parliamentary system, is sub-
stantial harmony between the executive and the majority party
in the legislature. This is established and maintained by the con-
stitutional requirements upon the executive to take his ministers
from the leadership of the majority party in the legislature or the
more popular chamber thereof, to follow the advice of his ministers,
and to dismiss them from office, generally through the form of
voluntary resignation, when they fail to receive the support of that
majority upon fundamental questions, or else to dissolve the legis-
lature or the lower chamber thereof, and appeal to the voters to
restore the lost harmony, whose decision must be acquiesced in by
all. Under this system the real executive is the ministry. It bears
the responsibility for the executive acts. Its members have seat,
voice, and vote in the legislative chambers, but no veto upon legis-
lative acts.

The principle of the third, the directorial system, is the complete
subordination of the executive to the legislature, that is, complete
control of the executive tenure by the legislature, entire responsi-
bility of the executive to the legislature, no power of dissolving the
legislature or either branch thereof in the executive, no seat, voice,
or vote in either of the legislative chambers except by order or per-
mission of the chambers, and no veto upon legislative acts. On the
other hand, while the executive is, as a rule, permitted to introduce

PROBLEMS OF CONSTITUTIONAL LAW 589

measures into the legislature, their defeat or rejection does not call
for the resignation of the directory or of that member of it par-
ticularly responsible for the project. He or they must simply sub-
mit to the will of the existing legislature in every case and go on under
its instructions.

The presidential system goes naturally with the elected executive,
the parliamentary with the hereditary executive, while the direc-
torial system belongs scientifically nowhere. The directory is
scientifically and historically discredited as an executive system.
It exists in only one of the seventeen states which I have brought
under this study, viz., Switzerland, and seems to be on the way of
establishment in one other, viz., Norway, where the successful insist-
ence of the Norwegians that the King's Ministers shall sit in the
legislature and shall resign when out of harmony with the legisla-
tive majority, without according the King the power of dissolving
the legislature and appealing to the voters to settle the question in
the new parliamentary election, is certainly tending to make the
ministry a directorial board, completely subject to the legislature.
Switzerland, being an internationally neutralized state, may make
experiments with a weak executive. For Norway such a situation
is more dangerous. In both cases it seems to me an unsatisfactory
solution of the executive problem and to call for revision.

Of the other fifteen states, all that have hereditary executives,
except the German Empire, Austria, and Hungary, have developed
into or are developing into the parliamentary system substantially.
They are, at least, all moving in the direction of the English model,
and are destined to arrive, sooner or later, at something like the
English result. All along the road, however, from their present
stage of development of the system to its ultimate form, their pro-
blems are strewn, and their best course is to look to English experi-
ence and follow as nearly as somewhat different conditions will
permit in English footsteps. It is most important to kings and
emperors themselves that they should recognize the fact that the
parliamentary system of relations between the executive and the
legislature is a necessary contrivance for reconciling modern political
thought and modern political conditions with the hereditary tenure
of the executive. If they resist too far its establishment and de-
velopment, they will simply provoke a republican revolution which
will sweep them entirely away. The royal imperial houses of Haps-
burg and Hohenzollern, old and powerful and popular as they are,
cannot in the long run resist this movement. It is the greatest con-
stitutional problem, from the point of view of their own interests,
with which they have to deal, and it behooves them to devote them-
selves to its thorough comprehension and its rational and natural
solution.

590 CONSTITUTIONAL LAW

With the exception of France, the states having elected execu-
tives follow the presidential system, Switzerland not being further
considered. This is natural and rational, and I consider that in .
these the executive problem has been fairly solved to meet modern
conditions and requirements. It is quite true that in the United
States and Mexico the method of indirect election of the executive
is criticised, and that in the practice of the United States the law
for counting the electoral vote has, until recently, been quite faulty
and is not yet entirely perfect, and that some advantage might
conceivably be gained by allowing the presence of the cabinet officers
in the houses of Congress to explain proposed executive measures
or even to propose administrative measures, but these things are,
from the point of view of this paper, matters of detail, and cannot
be discussed within the limits of this essay.

It is the French Republic which is confronted with the serious
problem in regard to the executive and its relations to the legisla-
ture. The French Republic is attempting to work the system of
parliamentary government with an elected executive. From the
points of view of historical experience and sound theory this appears
as an unnatural, and, in the long run, unworkable combination.
The real parliamentary system requires, as I have already remarked,
not the complete subordination of the executive to the legislature,
but harmony of action between the two, and a power in the executive
either to dismiss his ministers or dissolve the legislature in order to
restore harmony upon important issues when it has been lost. No
democratic people will intrust the executive with such power over
the legislature, and if they would, the executive would not dare to use
it. It requires all the historic power, prestige, and mystical influ-
ences of the hereditary executive, the so-called sovereign, to exercise
such a power. The French have attempted to help themselves over
this difficulty by vesting the power to dissolve the Chamber of Depu-
ties in the President with the consent of the Senate, the Senate itself
not being made subject to executive dissolution. This may give
the President a certain backing which may enable him to act occa-
sionally. It did so in one or two early cases. But this is no fulfill-
ment of the requirements of the system. The executive alone must
have the power of dissolution over the entire legislature, at least over
the entire elected part of the legislature, and it is not sufficient that
the executive shall have it over only one chamber of the legislature,
and then only when sustained by the other chamber. Conflicts
between the two chambers might be settled in this way, but not
conflicts between the executive and the entire legislature, and the
settlement of such conflicts is the prime purpose of the parliamentary
system. When the relation prescribed by the French constitution
was established, that instrument provided that the seventy-five

PROBLEMS OF CONSTITUTIONAL LAW 591

senators, one fourth of the whole number of senators originally
chosen by the national convention which framed and adopted the
constitution, should hold for life, and that their successors should be
chosen by the Senate itself and also hold for life. Here was a certain
nucleus of strong conservatism and executive support in the Senate.
All that has been changed by the constitutional amendment of 1884,
and the members of the Senate all proceed now ultimately from the
same source as the Deputies. The French Senate has now arrived at
the consciousness of a solidarity of interest with the deputy chamber
upon the subject of legislative prerogatives versus executive pre-
rogatives, and the power of dissolving the Chamber of Deputies,
intrusted to the French President under the more favorable condi-
tions for its exercise just mentioned, has now become practically
obsolete. The French system is, therefore, veering towards the
directory. This will not serve for France, however it may work in
Switzerland or even in Norway. France must have a strong execu-
tive. If France will have a parliamentary system, then France must
have a king. If, on the other hand, France will have an elected
executive, then France must have the presidential system. This is
her great governmental problem. All others should stand aside
until this is substantially solved.

The fourth great problem of the constitutional law of the present,
as I view these problems, concerns chiefly, if not wholly, the United
States. It is the question of extending the legislation of the central
government further into the domain of private law, especially in the
regulation of commerce and marital relations. The other states
having federal governments, except Mexico, and, of course, all the
states having centralized governments, have assigned these subjects
to the legislation of the general government, and Mexico has gone
much further than the United States in this direction.

Whatever may have been natural a century ago, when the settled
parts of the commonwealths of this Union were separated from each
other by comparatively impassable districts of primeval forest and
there was comparatively little intercourse between them, now when
these obstacles have entirely disappeared and intercourse is so active
that no man knows when he passes from one commonwealth to
another, it has became entirely unnatural and scarcely longer
endurable that the code of commerce should not be exclusively
national. The existence of the common law as the basis of the law
of the commonwealths upon this subject has minimized the diffi-
culty of a great nation getting on with systems of local commercial
law; but the differences in detail, at first hardly noticeable, have
now, on account of the vast development in the complexity of these
relations, become almost unendurable. This problem should be
dealt with by constitutional amendment if possible. If not, then the

592 CONSTITUTIONAL LAW

United States judiciary must put a much more liberal interpreta-
tion upon the existing commerce clauses of the constitution. The
distinctions between commerce " among the commonwealths " and
commerce within the commonwealths have now become too attenu-
ated to bear the strain much longer. They must go, or the federal
system of government may break down entirely.

It certainly is not necessary for me to enter into any argument
at all to show that the scandals of polygamy and divorce, which
bring the blush of shame to the cheek of every true American, have
their root in the system of local regulation of the subjects of marriage
and divorce. These relations are fundamental in the civilization of
a nation. Their proper regulation must rest upon the national con-
sciousness of right and wrong. States' rights must give way upon
this point, too, if they would stand in regard to those subjects which
are not so completely national in their character. In fact, the whole
system of federal government, that is, dual government under a
common sovereign, is now under great strain, in consequence of the
rapidly developing nations and national states. It is a question
whether it can stand against the centralizing forces in modern polit-
ical and civil society. It certainly cannot unless it yields the trans-
fer of some subjects, such as those just mentioned, from local to
central regulation. This has been done in Switzerland, the German
Empire, and Brazil, and in large degree in Mexico, and these United
States must follow the same course of development or witness soon
the same sort of a movement in universal reform as occurred in 1787.

The fifth and last great problem, or rather series of problems of the
constitutional law of to-day which I shall consider in this paper,
relates to civil liberty.

From the point of view of public law civil liberty, as distinguished
from political liberty and moral freedom, is the immunity of the
individual person within a given sphere against both the powers
of the government and the encroachments of another individual
or combination of individuals. Constitutional law should construct
this sphere, define its contents in principle, fix its boundaries, and
provide its fundamental guarantees and defenses. Usually this part
of a constitution is called the Bill of Rights, although in its nature
it is rather a Bill of Immunities.

Every written constitution in the civilized world, except that of
France, contains such a division. Perhaps the constitution of the
German Empire ought to be excepted, although the constitutions
of the states of the Empire contain such provisions, and the Imperial
Constitution itself, in slight measure, contains them. The reason
why it does not contain them in larger measure is quite apparent.
It is simply because the Imperial Government is one of enumerated
powers. This is not a sufficient reason, as we know from American

PROBLEMS OF CONSTITUTIONAL LAW 593

experience, and the imperial constitution should be amended in
this respect, and the Imperial Government made subject to limita-
tions on the one side, and charged with powers against the states
of the Empire on the other, both in behalf of individual immunity
against governmental power.

The first great problem, however, under this topic, is the French
question of amending the French constitution so as to introduce
into it a series of provisions concerning the immunities of the individ-
ual person. It is quite surprising that the French instrument should
be defective in regard to this matter. About every French consti-
tution down to the present one has contained such provisions in
much detail. In fact the French taught the European Continental
world the doctrine of individual immunity against governmental
power as a branch of constitutional law. It was at first thought
that the omission of such a Bill of Immunities from the present
French constitution was owing to the fragmentary nature of this
constitution, but the French have now had nearly thirty years for
the perfection of their instrument of organic law, and within this
period they have had a constitutional constituent convention and
have framed and adopted amendments to their constitution, but
nothing of this nature was, I think, even proposed. We are, there-
fore, driven to the conclusion that the French statesmen and people
do not consider such immunities for the individual to be necessary
under their present political system, but feel, on the other hand,
that, with an elective government in all parts and an executive
dominated by the legislature, the individual is in no danger of govern-
mental oppression. I do not know by what lessons of history or of
more immediate experience the French have proved this doctrine
to themselves. No government is more likely to ignore the natural
limits between its powers and the immunities of the individual than
an elective democratic government. The French have had this
experience, more than once, themselves. I am, therefore, unable
to regard this omission as anything less than a grave defect, pre-
senting to the French a most serious problem of constitutional
amendment.

As I have said, every other written constitution in the world
contains a Bill of Immunities, and it is nearly the same thing as to
content in them all, but not a single European constitution provides
any means for its lawful realization against the possible attempt
of the legislature, and in some cases also of the executive, to encroach
upon it, except perhaps petition to the government itself. That
is to say, none of these European constitutions creates any judicial
bodies vested with the power of interpreting constitutional limita-
tions upon the powers of the whole government, and of restraining
the government from breaking through them. Many of them leave

594 CONSTITUTIONAL LAW

even the creation of the judiciary and its investment with powers
to legislative statute, which, of course, places the judiciary in a
position of inferiority and subordination to the legislature. Others,
while creating the courts by constitutional provision, fail to vest
them with any such protective power. Even the constitution of
Switzerland declares outright that the judicial tribunals shall have
no power to pass upon the constitutionality of legislative acts.

The principle of European jurisprudence upon this point seems
to be that the legislature is the proper protector of individual immu-
nities against governmental power. In Europe, the title "govern-
ment " is applied only to the executive, and the statement of the
proposition as it presents itself to the European mind would be,
that the immunities of the individual are protected against govern-
mental encroachment by the representatives of the people. In
America, on the other hand, we consider the legislature to be a branch
of the government, and, therefore, it appears to us as a sort of
Celtic hoax to speak of the government defending the immunities
of the individual against itself. In fact some of our greatest states-
men have contended that the judiciary is also a branch of the
government and that we are subjecting ourselves to the same kind
of a hoax when we imagine that the judiciary will, in the long run,
protect the realm of individual immunity against governmental
encroachment. It really appears, at times, as if they were right,
and as if the judiciary were really casting its lot with the political
branches of the government for the purpose of expanding govern-
mental power at the expense of individual liberty. Still, on the
whole, this has not been true. On the whole, a judiciary established
directly by the constitution, composed of judges with life terms,
sustained by a sound popular knowledge of what the immunity or
liberty of the individual purports, and a general popular determina-
tion to uphold it, is the best possible organ to be vested with the
protection of that immunity against governmental encroachment,
as well as against encroachment from any other conceivable sources.
It is the only real antidote for the socialistic doctrine in regard to
civil liberty. That doctrine, stated in a sentence, is that the indi-
vidual is subject, at all points, to the control of the majority. This
doctrine is an absolute negation of the true principle of civil liberty.
As we have seen, civil liberty is individual immunity within a sphere
marked out by the constitution against governmental encroachment
or encroachment from any other source. It is the constitutional
realm of individuality. And if in any country all government and
every organization and every individual, except only one, should
stand upon one side, and the single individual upon the other, it
would be the constitutional duty of the body charged with the
function of maintaining civil liberty to protect that single one within

PROBLEMS OF CONSTITUTIONAL LAW 595

this sphere against encroachment from any and every source, and
to summon the whole power of the nation to its aid, if necessary.
And it wrould be the constitutional duty of those summoned to obey
the call and render the aid required, although it might be directed
against their o\vn conceived views and interests. The doctrine
of the greatest good to the greatest number and the principle of
majority rule have no application whatsoever wdthin this domain.
When a constitution is being framed or amended, then the question
of the nature and extent of civil liberty or individual immunity is,
indeed, a matter of highest policy for the sovereign to determine in
accordance with its own forms of procedure, but once established,
it becomes subject only to the provisions and principles of the con-
stitution, interpreted by the organs of justice, and is removed
entirely from the realm of legislative or executive policy and major-
ity control. Now the only way to maintain this true idea and prin-
ciple in regard to civil liberty is to put its protection under a non-
political body, — the organs of justice, not the organs for the fixing
of policies, — and to vest the organs of justice with the constitutional
power to nullify any acts of the political branches of the government
which may, in their judgment, undertake to encroach thereon.
The legislature, in these modern times, is the branch of the govern-
ment which is most prone to undertake these encroachments. The
legislature is the branch which, by its very nature, regards everything
as a matter of policy to be determined, at each moment, by majority
action, and that action based upon majority will, not upon majority
interpretation of higher law. It is the branch of the government
which is almost sure to lose sight of the distinction between civil
liberty, individual immunity, and what it conceives to be general
welfare between justice and policy. It is absolutely certain to do
so when a socialistic majority holds sway in the legislature. It was
natural that the European peoples, accustomed tq the despotism
of the executive, with the courts as a branch of the royal power,
should have come upon the idea, in the period of the revolutions,
— that is, in the period of their transitions from absolute to constitu-
tional government, — that the representatives of the people in the
legislature would be the only reliable support for civil liberty.
Perhaps this was correct for that period and for those conditions.
But I am sure that that period and those conditions have now passed,
and that the realm of individual immunity is now in more danger
from legislative, than from executive, encroachment. It is under
the force of this conviction that I contend that the problem of creat-
ing an independent judiciary by constitutional amendment and vest-
ing it with the protection of individual immunity against govern-
mental encroachment, wrhether executive or legislative, or proceeding
from any other source whatever, is one of the chief constitutional

596 CONSTITUTIONAL LAW

problems now confronting the European states. It will cost some
effort to educate the European peoples up to an appreciation of this
idea. How far they are away from it may be indicated from the fact
that when they immigrate into these United States, because this is
a " free country," as they say, they almost always do what they can,
when they do anything, to obliterate that great distinction between
individual immunity and general welfare, justice, and policy, upon
which, more than upon anything else, American liberty rests. The
doctrine of the labor unions, which are predominantly European,
both in their composition and tendencies, that an individual shall
not be allowed to work upon such terms as he may be able and
willing to make, because, in the conception of the majority of some
labor union, or as for that, of all labor unions, it may be detrimental
to their general welfare, is a good example of the profound ignorance
on their part.of this great American distinction and principle. Diffi-
cult, however, as it may be to instill the idea of this distinction into
the European mind, still I am fully persuaded that the attainment
by the European peoples of real constitutional government de-
pends upon it. The alternative to it is, in the long run, legislative
absolutism.

While I hold up the constitution of the United States as the
model in this respect, yet I do not pretend that this model is entirely
perfect. Two great problems have confronted the American practice
during the last fifty years, neither of which has been satisfactorily
solved, and I am afraid will not be so solved without further con-
stitutional amendment.

The first has been produced by the contention concerning the
meaning of the 13th and 14th amendments, which, with the 15th,
make up the constitutional product of the Civil War. There is not
much doubt that the intention of the framers of these amendments
was to place the entire domain of civil liberty, individual immunity,
under the protection of the United States authorities, and to vest
the national judiciary with power to prevent encroachments thereon,
not only when proceeding from the government of the United States
and the governments of the states, but also when proceeding from
combinations of individuals within the states. The Supreme Court-
of the United States has, however, held that these amendments did
not extend the protecting power of the national authorities over this
sphere to any such degree, but left the original control of the states
over this domain unimpaired, except upon the specific points with-
drawn by these amendments from that control, and that the national
judiciary can protect the individual immunity provided in the 14th
amendment only against encroachments attempted by the states,
but not against those attempted by individuals or combinations of
individuals within the states.

PROBLEMS OF CONSTITUTIONAL LAW 597

I contend that this is no satisfactory solution of the problem,
because, in the first place, in a national state, although it may have
a system of federal or dual government, sound political science re-
quires that the entire individual immunity shall be defined, in prin-
ciple, in the national constitution, and shall have the fundamental
means and guaranties of its defense provided in the national con-
stitution. The most fundamental and important thing in any free
government is the system of individual immunity. Free govern-
ment exists chiefly for its maintenance and natural enlargement.
The contents of this immunity and the methods and means of its
defense should, therefore, be determined by the national conscious-
ness of right and justice. Any other principle than this belongs, not
to the modern system of national states, but to the bygone system
of confederated states. It was a resurrection of the doctrine of
states' rights, in the extreme, when the Supreme Court of the
United States put the interpretation which it did upon the new
amendments, a doctrine which should have been considered as
entirely cast out of this system by the results of the Civil War.
This solution is unsatisfactory, in the second place, because it per-
petuates the contention between the nation and the states concern-
ing the control of this sphere, while if there is anything in a political
system that ought to be made clear and fixed and simple it is this
domain of civil liberty. The welfare and prosperity of the whole
people depend upon it in a much higher degree than upon any other
part of that system. Uncertainty about it and contention over it
cannot result, in the long run, advantageously to the average citizen,
however it may allow a larger license to the powerful.

The second problem under this head to which I would refer has
been produced by the experience of the last six years of the Republic,
in what is called its " imperial policy." This problem had to come
sooner or later. No country with so high a civilization as the United
States can keep that civilization all to itself in the present condition
of barbarism or quasi-barbarism throughout the larger part of the
world. It must share its civilization with other peoples, sometimes
even as a forced gift. This is nature's principle, and no civilized
state can permanently resist its demand. It came rather suddenly
upon our country, and some of us thought that we were not quite
prepared for it, that we had not yet placed our own house in order.
But every student and observer of the world's history and the world's
methods knows that civilized nations are not, in the great world-
plan, allowed to delay the discharge of the duty of spreading civil-
ization until, in their own opinion, they are ready to proceed.
Something always happens to drive them forward before they are
perfectly prepared and equipped for the great work. And so before
the United States had fashioned its constitutional law to meet the

598 CONSTITUTIONAL LAW

exigencies of a colonial or imperial policy, the possession of insular
territory was thrust upon the great Republic. We had to take first,
and then, by force of necessity, adjust our political situation to the
requirements of the situation. It has not been an easy problem,
and no one pretends that we have solved it perfectly or completely.
Both the Congress, the executive, and the courts have shared in the
work and in the responsibility, but candor compels us to say that
if we are to continue in this sort of work, it would be desirable, to
say the least, so to amend the constitution as to relieve the different
branches of the government from the necessity of making usurpa-
tions of power, or something very like it, to meet urgent con-
ditions.

It is only since the 21st of June of the present year that we have
been able to state with any certainty what the colonial policy, or
imperial policy, of the Republic is. I think it can be now briefly
expressed. It is that all of the territory of the North American
continent over which the sovereignty of the "United States shall
become extended will be made ultimately states of the Union, and
that all extra-continental territory over which it shall become
extended will be made, ultimately, either states of the Union, as
possibly the Hawaiian Islands and Porto Rico, or be erected into
still more completely self-governing communities than states of the
Union, under the protectorate of the United States, that protect-
orate to be exercised chiefly for the purposes of preventing them
from lapsing into barbarism internally or from becoming a prey to
the greed of other powers, as Cuba already, and later on the Philip-
pines. This is a policy worthy of the great Republic. It is the true
imperial policy for a great civilized state engaged in the work of
spreading civilization throughout the world. In comparison with
it, the colonial policies of other countries appear mean and sordid
and altogether lacking in the element of altruism necessary to real
success in executing the mission of civilization.

Following such a noble policy as this, it is not difficult to forecast
something of the future of this country. I would venture to say
that the child is now born who will see the states of this Union
stretching from the Isthmus of Panama to the North as far as civil-
ized man can inhabit, peopled by two hundred and fifty millions of
freemen, exercising a free protectorate over South America, most
of the islands of the Pacific, and a large part of Asia. We possess
already the extremes of this vast continental territory as well as
the great heart of it, and the most important Pacific islands, and
we have already a footing of influence in Japan and China hardly
enjoyed by any other power. The exalted policy which I have
declared to be the imperial policy of this nation cannot fail to extend
that influence, prestige, and power almost beyond measure.

PROBLEMS OF CONSTITUTIONAL LAW 599

Do not understand me as claiming the development of such a
policy for the party at present in power in Congress and the present
administration without the aid of their party opponents. I am not
at all sure that, in the immediate enthusiasm of victory, and under
the necessity of exercising temporary absolutism in government in
the newly acquired territories, the party in power would not have
lost sight of the real purpose of their work in the world's civilization
except for the earnest expostulations of their opponents calling
them back to the contemplation of the historic principles of the
Republic. I rather fear they would. This noble policy is, therefore,
the resultant of two forces rather than the direct product of one. It
is the policy of the nation rather than of any party within the nation
or of any part of the nation. As such it is sound and true and un-
changeable, and is destined to be pursued no matter what party
shall hold the reins of the government.

But we have some constitutional difficulties in the way of the
realization of this policy. These difficulties relate to the constitu-
tional powers of the United States Government and the limitations
imposed thereon in behalf of individual immunity within newly
acquired territory. It is settled that the United States Government
may acquire territory for the United States by treaty or conquest;
that it may set up a temporary military regime therein against
which there is no constitutional immunity for the individual ; that it
may relinquish possession of the same to its own inhabitants or another
power, either absolutely or under such conditions in the form of a
treaty as may be agreed upon by the parties, and may enforce the
stipulations of the agreement in such ways as may have been agreed
on, or in such ways as are recognized by the customs and practices
of nations; or that it may perfect its acquisition and transform the
temporary military despotism therein into such civil government as
Congress may establish, under the limitations of the constitution
in behalf of civil liberty. I say that these points are all well settled.
But there is some question about the power of the United States
Government to exercise a protectorate over peoples occupying
territory which is not a part of the United States, especially when
that protectorate shall not have been established by treaty and
shall not be exercised under the forms of international agreement
or custom. There is not a word in the constitution expressly author-
izing it, and it is a grave question as to whether there is a word
from which such power can be implied.

Moreover, it has appeared desirable, perhaps I should say abso-
lutely necessary, to the United States Government to make the
transition from military despotism in the government of some of
these new acquisitions to a first and temporary form of civil govern-
ment without constitutional limitations in behalf of individual liberty,

600 CONSTITUTIONAL LAW

that is, to a temporary civil despotism or something of that nature,
and for this it is extremely questionable whether there is any war-
rant in the constitution. In order to meet the wishes of the govern-
ment, or perhaps the necessities of the government, in this respect,
the Supreme Court of the United States has so strained its powers
of constitutional interpretation as virtually to enact, in the opinion of
a large number of the best citizens of the country, constitutional
legislation, — constitutional legislation, too, which, upon one point
at least, contradicts the prime purpose of the only legitimate im-
perial policy which a free republic can have. It is quite possible
that the state of society and of the population in a newly acquired
district may necessitate more summary judicial processes than
those of the juries, and that public security and even individual
liberty will be better protected under the more summary forms,
and that, therefore, a judicial interpretation of the constitution
relieving the government from these limitations as to process in such
districts would have a moral ground at least to stand on, but when
the court allows the Congress to overstep the constitutional limita-
tions on the government in behalf of the freedom of trade and inter-
course between the people of such districts and the people in other
parts of the United States, and to erect a special tariff against such
trade and intercourse and thus to destroy, or at least greatly weaken,
the prime means of extending civilization to the inhabitants of such
districts, viz., a free commerce in mind and things, then neither the
court nor the Congress nor the administration has any ground of
any sort on which to stand, and we need an amendment to the
constitution to express the reason and the will of the sovereign upon
that subject.

We have in this whole question of territorial expansion one of
the greatest problems of the constitutional law of this Republic,
one which affects the whole world. It affects first of all the Republic
itself, because upon its rightful solution depends the moral right of
the Republic to have any imperial policy at all. It affects the peoples
of the dark places of the world, who, though apparently unable to
secure the blessings of civilization for themselves, certainly have
the right to be left in their barbarism unless the intruding nation
comes with a chiefly altruistic purpose. And it affects the other
civilized powers in the example which it shall furnish them for their
own work in the spread of civilization, for if the great Republic pur-
sues an egoistic policy, they will certainly do likewise, and it is to
be hoped that if it takes the other and the true course, they will not
go in the opposite direction. No grander mission can be imagined
than that which is now open to this American nation, and the time
is now ripe for the sovereign people to discuss it in all its bearings,
independently of ordinary party politics, and to write in the consti-

PROBLEMS OF CONSTITUTIONAL LAW 601

tution the methods and means which the government may employ,
the purposes which its activities must subserve, and, above all,
the limitations upon the government in behalf of the civil liberty
of every individual who may be brought under its jurisdiction or
protection in realizing this transcendent mission, the civilization
of the world.

THE SEPARATION OF POWERS AND THE JUDICIARY IN
FRANCE AND THE UNITED STATES

BY FERDINAND LARNAUDE

(Translated by Maurice Leon, Esq., of the New York Bar)

[Ferdinand Larnaude, Professor of Public and General Law in the University of
Paris, b. at Condon (Gers), May 21, 1853. Doctor of Law from the Faculty
of Law of Paris, 1876; in charge of the course on Roman Law in the Faculty
of Law at Aix, 1877; Fellow in charge of the course on International Law in
the Faculty of Law at Bordeaux, 1878; Fellow in charge of the course on
General History of Law in the Faculty of Law at the University of Paris,
1882; Assistant Professor in charge of the course on Public Law in the Faculty
of Law at the University of Paris, 1890; Professor of Public and General Law
in the University of Paris, 1892. Member of the Consulting Committee on
Public Education in the Ministry of Public Instruction; member of the Com-
mission for the Revision of the Civil Code; member of the General Society of the
Prisons; of the Society of Comparative Legislation; Secretary-General of the
Society of Higher Education; founder of the Revue du Droit Public et de la
Science Politique en France et a VEtranger. Author of Etude sur la Publicity;
des Donations; Les Codes Francais au Japan; Droit Compare et Droit Public;
La Re forme des Lois sur les Alicnes; Le Code Civil et la Necessite de sa Revision;
Le Droit Public et la Science Politique; La Loi sur les Accidents du Travail; and
many essays and articles on various legal topics.]

I APOLOGIZE for having to address you in French, but I speak so
little of your language that I fear, if I should express myself in
English, it might result in a mishap similar to the one which befell
President Montesquieu, the illustrious author of L'Esprit des
Lois. He attempted to engage a nobleman, whom he was visiting
during his sojourn in England, in a conversation, and addressed him
in English; his host solemnly answered, " Did I not tell you, sir,
that I cannot understand French? "

I also apologize for bringing before you too hasty and improvised
a communication. Invited to your Congress too late, and compelled,
in order to reach here in time, to start without having a chance to
think over my subject, or even selecting it, I have had to prepare
my address on board the steamer which brought me to these shores,
with the pitching and rolling of the liner to assist me. Under these
circumstances my address will necessarily bear the marks of its
origin; it will be like those children who have had an infancy of
ailment and who remain weak and puny all through their lives.

It is now somewhat over a hundred years since the principle of
the separation of powers was introduced in constitutional and com-
mon legislation, both in the United States and in France. What
has come out of this principle? How did it fare on coming in con-
tact with facts? What is its present standing? Would Montesquieu
recognize it under the various forms, I might say disguises, which it
has assumed? Or would he complain that his great invention had

SEPARATION OF POWERS AND JUDICIARY 603

become deformed? Lastly and particularly, have the United States
and France obtained out of the principle identical or different results?

The answer to these questions would be too long if all the phases
of the problem were to be examined, be it only as to their most salient
characteristics. The separation of powers is connected with every-
thing or almost everything, and a whole treatise of constitutional
law could be written under that title.

I propose to cover but a very limited portion of this extensive
field of study. Laying aside all that relates to government, admin-
istration, and legislation properly so called, I will confine myself
to the judiciary, specifically considered from the point of view of
the separation of powers. I wish to determine to what extent at the
present time its organization and operation are in harmony with
the deductions which seem to be logically implied in the famous
rule laid down by Montesquieu, and I will especially endeavor to
explain the characteristic differences which, both in the letter of
their respective constitutions and laws and in actual practice,
distinguish the American separation of powers from the French
separation.

Summary

I. Nature of the Judicial Power.
II. Organization of the Judicial Power.

III. Working of the Judicial Power.

IV. Summing-up and Conclusion.

Nature of the Judicial Power

From the outset we are confronted in France with a first question
of a purely theoretical order, with which you are not acquainted,
and this constitutes the first contrast between legal conceptions in
the two countries. Our authorities wyonder whether the judicial^
power is actually a power or whether it should rather be in itself
looked upon as a branch of the executive, the latter making up with
the legislative the only two powers which legal analysis can find in
the state, namely, the power which makes the law and that which
enforces it either judicially or administratively. And this is not
only a doctrinal conception, more or less scientific, but the idea
has been expounded in certain legislative discussions during the
Revolution, in those memorable debates of the Constituent Assem-
bly in which the principles of public law found such eloquent
interpreters. Moreover, certain of our constitutions seem implicitly
to sanction this solution. It is not my purpose to take sides in a
controversy of a merely theoretical character. I shall only point

604 CONSTITUTIONAL LAW

out that it does not exist with you. No discussion on this point
has ever been raised in your country, so far as I know. Neither in
the text of your federal constitution nor of your state constitutions,
nor in Hamilton's letters in the Federalist on the analysis of the
judicial power, nor in the opinions of American judges, which form
such remarkable disquisitions on constitutional law, is the least doubt
expressed as to the existence of an actual judicial power.

The reason for this difference between the United States and
France we shall find in the fact that there have always been close
relations between the courts and the government in France. Some
of our monarchical constitutions expressly state that justice was
administered "in the name of the King," or " in the name of the
Emperor." Judges were appointed by the executive, the Minister
of Justice, and the prosecuting magistrate who, in so many respects,
is under the control of the government, exerted a constant influence
over the courts. As a consequence of these facts, which seem to be
inconsistent with the existence of a distinct, autonomous, and sep-
arate judicial power, very naturally there set in a tendency to consider
the judicial power as a mere branch of the executive. This was
a way of reinstating logic in the relations of the executive with the
courts, and of doing away with the necessity of explaining certain
peculiarities of the judicial organization. It is indeed something
of a defect, I would even say a monomania, with jurists to endeavor
to introduce logic everywhere and to bring everything down to
simple ideas, whereas facts, which in this case are represented by
texts, laws, and regulations, often do not lend themselves to these
abstract and sometimes very unreal generalizations. On the con-
trary, the organization and power of the judicial department in your
country have always been such as to keep free from any of these
contradictions, which after all are only apparent. Nobody, there-
fore, has ever thought of setting forth a claim that this power, the
oldest function of the state, is not a real power.

Organization of the Judicial Power

The subject of the organization of the judicial power leads us into
a less doctrinal and more practical realm.

Here again we shall find several contrasts between the two coun-
tries. They have not understood the separation of powers in the
same way. To begin with, this separation seems to have a bearing
upon the very question of the selection of judges. In countries
which, like the United States and France, hold the principle of the
sovereignty of the people as the foundation of their institutions,
should not the elective system be considered as the only mode of

SEPARATION OF POWERS AND JUDICIARY 605

selection admissible under the combination of these two controlling
principles?

Such was the rule laid down by early French constitutions; the
monarchical constitution of 1791 as well as the republican constitu-
tion of the year III, and most of your state constitutions followed the
same rule quite promptly in the course of the nineteenth century.
Your Supreme Court and federal court justices have, on the contrary,
preserved the system of appointment by the executive, and it is this
system which France also adopted after having made an experiment
which was not attended by success.

It is indeed beyond dpubt that the system which logically seems
to be most in keeping with the principle of separation of powers
conjointly with that of national sovereignty is the system of election.
This logic is lacking in the French law, but American legislation has
conformed to it only partially. Neither you nor we, therefore, are
logical in the end. We unquestionably violate both the principle
of separation of powers and that of the people's sovereignty.

What is, however, to account for the fact that no judge is elected
in our country, while practically all of your state judges are desig-
nated by election?

No legal explanation can be offered, but history and politics supply
us with the explanations not to be found in the law.

If the elective method has not been kept up in France, this is not
only due to the unsatisfactory way in which it had worked, but
mainly to the fact that the executive power became strongly organ-
ized under the Consulate and the Empire and that it looked upon
the appointment of judges as one of its essential prerogatives. Sub-
sequent governments, even republican governments, saw to it that
such a powerful means of influence was not impaired in their hands.

Things went differently with you, and the cause for this divergence
is to be found in the steady, uninterrupted development of the
elective system in your country, which logically extended to nearly
all public offices; there was no reason why judicial functions should
have been excepted.

This may, perhaps, be a democratic error, but it is a genuinely
democratic conception.

The logic of election has led you still further. Since elections
were resorted to for the choosing of judges, by virtue of its principle
it could only make temporary judges. We, on the contrary, have
borrowed from the system of venality of offices, as existing in the
old regime, the rules of life tenure and irremovability. This was a
restraint put upon the executive power in the exercise of its usual
prerogative over the officials appointed by it, I mean of its right
of removal. But the limitation has served the interests of justice
if it has not always been in accord with political interests.

606 CONSTITUTIONAL LAW

There, doubtless, lies a most difficult problem in this matter of the
appointment and promotion of judges. Elective methods have not
given good results in France nor do they present such in your country.
But neither is appointment by the executive, on the other hand, so
very satisfactory, especially if it is considered that no magistrate
can in fact be appointed without numerous recommendations from
members of parliament, as is at present the case in France ; that no
appointment can be made without the approval of the deputy of the
electoral district; and lastly, that the magistrates depend for their
promotion on the ability to conciliate these many and sometimes
hostile influences.

The formula of the separation of powers alone cannot remove
all these difficulties. It can, however, be of great assistance towards
the solution of the problem, inasmuch as it shows us that its applica-
tion is conditioned upon the organization of a body of judges who shall
have nothing to fear from the electorate, the executive, or the
representatives of the people, a body of upright, learned, and inde-
pendent men.

Ill

Working of the Judicial Power

Here it is that the contrasts between the United States and France
are most conspicuously revealed.

The principle of separation of powers has begotten very different
results in each country, in the way that a tree transplanted in a
different climate yields fruits more or less savory than in the country
where it originally grew and slowly developed with its special
features.

Let us look successively for the demonstration of this idea into
the relations of the judiciary with both the executive and the
legislative.

(1) Relations between the Judicial Power and the Executive Power.
The Americans and the French have conceived the relations between
the judiciary and the executive from entirely opposite points of view.

The executive is vested with powers which enable it to interfere
with the functions of justice; it exercises them through the prose-
cuting officers and occasionally through the Minister of Justice and
even through the prefects, notwithstanding the fact that the latter
are functionaries of an essentially administrative character. This is
the first encroachment upon the principle of separation.

This principle is, on the contrary, most strictly applied on the
judicial side. The courts which undertake to enforce the law
against a member of the administration are divested even of their
normal attributes.

SEPARATION OF POWERS AND JUDICIARY 607

The French system, we must say at the outset, is, above all, an
historical product. The separation of powers with us did not so
much proceed from Montesquieu as from the old French public law,
in which it slowly and laboriously assumed its specific characteris-
tics during the struggle between the monarchy and the parliaments.
This system in its essential features may be described as follows:

The courts which we call judicial, that is, the courts proper, which
alone constitute the judicial power, may not take cognizance, except
in a few cases, of the differences arising between the administration
and citizens. Now we must point out that these differences occur
very frequently on account of the considerable importance of the
administration in our country and of the many ways in which it
comes in contact with citizens. The courts may not interpret any
administrative act, nor look into its execution, nor declare it void.
And if the court attempts to do this, deeming itself within its juris-
diction (which may well be the case since this jurisdiction does
exist in some exceptional circumstances), it is disqualified by the
authority of the administration itself which aroused the conflict.

Now who is to solve this question, that is, decide whether the
matter should be submitted to the courts or to an administrative
jurisdiction? This decision for a long time rested with the execu-
tive, a fact which affords further evidence of the special character
of the French separation of powers entirely directed against the
judicial power. Since 1872 this duty has belonged to a special
court, called the Court of Conflicts, in which both the ordinary courts
and the administrative jurisdictions are represented, but which
may be presided over by the Minister of Justice. The executive
power is, therefore, still endowed with a preponderating position in
the Court of Conflicts.

Let us suppose now that a question in regard to jurisdiction has
been decided against the court. The matter is withdrawn from
the latter 's hands forever. But who shall try it? For tried it must
be! This mission will devolve upon the administration itself, which
then takes the name of administration of litigation, signifying
an administration clothed with a judicial capacity. It will exer-
cise these functions through the prefectural councils and the state
council, organs half judicial, half administrative, whose members
are not protected by the privilege of irremovability, the real touch-
stone for judicial courts. The separation is thus carried to its ex-
treme limit. The case is similar when it becomes necessary to prose-
cute an administrative agent for a dereliction committed in the
exercise of his functions. The court cannot take cognizance of
this matter of liability unless the dereliction is so gross as in some
way to deprive the administrative agent of the capacity which pro-
tects him and to transform him into a plain citizen amenable to

608 CONSTITUTIONAL LAW

ordinary law. Otherwise the case is taken away from the court,
as, indeed, in order to pronounce a judgment on a question of lia-
bility, the court would have to construct an administrative act,
which it may not do. Such is the system in force at the present
time. Up to 1870 the prosecution of officials who had rendered them-
selves liable was provided for in a different way. It was permitted,
if authorized by the state council (Art. 75 of the Constitution of the
year VIII). The leaders of the revolution of the 4th of September
hastened to suppress this rule which had shielded the worst excesses
of the administration under the Second Empire. But French public
law soon became disorganized through this abrogation, and the
administrative jurisprudence revived the old rule of administrative
guaranty under another form; it claimed that the principle of sepa-
ration of powers would be violated if the courts had to pass judgment
on cases of liability incurred by a functionary, as they would neces-
sarily be taking cognizance of an administrative act.

This distrust of the courts which is shown by the administration
and the jealous independence which characterizes the latter is, we
cannot repeat too often, only to be explained in the light of history.
What has been introduced in France is not the separation as de-
scribed by Montesquieu in his immortal chapter vi. But the new
public law has retained the principle of separation as contained in
the old public law by giving a legal character to what was only an
administrative practice, and by making of it an institution with
peculiar and well-marked traits. The embryo, shapeless at first,
and slowly developed in the last centuries of the French monarchy,
resulted into the sharp formula set forth by the Constituent
Assembly.

The men of the Revolution who had received their legal education
from the old regime and who had been present at the struggle of the
parliaments against monarchy, simply held on to the administra-
tive practices introduced by the King's Council and the intendants.
These practices constituted the law at the time when the Revolution
broke out, and were sternly enforced in a manner which could not be
opposed and which had totally suppressed evSry resistance.

Your conception of the relations between the judiciary and the
executive is not of the same nature. Your courts may take cogni-
zance of any litigation raised by the enforcement of the laws, even
when the administration is a party to it. You are not acquainted
with administrative jurisdictions; your courts may even serve in-
junctions upon the administration, ordering it to take such action
as is required by law for the benefit of the public, or to discontinue
any unlawful action. As to the liability of officials, it rests on quite
different foundations, which it is unnecessary for me to point out;
you know them better than I.

SEPARATION OF POWERS AND JUDICIARY 609

What I am here to investigate is the reason for this difference from
the French conception of the separation. The reasons are invariably
the same. Your historical traditions are on this point totally at vari-
ance with ours. The English judicial regime did not know the strug-
gle between monarchy and the courts of law. Political struggle never
took place in the judicial domain, while the latter unfortunately
was the only ground which remained for it in France. In England
political struggle existed only where it belonged exclusively, that is,
in political bodies. It is due to this fact that the principle of the
" rule of law," with absolutely general application, could, without
difficulty, be maintained both in England and in your country, even
when it had to be exercised against the administration.

If, however, the two systems were to be subjected to a critical test,
the French system, such as it has grown out of many and happy
improvements, could perhaps bear a favorable comparison with the
Anglo-American system.

Administrative judicial bodies, on the one hand, have come to be
real courts, subject to fixed rules and to a regular procedure, and
sitting wdth as much independence as judicial courts have. On the
other hand, these judicial bodies, which include past or future ad-
ministrative officials, are, on this account, composed of specialists
quite familiar with administrative matters; this is not an undesirable
condition, since it can only redound to the benefit of the accused.
Lastly, owing to their intimate connection with the administration,
such judicial bodies are able to go further than any court could into
the details of administrative action. I cannot unfortunately submit
any evidence of the above assertions, for it would demand from me
more time than I have at my disposal to lay before you the famous
theory of " appeal on the ground of excessive use of power," an
admirable creation of our highest administrative judicial body, the
state council, which presents a more effectual protection for individ-
ual rights than can be afforded by any other system.

It will suffice that I have pointed out the existing contrast between
your separation and ours in regard to the relations of the adminis-
tration with the judiciary, and that I have indicated the causes for
such a contrast.

(2) Relations between the Judiciary and the Legislative. Here
again the same causes have produced the same effects. The French
separation of powers is as different from the American separation
in regard to the relations of the judiciary with the legislative as in
regard to those of the judiciary with the executive.

Proof of this I shall seek in the consideration of the well-known
question of unconstitutionally of laws, which, from a legal stand-
point, is brought under the same conditions in France as in the
United States, the two countries living under written constitutions.

610 CONSTITUTIONAL LAW

All the courts in your country, from the lowest to the highest,
have the right to hold as void and unenforceable any law adjudged
by them to be unconstitutional. It has never been possible to in-
troduce this rule in France. Attempts have vainly been made to
have it adopted by the courts, in view of the lack of definiteness of
texts at hand. But the courts have never dared to go such a length.
Bills have been introduced 'aiming at embodying it expressly in
legislation; they never have, and probably never will, come up for
discussion. A few authorities only, very few indeed, contend that
our laws imply a sanction of the rule of unconstitutionally; this,
however, seems to me really a paradox.

How does this new contrast between American and French insti-
tutions arise? Can we find any rational explanation for it? No.
History and politics alone can furnish a key to the problem. Here
again the soils on which the seed of separation was sown have pro-
duced plants quite different in character.

Doubtless the French rule, if looked upon from the standpoint
of law and abstract logic, is incomprehensible and unaccountable.
Your great Chief Justice Marshall has shown in a definite way, in
the famous case of Marbury v. Madison, that the American rule is
based upon all unshakable legal foundation. Whenever in a country
there exists a written constitution, there also exists, by virtue of
the same fact, a legislature with limited powers. The written con-
stitution assigns to the different powers their respective spheres of
action. It shuts them up in a circle which neither the legislative
nor the executive are allowed to overstep under penalty of forfeiting
their powers, and when a parliament violates a constitution bypassing
a law which contradicts one of its provisions, it takes the position
of an agent who would exceed the terms of his agency; the agent
would perform an act which is null and void, for he is no agent and
has no representative character beyond the scope of his agency.
So with a parliament. If it ignores the constitution, it is no longer
a parliament and ceases to be a representative body.

This is perfectly true on grounds of law. But history and poli-
tics furnish a most satisfactory explanation of this difference between
the French and the American constitutional law. It consists in
this : that the former has put the separation of powers to a use which
was not recognized by the latter. As a matter of fact, it is upon the
principle of separation as much as, or even more than, upon texts,
which we must confess are rather ambiguous, that the right of the
courts to withhold the enforcement of an unconstitutional law is
denied in France.

I shall not presume to teach you the historical origin of the Amer-
ican system. I myself studied it from American authors, and
especially from Professor Thayer of Harvard, whose death is a loss to

SEPARATION OF POWERS AND JUDICIARY 611

science, and to whom you will allow me to render the tribute of my
homage. I learned from him that the American rule proceeded
from the English origin of your judicial institutions, from that wide
range of competence of the English courts which permitted them to
pass decisions on all public and private matters, and also from the
colonial judicial regime which prevailed before the proclamation of
your independence.

The French rule, on the contrary, was derived from the same source
that restricted the jurisdiction of the courts in regard to the acts of
the administration.

The men of the Revolution had been the spectators of the struggle
between the parliaments and the King towards the end of the
monarchy. They had noticed that, in the last years of the eighteenth
century, the parliaments had attempted to prevent the King from
carrying out reforms demanded by public opinion and indeed had
sometimes succeeded in doing so. Such reforms could not be
executed through enactments of the council, which for a long time
past had been free from the interference of the judical bodies;
the King was compelled to carry them into practice through edicts,
ordinances, and declarations for which the sanction of the sovereign
courts was indispensable. Indeed, the aim pursued by the men
of the Revolution was to prevent the judicial bodies which succeeded
the parliaments from resuming the warfare against the political
powers, the legislative as well as the executive.

Thus, it appears, Montesquieu's theory was not applied, but the
rules in process of elaboration in our old public law were taken up,
sanctioned definitely, and formulated in terms of greater precision;
doubtless they were not laid down with as much precision as the
rules applying to the executive, but we shall find them sufficiently
precise, especially if we look upon the matter from the point of view
of the spirit of the institution itself.

Nor should it be overlooked that the Revolution achieved both
socially and politically the most wonderful reforms ever recorded
in history, and that in the midst of unheard-of difficulties it intro-
duced new principles forcibly, although they clashed with numerous
and considerable interests. How could these men who wished to
transform society, and who succeeded in so doing, put up with a rule
so apt to prove a hindrance to their progress?

The objection might be made that the special circumstances under
which the political powers were striving in the advent of new ideas
are now over. Why, then, shrink from adopting the American sys-
tem, the only one which can logically be derived from the theory of
written constitutions?

All attempts made in that direction have so far failed, as I have
already stated. They have failed everywhere, in France and in all

612 CONSTITUTIONAL LAW

such European countries as are provided with a written constitution
and in which the question arises under the same conditions as in
France. There are only two exceptions in Europe that I know of.
In Norway and Greece the courts may withhold the enforcement
of any unconstitutional law. But while this rule has numerous and
far-reaching applications in the United States, even in the domain
of political and social reform, the rule of unconstitutionality has but
little importance in the two above-mentioned countries. I asked
some Norwegian and Greek jurists to let me know of decisions on
this point, and they were hardly able to discover more than a few
judgments, relating to cases of strictly private nature and involving
no issues of widespread interest.

There must, therefore, be a special and very powerful reason
for the maintenance of so illogical a rule everywhere except in the
United States and the South American republics, which have merely
copied your constitution.

The real reason for it is entirely political in character. Your
" exception of unconstitutionality " is a main piece in your system
of government, in your constitutional machinery. It is rather a
political than a judicial rule. I do not, of course, deny that it is a
protection for the rights of the individual and a very efficient guar-
anty of the liberties of the citizen. But its political character
overshadows its judicial side. The matter is political, while the form
is judicial.

This feature was already noticed by our great De Tocqueville, the
illustrious Frenchman who was the first European to attempt a
description of your institutions, which shows such lofty views and
such a remarkable acuteness of analysis. " The American judge,"
said De Tocqueville in his Democratic en Amerique, " is just like all
judges in other countries except that he is clothed with immense
political power."

Now, neither in France nor in any other country of old Europe
governed by a written constitution, is there any disposition to give
the courts " immense political power." In such countries, which
either possess or slowly drift toward a parliamentary organization,
there exists no desire and no possibility to limit in such a manner
the province of the legislature, which is the political power par excel-
lence, and which your state constitutions tend, on the contrary, to
confine in an ever narrower circle.

The parliamentary regime has its own rules, its inward logic;
it represents a special type of government in the broad sense of the
word. The system for which your constitution stands is of a very
different type, with its elected president, its secretaries placed be-
yond the control of the legislative power, its standing Senate and
House committees, its conventions, and lastly, its rule of unconsti-

SEPARATION OF POWERS AND JUDICIARY 613

tutionality. To repeat a comparison used by Mr. Boutmy, who has
an excellent acquaintance with the spirit of your institutions, we must
picture to ourselves these two types of government as " two animal
species quite removed one from the other." It has been scienti-
fically proved that any attempt to cross animal species removed
from one another yields but poor results. No better results could
probably be secured by attempting to mingle these two types of
government.

It is in vain that we have a written constitution and that we pro-
claim very loudly the distinction between the constituent powers
and the constituted powers; in practice we act as though we had
a parliament invested writh a paramount authority. The reason as
stated above is that parliamentary government labors under its
own logic and leads inevitably in fact to an almost all-controlling
authority of parliament, even if there exists a written constitution.
Legally our parliament is not sovereign; politically and practically
it is.

I do not think, therefore, notwithstanding the contrary opinion
held by a number of my fellow citizens, that it may be possible or
even desirable to adopt your " exception of unconstitutionally."

You export bicycles, and especially agricultural implements, into
France, and your Chicago manufacturers flood our country with
these products, with which wre are very well satisfied. But the
exception of unconstitutionality would not be a good article of
importation into France.

Another equally potent reason which causes us to exclaim " Timeo
Danaos et dona ferentes " is the fact that the judiciary would be the
power which would suffer most thereby. It would soon become
disorganized, thrown out of balance and upset by the unwel-
come present thus made to it. The gain for politics would be but
trifling, while the judiciary would most assuredly be the loser in the
transaction.

IV

Summing-up and Conclusion

To sum up and conclude:

(1) The separation of powers is merely a formula, and formulas
are not working principles of government. Montesquieu had
chiefly aimed to indicate by his formula the aspirations of his times
and country. He could not and did not wish to propose a definite
and permanent solution of all the questions brought up by the govern-
ment of men and their long-felt longings for fairness and justice.

(2) The separation of powers since this conception was first

614 CONSTITUTIONAL LAW

launched into the world has been what M. A. Fouillde, one of our
most eminent philosophers, calls an idteforce, an auto-dynamic idea.
It has sought its fulfillment in facts, by embodying itself in positive
constitutions and legislations, but it has not altogether succeeded,
its progress being checked by obstacles thrown in its path by his-
torical events and practical necessities.

(3) The separation of powers has produced very different effects
according to the countries where it was introduced. The seed has
produced plants materially diversified in character according to the
soil where it was sown. There is nothing in such a fact to be won-
dered at. A people is dominated by its history, its traditions, its
own mentality slowly developed, its economic, religious, and social
conditions. Hence no absolute similarity can exist between two
institutions established in different countries, unless it be in the letter
of their constitutions and laws, although they may be controlled by
the same idea.

(4) The separation of powers in its strict and absolute sense is
neither desirable nor even practicable.

The powers of the state in their operation must necessarily come
frequently into mutual contact. Certain authors, mostly jurists,
are wont to indulge in a very mistaken method of handling this
question. They grasp the abstract conception of separation, isolate
it, and put it on a pedestal; then they draw from it all the strictly
logical inferences implied in the pure idea. On such grounds they
condemn all rules of positive law which from a logical and abstract
standpoint contradict their deductions.

This method is extremely dangerous in public law, nor is it a
perfect one as affecting matters of civil law. Legal formulae should
not be esteemed above life itself. On the contrary, they should
keep pace with the latter and fashion themselves in accordance
with it, for law is only a form which creates nothing, but has the
object of imparting strength to institutions called into being by
certain needs which exist and expand outside of it.

(5) Separation and independence seem to be a more marked
tendency and a stronger need for the judiciary than for any power
of the state. The reasons for this may be stated as follows:

First, the law of specialization. There are no functions which
demand a greater degree of technical, special, and professional
knowledge than those of a judge. Nobody would ever think of
calling upon a dock-hand or a man who slaughters cattle at Armour's
in Chicago to draw up plans for a house, a bridge, a locomotive, or
an automobile, as these men have qualified themselves neither by
study nor practice for such a special work. It would be just as
unreasonable to withhold the recognition of this necessary law of
specialization in the working and organization of judicial agencies.

SEPARATION OF POWERS AND JUDICIARY 615

And I will remark in passing that it constitutes the true safeguard
against the greed and the destructive and disorganizing genius of
politicians.

On the other hand, it is of paramount importance, through an
adequate organization and operation of the judicial power, to insure
the protection of private interests, matters of family, property, in-
dividual freedom, honor, in short everything which is closest to one's
heart in this world. It is, therefore, impossible that the principles
applying to the organization and working of either the executive
or the legislative, which are only connected with questions raised
by public interests, should also apply to the organization and work-
ing of the judicial power.

With these words I shall end my too lengthy and yet quite in-
sufficient address. The ideals of justice and politics are essentially
different. As a consequence, it is indispensable, in organizing and
carrying out the powers of the state vested with the attributes
corresponding to these various functions, not to disregard the inward
necessities arising from the peculiar character, the organic nature,
as it were, of each power. Particularly in regard to the adminis-
tration of justice we must never forget this beautiful definition of
justice: Justitia est constans ac perpetua voluntas jus suum cuique
tribuendi. This is the motto of the judge, the only one to which he
should look for his inspiration and guidance, and we should condemn
any organization which would disregard that motto, either by
making too stringent an application of the separation of powers,
or by getting too far away from it. In medio veritas.

SECTION C — PRIVATE LAW

SECTION C — PRIVATE LAW

(Hall 14, September 23, 3 p. m.)

CHAIRMAN: PROFESSOR JAMES B. AMES, Dean, Harvard Law School.
SPEAKERS: PROFESSOR ERNST FREUND, University of Chicago.

HONORABLE EDWARD B. WHITNEY, New York.
SECRETARY: DEAN WILLIAM DRAPER LEWIS, University of Pennsylvania.

JURISPRUDENCE AND LEGISLATION

BY ERNST FREUND

[Ernst Freund, Professor of Law, University of Chicago, b. New York City,
1864; J.U.D. University of Heidelberg; Ph.D. Columbian University; Lec-
turer on Administrative Law and Municipal Corporations, ibid. 1892-93;
Instructor, Assistant Professor, Associate Professor, Department of Political
Science, University of Chicago, since 1894. Author of The Legal Nature of
Corporations; The Police Power, etc.]

THE arrangement of jurisprudence, in the classification adopted
for this Congress, under the head of Social Regulation, recognizes
the practical purpose by which this department of learning is dom-
inated. Since it is the professed object of the private law to har-
monize the rules of justice in individual rights and liabilities with the
changing needs of society, it is proper, in a paper dealing in a general
way with the relations of this branch of the law, to consider the
methods of its system mainly with reference to their adaptability
and success in serving that end. The private law has developed
partly through the administration of justice, and partly through
legislation, and it is, therefore, natural to distinguish between these
two agencies of development in tracing the relation of scientific
method and system to the problems of policy and justice.

We speak of a legal system when rules are consciously founded in
principle and when principles acquire cohesion by impressing the
mind with their interrelation and common purpose. This unity
is strengthened by the recognition of authorities which furnish
standards and analogies of legal reasoning. This intellectual bond,
far more than distinctness of political jurisdiction, serves to differ-
entiate one legal system from another. The writings of the jurists
in Rome, and later on the corpus juris both of the civil and of the
canon law, the great body of English case law, the treatises of
Littleton and of Blackstone, of Pothier, of Savigny, and of Wind-

620 PRIVATE LAW

scheid, may be mentioned as either constituting legal systems, or
as having contributed powerfully to their formation. On the other
hand, a system may or may not be coextensive with political juris-
diction. In England for a long time common and civil law had
each its province of application; to-day the two systems ignore
international boundaries; the Mahommedan law spreads over
numerous countries, and the French Code of Commerce furnishes
a system of commercial law to most Latin nations. The law as a sys-
tem is a body of reasoned principles, and not of sovereign com-
mands.

In any system of private law it is possible to differentiate, with
tolerable clearness, principles and institutions according as they are
strongly marked by considerations of public policy, or are mainly
abstract and technical in their character.

It is not a derogation to the dignity of legal science to assert that
the bulk of its work has always been given to the production of rules
of the latter category. Jurisprudence — and in this it differs from
political economy and sociology — is the direct outgrowth of a
practical demand. It is its business to minister to the dispensation
of justice, and the justice of the courts, in the vast majority of the
cases in which it calls for constructive legal work, has to deal with
close controversies turning on the precise demarkation and boundary
lines of institutions and principles, and taking their essential nature
and larger aspects for granted. Not unnaturally the character of
the private law is dominated by the habitual trend of professional
thought, and this again is controlled by the exigencies of professional
practice. The result is the dry and colorless complexion of the
private law with which we are sufficiently familiar.

This aspect of the law is accentuated where it is developed chiefly,
perhaps almost exclusively, through its administration, as was the
case in Rome and in England. The main characteristic of such a
system is apt to lie in the wealth and refinement of its technical
distinctions, and in its consequent availability as an arsenal of
weapons for the forensic contest. It is true that the eulogists of
the common law dwelled mainly upon its fundamental pohcy in
protecting the liberties of the subject; but this was simply an iden-
tification of the common law with the English constitution for the
purpose of making a contrast with the countries of the civil law
which were formerly living under more or less * despotic govern-
ments.

The general attitude of the professional mind toward technical
problems, and, therefore, the essential character of legal science, is
the same in different systems, although the controlling agencies of
development may differ considerably. Juristic authority in Rome
was lodged with professional advisers, in England with the courts,

JURISPRUDENCE AND LEGISLATION 621

but the result in both systems was practically case law. We are
apt to regard as the distinguishing characteristic of the common law
the authority of precedents. What Coke said of the civil law three
hundred years ago, that " there be so many glosses and interpreta-
tions, and again upon those so many commentaries, and all these
written by doctors of equal degree and authority, and therein so
many diversities of opinions, as they do rather increase than resolve
doubts,"'1 is in a measure true to-day; but the resulting difference
is one of certainty and not of kind. The German jurists of the
nineteenth century, it is true, introduced new methods of legal
science by seeking to reduce legal principles and concepts to their
simplest elements in logic and metaphysics with a view to laying
the broadest possible foundation for legal reasoning; but their dia-
lectical efforts have, on the whole, proved barren of practical value.
In the main, the type of mental activity characteristic of legal science
is thus fairly uniform and constant.

Within the close range of unsettled law there is little room for
large and striking questions of policy, and in the few cases in which
they do arise, the courts, in deference to the theory that they do not
make law, rather argue that the policy which they support is ssttled
by authority than that it is the right one. We can thus rarely trace
the mental processes that underlie the adoption by the courts of
some social or economic principle. The origin of many of the most
important phases of legal policy, by which legal systems are dis-
tinguished, is obscure; so in Rome the establishment of the free
marriage, the recognition of the right to legal portions, and the
pretorian system of inheritance; in England the system of primogen-
iture, the extreme measure of marital right, and the disappearance
of wills of land. We do not know to what extent legal reasoning
and argument were instrumental in securing the adoption of any
of these policies, but it is safe to conjecture that where there was
an innovation upon old-established institutions and principles, and
the change took place through the administration of justice, it was
brought about gradually and covertly, without an acknowledged
overturning of the previously established law. Fiction and equity
are the most familiar but not the only agencies that have accom-
plished silent revolutions in the law, and there is, perhaps, no period
of legal history which presents more striking instances of the opera-
tion of these subtle and elusive forces of transformation than that of
the English law in the two centuries following the Norman Conquest,
as described to us in the classical treatise of Pollock and Maitland.
Most of the important advances that have been made in the English
law without the intervention of legislation in more recent times are
associated with the rise and development of equitable jurisdiction,

1 Proem to Second Part of Institutes.

622 PRIVATE LAW

just as in the middle period of the Roman law they are associated
with the office of the pretor.

Admirers of the unwritten law point to its power to adapt
itself to change of circumstances in time and place. It is quite
true that both the Roman and the English law have shown themselves
capable, on the whole, of keeping pace with the advance of civiliza-
tion for centuries with remarkably slight aid from legislation. The
study of these two systems reveals, howaver, also the shortcomings
of this form of law and legal development.

In the first place, flexibility seems to decline with the advance of
jurisprudence. Where the evidences of law are carefully collected,
and decisions closely watched and scrutinized, the settled law is
not easily unsettled; constant analysis is not congenial to the subtle
processes of change to which reference has been made. So the Ro-
man law, after having stripped the father of most of his substantial
control over the son, was unable to shake off its theory of the paternal
power; it retained the distinction between quiritarian and bonitarian
ownership, between Roman and provincial soil, between civil and
pretorian inheritance, between legacies and trusts, between wills and
codicils, long after they had ceased to serve any practical use. The
English law grew increasingly rigorous after the restoration of
the monarchy. The protection of authors' and inventors' rights, the
most important extension of the idea of property in modern times,
had to come first from the sovereign prerogative, and then from the
legislature; the common law courts were unable to extend the general
principles of the law of torts into a right of action for death caused
by a wrongful act, although the same difficulty was not felt on the
continent of Europe; the right of privacy is still looking for general
recognition; and the unqualified application of the English law of
water-rights in many American jurisdictions did not evince great
power of adaptation to changed circumstances.1

In the second place, a process of transformation which leaves the
previously established law formally intact must result in complex
and technical legal arrangements. This was very obvious in the
Roman law, and is equally so at present in our own. The distinction
between the civil and the pretorian law, as that between law and
equity, bears witness to the loss of simplicity by which the substan-
tial gain in justice had to be bought. It was one of the great achieve-

1 Nineteen states apply the common law doctrine of non-tidal waters to non-
tidal navigable rivers (Connecticut, Delaware, Georgia, Illinois, Kentucky, Maine,
Maryland, Massachusetts, Michigan, Mississippi, New Hampshire, New Jersey,
New York, North Carolina, Ohio, Rhode Island, South Carolina, Vermont,
Wisconsin). Am. and Eng. Encyclop. of JMW, 1st ed., vol. 16, p. 253. Seven of
the arid states of the West (Kansas, Nebraska, South Dakota, North Dakota,
Texas, California, Washington) followed the common law of riparian rights
instead of adopting the doctrine of prior appropriation. Farnham, Water Rights,
sees. 649-651.

JURISPRUDENCE AND LEGISLATION 623

ments of Justinian that as an incidental and preliminary part of
his codification he removed nearly all of this cumbersome and need-
less complexity; and it is safe to conjecture that the Roman law,
with all the technicalities of its classical form, would not have been a
fit subject for reception by the nations of Continental Europe. The
common law has not yet undergone this process of simplification, and
if it has likewise spread over a large portion of the civilized world,
this has not been due to a peaceful conquest of foreign nations, but
to the expansion of the English people, who carried with them the
learning and the traditions of their legal profession.

The legal profession is not seriously inconvenienced by the tech-
nicalities of a legal system, and rather cherishes them as an intel-
lectual possession in proportion to the labor and effort which it has
cost to master their difficulties. It is also right in preferring tech-
nicality to a simplicity which would in reality mean vagueness and
uncertainty. The tenacious adherence to established though
cumbrous forms is to some extent justified by the great difficulty
of piecemeal amendment of an intricate system and the risk of harm
from bungling legislation.

Both in Rome and in England the appreciation of these difficul-
ties led to almost absolute legislative inaction in the domain of
private law for centuries. The history of the two systems shows
that for long periods the sense of abstract justice in civil relations
may lack sufficient force to induce any action on the part of the
sovereign power of the state in the direction of improving the general
law. The impulse to legislation effecting a decided progress in juris-
prudence has almost invariably come from the pressure of special
interests and has often been confined to their satisfaction.

There are, however, exceptions to this rule. There have been
periods of legal history when improvement of the law wras felt to*
be among the chief functions of sovereignty, and when legislators
were as much impressed with their wisdom and their power of
promoting justice as with the inadequacies of the unwritten law and
its lack of capacity for unaided development. Such was the period
of the later Roman Empire, especially that of Emperor Justinian;
the latter part of the thirteenth century both in Spain and England;
the sixteenth century in Germany; the period of the close of the
eighteenth and the beginning of the nineteenth century in Ger-
many and in France; again the latter half of the nineteenth century
in Germany, and perhaps, although in a less pronounced manner, in
England the period beginning with the reign of William IV. The
causes that bring about such legislative activity — if any definite
causes can be assigned — probably vary greatly in each case, and if
the demand of a famous jurist had been heeded that before yielding
to the impulse a state should establish its " vocation " by adequate

624 PRIVATE LAW

scientific work in jurisprudence,1 nothing would probably have been
accomplished in any age.

Each system has, on the whole, derived very substantial gain
from these periods of active legislation. It is the orthodox view to
see in the latest history of the Roman law a period of decline; but
it is also true that some of the most enduring doctrines and princi-
ples of the civil law, — the benefit of inventory, the regulation of
intestate distribution and of legal portions, the paternal usufruct,
the principles of limitation and adverse possession, — have been the
fruits of the latest imperial legislation. In England, the reign of
Edward I came in the formative period of the law, but of the second
great legislative reign, that of Queen Victoria, it is safe to say even
at this time that the improvements it has brought about in the
common law are greater than those of any other era of English legal
history.

II

While in removing technicalities and rules that have outlived
their usefulness the legislative power merely remedies the defects
and omissions of the unwritten law, the conscious and deliberate
adoption of new policies is a function distinctly its own.

The question whether a proposed new policy is wise or unwise in
its immediate or remote bearing upon social or economic interests is
usually not regarded as a question of law, but of politics or states-
manship. Even the equity and fairness of the proposed policy is
not generally understood as presenting a legal problem as long as
the legislature deals with interests which are conceded to be subject
, to its power. But as soon as the interest becomes so vital as to
assume the nature of a fundamental right, questions of justice
become questions of law, and the principles of legislation fall within
the province of jurisprudence.

We touch here one of the distinctive features of American legal
science. In countries in which the legislative power is not subject to
judicial control, the principles of justice which bind legislation are
not argued before the courts as other questions of law, but are con-
clusively determined by the legislative organs of the government.
Under the American system of judicially enforced constitutional
limitations these principles have become the subject of professional
argument, and are determined by the courts on the basis of reason
and logic. It becomes, under these circumstances, a question of great
interest whether this new departure of American jurisprudence has
resulted in the discovery of new principles of private right, or has
given greater practical security to those previously recognized.

1 Savigny, on the Vocation of our Age for Legislation and Jurisprudence, 1814.

JURISPRUDENCE AND LEGISLATION 625

If the words of the Fourteenth Amendment are taken as the most
concise expression of fundamental constitutional limitations, there
are three main rights which all legislation must respect: liberty,
property, and the equal protection of the laws.

Of these, the respect of vested rights is, and has always been,
a principle recognized by all civilized governments, not merely as a
rule of policy, but as a rule of law, in such manner that occasional
violations, if not due to mere inadvertence, have been felt to be
either sovereign acts of necessity, or despotic acts of wrong which
the absence of a legal remedy did not convert into legal acts in any
other than a purely formal sense.

What gain has then resulted from the judicial enforcement of this
right against the expression of the legislative will?

We notice, in the first place, that constitutional clauses have not
rendered impossible great extra-legal acts of revolutionary reform
sweeping away vested rights of property; the abolition of slavery
without compensation is conspicuous evidence of this, in marked
contrast to the provision for indemnity by an omnipotent Parlia-
ment.1 Where vested interests run counter to the moral sense of
the community, they have found very inadequate" protection in the
constitutions. Upon the theory that the police power cannot be
bargained awTay, the courts have sanctioned the legislative annulment
of liquor licenses and lottery charters that had been paid for; they
have refused to recognize an established business as a vested right
where it affects the public health, and have allowed retroactive
legislation to stand even where the public health was not affected, as
in the oleomargarine legislation. In these cases the unvarying prac-
tice of European legislation is either to pay compensation or to avoid
retrospective operation, and in this country as well as in Europe
vested interests must rely upon the legislative sense of equity and
good faith, in which, as a general rule, they are not disappointed.2

When we turn to the cases in which statutes have been declared
unconstitutional as impairing vested rights, two categories are con-
spicuous. The one is where, through inadvertence, the legislature
in instituting a reform failed to confine the operation of the new law
to cases arising in the future. It is best illustrated by laws changing
marital, dower, and homestead rights without exempting rights
already vested from their operation. In these cases judicial control
conferred an undoubted benefit; but the benefit is one which ordin-
ary care in legislation renders superfluous. Moreover, expectant

1 The repudiation of state debts may be left out of account, since claims against
states were, by the Eleventh Amendment, deliberately withdrawn from judicial
control.

2 The writer begs leave to refer for fuller exposition and for citation of author-
ities upon the subject of vested rights as well as of the doctrines of liberty and
equality, to his treatise on the Police Power, 1904, especiallv chapters 13, 19, 20,
23, 25, 31.

626 PRIVATE LAW

interests have been allowed to be cut off by such legislation because
the courts considered that they did not amount to vested rights,
and equities have thus been sacrificed which under more careful
methods operating without constitutional limitations are always
safeguarded.1

The second category consists of cases in which a strict conception
of the inviolability of private property rendered impossible the
carrying out of a policy intrinsically just and desirable. This may
be illustrated by laws attempting to authorize the condemnation
of land for private rights of way, or the creation of drainage districts
for the improvement of land of several owners by the vote of a
majority. In one jurisdiction the supposed sanctity of private
property was held to make it impossible to provide for the com-
mutation of perpetual ground-rents at the option of the landowner,
a legislative policy common to other countries.2 An American court
quotes with approval the words of an eminent jurist: " The owner of
one rood of land may stand in the way of any private enterprise,
however much the general utility may be thereby hindered, and
no human power in a free country where the principles of Magna
Charta prevail in their full force can compel him to budge one step." s
Under such exaggerated judicial views of private right it has, in
a number of instances, been necessary to obtain a change in the con-
stitution in order to carry out a legitimate legislative policy, and in
the matter of corporate privileges and exemptions the Supreme
Court of the United States has found it advisable to modify more and
more the view of the contractual obligation of the charter which
in the beginning it proclaimed in too unqualified terms.

Judging from past experience, then, ;the net gain resulting to
American jurisprudence from the judicial enforcement of vested
rights is slight; and if it should be urged that we must take into
account the vicious legislation that the expectation of judicial control
has forestalled, the answer must be that if this effect could be proved,
it would not constitute a net gain, but simply the prevention of a loss
due to defects from which other systems appear to be free.

The two other rights named in the Fourteenth Amendment are the
right of individual liberty and the right to the equal protection of
the laws. In a constantly growing number of cases the right of
individual liberty is being interpreted to mean a right to contract
free from legislative restraint, while the equal protection of the laws
is held to prohibit legislation singling out a class though not other-
wise violating its fundamental rights. Upon one or the other of

1 Compare Westervelt v. Gregg, 12 N. Y. 202, with McNeer v. McNeer, 142 111.
388.

2 Palairet's Appeal, 67 Pa. St. 479.

8 New England Trout, etc., Club v. Mather, 68 Vt. 338. The words are Judge
Redfield's. '

JURISPRUDENCE AND LEGISLATION 627

these two principles, or upon both, a considerable mass of economic
and social legislation has been declared unconstitutional.

While, as has been before observed, the respect of vested rights
is an universal principle of law controlling every system of juris-
prudence, this is not true of the two principles last named. Both
the civil and the common law rest upon freedom of contract, and
the systems of legislation based upon them recognize this freedom as
a fundamental rule of policy. As a policy, however, it is subject to
legislative control and not, like a rule of law, binding upon the
legislature. In modern systems of law equality holds exactly the
same place.

Has American jurisprudence changed these rules of policy into
binding rules of law? and if so are they proclaimed as fundamental
rules of justice or merely as principles demanded by, because con-
formable to, the American type of government and of society ?

Decisions have undoubtedly been rendered in considerable number,
declaring unconstitutional, as violating the rights of liberty or of
equality, or both, certain statutes of a social or an economic char-
acter; some, perhaps the majority of them, dealing with the employ-
ment of labor, others with a great variety of other forms of business,
and the courts have been emphatic in asserting that the consti-
tutions guarantee a certain sphere of freedom of contract and of
business and prohibit unwarranted discrimination.

But does such assertion amount to the laying down of a positive
principle? What does it mean, to say that the fundamental law
secures a certain amount of liberty, if it is not said how much, or
that it forbids unjust discrimination, if the injustice is not denned?
It is the merest commonplace that some restraint of liberty of con-
tract and business, some discrimination, is not merely valid, but
essential to the interests of society. Can the fundamental law be
satisfied with the proclamation of rights of absolutely indeterminate
content, directly contrary to other recognized principles, or is not
limitation and definition of some sort absolutely essential to an
intelligible rule of law? The courts have given us criticism, denun-
ciation, and condemnation, but no positive guidance. The course
of adjudication is marked by divided jurisdictions and divided
courts, resulting in a lamentable uncertainty as to the limits of
legislative power.

Ill

Yet the position taken by the courts is not merely acquiesced in,
but regarded as indispensable, and, on the whole, beneficent. For
this judicial censorship is not only justified, but made necessary,
by prevailing legislative conditions. It would be untrue to say that

628 PRIVATE LAW

all of the legislation that has been declared unconstitutional has been
vicious or oppressive, and none of it has been absolutely arbitrary
or unreasonable; but most of it has been of doubtful wisdom or
expediency, and probably all of it had inflicted or threatened to
inflict serious injury on legitimate interests. And it is probably true
that, in the great majority of cases, those interests received their
first hearing under forms giving some assurance of impartial and
adequate consideration in the courts of justice. The explanation,
although not the juristic theory, of this phase of judicial control, is
that a corrective is needed against methods of legislation affording
no guaranty of justice.

These methods — if we should not rather speak of lack of methods
— are perhaps the natural result of leaving the entire work of legis-
lation to a large body constituted primarily for purposes of policy
and not of justice. Parliamentary legislation in England until
recent times was marked by the faults which we have inherited:
spasmodic and unrelated measures not uncommonly induced by
some striking case revealing the injustice or defect of the existing
law, or by the pressure of special interests; no definite responsibility
for the introduction of bills; no thorough preliminary investigation
of the conditions to be remedied; no adequate public discussion of
the terms of a proposed measure; and involved if not faulty phrase-
ology of statutes. In England these conditions have been practi-
cally superseded, because none but government measures have any
chance of passing and because the government is at present aided
by the honest labors of parliamentary commissions of inquiry and
by the skill and experience of expert draftsmen.1 In most of the
American states the defects that have been pointed out continue
practically unchanged; in others the improvement has been only
slight.

The natural consequence of the faults described has been a marked
inferiority of statutory legislation, and, owing to this, a peculiar
attitude of impatience and disrespect toward it on the part of the
courts and of the profession, so that it is almost regarded as a dis-
turbing factor in the otherwise well -coordinated structure of the
common law. If in this country we are slow in remedying this
condition of things, it is partly because of the intrinsic difficulty of
reform and of the technical nature of the evils to be cured; partly
because in former times other and more pressing problems concerning
legislation engrossed the public attention. The use of the legislative
machinery for partisan political purposes, and the necessity of
legislative action for the grant of franchises, added fraud and cor-

1 On the history and present methods of drafting statutes in England, see
Frederick Clifford, History of Private Bill Legislation, 2 vols., London, 1885-87;
and Sir Courtenay Ilbcrt, Legislative Methods and Forms, Oxford, 1901.

JURISPRUDENCE AND LEGISLATION 629

ruption to inefficiency and carelessness, and led to the manifold
restraints on legislative powers and methods which are character-
istic of the constitutions and constitutional amendments of the second
half of the nineteenth century. The various improvements in meth-
ods of legislation had for their object to advise legislators of the pur-
pose and content of measures, and to make more difficult the adoption
of bills without any consideration in the closing days of the sessions;
none sought to secure responsibility for initiation, notice, and hearing
to the interests affected (except, in some states, in case of local
legislation) or the requisite legal skill in the drafting of acts; for
the defects concerning these points did not sufficiently impress the
public mind, and the legal profession did not seem to feel that its
interests required their removal.

Nearly every one of our constitutional provisions owes its existence
to concrete and definite experiences of either the American or the
English people in the matter of government. It is well known that
the Fourteenth Amendment was enacted to deal with the specific
problem of the protection of the Negro. When the due process
clauses in the earlier constitutions were formulated, the interference
of the police power with economic interests had not aroused any
noticeable discussion or protest. Historically it is indisputable that
these fundamental clauses were not designed to impose upon the
American system of government hard and fast doctrines of economic
liberty as principles of constitutional law.

But when with the increasing complexity of the social and indus-
trial structure of the state the functions of government began to
expand, when a demand arose for the satisfaction of novel concep-
tions of public welfare, and the interests of the economically weaker
classes came to be identified with the public interest, it was inevit-
able that those who were prejudicially affected by this extension
of state power should refuse to regard the frequently crude enact-
ments of a discredited legislative department as final and conclusive.
The traditional judicial attitude toward legislation, coupled with
the firmly established power of controlling the validity of statutes,
made it equally inevitable that the courts should entertain appeals
to this power, and that they should seize upon the fundamental
guaranties of the constitution as forbidding legislation which injured
valuable interests without any assurance of careful consideration,
where such legislation seemed to them needless or oppressive or
contrary to earlier American conceptions of the sphere of govern-
ment. Hence, the long array of decisions which within the last
generation has thrown the law of the police power into confusion and
uncertainty.

There are a number of undeniable objections to this method of
correcting evils of legislation by judicial action: In the first place,

630 PRIVATE LAW

the judicial methods of reexamining the justice of legislation are
in their turn far from satisfactory. It is true that the two adverse
interests are represented by counsel, and the courts are supposed
to decide according to the preponderance of evidence and of rea-
soning; but the facts are not like those in an ordinary lawsuit,
since they cover a wide range of social and economic phenomena
and experiences, for the ascertainment and estimate of which the
machinery of the courts is quite unsuited; the arguments employed
by the courts for condemning a policy are in many cases hardly
less crude than those that may have moved the legislature in adopt-
ing it.

In the second place, judicial relief places the courts in an attitude
of antagonism to the legislature which under any system of govern-
ment, but especially in a democracy, is unfortunate. The courts in
enforcing theories of economic liberty and equality after all pass
upon questions of policy and not upon questions of law. This
function finds no precedent in other countries and it is novel even in
this; it remains to be seen whether the courts can long continue
to exercise it without suffering in reputation for impartiality, and
thereby in popular confidence.

Finally, the exercise of judicial control is not prompt or certain.
It is left entirely to private initiative to attack unconstitutional
legislation. While ordinarily the interests of the parties adversely
affected by the legislation will lead to timely action, instances are
not wanting where years and even decades passed before a statute
was declared unconstitutional. It is obvious that, for example, in
the matter of the validity of acts authorizing municipal bond issues,
every consideration of justice and good faith requires that the con-
stitutionality of an enabling act should be settled before and not
after the bonds are issued.

Notwithstanding these objections, the principle of judicial con-
trol of legislation is so firmly intrenched in our whole constitutional
system that it is not apt to be dislodged, nor does it show any signs
of weakening. There are even some tendencies apparently running
counter to it that will ultimately work in its favor. It has repeat-
edly happened that a decision denying the exercise of some judicial
power was followed by a constitutional amendment granting the
power denied.1 In extreme cases these enabling clauses will them-
selves be invalid under the Fourteenth Amendment, but even as
valid grants of power they are as to scope and content subject to
the interpretation of the courts. A number of large and positive
policies defined in the constitutions will be preferable to the wholly

1 Eight-hour law for miners; Re Morgan, 26 Colo. 415; constitutional amend-
ment, 1902. Indeterminate sentence law; People v. Cummings, 88 Mich. 249;
constitutional amendment, 1902. Conditions of employment by public con-
tractors, People v. Coler, 166 N. Y. 1; constitutional amendment, 1905.

JURISPRUDENCE AND LEGISLATION 631

vague restrictive and negative principle of liberty and equality.
Under a considerable number of such enabling clauses our system
would somewhat resemble those parts of the European public law
in which the legislature contents itself with indicating in large out-
line the principle of state control, leaving the administration to
adopt measures within that principle. This allows a strong judicial
control of governmental action, combining permanency of principle
with flexibility of detail. The parallel becomes closer when we
consider that it is easier to procure a constitutional amendment in
some of our states than an important change of legislative policy
in the great European countries.

The continued exercise of judicial control will, to a certain extent,
carry its own remedy. True, one of its effects has been, and will
continue to be, to weaken the sense of constitutional restraint on
the part of the legislature, which will give itself the benefit of the
doubt where the question of validity is controverted, and hold itself
relieved from moral responsibility if a measure is sanctioned by the
courts. But, on the other hand, where the legislature is sincerely
anxious to carry into effect some policy, the expectation of judicial
control will induce it to be scrupulous about observing constitutional
limitations.

Exhaustive inquiry into the conditions to be regulated, impartial
consideration of all interests concerned, and skilled and careful
draftsmanship are equally indispensable requirements to produce
legislation that is to avoid both inefficiency and injustice. In Eng-
land, France, and Germany the observance of these conditions is
made possible by the fact that the respective governments introduce
all important bills, that they have the greatest facilities for ascer-
taining the facts underlying the proposed measure, and that they
command the services of highly-qualified officials acting as draftsmen.
These conditions cannot be easily reproduced in a country in which
the government has no initiative in legislation, and in which it is
often very difficult to place the responsibility for the framing and
the introduction of a measure. In recent years a few states have
made provision for officials who are to aid in the drafting of bills,1
and for the systematic collection of information regarding legisla-
tion and legislative problems,2 and a great deal of valuable statis-
tical work is done by official bureaus in the states and in Washington.
It is to be hoped that these efforts in the direction of improving

1 Laws of New York, 1901, ch. 88. Connecticut General Statutes, 1902, sec.
37. See New York State Library Review of Legislation, 1903, 2-4. South Caro-
lina Code, 1902, sec. 21.

2 New York State Library Year-Book of Legislation. Legislative Reference
Department of the Wisconsin Free Library Commission. See Review of Reviews,
December, 1905.

632 PRIVATE LAW

and harmonizing methods of legislation will, in the near future,
be further extended and especially that they will receive the active
support of legislative bodies.

IV

For the purposes of the relation between jurisprudence and
legislation statutes may be divided into two great groups, those
which deal with ordinary civil relations (rights of property, trans-
fer, contract, debt, agency, suretyship, wills and estates of deced-
ents, etc.) or with questions of procedure and practice, and those
which fall mainly under the general heads of administration, police,
and revenue.

In the framing of statutes of the first group, purely legal consid-
erations have generally been controlling, and, on the whole, that
legislation has been in substance as well as in form the work of pro-
fessional jurists.

In the framing of measures of the second group, on the other
hand, the attention of law-makers is centered on political, social,
and economic interests, and desired improvements call above all for
a careful, intelligent, and impartial consideration of facts not pri-
marily legal. The wisdom and justice of this legislation is a question
of economics or politics, or of the technicalities of trade and industry,
and not of jurisprudence, and if our courts could be assured that
the statutes brought before them embodied the matured conclusions
of those departments of learning and thought, they would probably
be less inclined to make the economic and social justification of a
measure a question of constitutional law. Neither the determina-
tion of the sphere of economic liberty nor the propriety of classi-
fication for legislative purposes belongs, properly speaking, to the
province of jurisprudence.

The following are, on the other hand, questions of law which enter
into nearly every piece of social and economic legislation: the respect
for vested rights; the avoidance of retroactive operation, together
with the legitimate and valid exceptions from this principle; the
extent of permissible delegation of the details of measures to ad-
ministrative authorities, and the power to relieve from the operation
of a measure in particular cases; to what extent powers of obtaining
information and powers of enforcement should be granted and
which of these powers should be withheld, with a view on the one
hand to securing compliance and preventing evasion, on the other
to avoiding injury to legitimate interests and obviating a misuse
of official powers; the question whether the process of enforcement
shall go through the courts, and whether it is safe and permissible to
provide for summary administrative powers; the question what civil

JURISPRUDENCE AND LEGISLATION 633

rights of action should be granted both on behalf of the government
and on behalf of the individual.

Under our system of constitutional limitations nearly all these
questions have become judicially cognizable as bearing on the
validity of statutes, and a considerable amount of legal literature
has grown up in which the principles in question are discussed. In
England legal treatises discuss only questions of statutory construc-
tion, because only these can come before the courts, and although
Parliament acknowledges limitations of a constitutional character,
these are not considered in law-books because they are not judicially
enforceable. This is characteristic as showing that legal literature
and therefore legal science, appealing as it does exclusively to the legal
profession, confines itself to producing material which is available
primarily for the administration of justice and only incidentally for
legislation. The instructive material which law-books contain for
legislative purposes is rarely formulated in such a way that the lesson
which it points is plainly put as a rule of statutory draftsmanship;
and errors are, therefore, of constant occurrence which the most
elementary law-book for the drafting of statutes ought to guard
against.

Legal science ought, however, to do a great deal more for legis-
lation than present material already digested in a more convenient
form.

Our legal literature is deficient in two branches of information
which the courts use only occasionally, but which are of infinite
importance to the legislator: the history of statutory legislation,
and the history of the operation of statutes, showing what success
or failure a given piece of legislation has met with in its practical
application.

The history of legislation should show two things: In the first
place, the changes through which a statute has gone, both in its
original course through the legislature and in its subsequent amend-
ments, the statutory or common law which it superseded, and earlier
statutes dealing with the same problem; in the second place the
motives or reasons which brought about each particular provision,
both in the legislature and out of it.

The formal history of statutes is matter of record, and for a few
branches of legislation the material has been brought together;
there are many other branches in which very little, if anything, has
been done. If we compare the degree of perfection with which
judicial decisions have been digested, the contrast is striking. The
need for a similar digesting of statutory legislation is public rather
than professional, and it is not to be expected that the work will be
systematically undertaken through the regular channels of profes-
sional publication.

634 PRIVATE LAW

The other part of the history of legislation will, to a great extent,
be always unknown. For the vast majority of the acts on the
statute-books of our states, the reasons or considerations inducing
their adoption have not been formulated. There has often been no
discussion in the legislature whatever, or if there has been, only
incomplete accounts of the debates have been preserved in the daily
press. It is otherwise with regard to the more important legislation
of Congress and, in a number of states, with regard to the enact-
ment of constitutions. In some branches of administrative legisla-
tion there are comments and recommendations of official authorities,
and revisers' notes furnish for a few states valuable material. The
whole amount of this source material is poor as compared with what
the official publications of England, France, and Germany afford.
A great amount of information for legislative history is scattered
through the law reports, in cases construing statutes and pointing
out defects, which led to appropriate amendments. But the current
digests pay no particular attention to this feature of the law reports,
and the information is therefore not in a readily available form
and has not to any considerable extent been utilized.

As for the history of operation of statutes, there has never been
any systematic observation of the working of the laws of persons,
property, or contracts. Excepting the subjects of bankruptcy,
divorce, and to some extent of personal injuries, there are no civil
judicial statistics, still less, of course, any information regarding the
legal relations that do not reach the courts. In codifying the Ger-
man civil code, use was made of data collected by the government
regarding the prevalence of certain forms of marital contracts and
testamentary dispositions; nothing of this kind would be available
in the United States. The Census Bureau in Washington would be
the only organization in this country to gather information" of this
kind, and there is no present prospect of its undertaking so far-
reaching and difficult a work. Nor is there any near prospect that
our states will undertake the collection of judicial statistics. Gen-
eral impressions instead of exact and systematic observations will,
for a long time to come, be the basis upon which the policy of our
civil legislation will be built, and there is no promise of any radical
advance of jurisprudence in this respect.

With regard to revenue and police legislation, however, the out-
look is much more hopeful. A considerable amount of information
is even now available in the official reports of the authorities charged
with the administration of the various acts, which naturally deal
to a considerable extent with the administrative and judicial aspects
of legislation. With the multiplication of controlling and regulating
boards, more and more light will be thrown upon the operation of
principles of constitutional and administrative law.

JURISPRUDENCE AND LEGISLATION 635

All this material ought to be collated and digested in the same
manner as is now done with judicial decisions, and the result should
be the construction of a body of principles of legislation to supple-
ment the existing body of principles of law. Both in its material
and in its method this branch of legal science must differ consid-
erably from the judicial jurisprudence with which we are most
familiar; but it is a department of our science equally legitimate
and valuable, and destined to grow in importance with the increas-
ing legislative activity of the modern state.

THE DOCTRINE OF STARE DECISIS

BY EDWARD B. WHITNEY

[Edward B. Whitney, Lawyer, New York. b. New Haven, Connecticut, August
16, 1857. A.B. Yale University, 1878. Assistant Attorney-General of the
United States, 1893-97. Author of many contributions to reviews; and
has addressed associations on legal and particularly constitutional questions.]

I AM requested to present a paper whose theme is suggested by
the Present Problems of Private Law, as distinguished from law
that has a constitutional or international aspect. I doubt whether
there is any other section of the Congress whose themes are so
difficult to select. We cover, indeed, those branches that mainly
concern the ordinary, plain, steady-going, stay-at-home, law-abiding
citizen, — that multitude of questions among which most legal prac-
titioners everywhere are wearing out their lives, working every day
and all day upon Present Problems of Private Law. Each of those
problems interests the parties to the particular litigation or negotia-
tion or dispute or difficulty which brings it up. Some interest even
the lawyers to whom they are presented. Few interest anybody
else; and even among these few but a small minority possess such
world-wide interest that they are worthy of the consideration of a
Congress representing all the civilized nations of the globe.

Furthermore, this is not an International Congress of Lawyers.
There is such a Congress; but it is a different one, and does not meet
until next week. This is a Congress of Arts and Science ; and of
all the Present Problems of Private Law none is so difficult as to
give to any portion of private law, as known at least to the Ameri-
can practitioner, the semblance either of a science or of an art.

Science, as I understand it, is a search after absolute truth,1 — after
something which when once ascertained is of equal interest to all
thinkers of all nations. No matter how wise and learned and famous
a person may have said that a thing is so in the realm of science, it
remains open to anybody to prove that it is not so; and if it is
proved to be not so, the authority of the wise and learned and famous
person disappears like a morning mist. In science, what we are really
.seeking is not the opinion or the command of any human being.
We are subject to no command, and are not bound to follow any
previously expressed opinion. But when a lawyer is trying to find
out what is the law upon any particular point, in order to advise his
client, he first inquires whether a collection of men exercising legis-
lative functions and having jurisdiction in the premises have com-
manded anything upon the subject; and if they have, he has nothing
to do but to interpret, if he can, the usually vague and unscientific

THE DOCTRINE OF STARE DECISIS 637

language in which their command has been couched. If he cannot
find any such command among the books of statutes and ordin-
ances — in other words, if the subject has not been legislated upon —
then usually under present conditions the American lawyer's task is
not to ascertain by what rules human beings should be governed
in the absence of legislation, but by what rules certain persons of
authority have in the past said that they should be governed; the
authority of these persons not arising from any transcendent wis-
dom or learning of their own, but mainly from the fact that they
had been theretofore elected or appointed to a certain public office.

Nor is it easy to consider any theme suggested by Present Pro-
blems of Private Law in the light of an art. The presentation of any
given case to a judicial tribunal involves the knowledge and appli-
cation of art as well as of science. If literature and rhetoric are
arts, and psychology is a science, there is high art in presenting the
facts of the case and the true application of the law thereto, in such
a/ blaze of light that they will remain indelible in memory. There
is still higher art in so presenting them that something other than
the truth may thus reach the judicial mind; for in the practice of
the law the highest degree of artistic skill is to conceal the truth,
not to exhibit it. But in the body of the law itself, as known in
America at least, as it is developed out of the work of legislative
committees or litigating counsel and is verified by the signature of
governors or presidents, or enunciated by judges, the artistic ele-
ment is rarely to be found.

Among the problems common to the whole world which have
been bequeathed to us by forces peculiar to the century just closed,
probably those will first come to mind which are the result of eco-
nomic progress; changes desirable in the law of corporations, in the
law regulating the relations of capital and labor, and in the law of
transportation. These, however, belong more to the realm of soci-
ology and political economy than to that of law. We can advise the
experts of those sections as to what the old law is, what changes
can be made in any given state or country without violating its
particular constitution, how its constitution can be changed if a
change be desirable, and in what verbiage the desired changes should
be couched, so that they may be effective; but as to what the
substance of the changes should be, this section of the Congress is
not the one most appropriate for a discussion.

Other problems arise from the close communion into which the
various peoples of the earth have been brought by the quickening
and cheapening of transportation, mixing them together by inter-
migration, by intermarriage, by foreign stockholdership, bondholder-
ship, and other property ownership, and in so many other ways,
But these problems, as practical problems of the present generation.

638 PRIVATE LAW

belong rather to the section of Private International Law than to
ours.

I believe, however, that there is one problem brought daily to the
attention of the practicing American lawyer, which, while of ancient
origin, is now fast coming to the acute stage, and to the verge of
radical treatment, which belongs peculiarly to the law itself, without
any adverse claim on behalf of the professors of ethics or sociology
or political science. I refer to the problem as to how the law itself
should be authoritatively declared and evidenced.

It is a familiar fact that in every English-speaking community
the body of the law is divided into two portions: first, the so-called
judge-made law, which is to be found in records and reports of the
decisions and sayings of judicial officers; and second, the statute
law, which consists of enactments by parliaments, congresses, or
legislatures, together with executive regulations and municipal
ordinances adopted under powers lawfully delegated by legislative
authority. According to the theory of English jurisprudence, the
so-called judge-made law was not made by the judges at all, but
existed, although not written, as the ancient and general custom of
the English-speaking people, and in the shape of ethical rules which
they had tacitly recognized and adopted; but the authoritative
evidence of such a custom was the decision of a court, and by the
doctrine of stare decisis such a decision when once made became
conclusive evidence, — conclusive within the territorial jurisdiction
of the court until overruled by some higher tribunal, — conclusively
establishing the existence of some rule which thereafter could not
be changed except by legislative enactment.

This judge-made law has been called by its admirers the perfection
of human reason; and theoretically there is no other method equally
efficacious of finding out what is the true rule of law applicable to
any given state of things. It may be well to analyze the theory
of judge-made law and recall to mind the reason why it is theoret-
ically superior to the work of the wisest legal philosopher, in order
that we may realize more clearly why the theory is becoming less
and less justified by the practical results, and why, as a result to
some extent of the rapid growth of the English-speaking world in
the nineteenth century and of the rapidly increasing complexity
of our civilization, and to some extent of mere lapse of time, it is weak-
ening and showing signs of an early breakdown unless at least some
radical remedy is adopted.

The theory of judge-made law, the theory underlying the system
by which the decision of a court in a litigated case becomes the
highest evidence and conclusive evidence of the existence of a pre-
viously unwritten rule of law, involves in the first place the assump-
tion that the case is a genuine controversy, involving two or more

THE DOCTRINE OF STARE DECISIS 639

parties litigant, each determined to use every effort to win. It
involves the assumption that each of these parties litigant is repre-
sented by counsel learned in the law, skilled in its exposition, and
having, through compensation, or the hope of it, or charity, or that
love of a fight which is inherent in the human race, sufficient inter-
est in the outcome of the litigation to call forth their best efforts. It
involves the assumption that these counsel have familiarized them-
selves with the statutes, the judicial precedents, and the general
principles of law, public policy, and ethics which are applicable to the
controversy, and that each has reduced his view of the case to clear
and logical form. It involves the assumption that they come before
an able, experienced, and impartial judge or bench of judges. It
involves the assumption that each judge listens to each side until
the case has received all of the oral argument which it properly
requires, elucidating by questions any matter that may have been
left obscure or in ellipsis by counsel. It involves the assumption
that each judge is already familiar with the previous statutes and
judicial precedents that are applicable to the case, or else that during
the course of the argument, or by subsequent examination of the
books, he familiarizes himself therewith. When these assumptions
are all warranted by the actual facts, it is evident that after counsel
have exhausted all possible effort to present the various points of
view, and the judge has supplemented their work by means of his
own experience and independent research, and especially if he be
sitting in the highest appellate tribunal, with the benefit of the
repeated reexamination and sifting of argument in the courts below,
and of the light inevitably thrown upon a litigation which has been
pending during a long series of years by reasonings and analogies
such as are sure to come from time to time to the attention of counsel
whose minds have become impregnated with the case, or to be con-
tributed as fresh minds take it up upon the substitution of one coun-
sel for another, then the judge is better equipped to declare the cor-
rect application of established principles to the particular case before
him, and better equipped to apply general reasonings and analogies
to a case of new impression, than can be any closet student. The
different method and the different point of view of the legal text-
writer or philosopher are indeed invaluable in contributing to the
elucidation of unsettled problems; but, from the necessary limita-
tions of the human mind, no legal reasoning can be regarded as
having passed the final test until it has been subjected to the prac-
tical analysis of an actual litigation.

The judge having thus made his decision, he very commonly
states orally or in the form of a written opinion his reasons therefor.
It is assumed that if this decision is preserved at all, and is brought
up for future use as a precedent, the facts before the court and the

640 PRIVATE LAW

process of reasoning by which the result was reached are accurately
known. It is assumed either that they are accurately reported in
some book or periodical, or that they have been completely incor-
porated in the record of the case. The precise point decided by the
judge is thereafter in theory recognized as a part of the general body
of the law of the state, colony, or nation whose judicial officer he
is. Theoretically it remains conclusive evidence until overruled or
repealed, or unless it is found to be in conflict with another decision
of equal authority, in which case, with the benefit of all the work
done in the two litigations represented by the conflicting decisions,
the question is submitted to a further and final test whenever it may
again arise. The reasoning in the opinion of the court is not con-
clusive evidence of the law except so far as it is necessary to the
precise point decided, because so far as it is not thus necessary the
judge is not presumed to have had the full benefit of the research
and arguments of counsel, or to have given to his own reasoning and
use of language the same degree of attention. His unnecessary
reasoning, therefore, receives in the English law and American
courts the same weight only which is awarded to all judicial deci-
sions in other systems of law if I correctly understand them;
namely, that which belongs to the opinion of an able and learned
professor or textwriter, which is to be considered with care and
respect, but not necessarily to be followed. Hence, the so-called
syllabus or abstract prefixed to every modern printed report of a
judicial decision when properly drawn up is very often composed
of two parts: first, a statement of the precise point decided, with so
much of the facts and reasoning, and so much only, as is necessary
to make clear that decision; and second, propositions laid down, as
we say, obiter, which might have been omitted without creating an
ellipsis in the train of argument by which the actual result of the
case was reached.

This is the theory which causes the English or American lawyer
to give greater weight to an appellate decision delivered by Lord
Mansfield after argument by such counsel as Dunning and Law,
to one delivered by John Marshall after argument by Webster and
Wheaton or Pinkney, than to the work of any philosopher; why
he would give comparatively little weight to any reasoning of
Mansfield or Marshall himself in a case that went by default, or
where the reasoning was unnecessary to the decision; and why he
has grown up and lives with the belief that his Continental brother
is deprived of the most valuable instrument for the attainment of
perfection.

It is evident that there was always some danger of defective
application of the theory of judge-made law to the circumstances of
the particular case; a little danger of the submission of a collusive

THE DOCTRIN.E OF STARE DECISIS 641

controversy, and a serious danger that the counsel might be incom-
petent or careless, the judge mediocre or wanting experience, the
argument or submission of the case insufficient, the court's opinion
obscurely or defectively expressed, the decision inaccurately reported.
There was also the danger arising from the proverbial fact that
hard cases make bad law, so that a doctrine occasionally becomes
established because it did equity between the parties whose dispute
first suggested its consideration, although in nine cases out of ten
thereafter its application may be practically oppressive as well as
theoretically indefensible. During some generations of lawyers and
judges, however, the practical results approached the theoretical
standard to a degree which could hardly perhaps have been expected,
so nearly that the theoretical perfection of " case law " was almost
a fetich with the legal profession, and that an overwhelming majority
of the profession is still determinedly opposed to any change.

Yet I believe not only that the doctrine of stare decisis, unless
some entirely novel and radical legislation can be devised to save it,
must disappear through the inevitable course of human progress —
and progress does not always lead from a worse to a better system —
but that its hold, in the more crowded federal and state courts at
least, has already to a considerable extent been weakened. It is
increasingly common to hear active and successful practitioners
in those tribunals say that they find less attention given now to
precedent than formerly; that when a litigation comes before a
court of last resort which perceives or thinks that it perceives the
right to be on one side, they find an increasing tendency to disre-
gard, or to distinguish upon some trivial ground, any precedent to
the contrary ; that they find less and less discrimination between
general statements of law contained in a former judicial opinion and
the actual point that was decided; in other words, between what
may have been obiter in the opinion and what was really settled
thereby; that they find increasing weight attributed to general
statements of the law in text-books and encyclopedias, even in works
fresh from the press, photographs of whose authors, were they
exhibited to the court, might suggest the very recent law school
graduate. These things are generally spoken of among lawyers
by way of complaint, as if we were living in a temporary era of
carelessness, due to an overcrowding of the court calendars, or to
an imperfect manner of selecting the judges, or to a slovenly habit
of presenting cases to the court, which should and will be corrected
in the future. I think, however, that the change is not temporary
but permanent; that it is the effect of forces which are permanent
and beyond human control; that while these forces may not be very
appreciably operative as yet in certain states, they are beginning to
modify conditions everywhere, and in the larger states are modify-

642 PRIVATE LAW

ing them with a rapidity that will soon receive universal recog-
nition.

A change very commonly noticed is that caused by the enormous
multiplication of printed reports. At the beginning of the nine-
teenth century but an armful of judicial reports had been printed
in the English language outside of England itself. For a long
time subsequent, the cases of authority upon any given point were
still so few that court and counsel could thoroughly familiarize
themselves with every one of them, while a really considerable pro-
portion of the law likely to come up in court was embodied in cases
whose names were commonly known to all members of the profes-
sion with any pretensions to learning. About a hundred years ago
each of the states of the Union then admitted had begun to produce
a series of reports of at least the decisions of its highest court.
During the nineteenth century the number of states of the American
Union increased from sixteen to forty-five. Reports were also
being issued in the territories and in a large number of the British
colonies. Some of the individual states of the Union, moreover,
as well as England and the United States, were producing reports of
their inferior tribunals.

It is, indeed, not necessary for the practitioner, in order to ascer-
tain all the law which is theoretically binding upon his client, to
examine any reports outside of those of his own jurisdiction; but
it is unsafe for him to stop there unless the statutes or reports in
his own jurisdiction are absolutely in point and controlling. Even
in England American precedents are continually cited and dis-
cussed; and in most of the United States, decisions of England and
of other states, as well as those of the federal courts, are given
great weight, while those of the British North American provinces
are not entirely neglected. In the larger states like New York, as
in England, the use of reports outside the jurisdiction is less com-
mon; but that is only on account of the enormous multiplication
of reported decisions within the jurisdiction, so that to master the
home decisions alone upon any given point is a harder task than it
was to master all decisions at the time when the glory of judge-
made law was at its zenith. Twenty-five years ago it was not
unusual for the New York lawyer to keep in his library not only a
substantially complete set of the reports of his own state and of
the federal courts, but also a large selection from those of England
as well as of some of the other American states. The private law
library since then has been rapidly contracting in scope, while not
diminishing in size. Even the largest offices are driven more and
more to depend upon the great public or association libraries for
the complete preparation of their work, which means a decrease
of efficiency where the libraries are within the lawyer's reach, and

THE DOCTRINE OF STARE DECISIS 643

a greater decrease of efficiency where they are not. Even the keeping
up of a set of reports of the various courts of a large state and of
the United States is becoming an expense to be seriously considered
in a city, not only in the original cost of the books but in the matter
of office rent. Convenient for comparison is the year 1880, when the
Federal Reporter, the present compilation of current decisions of
the inferior federal courts, began. At that time, less than
twenty-five years ago, the decisions of the United States Supreme
Court could all be purchased in 64 volumes, and the decisions of
the lower federal courts up to the same date, both reported and
unreported, have since been collected in a series of 30 volumes.
But the decisions of the United States Supreme Court since that
date fill 94 volumes, while volume 131 of the Federal Reporter is
already well under way. The regular series of reports of the
appellate tribunals of New York State and of the old chancery
courts prior to the same date were contained in 368 volumes, while
since then 272 additional volumes have been already issued. In
1880 the regular series of the federal and New York state decis-
ions required only seventy-three feet of shelf-room. Now they
already fill ninety-five feet additional; and this is exclusive of the
various series of unofficial reports of decisions, which partly dupli-
cate and partly supplement the series above referred to, and of the
various collections made up mainly of the decisions of the courts of
first instance, of the cases elsewhere unreported or reported in
abbreviated form, and of annotated cases, such as Howard's series
in 69 volumes, Abbott's series in 66 volumes, the New York State
Reporter in 123 volumes and still continuing, and the so-called
Miscellaneous Reports in 43 volumes, a series commencing within
the past twelve years and still continuing, this last series being of
an official character and inflicted upon us by the state itself. All
of these, and others which I have not named, must be continually
consulted, and the lawyer is also being confronted continually with
decisions cited from daily, weekly, or monthly periodicals, and
occasionally with certified copies of opinions altogether unreported.
The president of the American Bar Association in 1902, in his
annual address to the association, stated that the law reports of the
then past year contained 262,000 pages, and estimated that a man
by reading 100 pages a day might go through them in eight years;
by which time there would be new reports on hand sufficient to
occupy him for fifty-six years more. A single tribunal recently
established in the state of New York, and sitting in four different
sections, the so-called Appellate Division of the Supreme Court,
which held its first session in the month of January, 1896, has
already published 95 volumes of officially reported decisions, besides
writing a large number of opinions which are to be found in un-

644 PRIVATE LAW

official reports; and, as it is the highest tribunal in the state after
the Court of Appeals, no lawyer pretending to any degree of effi-
ciency in his office organization can afford to be without them. At
the rate of progress which was kept up during the past year, volume
500 of these reports will be reached in the year 1941. By that year
at latest the lawyer will see volume 329 of the present series of
reports of the highest court of New York, volume 381 of those of
the Supreme Court of the United States, and volume 431 of the
reports of the lower federal courts; and other states will go the
same way, in varying degree. When that day shall come, will
human wealth and human patience be able to bear the burden
longer?

Up to the present sime the natural effects of this tropical torrent
have been mitigated by the increased efficiency of the digester, but
his work also is now voluminous. An anuual digest of English
and American decisions is now published. Those of the last year
occupy, though in the briefest abstract, nearly 5000 double column
pages.

The first obvious consequence of this unintermittent flow of
reported opinions is that to handle a case properly, according to
the ideas of the people who established the fame of judge-made
law, requires each year a greater amount of time than it required
before. Every additional opinion that bears or may possibly bear
upon the case at bar must be read; and to read it involves the
expenditure of an appreciable amount of time. The argument and
decision of any still unsettled question, or question claimed to be
unsettled, thus involves an enormously greater expenditure of time
at four different points — in the preliminary preparation by counsel,
in the oral argument, in the court's subsequent examination of the
previous authorities preliminary to the decision, and in their discus-
sion (when, as often, they are discussed) in the opinion which is
subsequently formulated, so as to serve as future evidence of the
law.

Now, on the contrary, instead of expending more time, all parties
expend less. The preliminary examination of the authorities, when
the case is in the hands of leading and distinguished counsel, cannot
be done by them personally. If they had to do it, they could no
longer accept enough business to support their families. As a
general rule, even in cases of great pecuniary importance, they can
carefully examine only a small proportion of the authorities, and
must rely upon information derived from their law clerks or junior
counsel in selecting what to read. In other cases they may not be
able to read any authorities at all, nor to do any independent think-
ing, but take reason and precedent alike at 'second hand from
others.

THE DOCTRINE OF STARE DECISIS 645

At the stage of oral argument, the old custom of allowing all the
time necessary for the proper elucidation of the particular case in
hand has become obsolete. It has been supplanted by rules putting
an arbitrary time-limit upon argument, irrespective of the case; and
while it is in the discretion of the court to extend the time, this is
ordinarily done only in cases of the greatest immediate importance,
although the others may turn out to be the cases of the greatest
ultimate importance in determining the future course of development
of the law. The highest courts indeed, like the Supreme Court of
the United States and the Court of Appeals of the State of New
York, allow sufficient time to cover ordinarily a sufficient statement
of the facts of the case and, if it be a comparatively simple one, a
fairly satisfactory outline of the arguments; but it is so impossible
any longer within any practicable time-limit to discuss the authorities
as they used to be discussed within the professional experience of
men still living, that except under exceptional circumstances experi-
enced lawyers do not discuss authorities at all, but submit them to
the court in printed briefs. Moreover, even in the court last men-
tioned, the present liberal time-limit applies only to one class of
appeals. Other appeals, including probably the majority of those
which will be important in the future, are given a hearing so short
as to be commonly inadequate to all purposes. In the lower appellate
courts the nominal time-limit is apt to be still shorter, while in actual
practice some courts feel forced to discourage all oral argument
whatever and practically deprive themselves of the benefit of the
opportunity, so important to the true understanding and solution
of a difficult enigma, of extending cross-questioning of counsel by the
court.

Nor does time permit that standard of care in the subsequent
examination of the case which used to be considered a prerequisite.
Nothing approaching the same care can now be given. During the
last year of the chief justiceship of John Marshall, the United States
Supreme Court, consisting then of seven justices, filed 39 written
opinions. During the year 1903-1904 the same court, with nine
justices, filed 212 written opinions, besides disposing of 208 cases
without opinion. During the same year the New York Court of
Appeals filed 221 opinions and disposed of 419 cases without opinion.
It appears from the report of a commission appointed by the Governor
of New York in 1903 that in one of the appellate courts sitting in
the city of New York the average number of opinions written by each
judge per year was considerably more than one hundred, in addition
to which he had to examine and record his concurrence with or dis-
sent from about four hundred other opinions in cases in which he sat,
and participate in the discussion of about two hundred additional
cases in which no opinion was rendered. Of course allowance

646 PRIVATE LAW

should be made for the fact that in Marshall's time the Supreme
Court justices did much work besides, sitting in the courts of first
instance; but after all possible allowance on this account, the dis-
parity is still enormous.

I believe it to be a fact that few if any of the federal appellate
courts, or similar courts in any of the larger states, can at the
present time secure that assistance from counsel, allow that time for
oral argument, go through that subsequent examination of the
authorities, discuss and analyze the general principles of law, public
policy, and ethics with that thoroughness, or observe that care in
formulating the arguments approved and the decision reached,
which are theoretically incidental to the development of judge-made
law. Certainly all these things cannot be done in more than a small
proportion, if any, of the cases presenting complicated facts or novel
features. The time allowed being insufficient, the character of the
work upon each case, taken by itself, must and does progressively
deteriorate. Very likely each appellate judge performs now more
labor, and doubtless he disposes of much more litigation, than his
predecessor of half a century ago. Considering the amount that he
disposes of, he generally approximates surprisingly well to the
right decision in the particular case; thus probably doing more good
on the whole than his predecessor, who could do better work on
each case taken by itself, but whose benefits reached a comparatively
trifling number of his fellow citizens. But a man who may not be
a John Marshall to begin with,1 and who cannot give to a single
case the time which John Marshall would have given to it had it
arisen in his time, although an examination of the precedents at the
present day would take many times as long as was necessary in the
lifetime of John Marshall, cannot be expected to bestow on it the
eare which was then or for a generation thereafter considered abso-
lutely requisite. It is too much to ask of him an opinion which, in
addition to being a reasonable approximation to justice in the case
before him, shall also satisfactorily serve as evidence of the law on
the subject for the future. No wonder that he himself, to judge
from the internal evidence of his opinions, rates the language of any
young textwriter as high as he does the dicta of his own court; and
that the latter, if terse and pithy, he quotes without much investi-
gation as to whether they had been obiter or not.

Nevertheless the judges and the bar and community at large have
all continued nominally to treat the doctrine of stare decisis as still
in full force; and with all the modern difficulties in their way, so
many judges stand bravely by it that the citizen must always be pre-
pared to have it enforced against him in a given case with a rigidity

1 I do not go into the question of the ability and learning of the judge elected
under present political conditions, as compared with his predecessors.

THE DOCTRINE OF STARE DECISIS 647

and technicality that would have been quite improbable in the days
when time permitted the precise state of facts and the precise line of
reasoning underlying each previous authority to be more carefully
analyzed, and tacit limitations to the breadth of its statements
recognized. On the other hand, as the wilderness of authorities pre-
sented upon the briefs of counsel tends every year to become more
hopeless, the courts in general tend more and more to decide each
case according to their own ideas of fairness as between the parties
to that case, and to pass the previous authorities by in silence, or
dispose of them with the general remark — one of those remarks that
the recording angel is supposed to overlook — that they are not in
conflict. Different men, however, are of different minds. As the
time spent upon oral argument and subsequent consideration of each
case tends to lessen, the chances of difference in decision of two
substantially similar cases coming before different sets of judges, or
even before the same judge in different years, tends to increase.
Apparent conflicts of authority thus arise. Subtle distinctions are
taken in order to reconcile the conflict if possible. The law is thrown
into doubt, and a lawyer thereafter cannot advise his client how to
act in order to enjoy his rights and keep out of harassing litigation.
The point in conflict reaches the court perhaps again and again,
and distinctions grow subtler and subtler, until once in a while a
happy solution is found by holding that some then comparatively
recent case, although avowedly but distinguishing the early ones
in some incomprehensible manner, really overruled them. Thus for
a moment the doctrine of stare f decisis fails to operate, and by its
failure the law is clarified, reason triumphs, useless litigation ends,
and the citizen learns how in one contingency to protect his rights.

Various plans for cutting down the bulk of the current reports
have been under discussion for the past twenty years, but up to this
time none has been found to which the objections raised have not
been sufficient to prevent any effective propaganda.

It has been suggested that the reporting of dissenting opinions
be forbidden. But these are often of great value in showing the
exact scope of a decision, and when the court is nearly equally bal-
anced they may be almost as weighty as the prevailing opinions in
the courts of other jurisdictions.

It has been suggested that the judges designate which opinions
shall be officially published, and that they restrict the publication
within narrow limits. But opinions are public records. The bar
insists upon their right to cite cases, whether reported or unreported
in the official series. Often the cases thus unreported turn out to be
among the most important precedents. It has always been and still
is common for the judges to exercise this power, but the usual result
is that the profession have to subscribe to an unofficial series of

648 PRIVATE LAW

printed reports, and occasionally pay for certified copies of imprinted
cases. A committee of the American Bar Association in 1898 re-
ported that the power to determine which of their own decisions
could be thereafter cited, and which should apply only to the case
of the parties litigant then before them, was too dangerous a one to
be confided to any court.

It has been suggested that the judges write fewer opinions, but
this would be a partial abandonment of the very advantage which
we have been taught to believe that we possess over the lawyers and
litigants under other systems of jurisprudence. One of the functions
of the judicial opinion is to help preserve the confidence of the bar
and the public in the ability, learning, fairness, and open-mindedness
of the judiciary as a whole, as well as the careful attention due to
the particular case, by indicating the grounds upon which the
decision is based whenever the case is one not entirely clear. Our
bar generally prize the custom and would object to its abandonment.
Its abandonment would tend to diminish that confidence in the
courts which is one of the corner-stones of our governmental system.
Moreover I think that every step toward the abandonment of opin-
ion-writing would be a step away from the doing of justice in the
individual cases before the courts. It is a fact whose knowledge is
not confined to the bar, that the result of investigation of a diffi-
cult problem must be subjected to the test of setting the facts and
reasoning down in ink, before the investigator himself can rest with
confidence upon his own work. Formulation in writing of the rea-
soning in support of a decision that has been made leads not seldom
to the discovery by the writer that the decision is wrong. A court
which, as a general rule, writes a careful opinion upon every appeal,
like the Supreme Court of the United States, shows a greater pro-
portion of reversals; and this, I think, is because the natural tend-
ency of an appellate court at first presentation of a case is usually to
affirm, both from the presumption in favor of the decision below,
and because, when that decision is erroneous, it is generally so
because the superficial first impression of the case was followed
without getting down to the bottom of it. Just as there is a conflict
between the dispatch of business and the administration of justice,
so there is often a conflict between the interests of the parties actually
present before the court, which call for an explanation, and the
interests of the clients and lawyers of the future, which are better
subserved by silence.

It has been suggested that the individual judges make their
opinions terser and less ambiguous, drop out all padding, reduce to a
minimum the discussion of and quotation from previous authorities,1

1 It is important that the custom of citing precedents by title should be pre-
served, because the most convenient means of ascertaining what has been decided
upon any point is very commonly through the " Table of Cases Cited."

THE DOCTRINE OF STARE DECISIS 649

and cease altogether from expressing views upon subjects not abso-
lutely necessary to the decision of the case in hand. That is a
reform that undoubtedly ought to be made; but to expect it is hope-
less. Few men seem to have the faculty of expressing themselves
tersely and confining themselves to the point; and of these few men
the majority have not the other qualities necessary to the attain-
ment of public office. Nor can the public be expected to discipline
even the worst judicial offenders. These are quite as likely as any
to receive promotion or unanimous reelection. There are too many
other elements to be considered in estimating the judicial personality.
Nor can discipline in this matter be expected from the chief justice
or other members of the tribunal. A man's style is too personal
a matter. It is all that an appellate court can do to approximate to
unanimity in its decisions. The small amount of time that it has to
devote to the form in which its work is given to the public is shown
by the occasional long tenure of office under the highest courts of
grossly incompetent reporters.

I have not found any practicable suggestion toward materially
reducing the mass of current judicial literature, although legislation
might conceivably reduce to a comparatively small compass the
judicial literature of the past without depriving us altogether of
the benefits of our judicial law. A statute is very often enacted for
the sole purpose of repealing the rule of law established by some
particular judicial decision. Such a statute is never accompanied by
a repealing clause, expressly declaring the case to be not the law;
but conceivably it might be. Conceivably a statute might officially
declare that the rule of stare decisis should not apply to a given
reported case because it is disapproved or has been overruled; or
that the case should not be cited because it is obsolete or of insuffi-
cient importance. England has published an official edition of her
statutes so far as they are now recognized as remaining in force.
Those not in force are officially omitted, and nobody need ever
again waste time and effort over the question whether or not they
are still alive. New York has this year appointed commissioners for
a like purpose. A similar process might conceivably be applied
to our judicial literature, and an official list prepared of cases to
which the doctrine of stare decisis should, in future, be restricted. If
the plan be practicable, we can well afford to employ our highest
talent for the purpose. The official list would not need to declare that
every case upon it were necessarily the law in all respects. But it
would be accompanied by a provision forbidding the future citation
of any that had been omitted, on the ground that they have been
officially found to be abrogated by statute, or overruled, or obsolete,
or dependent upon questions of fact alone, or mere useless repeti-
tions of rules otherwise fully settled. It may be possible that some

650 PRIVATE LAW

such plan will be somewhere tried in the future in connection with
a codification of the unwritten law.

Codification is the one and only remedy that has ever been sug-
gested which amounts to more than the mildest palliative, and which
has received substantial support from any influential section of the
profession and the public. Fifty years ago it seemed in fair way of
accomplishment, and as late as 1886 the American Bar Association,
after a long debate, adopted by a small majority a resolution that
the law itself should be reduced, so far as its substantive principles
are settled, to the form of a statute. The committee reporting in sup-
port of this resolution said that whatever has heretofore been settled
by the decisions of the courts should be evidenced by codification,
leaving to the courts to continue the natural development of the law.
A majority of the influential American lawyers, however, have con-
tinued to oppose a codification of the law, and have succeeded in
preventing even its serious consideration. At about the time of the
favorable action of the American Bar Association, the New York
City Bar Association defeated by a large majority even so conserva-
tive a proposition as that the present English system of codifying the
unwritten law upon special subjects, one at a time, be taken up.

The main real obstacle to codification in America is undoubtedly
the experience which we have had of codification in particular, and
of statutory law in general, in the past. The inartisticality, clumsi-
ness, obscurity, and verbiage of the ancient English statute is pro-
verbial. The old-fashioned lawyer held all statutes in contempt. The
ancient form was inherited by America; and while from early days
noted examples of clear and skillful drafting were incorporated in our
statute-books, nevertheless the art was one little cultivated, and there
remained much ground for the common saying that, however obscure
the unwritten law might be, the written law would always be worse
still; that the flexibility — a somewhat doubtful matter — of the
judge-made law would be lost, and nothing of value would come by
way of compensation.

Owing to the clumsiness of the old English statute, and the con-
sequent necessity of arbitrary judicial intervention in order to secure
for it anything like a reasonable operation, the courts adopted certain
rules of construction which make it very difficult to draft a statute
in simple terms which shall, nevertheless, fulfill in all respects the
wishes of the statute-maker. If the courts had always construed
every statute according to its plain language, probably legislators
would soon have taken more care, adopted the custom of employing
able counsel, and attained a degree of literary skill which would
have justified a continuance of that system of construction. The
experiment, however, was never tried. When a statute comes
before the court its plain letter is subject to be violated by such pre-

THE DOCTRINE OF STARE DECISIS 651

sumptions as that the legislators did not mean to change the prior
law, and that they did not intend to violate public policy (that is,
the political views of the court acting g-wast-legislatively), and that
the letter is to be subordinate to the spirit (as the spirit may appear
to the judges). When by the aid of these presumptions the courts
have — as they often have — thwarted the purpose and contradicted
the real intent of the legislators, the latter have sometimes sub-
mitted, and sometimes adopted additional legislation to make their
purpose and intent unmistakably clear and unavoidably enforceable.
Here, however, they are hampered by the custom of remedying all
judicial errors by affirmative legislation, instead of by a declaratory
statute annulling the obnoxious decision. If the courts introduce
a series of unintended exceptions, each of these exceptions is thus
made the subject of a special statute; for the custom of our statute-
makers, except in periods of codification, is to deal only with the
particular evils that have already been experienced, making each
specific case the subject of a specific statutory remedy. Thus a code
originally drawn with science and art, in the form of a series of
general propositions, loses its symmetry and becomes a wilderness
of special instances. Then comes a recodification, intrusted to the
hands of some incompetent recipient of legislative or executive
favor. The codification in such hands introduces new ambiguities,
the process of judicial construction and legislative amendment goes
on with increasing velocity, and the condition of things becomes
worse in general public opinion than it was in the now forgotten
days before the process of codification first commenced.

These, however, are avoidable evils. Whatever is known is cap-
able of being expressed in clear and unambiguous language. It
is perfectly possible, and to some persons it is quite easy, to draw
a statute clear enough to settle every question arising within its
purview except questions so unusual, or so near the border-line, or
so unforeseen, that under any system of law they would naturally
result in litigation. Of course so many exceptions and errors and
anomalies have crept into our law at present that a codification
which amended nothing would read a little like the chapter on ir-
regular verbs in a grammar. But it could be done so that the present
law would be far more easily discoverable than it is now, and, when
discovered, just as clear; and the errors and anomalies, together
with the great mass of the exceptions, ought to be corrected in a
proper codification.

The main difficulty in codification is to secure the right man to do
the work. " The codification must be done by the right man (which
involves the proposition that until the right man is found the codi-
fication had better be let alone). . . . He must have had a long and
varied practice at the bar. He must be a theorist. He must have

652 PRIVATE LAW

a very broad and practical mind. He must have an eye for the,
minutest point of grammar or construction. He must have a very
simple English style." 1 When an absolute monarchy is ruled by
a man who is anxious to secure a codification of the laws, and is a
good judge of human nature, and understands the subject well
enough to know what kind of a man can best take it up, then we may
expect work of the class of the Code Napoleon. In a republic, par-
ticularly a republic based upon the Montesquieu system of checks
and balances, where the legislature provides the job but the execu-
tive dispenses the patronage, the chances of getting the right man
are remote. The ease of finding the wrong man, and the natural
results thereof, are illustrated by instances so familiar that they need
not be mentioned. Not only is it harder for a republic to find the
right man, but it is harder for a republic, when he is once found,
to persuade him to take up the work. A Napoleon can assure him
that, if his work is on the whole well done, it will have the neces-
sary support and will achieve practical results. In a republic,
nobody can assure him support. However conspicuously it may
deserve enactment, it is very likely to be laid quietly upon the legis-
lative shelf, or, if it is enacted in any form, to have its symmetry
and its science utterly marred by ill-considered amendments. Not
only is it difficult to procure the adoption of any one of the reforms
necessary to make the law consistent and reasonable and just upon
any subject, but if, as true codification demands, a considerable
number of substantial changes in the existing law are introduced,
that very fact is likely to result in the failure of the entire work.
Almost every effective action of a legislative body changes the exist-
ing law, and yet, when a codification is introduced, the cry that " it
changes the existing law " is generally enough to kill it.

I believe that codification will be accomplished within the life-
time of men who are already admitted to the practice of the legal
profession; and I believe that either it will be accompanied by the
avowed abolition of the doctrine of stare dedsis and substitution of
the Continental method of treatment of judicial decisions, or else
it will be accompanied by some such legislative sifting of the reports
as I have outlined by way of suggestion; but I do not believe that it
will be done until the present system has become so overloaded
that the American bar, with substantial unanimity, will decide that
almost any kind of codification would be an improvement. Mean-
while the work of the future codifier is being made daily more easy:
on the one hand by the multiplication of text-books in which the
present law is stated with a considerable degree of terseness and
approach to accuracy; and on the other hand by a continual multi-
plication of conflicts in authority and a continual weakening of pro-

1 New York State Bar Association Reports, vol. xxvi, p. 94.

THE DOCTRINE OF STARE DECISIS 653

fessional respect for precedent, just because it is precedent, so that
the future codifier will be less embarrassed by the difficulty which
constituted one of the weaknesses of David Dudley Field's famous
Civil Code — the fear of overruling decisions which stand in the
books as the law at the time when a code is drafted, although sub-
sequently their erroneousness may be conceded and they one by one
be overruled by the courts or repealed by the legislature. I have
not sufficient confidence in the official distributors of public patronage
to believe that any successful codification will emanate from persons
nominated by a president or governor and confirmed by a senate,
unless the nominations are practically dictated by the unanimous
voice of the bar. I believe that the first successful American Code
of Private Law will emanate from some one of our American State
Bar Associations, amendment of the law at whose behest is already
no infrequent occurrence. The association will either do the work
itself and afterwards force it through the legislature of the state
which shall first try the experiment, or else put through a bill for
codification, dictate the appointment of the codifier, assure him
support and protection, and compel some subsequent legislature to
make good the assurance.

SHORT PAPER

HON. WILLIAM H. THOMAS, of Montgomery, Alabama, presented a paper to
the Section on the subject of " Individualism vs. Law."

REFERENCE WORKS RELATING TO THE DEPARTMENT
OF JURISPRUDENCE

(Prepared by the courtesy of Dean George W. Kirchwey, Columbia University)

GENERAL JURISPRUDENCE

AUSTIN, Lectures on Jurisprudence.

HOLLAND, Elements of Jurisprudence.

MARKBY, Elements of Law.

LORIMER, The Principles of Jurisprudence.

LIGHTWOOD, The Nature of Positive Law.

BEAUSSIRE, Principes du Droit.

DE VAREILLES-SOMMIERES, Principes Fondamentaux du Droit.

VON IHERING, Der Zweck im Recht.

ANZILOTTI, La Scuola del Diritto Naturale.

INTERNATIONAL LAW
PUBLIC

ALBERICO GENTILI, De Jure Belli.

GROTIUS, De Jure Belli ac Pacis.

VATTEL, Le Droit des Gens.

BYNKERSHOEK, Quaestionum Juris Publici.

PUFFENDORF, Le Droit de la Nature et des Gens, par Barbeyrac, 5th ed.

BURLAMAQUI, Principes du Droit de la Nature et des Gens.

ORTOLAN, Diplomatie de la Mer.

WHEATON, Elements of International Law, Dana's ed.

PHILLIMORE, Commentaries upon International Law.

AZUNI, Droit Maritime de 1'Europe.

BLTJNTSCHLI, Le Droit International Codified

CALVO, Le Droit International.

HALLECK, International Law.

HALL, International Law.

KENT, International Law.

MARTENS, G. F., Precis du Droit des Gens.

Twiss, Law of Nations.

RIVIER, Principes du Droit des Gens.

PRADIER-FODERE, Traitd de Droit International.

WOLFF, Principes du Droit de la Nature et des Gens.

HOLTZENDORFF, Handbuch des Volkerrechts.

HEFFTER, Das Europaische Volkerrecht der Gegenwart.

MARTENS, P. DE, Trait6 de Droit International.

PRIVATE

FOELIX, Le Droit International Privet

STORY, Conflict of Laws.

BAR, Private International Law.

WESTLAKE, Private International Law.

BROCHER, Cour de Droit International Prive*.

DICEY, Conflict of Laws.

BEALE, Cases on the Conflict of Laws.

BIBLIOGRAPHY: DEPARTMENT OF JURISPRUDENCE 655

CONSTITUTIONAL LAW

ENGLISH

Axsox, Law and Custom of the Constitution.

DICEY, Introduction to the Study of the Law of the Constitution.

AMERICAN

STORY, Commentaries on the Constitution of the United States.

COOI.EY, Treatise on Constitutional Limitations.

THAYER, Cases on Constitutional Law.

THAYER, Origin and Scope of the American Doctrine of Constitutional Law.

CURTIS, Jurisdiction, etc., of the Courts of the United States.

CONTINENTAL

BLUNTSCHLI, Gemeines Staatsrecht.

SCHMIDT, Allgemeines und Deutsches Staatsrecht.

TRIPIER, Constitutions qui ont r6gis la France.

ADMINISTRATIVE LAW

GENERAL

vox SARWEY, Allgemeines Verwaltungsrecht.

vox KIBCHENHEIM, Einfuhrungen in das Verwaltungsrecht.

GOODXOW, Comparative Administrative Law.

ENGLISH

GXEIST, Das Englische Verwaltungsrecht der Gegenwart. '

FRENCH
BERTH ELM Y, Traite elementaire de Droit administratif.

GERMAN

DE GRAIS, Grundriss der Verfassung und Verwaltung in Preussen und dem
Deutschen Reiche.

ITALIAN

ORLANDO, Primo Trattato Complete di Diritto Amministrativo Italiano.

SPANISH
POSADA, Tratado de Derecho Administrativo.

AMERICAN
GOODXOW, The Principles of the Administrative Law of the United States.

PRIVATE LAW
ROMAN LAW, ANCIENT AND MODERN

FONTES JURIS ROMAXI AXTIQUI (Bruns).

COLLECTIO LIBRORUM JURIS AxTEiusTixiAxi (Krueger, Mommsen, Studemund).

CORPUS JURIS CIVILIS (Krueger, Mommsen, Studemund).

CUJACIUS, Opera Omnia.

POTHIER, Opera.

SAVIGNY, System des Romisches Rechts.

WIXDSCHEID, Lehrbuch des Pandektenrechts.

656 BIBLIOGRAPHY: DEPARTMENT OF JURISPRUDENCE

FRENCH

TRIPLIER, Les Codes Francises.
BAUDRY-LACANTINERIE, Precis de Droit Civil.
LAURENT, Principes de Droit Civil.
ZACHARIA v. LIGENTHAL, Droit Civil Francais.

SPANISH

LEX VlSIGOTHORUM (FueTO Juzgo).

LAS SIETE PARTIDAS.

CODIGO CIVIL.

SALA, JUAN, lustracion del Derecho Real de Espafia.

SCAEVOLA, Legislation Espanola.

ITALIAN

CODICE CIVILE (Camous).

CUZZERI, II Codice Italiano di Procedura Civile Illustrate.

CODICE PEN ALE (Camous e Luschi).

LOMONACO, Istituzioni di Diritto Civile Italiano.

DEUTSCHES BURGERLICHES GESETZBUCH.

DEUTSCHES STRAFGESETZBUCH.

FECHNER, Die Reichsjustizgesetze.

DERNBERG, Das Burgerliches Recht des Deutschen Reichs und Preussens.

STOBBE, Deutsches Privatrecht.

AUSTRIA

HERZFELD, Das Osterreichische Allgemeine Btirgerliche Gesetzbuch.
UNGER, System Osterreichischen Allgemeinen Privatrechts.

HOLLAND

FRUIN, Niederlandsche Wetboken.

ENGLISH AND AMERICAN

GLANVILLE, Treatise on the Laws and Customs of England.

BRACTON, De Legibus et Consueaidinibus Angliae.

LITTLETON, Tenures.

COKE, Institutes of the Law of England.

BLACKSTONE, Commentaries on the Law of England.

KENT, Commentaries on American Law.

POMEROY, Treatise on Equitx Jurisprudence.

HOLMES, The Common Law.

WIQMORE, The Law of Evidence.

CANON LAW

HINSCHIUS, Kirchenrecht der Katholiken und Protestanten.

FRIEDBERG, Lehrbuch des Katholischen und Evangelischen Kirchenrechts.

REFERENCE WORKS TO ACCOMPANY THE SECTION OF
CONSTITUTIONAL LAW

(Prepared by courtesy of Professor Ferdinand Larnaude, University of Paris)

ASCHEHOUG, Das Staatsrecht der Veroinigten Konigreiche Schweden und
Norvegen.

Aucoc, Rapport a 1'Acade'mie des Sciences Morales et Politiques sur le Concours
relatif a la Separation des Pouvoirs.

BOUTMY, Etudes de Droit Constitutionnel. «

Esquisse d'une Psychologic Politique du Peuple Americain.

BRYCE, The American Commonwealth.

BURGESS, Political Science and Comparative Constitutional Law.

COOLEY, A Treatise on the Constitutional Limitations.

COXE, Essay on Judicial Power and Unconstitutional Legislation.

DARESTE, La Justice Administrative.

DICEY, Introduction to the Study of the Constitutional Law.

DUCROCQ, Cours de Droit Administratif.

DUGUIT, La Separation des Pouvoirs et la Constituante.

ESMEIN, Elements de Droit Constitutionnel Francaia et Compare".

FUZIER-HERMANN La Separation des Pouvoirs d'apres 1'Histoire et le droit Con-
stitutionnel Compare.

F AUSTIN HELIE, Traite de 1'Instruction Criminelle.

DE FRANQUEVILLB, Le Systeme Judiciaire de la Grande Bretagne.

THE FEDERALIST.

GRASSO, La Costituziorie degli Stati Uniti dell'America Settentrionale.

GARNOSNET, Traite" theorique et pratique de Procedure.

GOODNOW, Comparative Administrative Law.

JorssERANDOT, Du Pouvoir Judiciaire et de son Organisation en France.

LABAND, Das Staatsrecht des Deutschen Reiches.

LABOULAYE, Histoire des Etats-Unis.

LAFERRIERE, Traite de la Juridiction Administrative et des Recours Contentieux.
Histoire des Rivalites entre les Parlements, les Intendants et le
Council du Roi depuis le Regne de Louis xiv jusqu'a la Revolution
de 1789.

LARNAUDE, Etude sur les Garanties Juridiciaires qui existent dans certains pays
au profit des particuliers centre les actes du Pouvoir Legislatif.

MONTESQUIEU, Esprit des Lois.

MICELT, Analisi Giuridk-a della Noxione d'Inconstitutionalita.

DE NOAILLES, Cent Ans de Republique aux Etats-Unis.

ORLANDO, Teoria Giuridica delle Guarentigie della Liberta.

POSADA, Tratado de Derecho Politico.

SAINT-GIRONS, Essai sur la Separation des Pouvoirs dans 1'Ordre Politique.
Administratif et Judiciaire.

STUART-MILL (JOHN), On Liberty.

THAYER, The Origin and Scope of the American Doctrine of Constitutional Law.

John Marshall.
Cases on Constitutional Law.

WALKER, Introduction to American Law.

WILSON (Woodrow), The Congressional Government.

WILLOUGHBY (W. W.), The Supreme Court of the United States.

DEPARTMENT XXII — SOCIAL SCIENCE

DEPARTMENT XXII — SOCIAL SCIENCE

(Hall 1, September 20, 2 p. m.)

CHAIRMAN: MR. WALTER L. SHELDON, Ethical Society, St. Louis.
SPEAKERS : PROFESSOR FELIX ADLER, Columbia University.

PROFESSOR GRAHAM TAYLOR, Chicago Theological Seminary.

IN opening the work of the Department of Social Science the
Chairman, Mr. Walter L. Sheldon, of St. Louis, spoke as follows:

" It is now almost three quarters of a century since Auguste Comte
began issuing his Cours de Philosophe Positive, for which he coined
the now much-worn term ' Sociologie.' So it is that we connect the
birth and development of this science chiefly with the nineteenth
century, although its beginnings are to be traced long before. What-
ever may have been the crudities or defects of the Systeme by Comte,
surely the suggestion on his part was a luminous one and of far-
reaching significance, that we should study and analyze the phe-
nomena of human society for the purpose of discovering laws or regu-
larities there, just as we study the phenomena of chemistry or of
astronomy. It was inevitable, however, that these hints should have
remained in the background and have had comparatively little
influence until the doctrine of evolution had been launched in full
force later in the century. In spite of ourselves we cannot help
connecting the advance of sociology with the great new step taken
in biology through Charles Darwin. The abstractions of Comte
had to be laid aside or go on the shelf, while the new science he had
inaugurated was to be brought into harmony with the doctrine of
evolution as a whole.

" To-day we are discussing the problems of sociology as if they
had been under consideration for hundreds of years. We can
scarcely realize that it is only about a quarter of a century since
Albert Schaefne attached his name to the preface of the first volume
of his Ban und Leben des Socialen Korpers, and Herbert Spencer
put forth his Principles of Sociology as a part of his great Synthetic
Philosophy. It may be that these men linked the new science too
closely to that of biology, because of the sudden and startling devel-
opments in the latter department of research. But of one thing
we are certain: These men have settled the fact beyond dispute
that there is such a thing as a science of sociology. One university
after another has been establishing chairs in this special department,
and one man after another has been consecrating his life to researches
in this direction, until now we have a whole literature pertaining to

662 SOCIAL SCIENCE

this subject, and a large corps of scholars, all following out the orig-
inal suggestion of the father of the Positive Philosophy.

" On the other hand, there was another step equally inevitable.
Just because this new science dealt strictly with human things,
the conviction arose that it should be harnessed into service; that the
discoveries which these men made should also be put into practice
or applied for the future regulation of human society. On this very
afternoon, as we know, there will be two separate departments of
sociology holding sessions, one of them dealing with the science as
such and the other with it on the ' regulative ' side.

" As the twentieth century opens, we see, therefore, that sociology
is already breaking up into a number of subordinate sciences. In all
probability there will be no further extensive treatises published
dealing with this science as a whole. The field is too great and each
of the special departments too important. Men will now begin to
devote their whole lives to the separate study of one domain within
the larger field, as we can observe in glancing down over the 'sec-
tions ' which are to meet on the ensuing days.

" But still further. The conviction is growing, after three quarters
of a century of research, that we are dealing here with spiritual
problems far more than with problems of biology. While we accept
the fact once for all that the human race in its associated life fur-
nishes the material for an actual science, we are also coming to
believe that the laws and the phenomena here have a peculiar char-
acter which should perhaps put them upon a separate plane. It is
men on the spiritual side who are to be studied, and whose associa-
tions are to be regulated through the discoveries and the laws of
sociology. In the ' regulative ' aspect we are on the border-line
between this science and that of ethics. In discussing ' social regu-
lation ' we are dealing with the problems of good and evil, how the
evil may be repressed and how the good may be fostered in society
as a whole. We are to consider how we may put to practical use all
that is being found out or is yet to be disclosed in the sphere of the
larger science of sociology. In a word, we are concerned to discover
not only how social institutions have been regulated in the past, but
also how we may guide them in a given direction for the future.
Our problems here are of a special kind, and it is the great depart-
ment of applied ethics to which they belong. From this aspect our
chief interest lies in the reconstruction of human society. At this
point the man of science must also become the reformer."

THE RELATION OF ETHICS TO SOCIAL SCIENCE

BY FELIX ADLER

[Felix Afller, leader of the Society for Ethical Culture, New York, Professor of
Political and Hocial Ethics, Columbia University, b. Germany, August 13,
1857. A.B. Columbia University; Ph.D. Heidelberg University. Member of
the Editorial Board of the International Journal of Ethics. Author of Creed
and Deed; Moral Instruction of Children; Life and Destiny; Religion of Duty;
Essentials of Spirituality.}

THE subject which I shall treat in this paper is the relation of
ethics to social science, or, more precisely, I shall endeavor to answer
the question, Is social science capable of furnishing ethical impera-
tives? As the field to be traversed is extensive, and the time short,
I shall have to state my thought as succinctly as possible, and forego
the advantage of detailed elaboration and illustration.

And let me begin by asking why it is that many persons at the
present day are turning with a view of obtaining ethical guidance
into a new direction; why a new science, like social science, is ex-
pected by them to furnish us with laws of conduct. The moral
philosopher, the legislator, the religious teacher have heretofore
been called upon to perform this task. Why is it that the social
scientist should be expected to relieve these of their function? The
reason is that we are in a state of ethical distress, and this in two
particulars. The moral code which we have received from the past
no longer adequately fits the needs of modern society. On many
urgent problems of the present day, such as the problem of read-
justment between the social classes, the problem of the extension or
limitation of the functions of the state, the problems of the family,
— problems all of which are felt to be ethical in their nature, that
is, dependent for their solution on a just conception of the ends
for which society exists, — the moral codes of the past shed but
an insufficient and uncertain illumination. An enrichment of the
moral code is needed, and in the hope of obtaining this enrichment
of the content of morality the faces of men are set in the new direc-
tion.

Again, we find ourselves in a state of ethical distress because the
authority of the prescribed morality in many quarters is being ques-
tioned. A widely prevalent skepticism, whether well founded or ill
founded, exists. How shall we act in difficult and complex cases?
What rules of conduct shall we employ? is the one question men put
to themselves. And why should we act thus and not otherwise?
Why should we submit to these onerous rules? What is the nature
and ground of the authority which they claim over our wills? is the

664 SOCIAL SCIENCE

other question. The authority of revealed religion is challenged by
many. The authority of the builders of metaphysical systems is
still more exposed to skeptical doubt. Is there not some way of
putting terra firma under our feet, of securing a foundation for
individual and collective conduct on which all men can agree? A
foundation in fact, we are told, rather than in theory is needed,
especially in view of the conflict of ethical standards, of the«almost
hopeless divergence of the points of view from which men regard
those problems, which yet must be solved by concerted action.
Should we not attempt to bring about harmony in men's thinking
about social questions as the indispensable condition of securing
harmonious conduct? And is there, apart from religion and meta-
physics, which tend to divide rather than to unite men, a hope of
securing such harmony in the sphere of thought? At this juncture,
finding ourselves at such a pass, or rather at such an apparent
impasse, there rises before the mind the great and commanding
figure of Science. Science has -actually achieved the difficult task
of bringing about agreement in the field of physical research, and,
basing on this agreement, it has brought about in a short time an
almost incredible increase in man's physical welfare. Cannot Sci-
ence be trusted to achieve similar results in the social field, to supply
the authority which we lack by determining the ends of pursuit to
which all conduct should converge, and, at the same time, to enrich
the code by closer study of the means which, human nature and
human conditions being what they are, will conduce to these ends?

It is for these reasons that many persons are turning to social
science for help, both because it is a science and its methods are the
same as those which have been accredited in other fields, and because
the wealth of the data at its command promises to furnish sufficient
material for enlarging and enriching our ethical knowledge. We
may add that, as in the case of every new science in its initial stages,
the expectations as to what it can accomplish are naturally exag-
gerated; and thus we can understand how the hope has arisen that
the science of society will become a sort of social savior and will
relieve us from our ethical distress.

But can social science fulfill these expectations? Misdirection of
effort because of false anticipation of result are sure to be paid for in
the end by waste and disappointment. Are we to push headlong
into the new path thus opened to us, without previous consideration
of the goal to which it can lead? What is it in the nature of social
science to accomplish, and what in the nature of the case is beyond
its reach? These surely are questions which at a time like the present
it is the part of sanity to put to ourselves. My answer in this paper
will be that it can enrich the code but cannot supply the authority
for the code; that it is incompetent to determine the ends of social

RELATION OF ETHICS TO SOCIAL SCIENCE 665

and individual conduct. In the endeavor to make good this position,
I shall first apply a practical test to some of the particular social
sciences and inquire whether, for instance, the study of the past
development of the human family affords us a clue to the type of the
family which we should endeavor to realize in the future, or whether
the study of the past development of industrial society affords a clue
to the desirable constitution of industrial society. I shall next apply
the same test to the general science of society, or sociology, and inquire
whether it has discovered general laws which we can utilize in every
department of social improvement. Thirdly, I shall subject to a
brief criticism the fundamental notion of scientific law itself, with a
view to ascertaining whether itf can be applied, without radical
qualification, to the domain of human conduct, so as to include the
uniformities which we discover in the social life of men.

To begin with the subject of the family. We have been accustomed
to regard the family as the sanctuary of civilization, through which
all those interests that make life worth living are perpetuated from
generation to generation. And yet the family is actually changing
under our very eyes, and is bound to some extent to alter its char-
acter. In what direction shall we permit it or help it to do so?
What principles or point of view shall we adopt in regard to it?
Shall we, for instance, prohibit divorce altogether? Shall we adopt
the ideas of those who hold that when love ceases, that is, the thing
they call by that name, marriage should cease? Or shall we take
the ground that the monogamic institution has never yet disclosed
its highest potentialities? Shall we endeavor to develop it further,
but in such ways as to secure the more perfect manifestation of the
idea underlying it, admitting the necessity of change, but insisting
that change must be in the direction of greater stringency rather
than in that of greater looseness? Or shall we take the side of the
extremists, and advocate the dissolution of the family and the sub-
stitution of some such arrangement as is contemplated in Plato's
Republic? Now can the branch of social science which is occupied
with the study of the family help us in deciding the course wrhich
we ought to take? The researches of Bachofen, of McClennan, of
Tylor,or Morgan, and of the others are of absorbing interest. They
have widely extended our comprehension of the facts of social devel-
opment. They have taught us that the monogamic family, which
we had regarded as fixed and unalterable from the time of the first
man and woman, has been the product of growth like every other
social institution. They have acquainted us with types of domes-
ticity and systems of consanguinity, of which, a generation or two
ago, we had not even an inkling. But how does all this knowledge,
interesting indeed, despite the many links that are still missing, the
many customs and social arrangements that are still obscure, bear

666 SOCIAL SCIENCE

upon our present situation? Does the study of what has been, in
this instance, furnish a sure guidance to what ought to be? Does
the explanation, or at least partial explanation of the past, disclose
any sufficient principles upon which we can rely in our attempts to
shape the future? Does the science of the family, if by that name
it deserves to be called, supply us with criteria by which to measure
the worth of the monogamic type of family as against other types,
and the higher type of monogamy as against the lower types of it?
There are two such criteria which we frequently find commended
in sociological text-books. The one is social survival; the other,
increased complexity. Now setting aside the initial scruple as to
whether survival is a test of worth, dismissing for the time being
the thought that a type of social organization which lasts only for
a single generation, like the democracy of Pericles, may yet hold in
the scale of worth a place more exalted than that of other types
which have lasted for a thousand years; setting aside these consid-
erations, I ask, does the monogamic family, measured by the test of
survival, outrank for instance the polygamous family? In making
this comparison, we are bound to relinquish momentarily our
ethical bias, our strong repugnance to forms of union between the
sexes which seem to us to degrade what is best; and to ask simply
in the scientific spirit whether we are to promote monogamy because
communities founded on the monogamic relation tend to survive,
while other communities tend to perish? I do not see that on this
ground, and apart, I repeat, from other ideal points of view, the
monogamic family deserves the preference. I do not see that poly-
gamous nations like the Turks have less chance of survival, are less
tenacious, less virile fighters for example, than the Western nations
with whom they come into collision. I do not think it can be made
out that the polygamous Mormons are lacking in the qualities that
promote survival, and that the resistance which they have offered to
the pressure of the surrounding majority has been less vigorous and
effective than would have been offered by a monogamous community
holding in other respects the same tenets.

If next, instead of comparing the monogamous family with the
polygamous, we examine the former on its own ground, from the point
of view of survival, we shall find it still more difficult to arrive at
a clear and definite decision, supported by the facts. We may com-
pare, as Professor Giddings has done, the children born in wedlock
with the offspring of irregular unions, or the children of parents
whose union is permanent with those of parents whose unions are
interrupted by frequent divorce; and it will then be easy to show
that the chance of survival is greater in the case of permanent unions
than in either of the two others. That is to say, it is easy to show
that where permanent unions, because of ideals or standards pre-

RELATION OF ETHICS TO SOCIAL SCIENCE 667

valent in a given society, are alone regarded as honorable and valid,
the children born in defiance of such ideals and social standards are
likely to be physically and morally neglected, and in the struggle
for existence are likely to succumb. But this is largely due to the
disgrace which their existence entails upon those responsible for it.
It is precisely because such temporary unions are irregular that they
carry down the unfortunates who are their fruit. In a community
like the Spartan, where what we should call illicit intercourse was
freely permitted and where the children, provided they were physic-
ally healthy, received the same care and attention as the offspring
of legal marriages, the same results would not follow. Nor can it be
maintained that the Spartan community, regarded from the point
of view of survival, ranks lower than other communities which have
adopted a standard more nearly like our own.

The points thus far covered are these: (1) The test of survival
does not decide between what we should call the higher form of
marriage, monogamy, and what we should call the lower, polygamy.
(2) Where monogamy prevails, the advantage possessed by the off-
spring of legitimate unions as against the offspring of illegitimate
unions is due to the circumstance that in the former case the unions
are regular, and in the latter case they are irregular. The facts
do not prove that a system like the one contemplated in Plato's
Republic, if it could be made regular, would be less efficacious in
securing social survival. And in this connection let me point out
how important a factor in what is called social environment are the
ruling ideas dominant among a people, and how largely the survival
of individuals within a group or community is dependent on agree-
ment with the dominant ideas. Falling away from the ideal of
one's group, whether it be the ideal of Sparta, or the ideal of a primi-
tive horde, or the ideal of monogamy in an Anglo-Saxon community,
leads to self-disparagement, to relaxation of effort, to a diminution
of all the integrating forces of character, and, in consequence, to
destruction. To prove, therefore, that in a community whose ideal
is monogamic, persons who lead irregular lives, and the children of
such persons, tend to go to the wall, is not to prove that monogamy
itself is socially more preservative than other forms of marriage,
but is merely another illustration of the general rule that a house
psychologically divided against itself cannot stand; that members
of a community who are in extreme divergence from the ideals of
the community to which they belong cannot maintain themselves.
But if the standard were different, the result might be different.

Again, it is said that the monogamic family is best fitted to survive
because it is best fitted to transmit to posterity a " sound physical
heredity and the results of the mental and moral civilization of the
past." Our deep ethical bias in favor of the monogamic family

668 SOCIAL SCIENCE

leads us to desire that this may be so, to seek in the facts a support
for our convictions. And yet it is ever a perilous procedure to
enter into transactions with empirical reality to such an extent as
to make the validity of an ideal depend on the countenance given to
it by the facts. The ethical rule is true, though no experience as
yet should bear it out, though the experience of the human race thus
far in some respects should rise up to testify against it. As regards
the above statement, however, two abatements at least need to be
considered. Pure monogamy, in Western civilization, does not
exist. What we actually find is a nucleus of sheltered homes sur-
rounded by an extensive fringe of baser types of the sex relation.
Premarital self-control especially is rare, in the great cities conspicu-
ously so, but also in the rural districts. Whoever has had the oppor-
tunity to look beneath the fair-seeming surface of things, and to
familiarize himself with the conditions that actually prevail, is aware
how deeply the poison which comes from the surrounding fringe or
margin penetrates into and infiltrates the monogamic nucleus, to
how alarming an extent the physically sound heredity claimed in
the above proposition is lacking. The question, therefore, which
we are bound to consider, always speaking from the standpoint of
social survival, is not whether monogamy and the premarital self-
control which is an indispensable adjunct to it, would conduce to
sound heredity if they were general, but in view of the fact that
they are not general, and that the strain which they put on the
instincts of men seems in many cases in excess of the moral force
adequate to sustain it, whether, in view of this fact, from the point
of view of survival, it were better to maintain the present condition
or to adopt Plato's plan, or some other like it, and to abandon
the mixed type, partly monogamic, partly extra-monogamic, which
is now prevalent, as tending under the circumstances toward social
degeneration? Or, to put the matter in another form», the question
is whether the proportion of perfectly sound men and women who
enter into marriage and remain sound is sufficient to guarantee that
the offspring of existing marriages as a whole shall possess the phys-
ical qualities necessary for survival; whether, in other words, the
remnant of the righteous is sufficiently numerous to leaven the lump?
I am not aware that the science of the family has any illumination
to give us on this question, or that our knowledge of the punaluan
family, and the rest, can be of use in enlightening us upon this
problem.

(As a matter of fact I take it that those who are ethically minded
consider only a single point, namely, whether the monogamic constitu-
tion of the family comports with what is morally exacted. They do
not doubt that if a society existed in which perfect monogamy were
realized, such a society, among other excellent advantages, would

RELATION OF ETHICS TO SOCIAL SCIENCE 669

surpass competing societies in point of endurance. But whether
a society with monogamy imperfectly constituted can outlast
societies with lower family systems more perfectly organized, is a
question upon which they do not stop to reflect. If existing society,
on the way toward perfection, must perish, be it so. If the very
fact that it is intermediate between a lower form more perfectly
organized and a higher form not yet perfectly organized be the
cause of its destruction, let this cause operate to produce its effects.
Ideas and institutions do not exist for the sake of a given society,
but societies exist for the sake of working out the ideas, and the
institutions in which these ideas express themselves.)

Again, it is said that the monogamic family is the most suitable
organ for the transmission of the results of mental and moral civiliza-
tion to future generations. It is held to be so because it is the most
adequate instrumentality for the cultural development of the married
pair themselves through their mutual influence on one another, and
also for the development of individuality in the children, and for
putting them in possession of a varied and unified culture. But
if we hold against this account of what the monogamic family is
ideally, or what it might be, a picture of what it is, to how great an
extent shall we find that the latter is in contradiction with the former!
In how many cases does the close contact of two persons of oppo-
site sexes in marriage actually mean the narrowing of horizons, the
lowering of standards, mutual accommodation on the part of each
to the defects and blindnesses of the other, the abandonment rather
than the pursuit of cultural ideals. And so far as the children are
concerned, how often are the parents the chief obstacles to the better
education of their children; how little fitted, by nature and acquire-
ment, are a very large proportion of parents to undertake the difficult
task of child nurture and training. How often have pedagogues
expressed the conviction that the parents must be educated before
the children can be; and out of this vicious circle how shall we escape?
The outcome of my remarks is, that the worth of ideas or ideals
cannot be determined by their immediate results either in point of
survival or in point of cultural results achieved; that ideals must
be approximated to because they ought to be; and that as for the
results, in the last analysis we must leave the squaring of them, with
the ideal demands, to the Power in things whence those disquieting
and urgent ideals have come to us.

I have enlarged on the subject of survival because it is apt to
be the final appeal of those who seek to explain the development
of human society in terms of natural law, and who for this reason
attribute to social science the prerogative of erecting standards and
prescribing laws of conduct. Alongside of survival as a test, how-
ever, is often mentioned the so-called law of increasing differentiation

670 SOCIAL SCIENCE

coupled with more perfect integration as a distinguishing mark of
the higher types of social living, of those types which, because they
are higher, we ought to favor. Let me briefly remark, at this point,
that simplification ratherthan differentiation — even though the differ-
entiation be accompanied by integration — seems to be in many ways
the sign of progress. The monogamic family itself (I need not say
that I regard it as the higher type) is very much simpler than the
form of family described by Morgan. The modern type of mono-
gamic family is much less complex compared with the family of a few
generations ago, when collateral relatives formed an integral part
of the family group. The modern family, consisting of father,
mother, and children, having very slight and unstable connection
with aunts, uncles, and cousins, has developed along the lines not
of differentiation but of simplification. It would, however, be a
more precise expression of what I believe to be the facts, to say
that progress is marked by a tendency to simplification in some
directions, to differentiation in other directions. But what the
relation of these two tendencies should be, in how far we ought to
simplify life, in how far make it more complex — to this problem,
what is called the general law of evolution, as formulated by Spencer
and adopted by others, gives us, so far as I can see, not the slight-
est clue. In passing, I may observe that to formulate an equation
between conduct moral and conduct highly differentiated seems to
me most misleading. The conduct of a modern bank burglar is
highly differentiated, and so far as he organizes the totality of his
nefarious designs with a view to the achievement of a single purpose,
it is also highly integrated. The conduct of an humble washerwoman
in a tenement-house, who wears out her life in order to keep her
children at school and to give them a better chance than she had
herself, is undifferentiated and simple. But who will question the
moral worth of conduct in the latter case, or fail in the former case
to find it wanting altogether? The law of complexity is "no guide.

A similar train of reflections, to refer briefly to other principal
social problems of the day, will show, for instance, how little the
study of religion can supply us with rules by which to shape the
religious development of the future, how little the study of industrial
development can aid us in determining the ends toward which the
industrial development of society should be guided.

Take the science of religion. We have mastered the facts of
animism, fetichism, ancestor- worship; we have psychologically re-
constructed the steps that led to polytheism. We have penetrated,
let us assume, the inner meaning of the religions of the Chinese, of
Persia, of the Hindus, of the Greeks. We have traced the develop-
ment of Hebraism up to the time of its junction with Hellenism;
we have followed the wavering fortunes of Roman Catholicism and

RELATION OF ETHICS TO SOCIAL SCIENCE 671

of Protestantism; and, at the end of this long journey, what have
we gained? We have gained, indeed, in breadth and in psychological
insight, and our knowledge of the causes that contribute to the rise
and fall of religious systems has been augmented ; but as to the main
point, as to the problem now before us, what shall be the next step in
religion, how far are wre helped? Does the test of social survival avail?
The religious type which is largely regarded as the highest, the
Protestant, is, if anything, a disintegrating rather than an integrat-
ing force. The Protestant religion in the United States, with its
one hundred and forty-eight sects, divides the population in feeling
and ideas. Indeed, it is the belief of many that if it were not for
the emergence of other ideal centres of unity, such as the political
ideal, an advanced nation like the American could hardly cohere,
so manifold are the religious camps into which it has been divided
and subdivided. The Protestant religion, as a socially preservative
influence, can hardly compare with the influence of the Greek Cath-
olic Church in Russia, or the influence of Roman Catholicism in the
Middle Ages, or with that of Islam among its votaries to-day. Nor
does the test of complexity avail, for Protestantism, with its emphasis
on the individual, its simple ritual, surely cannot vie in complexity
with its own predecessors in the West, or with a religion like Brah-
manism in the East. The truth is, that the different religions do not
constitute a progressive series. Each of the different stages of religious
development, each of the great religious systems, has its own peculiar
excellences and defects; each is governed by some ruling aspect or ideal;
and if we condemn a religious system it is because the aspect of the
problem of man's relation to the universe, of which it is the expression,
because the idea which underlies it, fails to appeal to us. But as
to the question which is the preferable aspect and which the higher
idea, on what ground that religious science offers us can we possibly
decide? It is true that religion is not an isolated phenomenon, but an
element in the complexusof a whole type of civilization; and herein we
find an additional ground of preference? We rate Protestantism higher
than Buddhism because the idea of liberty appeals to us more strongly
than the idea of Nirvana, or the quenching of the individual. In
addition, we take into account the effect on human life produced
by quietism on the one hand, and active self-affirmation on the other;
and we find that in the one case there is absence of material progress
and of progress in scientific knowledge, and in the other case a plethora
of increasing comforts and extension of scientific knowledge. But what
justifies us in rating comfort so high, or knowledge so high; and how
are we to meet the contemptuous smile of the disciple of Buddha,
who scorns the materialism by which we are choked, and the scientific
knowledge that cuts off our spiritual outlook, and the self-assertion
that keeps us forever restless, and tells us that the taste or the

672 SOCIAL SCIENCE

merest foretaste of Nirvana is better than all these? It is then, at
bottom, once more, the appeal of what is proposed as the end and
aim of life that decides our preference. Survival, I repeat, does not
decide. Buddhism is older than Christianity, its followers said to be
more numerous; Buddhist society in its environment persists; so
does Chinese society, based on Confucianism. Complexity does not
decide. If then we still, many of us, believe that the next step in
religion should be along the path opened up for us by Isaiah and
Jesus, it is because in interrogating our inmost experience we find
that the ideas expressed by these great teachers satisfy us and ap-
peal to us to-day, not because of any wisdom we have gained from
the study of fetichism or ancestor-worship or the rest.

The same informational wealth, coupled with regulative impotency,
we meet with in the science which deals with the industrial develop-
ment of society. The various forms of industrial organization are
the expression, not merely of physical necessities, nor of methods of
satisfying these necessities, but of such methods controlled by and
subordinate to ideas. Slavery is based on the idea of the vicarious
realization of the ends of the ungifted in the gifted, an idea which in
a modified form has even been revived in modern times by Nietzsche
and his school. Feudal serfdom is based on the idea of God-derived
power in the master over the servant, and of responsibility connected
with such power. The modern wage-system is based on the idea of
individual liberty and on the assumed possibility, a possibility which
may be doubted, of a just quantitative measurement of mutual serv-
ices. It is not possible to arrange these systems in a simple progress-
ive series. Each of them has its glaring defects, each also has merits
which are absent in the others. Even slavery and serfdom have cer-
tain advantages wanting in the system that is expressed in the cash-
nexus. At present the defects of the modern wage-system have
become conspicuous, and divers changes are proposed. Some persons
favor compulsory collectivism, others advocate a kind of industrial
feudalism, others hold fast to the orthodox principle of laissez faire
and unadulterated competition. Others, again, believe in a voluntary
collectivism, with industrial competition preserved alongside. Ana-
logies to these types may be found in the past; but a law of develop-
ment which, on being recognized, would turn for us into an ethical
imperative, has not been discovered. As before, we look in vain to
the test of social survival, or of complexity, to put an end to our uncer-
tainty. Each of the great types has operated toward social survival
under appropriate conditions, and the question what type will sur-
vive under modern conditions is the very one upon which we are
divided, and one which cannot be settled by an appeal to the facts
of survival under conditions different from ours. The test of com-
plexity likewise will not assist us, because the more advanced forms

RELATION OF ETHICS TO SOCIAL SCIENCE 673

of industrial development are characterized in some aspects by
greater simplicity, while as to the differentiating movement which
likewise is taking place, the fear whether it may not prove to be of
such a nature as to disrupt society, and by breaking up social unity
to destroy civilization, is the very question that most disturbs our
peace.

We have thus completed the first of our tasks. We have exam-
ined some of the particular social sciences with a view of ascertaining
whether in their special field they are capable of furnishing ethical
imperatives, and we have been led to a negative conclusion. We have
also, incidentally, fulfilled the second task we had set ourselves,
viz., of inquiring whether the general science of society, or sociology,
is capable of furnishing such imperatives. Fitness to promote social
survival and increasing complexity are, so far as my knowledge of
sociological literature goes, the only two definite standards which
that science puts at our disposal for the regulation of conduct; we are
to work for that kind of religion which will help the survival of the
community and which is marked by greater complexity; for that type
of the family which corresponds to the same requisites, etc., and it has
been my attempt to show that these standards, when applied prac-
tically, are found to be unhelpful. In addition to these two tests or
standards, however, sociological literature swarms with a multi-
tude of other prescriptions which have no demonstrable connection
with survival and complexity, and which are drawn from conceptions
of the social end not derived by the sociologists themselves from the
study of social science at all, but from convictions and prepossessions,
which clearly they bring ab initio to the study of social science, and
seem to interpret into it rather than to derive from it. Thus Comte,
in virtue, doubtless, of his bringing-up and his surroundings, is biased
in favor of an hierarchial arrangement of society, and of the supre-
macy of a spiritual directorate fashioned on the pattern of the medi-
eval Church. Other sociologists regard altruism, or self-sacrifice, as
the highest type of social behavior, though sometimes leaving us in
doubt whether they regard the happiness which such self-sacrifice is
supposed to promote as the chief end to be desired, or whether they
regard the giving-up of one's happiness as the chief thing desirable,
and the state of society in which self-sacrifice would become the pre-
vailing type of conduct as the noblest outcome of evolution. Others
make self-realization the end, and regard partial self-sacrifice as sub-
ordinate and incidental to self-perfection. Other sociologists frankly
express their ideals in terms of quantity and, in the fashion of
Bentham, pronounce the greatest happiness of the greatest number to
be the social end, although they fail to make it intelligible why the
happiness of the greater number should be cogent as an end upon
those who happen to belong to the lesser number. Others again,

674 SOCIAL SCIENCE

seem to regard freedom as the summum bonum, and set up universal
contractualism as the desirable end. It is especially worthy of
remark that among those whose descriptions of the social good betray
the most aggressive individualism are prominent the very thinkers
who, like Spencer, have done most to bring the biological or organic
conception to the fore in their account of the natural development
of human society. Their premises are organic, their conclusions are
strictly individualistic. Can there be a more striking illustration of
the absence of relation between premises and conclusion, between
the study of the social facts and the conception of the social end?
Indeed when we review the various conceptions of the social end that
are proposed by the leading sociologists of the present day, we find
the same divergence of standpoint which characterizes the meta-
physical and ethical pronouncements, the symptoms of the same
disease for which sociology was supposed to possess the cure. And,
what is more, we find that these various conceptions of the social
end are mere masks behind which are hidden the differences of meta-
physical and ethical bias that have prevailed from time immemorial.
The nomenclature has been somewhat changed, the background is
somewhat different, but in the main we recognize old friends or old
enemies with new faces.

There remains my third task, briefly to show that in the nature of
the case the result cannot be otherwise; that in the strict sense there
are no social laws, and, therefore, in the absence of laws there can-
not be prediction of the future, or ethical imperatives based on the
conscious adoption into the will of a natural order of social develop-
ment. I would not, indeed, be understood as denying that social
science is a science. Science is methodized knowledge. In this sense
philology is d, science, history is a science, and the study of society
is capable of becoming, and has already, in part, become a science.
Because, moreover, every science is methodized knowledge, it does
not follow that all sciences are restricted to the use of the same
method. Methods may vary. The methods of social science may
differ from those of physical science, and yet its claim to be scientific
need not in the least on that account be impaired. Nor do I deny
that there are social uniformities. I merely dissent from the assertion
that these uniformities should or can, without serious mischief re-
sulting, be called laws. I say, without serious mischief resulting,
and this for a twofold reason. First, because already there are at
least two, possibly three distinct significations which the word " law "
connotes, the legal signification, the moral signification, and the
physical signification. If the uniformities which we discern in social
conduct are admitted to differ from the uniformities contemplated
by physical science, by jurisprudence, or by ethics, then we shall
connect with the same term a fourth connotation, and the multiplic-

RELATION OF ETHICS TO SOCIAL SCIENCE 675

ity of connotations will tend to confusion. If, on the other hand,
we assimilate the social uniformities to physical laws, then we shall
create the impression of the inevitable dominance of these uniform-
ities over the human will, an impression which is in the highest degree
prejudicial to social betterment. That such an impression has
already been created by the use of the term " law " in the field of
economics is matter of common knowledge. Shall we extend the
mischief to other departments of conduct, or can we hope to avert
it by surrounding the term " law " as applied in social science, with
qualifications which are sure to be ignored?

The capital question is this: Whether the social uniformities are
of the same kind as those uniformities which we designate as physical
laws? If they are, let the same term be applied to both. If they
are not, let the difference in the designations used indicate and
emphasize the difference in the things designated. Let us in that
case speak of social uniformities and not of social laws.

Is there such a difference in kind, and what is it? I can here only
shortly outline my position, without attempting to elaborate it in
detail or to defend it against adverse criticisms that may be brought
to bear against it. Physical law is the expression of a fixed relation
between antecedent phenomena as cause and sequent phenomena as
effect. A social uniformity, on the other hand, is the expression of
a relation between ends and means. All human conduct is directed
toward the attainment of ends. All the uniformities of human
conduct depend on the average fitness of certain means to make for
the achievement of certain ends. The point of view from which
Nature operates, if a metaphor be allowed, is causal. The point of
view from which man acts is teleological. Nature is governed by
forces. Man is determined by ideas. The difference is vital.

Again, physical law implies not only a fixed relation between phe-
nomena, but also involves that these phenomena, together with the
fixed relation between them, are of constant occurrence. A physical
law which should be true only under transient conditions, that is,
under conditions which fail to repeat themselves, is inconceivable.
Physical truth is true semper et ubique. Undoubtedly this account
holds good only of ideal physical law and does not perfectly apply
to any of the physical laws which are formulated in the text-books.
As Professor Sidgwick has it: " We assume the existence of natural
laws, and the narrowing down of these into exactitude is the endless
problem of discovery." An endless problem, indeed, a goal to
which we only approximate asymptotically. A remnant of inex-
actitude remains unexpunged even in the most certain of natural
laws. But the cause of the inexactitude is not any wavering or
flickering in Nature's process, but is due to our subjective uncertainty
whether we adequately apprehend the process as it actually goes on.

676 SOCIAL SCIENCE

Nature is a pedant. Nature does not alter her habits. Nature al-
ways repeats herself. Not only is it true that, the same conditions
being given, the same effects will always follow; not only is there
this constancy of relation, but it is likewise true that the same con-
ditions will repeat themselves, or conditions sufficiently similar to ex-
hibit the constancy of relation. Indeed, when we speak of the phys-
ical order, we are speaking of an abstraction, of one side of things,
to which our attention is restricted for the time, namely, of that
side of things which is characterized by just this constancy both of
relation and of recurrence. But in the case of the social uniformities,
while there is an approximate stability of relations between sets
of phenomena, there is no such constancy in the repetition of the
phenomena. Physical nature is a pedant, human nature is a
Proteus. In the case of physical nature the object studied may be
compared, let us say, to a building, which for some reason we are
not permitted to approach closely, the various features of which are
foreshortened now in one way, now in another, according to our point
of view. The object itself does not change its shape. Could we come
near enough, we should be able to report it with perfect exactitude.
But in the case of society, the object is not only remote from our
apprehension, despite its apparent nearness, but in addition it changes
its shape wrhile we are engaged in the act of contemplating it. It is
in this way that I should reply to the argument of those who hold that
the law of gravitation also is but an incomplete transcript of Nature's
process, and that the inexactitude which is put forward as an objec-
tion to the use of the word " law " for social uniformity would equally
apply to natural law. In the one case the inexactitude is in the appre-
hension of that which is fixed and stable, of that which, by reason
of its stability, permits of a considerable approximation to exacti-
tude of description. In the other case the inexactitude is due both
to the complexity of the object studied and to the unpredictable
changes which take place in it. These changes, let me now again
remind you, arise from the fact that uniformities of conduct are
adaptations of means to ends, and that these ends are ideas, and,
therefore, that the uniformity lasts only so long as the idea lasts or is
dominant. But one dominant idea may be displaced by a different
one, as happened at the time when the Germanic peoples were con-
verted to Roman Christianity. And when a new idea becomes domi-
nant, the order of the motives that govern conduct is revolutionized,
the old ideas, to the extent that they still remain operative, entering
into new combinations, and the whole complexion of conduct, in con-
sequence, being altered. If, indeed, it could be shown, as has been
attempted, that there is not only uniformity as between ideas and
the mode of realizing them in a given society, but also a uniform pro-

RELATION OF ETHICS TO SOCIAL SCIENCE 677

gression from one dominant idea to another, the conception of social
law might still be justified. But the attempts to prove such a
regular law of transition are futile. The passage, for instance, from
polytheism to the higher forms of religion does not indicate the
working of any uniform principle of development, but has actually
been achieved along the most divergent lines. In one case the next
step after polytheism was intellectual monotheism or the monothe-
ism that reflects the idea of intellectual unity, as among the Greeks;
in another case it was the monotheism that reflects the idea of power,
as among the followers of Mohammed; among the Hebrews it was
the monotheism that corresponds to the idea of supreme righteous-
ness. In other cases polytheism has passed over into pantheism,
as among theBrahmans; and in still another into intellectual nihil-
ism, as among the Buddhists. Race characteristics enter in largely
to determine the course of development; and these in their nature,
their development, and their influence are quite incalculable. The
influence of great men, or of what from the standpoint of onlookers
must be called the accident of genius, despite much that has been
said to the contrary, likewise enters in as a determining force; and
genius in its derivation and its possible effects, is incalculable. And
I should be untrue to my inmost conviction if I did not add that
the idea of moral freedom also enters in; and this, too, in the extent
of the influence which it may acquire, is unpredictable. The con-
clusion, therefore, to which I am led is that social science is con-
cerned with uniformities and not with laws; that these uniformities
differ from physical laws not only in degree but in kind; and hence,
that in the nature of the case there can be no such thing as a law
of social development, and that it is not only useless, but in principle
a mistake, to look to social science for the formulation of those
ideals which are to shape the future evolution of human society.

But if social science cannot furnish ethical ideals, are we to infer
that the time spent in it is a waste of effort, and, more particularly,
that its help in the task of social improvement can be dispensed
with? I most emphatically avow my conviction that the contrary is
the case, that the help of social science is indispensable, that it has
already rendered invaluable services to human progress, and that it
will render still greater services in proportion as it exploits its oppor-
tunities within its own limits, instead of seeking to transcend those
limits. For a moment let me attract your attention to some of the
most signal benefits which we have received and may further expect
at its hands. Social science has taught us the great and useful lesson
that all institutions, even those that seemed most stable, have
changed, and hence that they are liable to further change. It has
thus lightened the yoke of custom, made us ashamed of our mental
and moral provincialisms, and dissipated the false glamour that often

678 SOCIAL SCIENCE

attaches to vested rights and vested interests. It has created a
psychical disposition favorable to the idea of progress. At the same
time, by disclosing the slow and gradual nature of all beneficent
changes, it has impressed the necessity of caution and patience in the
attempt to promote progress.

Social science has largely contributed to what may be called col-
lective self-knowledge, and self-knowledge is as much a necessary
precedent condition of improvement in the case of society as in the
case of individuals. It has traced helpful if not perfect analogies
between individual development and certain stages in the past de-
velopment of the human race, and has also shown the survival of
the more primitive types of civilization in certain strata of contem-
porary society. It is thus calculated to throw some light on the
causes that bring about the conflict of ethical standards in modern
societies, and to furnish us with hints as to the method by which
the conflict may be diminished. It further contributes to social
self-knowledge by such investigations as the study of the psychology
of crowds, and it can make additional and important contributions in
the same direction by careful descriptions of the chief types of human
temperament and of race character, as objectified in literature, art,
law, religion, etc.

Social science creates a disposition favorable to patient progress;
it contributes to social self-knowledge. It also assists in the prac-
tical work of human betterment by giving definite expression, in its
statistical averages, to the connection between great social evils
and the conditions external and internal (the two can never be
wholly separated) to which they are due, thereby greatly enhancing
the social impulse to remove such evils. The connection between
death-rate and social class, between intemperance and irregularity
of employment, are examples in point.

Finally, the social end being given, the ethical formula being
supplied from elsewhere, social science has its most important func-
tion to discharge in filling in the formula with a richer content, and,
by a more comprehensive survey and study of the means that lead
to the end, to give to the ethical imperatives a concreteness and
definiteness of meaning which otherwise they could not possess.
Thus ethical rule may enjoin upon us to promote the health of our
fellow men, but so long as the laws of hygiene remain unknown or
ignored, the practical rules which we are to adopt in reference to
health will be scanty and ineffectual. The new knowledge of
hygiene which social science supplies will enrich our moral code in
this particular. Certain things which we freely did before, we now
know we may not do; certain things which we omitted to do, we
now know we ought to do. If a connection between intemperance
and irregularity of employment is traced, in this particular too, the

RELATION OF ETHICS TO SOCIAL SCIENCE 679

moral code will be enlarged. We shall now know at least that it is
our moral duty to unite our efforts with those of others in order to
remove the social danger of irregular employment. Similarly in the
finer instance of the duties of sexes to one another, in the duty of
parents to the child, of the citizen to the state, etc., a new knowledge
of the means that conduce to the moral end will enlarge, will diversify,
and will enhance the stringency of the moral code. Surely this is
a wide and noble field. Surely it is worthy of the devotion and en-
thusiasm of the social scientist, and offers ample opportunities for
the exercise of his highest faculties, both as a scientist and as a man.
I have now reached the end of my argument, and here might fitly
close this paper. But one question I know will linger in the minds
of many who may have followed me thus far. Whence then, if not
from social science, or sociology, are the sovereign ethical ideals to be
derived? Who is to determine for us what the social end ought to
be? Is the hope of unanimity with regard to the ethical standard
to be relinquished? Is there no prospect of relieving our highest
moral aspirations from the taint of subjectivity which adheres to
them? My answer would be that the diversity of ethical standards
is unavoidable, and is not the unmixed evil it is often represented to
be. Ethical principles are not propagated by being stated as in-
tellectual abstractions, but by means of the conduct to which they
lead. " By their fruits they are known." Such formulas as the
categorical imperative of Kant, or even the equation between our
neighbors and ourselves, established in the Golden Rule are not con-
vincing except they be translated and envisaged in the life which
is led according to them. 'T is the life that converts. The differ-
ences in ethical standards are due to differences in degree of develop-
ment and in temperament. The higher standards will overcome
the lower by the convincing force of example. Our trust must be
in the moral endowment that is latent in all men; the appeal must
be to human nature in the last instance. But the process of change
must in the nature of the case be gradual, and it is well that it
should be so, since those who are morally advanced, or believe
themselves to be, are thus put on their mettle to propagate the moral
truth they hold dear, by putting the emphasis of their efforts upon
the life, upon the side of feeling and will, rather than to seek the
moral improvement of mankind by means of such intellectual unan-
imity as might be worked out in sociological laboratories. Further-
more, the prospect even of intellectual agreement among those who
are upon the same moral plane would be greatly enhanced if only
the independence of ethical science from other branches of human
knowledge and interest could be secured. Ethics has been treated
in the past as a mere handmaid of religion; at present, notably by
the sociologists, it is treated as a mere branch of natural science.

680 SOCIAL SCIENCE

There are intimate connections between it and religion, and relations
also between it and physical science. But every branch of human
investigation is handicapped so long as it is treated as ancillary to
others, and true progress in any field of investigation begins only
at the moment when the field is provisionally isolated from the rest.
Let the isolation come first, and the connections and relations be
sought afterwards; this is at present the great desideratum of the
subject of which I speak.

Ethics is the science of moral judgments. Its office is to examine,
to reflect upon, to search out the first principle, the fundamental
formula that underlies these moral judgments. The chief moral
judgments which it is called to examine, if I may here, in passing,
express my own standpoint, are: First, the general judgment that
there is such a thing as Tightness and wrongness in conduct; and
then, that Tightness in conduct is constituted by the joint pursuit of
the individual and the social end, of the end of the self and of the
end of the other selves socially related to it. Wanted: a formula
which shall satisfactorily express this junction of ends in the same
act, which shall, if adopted, inspire society to make the end of the
individual its end, and the individual to make the end of society his
end. Does the egoistic formula correspond to this requirement?
Does altruism, with its tendency to sacrifice the individual to society,
correspond to it? It ought to be possible, if the problem is thus
isolated, to make progress toward a successful solution. The test of
success would be that the formula when found can be shown to sub-
sume under itself the moral judgments accepted as valid in society
to-day, and can also be used creatively to work out new moral
judgments answering to the needs of society as at present consti-
tuted, and convincing when translated into action.

But in thus stating my conception of the scope and function of
ethics I have transcended the scope of the topic I had set myself,
namely, to raise, and, according to my ability, to answer the question
whether the particular social sciences, or sociology in general, can
furnish ethical imperatives; to set forth what social science cannot
accomplish — not only has not, but in the nature of the case can-
not; and on the other hand, to estimate justly its past achievements
and the worth of what it may be hoped to achieve in the future.

In closing, I should like to leave this point with you for considera-
tion: that as a matter of fact the greatest advances in the ethical
progress of mankind have been achieved not by those who were more
learned than others in the social science of their day, but by those
whose inner life was profound, who searched the depths of their own
experience, who were stirred and humbled by the discrepancy which
appeared between the ideal of what they conceived ought to be and
actual conditions, and whose efforts were directed by the desire in

RELATION OF ETHICS TO SOCIAL SCIENCE 681

•

some measure to overcome that discrepancy. Such was the case in
the past, and such, I may be permitted to say, I expect will be the
case in the future. The social scientist will help to enrich, refine,
and specify the contents of the moral code; but because the nature
of the individual is social, he who interrogates his own conscious-
ness with a view to reaching the deepest springs latent in it will best
help us to bring into view and to describe the social end.

SOCIAL TENDENCIES OF THE INDUSTRIAL REVOLUTION

BY GRAHAM TAYLOR

[Graham Taylor, Professor of Sociology, Chicago Theological Seminary, Pro-
fessorial Lecturer, University of Chicago, Warden of Chicago Commons,
b. Schenectady, New York, 1851. A.B. Rutgers College, 1870; M.A., D.D.
ibid. ; LL.D. Illinois College. Professor in Hartford Theological Seminary,
1SS8-92. Member of American Economic Association; National Conference
of Charities and Corrections. Editor of Charities and ilie Commons.]

THE industrial revolution, during the initial stage of which the
nineteenth century dawned, dates and characterizes our contempo-
rary conditions and order of life. The political revolutions of the
eighteenth century were the expiring struggles of the dissolving
feudal solidarity rather than the travail attending the birth of the
present age.

The individualism which intervened between the medievalism
ending with the French Revolution and the modern industrial era
inaugurated by the introduction of machinery and the factory
system is proving to be more transitional than persistent. Its
phenomenal achievements and forceful individuals are exceptional
enough to claim an age of their own. But they were destined to
fulfill the higher function of preparing a way for, and making possible
the still farther-reaching development which is only now evolving
its form and order. The social disintegration intervening between
these most distinct eras allowed, if it did not compel, the evolution
of the individual as the new unit of society. No sooner had the
type of this individualized unit been fairly and firmly set than the
process of reintegration set in. The forces resident in or centred
about machine production and the subdivision of labor began to
assert their superiority to the domination of the individual who
created and, until recently, controlled them. This reintegration of
social units, more independent than had ever existed before or can
ever exist on the same scale again while present tendencies last,
is the phenomenon that distinguishes the close of the nineteenth
and the opening of the twentieth century.

The tendency of these times in all spheres of life has been from
individual independence to the interdependence of man upon man,
craft upon craft, class upon class, nation upon nation; from unre-
stricted competition to a combination of capital and labor as in-
evitable and involuntary as the pull of the force of gravity; from
the personal maintenance of the freedom of contract to the only
possible exercise of that right among increasing multitudes by col-
lective bargaining; from local autonomy and state rights to national
consolidations; from racial populations to a cosmopolitan, composite

TENDENCIES OF INDUSTRIAL REVOLUTION 683

citizenship. That is, the irresistible ground-swell and tidal movement
of the present quarter-century has been away from individualism
toward a new solidarity. While the individual instead of the kin-
dred group is its primary constituent unit, yet, as has been none
too strikingly said, we are " struggling with this preposterous initial
tact of the individual, — the only possible social unit and no longer
a thinkable possibility, the only real presence and never present."
But the synthesis of these elusive factors of the social problem, never
more contradictory than now, was seen to be fundamentally inher-
ent in human nature in the vision of a poet, who long antedated
our era, and sang of it thus:

" Man is all symmetry, full of proportions,
One limb with another,
And all to all the world beside.
Each part may call the farthest brother,
For head with foot hath private amity
And both with moons and tides."

These tendencies of the times have dominated more and more
those of the groups of individuals and interests under review in this
department, with the outline sketch of whose trend I am charged.

They have been most determinative, of course, in the industrial
group. The freedom of contract, conceded to be the inalienable
right of the individual, is no longer protected or effectively guar-
anteed by the law alone. Combination on either side controls
the market and leaves the unorganized individual to accept what is
offered with no alternative. To bargain freely with combined
capital, the individual laborer has found it an economic necessity
to organize his craft, even at the expense of abridging his personal
liberty. The collective trade agreement, on one or both sides, is
inevitably superseding the individual contract in the labor market.
The form of organization developed by labor to meet this require-
ment left the individual employer or corporation as helplessly at
the dictation of the united employees as ever the laborer has found
himself at the mercy of his employer in dealing single-handed and
alone with organized capital. Employers' associations became as
much of an economic necessity as labor-unions. Both are organized
on essentially the same basis of an instinctive class-conscious impulse
for self-preservation. Each obliges the other to conform the type
and tactics of its organization to virtually the same model. Swiftly
and inevitably both constituents in the industrial group are adjust-
ing their business methods and relationships to these inexorable
conditions of modern industry.

Beneath all the overlying turmoil and friction, injustice and
menace, attending this rapid and radical readjustment, there is to be
clearly discerned the evolution of a larger liberty, at least for the

684 SOCIAL SCIENCE

class, a rising standard of living for the mass, a stronger defense
against the aggression of one class upon another, and a firmer basis
and more authoritative power to make and maintain peaceful and
permanent settlements of industrial differences. More slowly and
yet surely there are developing legal forms and sanctions, which not
only make for justice and peace between the parties of the first and
second parts, but for the recognition of the rights and the final au-
thority of that third and greatest party to every industrial interest
and difference — the public.

Urban conditions most persistently deteriorated under the most
persistent neglect through the whole period of the abnormal growth
and complexity of city populations attending the establishment of
the factory system. But they have fairly begun to show the hope-
ful and widespread indications of reorganization, of a constructive
policy, and of a more democratic intelligence, interest, and control.
Most conspicuous of the movements for civic betterment and funda-
mental to the success of all others is the rescue of municipal adminis-
tration from partisan political control. The seizure of the balance of
power between parties by voters who thus declare their independ-
ence of the national issues in municipal action, has proved to be the
only hope of emancipating urban life from the exploitation for party
spoils.

In Great Britain it has broken new lines of cleavage upon wrhich
the citizens divide on local issues according to their predilections
and ideals. The marvelous rise of civic enterprise and administra-
tion out of the degraded corruption in which English cities were
sunk prior to the middle of the last century is largely due to ex-
changing the names and issues of " Tories " and " Liberals " for
those of " Moderates " and " Progressives " in policies and politics.
In this country the redemption of our second largest city from the
most avowedly debased control of thoroughly commercialized par-
tisan politics is the most marked achievement in the American
municipal reform movement that is destined to set the type of
method by which only other cities are likely to attain their freedom
and progress. Chicago's Municipal Voters' League has proved to
be the simplest and most effective organization of independent
citizens for the information, cooperation, and perpetuation of an
electorate loyal to civic patriotism as well as for the restraint and
purification of the management of political parties in cities.

More efficient departmental administration quickly follows every
real gain in political regeneration. Such improvement in housing
conditions as promises well-nigh to abolish the slums in Glasgow,
Liverpool, and London; hygienic development of bathing-beaches,
bath-houses, and gymnasiums by the city of Boston; the inspection,
licensing, and regulation of manufacturing in New York City

TENDENCIES OF INDUSTRIAL REVOLUTION 685

tenement-houses, which may yet restore the home to the family from
the usurpations of trade; the almost unobserved, yet marvelous
development of the South Park system in Chicago, with its play-
grounds and rooms, its outdoor and indoor swimming-pools and
gymnasiums, and its park houses for neighborhood social centres;
the steady rise of a more scientific official and semi-official literature
reporting civic conditions and the ways of bettering them, such as
have been issued by the London County Council and the first com-
missioner of the New York City Tenement-House Department, —
these public achievements, prompted or assisted by such voluntary
associated efforts as local improvement societies and social settle-
ments, are making possible the collective ownership and operation
of municipal enterprises to supplement or supersede inadequate
private initiative or management.

Thus may be fulfilled the ideal of the " ancient city " which has
never been realized in fact, namely, a federation of families for the
uplift and unification of the common life, formed under the sanction
of a fundamentally religious faith in each other and in the obliga-
tions and privileges of the brotherhood of all men.

Scarcely less pronounced, if of more gradual growth, are the
changes which are transforming the conditions of rural life. The
interurban electric railways for freight and passengers, the telephone
and rural mail service, the better roadways for bicycles and auto-
mobiles, the traveling libraries and permanent centres for educa-
tional and social interchange, are rapidly relieving the monotony of
country life, lightening some of its drudgery, furthering better edu-
cational privileges by the union of school districts, making accessible
the high school, college, and university centres, bringing farmers'
institutes and academic associations of economists together for
joint sessions, developing the extension work of agricultural col-
leges, rallying the grange movement, — all these things combine to
hold out the first hope which has dawned upon the tendency to the
excessive density of the urban population, and that promises a re-
distribution of the people which will make possible more normal
life both in country and town.

The family has suffered an invasion of its community of interests
from many directions. The unity of its kinship has been attenuated
by the prevailing influence of excessive individualism, from which
none of its relationships have wholly escaped. Among the disin-
tegrating forces directly and powerfully brought to bear against it
throughout this industrial age, the first to be reckoned with is the
changed economic status of women. Although the woman has al-
ways done her full share, if not more, of the world's work, upon which
the family has depended for its existence and well-being, it has been
hitherto for the most part done at the heart of the home and the

686 SOCIAL SCIENCE

centre of the family circle. The domestic system of industry, how-
ever, was never ideal, and one of the way-marks of modern industrial
progress is undoubtedly to be noted in the separation of the shop
from the house and the restoration of the home to the family. But
the family has never been subjected to such a strain as by the in-
creasing industrial necessity for the wife and mother to do so much
of her work out of the house and away from her home and children.
The growing economic independence of women may partially com-
pensate for this loss to individual homes by benefiting the institu-
tion of marriage in general. The abject dependence of so large a
proportion of women upon marriage for their livelihood did not
previously tend to purify the marital relation or put the wife in her
rightful place on an equality with her husband in the family circle.
Capacity for economic independence cannot fail to admit both the
man and the woman to the marriage contract on more equal terms
and establish the status which it involves upon a freer and more
ingenuous basis.

But great as is the gain of this more just and moral economic
independence of woman, it is attended with serious disadvantages,
not necessarily inherent in it, yet closely involved with it. The
dependence of the family upon it for support is at a fearful cost to
childhood and home life, and in a large proportion of cases under-
mines the self-respect and dependableness of the husband. Those
forms or methods of industrialism which have ignored the humanities
of sex and age stand at the judgment-seat of the medical profession,
the school-teacher's experience, the government's statistics, and all
child-labor legislation, convicted of deteriorating the very stock of
the race.

Wholesale emigration is for one or two generations a more serious
crisis in family life than is generally known. Especially among the
less assimilable races, and where a primitive peasant folk are precipi-
tated into the heart of the great and terrible city wilderness, the
effect is well-nigh destructive not only to family relationships, but to
individual character. The man who was seldom or never away from
home in the old country must wander far and wide in search of work
or stay away for months to keep it. The woman, if not overworked
in industry, is idle as never before in the crowded tenement-house.
The children, without knowledge or confidence in the ways of
the new world to compensate for the loss of their restraint and
familiarity in the old home-land, disobey their parents before learn-
ing self-control, have too little schooling before they begin work, and
too fragmentary employment to give them the discipline of the shop
or the acquisition of a trade. Thus among the many immigrant
families who strike root and bear the best fruitage grown on Ameri-
can soil at least, there are not a few who, despite the best intent,

TENDENCIES OF INDUSTRIAL REVOLUTION 687

become the most dangerous sources of pauperism and crime, as do
not a few native families removing from country to city.

The precariousness of livelihood and the enforced mobility of
labor are also a resistless undertow which undermines and sweeps
away the very foundation of family life. It is the occasion of much
of the desertion and divorce which so seriously menace the marriage
relation.

Bad housing conditions are so seriously inimical to the very exist-
ence of a family worthy of the name that, in self-defense as well as
for humanity's sake, great municipalities, like those of Glasgow and
Liverpool, are amply justified in providing workingmen's dwellings
for lowest paid laborers, reserving whole blocks of them for widows
with their children, and erecting lodging-houses for widowers, with
special nursery and kindergarten provisions for their motherless
little ones.

The way in which family unity is ruthlessly disrupted by secta-
rian rivalry, the order of home life disregarded by stated public
appointments, the separate recreations provided for men and
women, younger and older apart, while little or nothing is offered
the family group which all its members can enjoy together, — these
and many other tendencies of the age denote the family to be the
greatest ignored factor of modern life.

But most promptly and hopefully does it respond to the better
conditions for its maintenance and development as they supersede
the worst at all these points of resistance.

The tendency thus affecting the groups already considered by
virtue of that fact have very direct bearings upon dependency and
delinquency. The type and ratio of both are modified and intensi-
fied by the conformity of increasing multitudes to these molds of
character and conditions of life. The legal and philanthropic
measures dealing with them are equally conditioned by the same
causes.

While, for instance, the tramping of farmer families is noted by
Sir Thomas More, when sheep ranches first displaced agriculture
in England; while landless serfs followed in the wake of the Black
Death, yet the modern " tramp " is a distinct species and the exclu-
sive product of our industrial age. He is a terminal of a tendency*
which gradually evolved him, not indeed without a certain inclina-
tion of his own, but far more, in most cases, by reason of forces
for which society was more responsible than he, though almost as
powerless as he to control them. Intermittent work in shorter runs
and longer hours; intervening idleness and going afield for a job;
temporary employment on the Dakota wheat-fields or some remote
railway extension; discharge at a point too distant, measured by dol-
lars, to get back home without " taking to the road " or " beating his

688 SOCIAL SCIENCE

way," — such are some of the short cuts from an industrious life to
a career of vagrancy or crime.

The labor colonies of Germany, the municipal lodging-houses of
England and America, with state employment bureaus and the
necessity to make work, now and then, here and there, to keep the
army of the unemployed from starving, — these surely are signs of
the new times.

At no point is legislation gaining at so good a pace upon the waste-
ful abuses of industrialism as in the provision for compulsory
education, the strict regulation of child labor, the maintenance of
juvenile courts and probation officers to deal with delinquent and
dependent children and in furthering and safeguarding the placing
out of those who are wards of the state.

The tendencies to specialize, combine, and democratize the public
and private administration of charities and correction are as char-
acteristic of the industrial age as any of its developments. Indeed,
the whole modern conception, method, and movement of philanthropy
are hardly conceivable prior to or apart from our present point of
view. But only within the last few years has this conformity to
those economies and concentrations which are distinctive of industri-
alism been so marked. At no previous time has the socially well-
informed person been expected to know, not something of every-
thing, but everything of something. Specialties have narrowed
down and also broadened so that it is more possible to meet this
requirement, and yet in so doing find scope for the best academic
discipline and culture. Every branch of philanthropy has long
since shown the practical value in this specializing accuracy of
observation and administration. Never before have more people
of strong caliber and large personal equipment been in the social
service, professionally and as volunteers. Teachers trained for
professorships find satisfaction and reputation as superintendents
of reformatories. Men of recognized talent and attainment, both
in scholarly and business pursuits, are found in the wardenships of
prisons, at the head of child-saving institutions, serving as chiefs
of departments in city governments and in secretaryships of state
boards of charities. Their service as well as their literature is
'receiving deserved, though belated, academic recognition as of
scientific value. Their specialties are taking rightful place among
the arts.

The economy of personal and financial resource in combining the
same and allied interests results in the largest qutput for the least
expenditure in philanthropy as in business. The charity organization
society has become as much of an economic necessity and as essen-
tial a part of the equipment of cities and towns as the clearing-house
of the banks.

TENDENCIES OF INDUSTRIAL REVOLUTION 689

But this and such kindred developments as state boards of
charities, state charities aid societies, and state and national
conferences of charities and correction are not more expressive of
an economic instinct than of a democratic spirit. Indeed, all these
more representative associations arose coincident with and to meet
the demands of the people's assumption of the control of their own
affairs. Local autonomy in a district became coordinate yet cooper-
ative with the centralizing yet exclusive headquarters which formerly
claimed the whole field. Paid official positions became all the more
indispensable and honorable when under the supervision of the
unpaid representatives of the public. The salaried expert was recog-
nized to be all the more a leader when there were volunteer workers
and friendly visitors to be led. The few and select donors of large
gifts, who not without reason have sometimes been suspected of
monopolizing the " Lady Bountiful " type of benevolence, have
found neither their legitimate influence nor the scope of their giving
curtailed by sharing the democratic spirit which now supersedes
whatever exclusiveness there used to be in philanthropy.

Moreover this spirit has begun to save the loss of individuality
suffered by those in the dependent and delinquent groups who have
been massed impersonally and indiscriminately together, under the
congregate system of institutional administration. . The reversion
to the more normal type of individual life in smaller family or house-
hold groups is the belated recognition of the democratic right of each
to personal consideration, which all are bound to respect in the care
of the dependent, the defective, and the delinquent. In respecting
this right the community equally regards its own welfare by taking
the most direct means of restoring to self-help and rightful place
among men those whose capacity for self-control and usefulness is
weakened, if not destroyed, by treatment, not less a violation of
nature than it is inimical to public interests. In line with the same
farther-sighted humanitarian economy is the enlistment of whole
populations, through their city governments, to grapple with their
social situation as a whole. The Elberfeld policy toward dependency;
the public control of the liquor traffic as in Scandinavia; the marshal-
ing of the legislative authority, resources of taxation, and a construct-
ive civic programme for the abolition of slums and the equalizing
of privileges and opportunity, as the borough and county councils
of England are doing it; the regulation of industrial forces in the
interests of the whole people, as in Australia and New. Zealand, —
such attempts to reach a saner social order and realize a more human
ideal of collective life are impressive way-marks of progress such as
only the whole community can achieve for itself.

The personal and community interests we have been considering
are so permeated by the ideals and influence of the religious group

690 SOCIAL SCIENCE

that our review would be conspicuously deficient if we did not note
its tendencies in the same direction. Slowly but surely the religious
social consciousness is dawning again. Its appearance, now as
before is identified with the world view and movement of the churches.
Its social and even industrial expression has already begun to be
worthily chronicled from original sources with scientific spirit and
historical perspective, notably in Dennis's three massive volumes
bearing the significant title Christian Missions and Social Progress.
This first work of its kind deserves to be classed with Ulhorns's
Charity in the Primitive Chvrch, Schmidt's Social Results of
Early Christianity, and Brace's Gesta Christi. The exigencies
of missionary work on foreign fields, which is represented by this
author, has not allowed the dualistic separation of religion from life,
and has necessitated a closer identification of the common faith with
the domestic, industrial, and community interests of the common
life. Especially marked is this in some of the exceptionally success-
ful work among the subject races and abject classes. No more
expert work has been done by government or under scientific
educational auspices than in some Christian missions and schools
among the islanders of the Pacific, the negroes of Zululand, and in
the American black belt by the American Missionary Association
and under Booker T. Washington at Tuskeegee, with the Indians
at Hampton and Carlisle and on some of the reservations.

The conditions of life especially in the cities of Christendom
are developing church agencies, which still far from adequate
to meet the religious situation or the ethical need, promise much
development. Typical among them are the Inner Mission and also
Naumann's social propaganda in Germany; Christian social move-
ments in the Established and Free Churches of England and the
adult schools of the English Friends; the Young Men's and Young
Women's Christian Associations, with their physical, educational,
railway, and shop departments and equipment; the institutional
type of church work, especially that of the Protestant Episcopal
Church in New York and the Wesleyans in London; and the re-
awakening among the sodalities and institutions of the American
Roman Catholic Church to contemporary needs and methods.

These church activities are already having their formative influence
upon the worship, thought, and legislation of ecclesiastical bodies.
Hymns of social feeling and ideal are finding their place in authorized
collections, hitherto almost exclusively individualistic. Christian
ethics and even dogmatic theologies are placing new emphasis upon
their bearings on the collective life. The polity of every church
is becoming more democratic. The religious sentiment is being
humanized. And last, and we fear least, but ultimately most inevit-
able of all the movements within religious bodies, is to be noted the

TENDENCIES OF . INDUSTRIAL REVOLUTION 691

pressure, chiefly exerted from without, toward federating with each
other for purposes of defense and cooperative effort, though not for
the organic unity of government, creed, or ritual. The most con-
spicuously valuable results yet attained in this direction are recorded
in the sociological census taken by the Federation of Churches and
Christian Workers of the City of New York.

We have yet to trace the reciprocal influence of the social tenden-
cies of this industrial age and contemporary educational movements
upon each other.

About the middle of the last century the need of a new nomencla-
ture to designate these new movements of thought and action began
to be met. In 1830 Auguste Comte coined the term " sociology " to
include the group of sciences which he designated " Social Physics."
Very slowly, however, is the terminology thus initiated finding its
way into anything like accepted usage. The first title-page in Ameri-
can periodical literature bearing a sociological term and scope is
that of Simon Stern's Social Science Review which appeared in
1865. It discovered its raison d'etre in the Civil War, which it
predicted " will probably produce many changes in our social and
political institutions " so that " it has become of the utmost import-
ance that we should at this period, more especially, render ourselves
familiar with the natural laws which govern mankind in its social
state, and that public opinion and legislation may be in accordance
with and not in contravention of those natural laws." But the
prospectus was so far removed from any scientific definition as to
construct out of the single term sociology a veritable omnibus, into
which, with our all too familiar tendency to overcrowding, it packed
about all the political, economic, domestic, and moral issues then
before the American people.

The new point of view required a reinvestigation and reclassifica-
tion of the old and additional phenomena attending the tendency
to such a gregarious, yet segregated life, such a subdivided and
interdependent labor as the world had never known before. In
the tables of his Descriptive Sociology, Herbert Spencer suggested,
if he did not determine, a scientific classification of at least historical
and literary data, which stimulated research and encouraged the
application of the inductive method.

It was not until twenty years ago that any attempt to be com-
pared with it was made to classify and summarize contemporary
data. All England was then startled by the " Bitter cry of outcast
London," which was piteously but sternly raised by some Christian
mission workers in the then all too little known East End. Amidst
the clamor of protesting or appealing voices over the mute sufferings
of poverty-stricken thousands and the growing discontent at the
neglect of such conditions, one man went silently to work to get at

692 SOCIAL SCIENCE

the root of the problem. He stood almost alone in his insistent
and persistent self-exaction to ascertain accurately the facts of the
actual situation. The opening years of the twentieth century have
registered no greater achievement than the completion of Mr.
Charles Booth's Life and Labor in London at the close of the
nineteenth. The worth of this work, not only to London, but to all
the cities of the world, can scarcely be overestimated.1 It supplies
a practical classification and method which by a consensus of opin-
ion are already widely recognized and used. Its conclusions are
models of tested accuracy, cautious conservatism, and the fearless
facing of ascertained facts. Its permanent reference value is assured
by well-nigh perfect tabulations, abstract of contents, and full
indices. Already the type of scientific investigation set by this
colossal work of London's great shipper is reproducing itself in books
of other thoroughly original investigators which deserve to be classed
with it. It is a pleasure thus to rate Mr. B. Seebohm Rowntree's
Poverty: a Study of Town Life in York ; the report on the housing
conditions of Manchester by Mr. T. M. Marr ; and the London Daily
News's investigation of Religious Life in London, edited by Mr.
R. Mudie-Smith.

The endowment and equipment of the " Muse"e Sociale," in Paris
furnishes and suggests a provision for perpetuating such efforts,
preserving their data, and publishing their results, which is sure to
create similar centres for archive and research with far too little
resource, and, therefore, on a less exhaustive scale, the Institute
of Social Service in New York is gathering a valuable collection of
clippings, pamphlets, photographs, official reports, and books
bearing particularly upon the welfare work of industrial establish-
ments and municipal departments. The " Museum of Security " in
Amsterdam by its permanent exhibition of appliances for protecting
and saving life has established a centre of unique interest and far-
reaching practical value. Great libraries, notably the Crerar
Library in Chicago, have begun to specialize in these departments
on a scale which promises to locate at several great centres not only
exhaustive collections of their literature but also original data, which
will open new sources to research.

The rise of university departments of sociology and social eco-
nomics, so fully reported in the proceedings of the International Con-
ference of Charities and Correction and Philanthropy held at Chicago
in connection with the Columbian Exposition in 1893, has been fol-
lowed by a steady and apparently permanent development, almost
exclusively confined, however, to American institutions. The

1 Its collaboration of the hitherto incoordinate facts of official inquiry,
departmental reports, and government census, is even more valuable, in setting
a standard of scientific exaction and method, than in its great direct results.

TENDENCIES OF INDUSTRIAL REVOLUTION 693

practical knowledge for living and working together has begun to
be directly inculcated in the teaching of our technical and public
schools.

The cooperative societies for social research, discussion, and pub-
lication have differentiated along the lines of their theoretical and
practical specialties. While the Social Science Association continues
to cover its very general field, the American Statistical Association,
the American Economic Association, and the American Academy
of Political and Social Science have added greatly to the expert
personnel and equipment of their several departments of research.
The recent organization in London and also in America of the
" Sociological Society " for the study of social theory, and the " In-
stitute of Social Service," suggested by and modeled after the prac-
tical purpose and methods of the society bearing the same name in
New York, assures needed reinforcement at the great centres of
observation and scientific resource in the Old World.

The most natural and timely sequels of these industrial and social
movements are the schools which are arising at the greatest centres
of activity to offer both general courses and technical training in
the theory, history, and practice of what deserve to be called the
social arts. The demand for trained helpers is being widely increased,
not only by the growing opportunities and exactions of these mani-
fold agencies, but also by the extension of the civil service law to
cover positions in public, charitable, and reformatory institutions.
But the offer of the supply of trained helpers is the surest way to
create the demand for them where it does not exist.

One of the earliest initiatives in this direction was taken by Miss
Helen Gladstone at the London Woman's University Settlement, in
conducting a small training-class from year to year, the graduates
of .which immediately found positions of trust and usefulness through-
out the kingdom. The Charity Organization Society of that city
has recently brought about the cooperation of this class with the
" School of Economics," some departments of the University of
London, and its own expert force, to establish a " School of Sociology
and Social Economics," which is in the second year of successful
operation. In New York City a well-patronized summer school,
conducted for several years by the Charity Organization Society,
has evolved the " School of Philanthropy." In its very full curric-
ulum, covering the whole academic year, it has the cooperation of
the Columbia University faculty and the Association of Neighbor-
hood Workers, both of which, independently, offer some courses of
similar instruction. In Boston the study class of the Charity
Organization Society has been the pioneer effort, which is now to be
supplemented by the " Training-School for Social Workers," jointly
conducted by Harvard University and Simmons College for Women.

694 SOCIAL SCIENCE

•

"The Institute of Social Science" was opened at Chicago in 1903
by experts at the head of specialized agencies and institutions,
both public and private, assisted by teachers identified with
several universities. A four years' course has been established at the
University of Chicago in the new Department of Religious and
Social Science leading to an academic degree. At all these schools
the great centres at which they are located are used as laboratories
in which the students are assigned to carefully supervised and pro-
gressive field-work which constitutes a principal part of their
training. The appointment of a standing committee on training
for social work by the National Conference of Charities and Cor-
rection will greatly promote the progress, cooperation, and unity of
these courses.

Perhaps more significant than all the tendencies of industrialism
which we have noted is that which sets irresistibly toward inter-
national relationships. Beneath the sinister influence which
commercial interests have had upon politics, there may be a larger
good evolving. But the very elements which have been creating
internal strife and provoking foreign wars may soon become so
international in their proportions as to be the chief impediment to
war and mainstay of the world's peace. Organized workingmen, who
were the first to frighten the world by ignoring national boundaries,
are, without the loss of their patriotism, naturally developing inter-
national unions out of their national organizations. These great
craft brotherhoods, by stretching hearts and hands across seas to
organize for their common interests across every frontier, bid fair,
by their refusal to fight each other, to command the world's peace.
Among the world's congresses convening at this Exposition, none
registers a higher- water mark of human progress than the " Inter-
parliamentary Union," with its three hundred delegates, representing
practically all the constitutional governments of the world. The
twelfth session of this union is immediately followed by the Thirteenth
International Peace Conference at Boston, with a personnel and
prestige which more than keeps pace with the progress of war.

With the possibility of this climax in sight, and in view of the pro-
found changes in social condition which it has already wrought, the
Industrial Revolution is making good its claim to be the most radical
transformation through which civilization has ever passed.

SECTION A — THE FAMILY

SECTION A— THE FAMILY

(Hall 5, September 21, 10 a.m.)

CHAIRMAN : PROFESSOR SAMUEL G. SMITH, University of Minnesota.
SPEAKERS : PROFESSOR GEORGE E. HOWARD, University of Nebraska.
DR. SAMUEL W. DIKE, Auburndale, Mass.

IN opening the proceedings of the Section of The Family the
Chairman, Professor Samuel G. Smith, spoke as follows:

" The problem of the family may be studied from the speculative
point of view as the primary form of human institutions, the germ
from which all others have been developed. It may be noted that
the form of the family has varied by climate, food-supply, economic
and political conditions, and in short that every bond of each social
group has been affected by similar forces, and that all institutions are
formed practically on parallel lines.

" Polyandry calls for a sterile soil, and polygyny must not only
have surplus bread-stuffs, but it is accompanied by despotisms.
The industrial tribe will differ fundamentally from the military tribe
in domestic institutions, but it will also differ in the character of its
gods and in the forms of its worship.

" But the problem of the family may be viewed as a practical
question of modern civilization. The loosening of family ties, the
easy and frequent divorce, the lack of a sense of mutual responsibility
among the members of the family group, may stir the spirit of the
reformer, and may seem to him purely a moral question to be solved
solely by the aid of moral forces. To him the question of the family
is one of surpassing importance to the woman and to the child, and
must be settled by improved legislation and by an aroused public
opinion.

" These two points of view may, perhaps, not be so far apart as
they at first appear. If the family be the primary social cell, then a
historic study will show that the strength of the family indicates the
strength of all other institutions. The permanence of a larger social
group will depend upon the preservation of the cells of the social
body. So the reformer will be reinforced by the study of society as
a whole. On the other hand, such a study will doubtless lead him
to inquire whether or not the condition of present instability of the
family is a local social disease, or whether it may not be in fact -only
a symptom of general conditions. He will seek to be instructed by
the effect of woman in labor, the influence of the decay of faith upon
social ties, the effect of the sudden increase within the last generation
or two of the world's wealth, and similar inquiries will throw light

698 THE FAMILY

upon his problem. If the weakening of the family comes from
general c.auses, he will ask whether the causes seem to be temporary,
and present conditions, therefore, of no great social importance. He
will ask also whether his attack upon the evils he laments should be
direct or indirect.

" We are fortunate in having for the leaders in the discussion
to-day one gentleman who has made an important contribution to
the history of the subject, and another gentleman who has con-
tributed largely to the practical task of the preservation of the
family. But we are doubly fortunate in the fact that both gentlemen
are conversant with all sides of the subject.

BY GEORGE ELLIOTT HOWARD

[George Elliott Howard, Ph.D., Professor of Political Science and Sociology,
University of Nebraska, b. Saratoga, New York, 1849; A.B. University of
Nebraska, 1876; Ph.D. ibid. 1894; student of history and I^oman Law, Univer-
sities of Munich and Paris, 1876-78. Professor of History, University of Ne-
braska, 1 879-91 ; Professor of History and Head of History Department, Leland
Stanford Jr. University, 1891-1901; Professor of History, Cornell University,
summer term, 1902 ; Professorial Lecturer in History, University of Chicago,
1903-04; Professor of Institutional History, University of Nebraska, 1904-06.
Member of American Historical Association; American Political Science Asso-
ciation; and American Sociological Society. Author of Local Constitutional
History of the United States (1889); Development of the King's Peace (1891);
Modern English History and Biography, in New International Encyclopedia
(1902); History of Matrimonial Institutions (3 vols., 1904); Preliminaries of the
American Revolution (1905).]

IT is needful in the outset to mark the differentiation and to
observe the close interrelations of the family, marriage, and the
home. The problems of the family are necessarily involved in those
of the home and marriage. The three forms of development are
distinct in concept, but in their life or functions they constitute a
trinity of interdependent institutions. Westermarck has suggested
that in its origin marriage rested more on family than the family
upon marriage. Biologically, of course, marriage comes first in the
union of the sexes; yet it is certain that the culture-types of
marriage have been determined less by the sex-motive than by the
economic needs of the family, — the bread-and-butter problem in the
struggle for existence. To-day this fact is decidedly true. In our
age of social self-consciousness, of dynamic sociology, the reformer
who would act wisely will not seek help in definitions but in a com-
prehension of the economic and spiritual needs of the family and
those of the individuals which compose it. As in other cases, there
must be an adjustment of functions to the environment. The
social uses of the family and still more those of the home are too
often neglected while speculating on the nature of wedlock and the
ethics of divorce.

Accordingly the fundamental question which confronts the student
of this trinity of institutions is the problem of social control. In the
Western world the extension of the sphere of secular legislation
practically to the whole province — the whole outward or legal
province — of marriage is a fact of transcendent interest. In this
regard the Reformation marks the beginning of a social revolution.
Luther's dictum that " marriage is a worldly thing " contained
within it the germ of more history than its author ever imagined.
The real trend of evolution has not at all times been clearly seen or
frankly admitted; but from the days of Luther, however concealed

700 THE FAMILY

in theological garb or forced under theological sanctions, however
opposed by reactionary dogma, public opinion has more and more
decidedly recognized the right of the temporal lawmaker in this
field. In the seventeenth century the New England Puritan gave
the state, in its assemblies and in its courts, complete jurisdiction in
questions of marriage and divorce, to the entire exclusion of the
ecclesiastical authority. For nearly three quarters of a century the
clergy were forbidden to solemnize wedlock, while at the same time
marriages were freely dissolved by the lay magistrate. Even the
Council of Trent, by adjusting the dogma regarding the minister of
the sacrament, had already left to Catholic states the way open for
the civil regulation of matrimony, a way on which France did not
hesitate to enter. Definitively the state seems to have gained control
of matrimonial administration.

As a result in the United States, not less clearly than elsewhere in
countries of Western civilization, marriage and the family are emerg-
ing as purely social institutions. Liberated in large measure from
the cloud of medieval tradition, their problems are seen to be iden-
tical in kind with those which have everywhere concerned men and
women from the infancy of the human race. Biologically they are
indeed a necessary result of man's physical and psychic nature;
but institutionally they are something more. Modern jurisprudence
is a practical recognition of the fact that matrimonial forms and
family types are the products of human experience, of human habits,
and are, therefore, to be dealt with by society according to human
needs.

The greatest fact in social history is the rise of the state; and
in the more vital or organic sense the state has never been so great
a social fact as at the present hour. Moreover its authority, its
functions, are every day expanding. The popularization of sov-
ereignty has but added to its power. With the rise of this mighty
institution all lower organisms have lost something or all of their
institutional character. In the culture-stage of civilization the
gentile organization is no more. The clan and the tribe have dis-
appeared. The function of the family as the social unit, as a cor-
poration held together by the blood-tie, has likewise vanished. In
a perfectly logical way, however paradoxical at first glance it may
seem, the social function of the individual has expanded with that
of the state. The process of socialization and the process of indi-
vidualization are correlative and mutually sustaining operations.

Consequently out of the primary question of social control arises
the problem with which we are here chiefly concerned: the problem
of protecting the family against harm from the dual process of
disintegration just referred to. Already many changes of vast
sociological meaning have taken place, but the most vital char-

SOCIAL CONTROL AND FAMILY FUNCTION 701

acteristic of the family survives. From the infancy of the human
race, in the light of our fullest knowledge, monogamy appears as the
prevailing type of sexual life. Under diverse conditions, religious,
economic, or social, there have been many aberrations from that
type; but, at first for biological or economic and later for ethical or
spiritual reasons, always the tendency has been toward a more
clearly differentiated form of the single pairing family. Among all
peoples, whether Christian, Jew, or Gentile, the highest ideal of
marriage is that of lifelong partnership.

On the other hand, under the twofold leveling process, the inter-
relations of the members of the family group are being gradually
transformed. The patriarchal authority of the house-father is
crumbling, although here and there it is still sustained by the
relics of medieval tradition. The wife is declining to pass into
the husband's hand, in manu viri, but physically and spiritually
she is more and more insisting on becoming an equal member of the
connubial partnership. Not only are sons and daughters legally
emancipated at a reasonable age; but during nonage, in the most
enlightened households, their individuality is being recognized in a
way which would have shocked social sentiment a few generations
ago. Young boys and even young girls show a tendency to cut the
parental moorings and embark in affairs for themselves. The busi-
ness precocity of the American youth is notorious. Moreover, the
state in the interest of the larger social body is attacking the ancient
constitution of the household. It is taking a hand in the rearing of
the young. Through educational requirements, factory laws, and
other child-saving devices it is invading the ancient domain of the
parent. Little by little, to use the generalization of Dr. Commons,
the original " coercive " powers of the family under the patriarchal
regime have been " extracted " and appropriated by society. Thus
the family becomes " less a coercive institution, where the children
serve their parents, and more a spiritual and psychic association of
parent and child based on persuasion." The state, the " peculiar
coercive institution," he declares, in the interest of children's rights
has " annexed " a large part of the patria potestas; and " all families
are thereby toned up to a stronger emphasis on persuasion as the
justification of their continuance." * In fact the leveling tendency
just considered, instead of being a serious menace to the family, is
probably a regenerative force. The question is, may the old legal
patriarchal bonds be adequately replaced by spiritual ties, and thus
a nobler type of domestic life be produced?

In more sinister ways the solidarity of the family appears to be
menaced through the individualism fostered by our economic and

1 Commons, "The Family," in his Sociological View of Sovereignty, Ameri-
can Journal of Sociology, v, 683 ff., 688-689.

702 THE FAMILY

industrial systems, operating chiefly in great urban centres. With
the rise of corporate and associated industry comes a weakening of
family ties. Through the division of labor the family " hearthstone "
is fast becoming a mere temporary meeting-place of individual wage-
earners. The congestion of the population in cities is forcing into
being new and lower modes of life. The home is in peril. In the
vast hives of Paris, London, or New York the families even of the
relatively well-to-do have small opportunity to flourish — for self-
culture and self-enjoyment. To the children of the slum the street
is a perilous nursery. For them squalor, disease, and sordid vice
have supplanted the traditional blessings of the family sanc-
tuary.

Furthermore, the social trinity is seriously threatened by two
opposite tendencies, each of which is, in part, the product of present
urban and industrial conditions. On the one hand, marriage is
shunned and the home is ceasing to be attractive. For very many
club life has stronger allurements than the connubial partnership.
For the poor, sometimes for the rich, the great city has many interests
and many places more attractive than the home circle. The spirit
of commercial greed and the love of selfish ease, not less than grinding
penury, restrain men and women from wedlock. On the other hand,
the urban environment has the opposite effect. In the crowded,
heterogeneous, and shifting population of the great towns marriages
are often lightly made and as lightly dissolved. Indeed, the remark-
able mobility of the American people, the habit of frequent migration
in search of employment, under the powerful incentives of industrial
enterprise, gold-hunting, or other adventure, and under favor of the
marvelously developed means of transportation, will account in no
small degree for the laxity of matrimonial and family ties in the
United States.

Yet these perils, although serious, need not become fatal. They
are inherent mainly in industrial institutions which may be scienti-
fically studied and intelligently brought into harmony with the
requirements of the social order. The problems of the family are
at once ethical, sociological, and economic. If the home is to be
rescued from the encroachments of the shop and the factory, it must
be earnestly studied in connection with the problems of organized
industry and with those of state or municipal control of the great
public utilities. Already through improved facilities for rapid
transit the evils resulting from dense population are being some-
what ameliorated. Of a truth every penny's reduction in street-
railway fares signifies to the family of small means a better chance for
pure air, sound health, and a separate home in the suburbs. The
dispersion of the city over a broader area at once cheapens and
raises the standard of living. Every hour's reduction in the period

SOCIAL CONTROL AND FAMILY FUNCTION 703

of daily toil potentially gives more leisure for building, adorning,
and enjoying the home.

There is another result of social evolution which to many persons
seems to be just cause of alarm. The liberation of woman in every
one of its aspects profoundly involves the destiny of the family.
It signifies in all the' larger activities of life the relative individual-
ization of one half of human kind. This means, of course, a weaken-
ing of the solidarity of the family group so far as its cohesion is
dependent upon the remnants of ancient marital authority. Will
the ultimate dissolution of the family, as sometimes predicted, thus
become the price of equality and freedom? Or rather, is it not
almost certain that in the more salubrious air of freedom and
equality there is being evolved a higher type of the family, knit
together by ties, sexual, moral, and spiritual, far more tenacious
than those fostered by the regime of subjection?

In particular the fear that the higher education of woman, in
connection with her growing economic independence, will prove
harmful to society through her refusal of matrimony or maternity,
appears to be without real foundation. It is true that the birth-rate
is falling. So far as this depends upon male sensuality — a prevalent
cause of sterility; upon selfish love of ease and luxury — of which
men even more than women are guilty ; or upon the disastrous
influence of the extremes of wealth and poverty — of which women
as well as men are the victims — it is a serious evil which may well
cause us anxiety; but so far as it is the result of the desire for fewer
but better-born children, for which, let us hope, the advancing
culture of woman may in part be responsible, it is, in fact, a positive
social good.

It is true also that, while fewer and fewer marriages in proportion
to the population are taking place, men as well as women are marrying
later and later in life. The marriage-rate is falling and the average
age at which either sex marries is rising. Here, again, for the reasons
just mentioned, the results are both good and bad. Certain it is
that early marriages and excessive child-bearing have been the twin
causes of much injury to the human race. It is high time definitively
to expose the dual fallacy, derived mainly from ancient military and
theological tradition, that early marriages and many children should
be favored at all hazards. The gradual advance of the marriage-age
may mean better mated parents and more stable families. More-
over, if it be admitted that a falling birth-rate is a sign of national
decadence, it should be considered that an increasing population may
now be sustained by families smaller than in earlier times. Better
sanitation, the scientific mastery or prevention of disease, and the
lessening of the ravages of war are producing a decrease in the death-
rate which more than keeps pace with the fall in the rate of births.

704 THE FAMILY

In the last few decades the average length of human life has been
considerably increased. Fewer children are born, but they are
much better in quality.

There is really no need to be anxious about the destiny of the
college woman. It is not marriage or maternity which she shuns;
but she is refusing to become merely a child-bearing animal. It is
simply wrong wedlock which she avoids. She has a higher ideal of
matrimony. The rise of a more refined sentiment of love has become
at once a check and an incentive to marriage. With greater economic
and political liberty, she is declining to look upon marriage as her
sole vocation. As a wife she asks to be admitted to an even partner-
ship with the husband in the nurture of the family and in doing
the world's work. Thus the liberation movement means in a high
degree the socialization of one half of the human race.

It is perhaps not surprising that of all the alleged evils which
threaten the integrity of the family divorce should be commonly
looked upon as the most dangerous. In Europe as well as in America
the divorce-rate is rising while the marriage-rate is falling. It is
higher in the United States than in any other country collecting
statistics except Japan. In this instance as in others it does not
follow that the individualistic tendency is necessarily vicious. No-
where in the field of social ethics, perhaps, is there more confusion
of thought than in dealing with the divorce question. Divorce is
not favored by any one for its own sake. Probably in every healthy
society the ideal of right marriage is a lifelong union. But what if it
is not right, if the marriage is a failure? Is there no relief? Here
a sharp difference of opinion has arisen. Some persons look upon
divorce as an evil in itself; others as a " remedy " for, or a " symp-
tom " of, social disease. The one class regards it as a cause; the
other as an effect. To the Roman Catholic and to those who believe
with him divorce is a sin, the sanction of " successive polygamy," of
" polygamy on the installment plan." At the other extreme are
those who, like Milton and Humboldt, would allow marriage to be
dissolved freely by mutual consent, or even at the desire of either
spouse. According to the prevailing opinion, as expressed in modern
legislation, civil divorce is the logical counterpart of civil marriage.
The right of the state to dissolve wedlock is conceded, although it is
clear that in marriage the family relation is more vital than the
contract by which entrance into it is sanctioned. The rupture of
that relation is indeed " revolutionary," as has been strongly insisted
upon; but the state in granting divorce is merely declaring a revolu-
tion which in reality has already taken place.

Yet divorce is sanctioned by the state as an individual right,
and there may be occasions when the exercise of that right becomes
a social duty. Loose divorce laws may even invite crime. Never-

SOCIAL CONTROL AND FAMILY FUNCTION 705

theless it is fallacious to represent the institution of divorce as in
itself a menace to social morality. It is a result and not a cause;
a remedy and not the disease. It is not immoral. On the contrary,
it is quite probable that drastic, like negligent, legislation is some-
times immoral. It is not necessarily a virtue in a divorce law, as
appears often to be assumed, to restrict the application of the remedy
regardless of the sufferings of the social body. If it were, the only
logical course would be to imitate South Carolina and prohibit
divorce entirely. The most enlightened judgment of the age heartily
approves of the policy of extending the legal causes so as to include
offenses other than the one " scriptural " ground, as being equally
destructive of connubial happiness and family well-being. Indeed,
considering the needs of each particular society, the promotion of
happiness is the only safe criterion to guide the lawmaker either in
widening or narrowing the door of escape from the marriage bond.

The divorce movement is a portentous and almost universal
incident of modern civilization. Doubtless it signifies underlying
social evils, vast and perilous. Yet to the student of history it
is perfectly clear that it is but a part of the mighty movement for
social liberation which has been gaining in volume and strength ever
since the Reformation. According to the sixteenth-century reformer,
divorce is a " medicine " for the disease of marriage. It is so to-day
in a sense more real than Smith or Bullinger ever dreamed of; for
the principal fountain of divorce is bad matrimonial laws and bad
marriages. Certain it is that one rises from a detailed study of
American legislation with the conviction that, faulty as are our di-
vorce laws, our marriage laws are far worse; while our apathy, our
carelessness and levity regarding the safeguards of the matrimonial
institution are well-nigh incredible. The centre of the dual problem
of protecting and reforming the family is marriage and not divorce.

In fact there has been a great deal of hasty and misdirected
criticism of American divorce legislation. Often it rests upon the
facts as they were eighteen years ago, when the government report
was compiled. Meantime great improvements have been made.
Little by little the codes of the fifty-two states and territories, freed
from their most glaring faults, are approximating to a common type.
If American legislation is on the average more liberal than that of
other lands, it would surely be rash to assume that it is worse on that
account. The question is: Has American social liberalism, in this
regard as in so many other respects, increased the sum of human
happiness? Is there any good reason for believing that what De
Tocqueville said fifty years ago is not to-day true? " Assuredly,"
he wrote, " America is the country in the world where the marriage-
tie is most respected and where the highest and justest idea of con-
jugal happiness has been conceived."

706 THE FAMILY

The divorce movement in America is in part an incident of a
great transition phase in social progress. It cannot be denied that
the increase in the number of divorces is largely due to the new
economic and intellectual position of woman. The wife more
frequently than the husband is seeking in divorce a release from
marital ills; for in her case it often involves an escape from sexual
slavery. Indeed there is crying need of a higher ideal of the marriage
relation. While bad legislation and a low standard of social ethics
continue to throw recklessly wide the door which opens to wedlock,
there must of necessity be a broad way out. How ignorantly, with
what utter levity, are marriages often contracted; how many thou-
sands of parents fail to give their children any serious warning against
yielding to transient impulse in choosing a mate; how few have
received any real training with respect to the duties and responsi-
bilities of conjugal life? What proper check is society placing upon
the marriage of the unfit? Is there any boy or girl so immature, if
only the legal age of consent has been reached; is there any " delin-
quent " so dangerous through inherited tendencies to disease or
crime; is there any worn-out debauchee, who cannot somewhere
find a magistrate or a priest to tie the " sacred knot " ? In sanctioning
divorce the welfare of the children may well cause the state anxiety;
but are there not thousands of so-called " homes " from whose cor-
rupting and blighting shadow the sooner a child escapes the better
both for it and society?

In some measure the problem of the family has now been stated.
What are the means available for its solution? The raising of ideals
is a slow process. It will come only in relatively small degree through
the statute-maker. Yet the function of legislation is important.
Good laws constitute a favorable environment for spiritual progress.
Already much effective work has been done, yet in almost every
direction there is urgent need of reform. In particular our matri-
monial laws should be thoroughly overhauled. The so-called " com-
mon law marriage " — a fruitful source of social anarchy — ought
to be absolutely abolished. The illogical and awkward system of
optional lay or ecclesiastical celebration should be superseded by
obligatory civil marriage on the European model. The adminis-
trative system governing the preliminaries of marriage should be
amended so as to relieve America from the scandal of clandestine
weddings of the St. Joseph (Michigan) pattern. The achievement of
a wisely conceived and carefully drafted uniform matrimonial law
for the entire country ought to be more zealously taken in hand. At
present, through the state commissions on uniform legislation,
practical workers are urging the adoption of a model statute relating
to divorce. Perhaps conventions of groups of states might be used to
advantage. In the end it may be found necessary, under a constitu-

SOCIAL CONTROL AND FAMILY FUNCTION 707

tional amendment, to appeal to the federal power. What service
could a national legislature render more beneficent than the creation
of a code embracing every division of the intricate law of marriage
and divorce? Aside from its educational value as a moral force,
such a code in material ways would prove a powerful guaranty of
social order and stability.

Far more important in the solution of the problem is the function
of education. Apparently the salvation of the family must come
mainly through the vitalizing, regenerative power of a more efficient
moral, physical, and social training of the young. The home and
the family must enter into the educational curriculum. In the
sphere of the domestic institutions, even more imperatively than in
that of politics or economics, there is need of light and publicity.
It is vain to turn back the hand on the dial. The process of indi-
vidualization for the sake of socialization should be frankly accepted.
The old coercive bonds of the family cannot be restored. A way
must be found to replace them by spiritual ties which will hold
father, mother, and child together in the discharge of a common
function in the altered environment.

The new social education must grapple fundamentally with the
whole group of problems which concern the family, marriage, and
the home. Through conscious effort the home should become an
educational institution in which the family receives its most intimate
training. In the work every grade in the educational structure from
the university to the kindergarten must have its appropriate share.
Already departments of sociology, social science, domestic science,
and physical culture are giving instruction of real value; but the
training should be broadened and deepened. Moreover, the elements
of such a training in domestic sociology should find a place in the
public school programme. Where now, except perchance in an indirect
or perfunctory way, does the school-boy or girl get any practical
suggestion as to home-building, the right social relations of parent
and child, much less regarding marriage and the fundamental
question of the sexual life? Indeed, almost the entire methodology
of such instruction has yet to be devised. Is it visionary to hope
that right methods may be developed for safely dealing even with
such matters?

In the future educational programme sex questions must hold an
honorable place. Progress in this direction may be slow because of
the false shame, the prurient delicacy, now widely prevalent touching
everything connected with the sexual life. The folly of parents in leav-
ing their children in ignorance of the laws of sex is notorious; yet how
much safer than ignorance is knowledge as a shield for innocence!

It is of the greatest moment to society that the young should
be trained in the general laws of heredity. Everywhere men and

708 THE FAMILY

women are marrying in utter contempt of the warnings of science.
Domestic animals are literally better bred than are human beings.
There must be a higher ideal of sexual choice. Experience shows
that in wedlock natural and sexual selection should play a smaller,
and artificial selection a larger, role; the safety of the social body
requires that a check be put upon the propagation of the unfit.
Here the state has a function to perform. In the future much more
than now, let us hope, the marriage of persons mentally delinquent or
tainted by hereditary disease or crime will be legally restrained.

Moreover, the social culture of the future must consciously foster
a higher race-altruism which shall be capable of present sacrifice for
the permanent good of the coming generations. A wise sociologist
has already outlined the elements of a new science of Eugenics — a
science dealing with all the influences which improve and develop to
advantage the inborn qualities of the race.1 Indeed, family senti-
ment in some measure must yield to race sentiment. Too often at
present family sentiment is but an expression of avid selfishness and
greed which are no slight hindrance to sociological progress. " When
human beings and families rationally subordinate their own interests
as perfectly to the welfare of future generations as do animals under
the control of instinct," says Dr. Wood,2 " the world will have a more
enduring type of family life than exists at present." May we not
confidently believe that the family, surmounting the dangers which
beset it, is capable of developing new powers and discharging new
functions of vital importance to mankind? In the even partnership
of the domestic union, knit together by psychic as well as physical
ties, the house-father and the house-mother are already becoming
more conscious of their higher function and responsibility as father
and mother of the race.

1 Gallon, Eugenics: Its Definition, Scope, and Aims, iu American Journal of
Sociology, x, 1 ff.

1 Dr. Thomas D. Wood, Some Controlling Ideals of the Family Life of the
Future, 27.

BY SAMUEL WARREN DIKE

[Samuel Warren Dike, Corresponding Secretary, National League for the Pro-
tection of the Family, since 1881. b. Thompson, Connecticut, February 13,
1839. A.B., LL.D. Williams College; B.D. Andover Theological Seminary.
Special Lecturer at Andover, Hartford, Meadville, and Garrett Biblical In-
stitute. Member of Washington Academy of Sciences and various other sci-
entific societies. Author of numerous articles on divorce and other topics of
the family; also on methods of sociological study, problems of church organiza-
tion and the country town.]

WITHIN the last twenty-five or thirty years there has come to be
recognized a problem of the family. It is the object of this paper to
give a brief outline of this problem, especially as it has been treated
in this country within this period, and then to look a little at some
phases of it that seem most likely to call for attention in the early
future.

Interest in the subject is due to two classes of causes: The first
of these is the practical one — the growth of certain evils affecting
the family. Mormon polygamy, the increase almost everywhere
throughout the civilized world of the rate of divorce and the immense
volume of it in the United States, the decrease of the marriage-rate
and the postponement of marriage, the prevalence of unchastity
and the lightness with which its offenses are regarded, the decrease
of the birth-rate among those best fitted by their own training and
resources to rear large families, the growing self-assertion of youth,
and the lessened power of the home over character have combined
to bring the family to the front as one of the most vital subjects for
practical consideration.

The other cause is the new social conceptions of the times and the
interest in the study of social problems in a scientific way. We are
coming to see that what we call society is a most interesting as well as
a most important subject of scientific study. In a way it has been
studied for all the centuries of human learning. But we are now at
work on it in the new field of social science with sociology and the
social sciences for our instruments. In the pursuit of this line of
study students are confronted everywhere with the family in some
of its forms. In its history they find in great degree the story of the
other great social institutions. And it has become apparent that
the progress of social science must continue to interest students in
the past, present, and future of the family.

As we cannot understand the present problem nor form a wise
opinion about its future without some knowledge of the way in which
the present came about, let us look a moment at some of the changes

710 THE FAMILY

that have brought the evils that we have noted. We will begin with
the introduction of Christianity into the Roman world.

The Founder of the Christian religion threw into the minds of his
disciples, in response to their question about divorce, the features of
the ideal family in graphic outline. The chief apostolic writer dealt
with the subject in relation to practical questions that came up
bearing on the relation of individuals to each other, with little or no
reference to the family as an institution. The work of the early
church was directed to the rescue of individual men and women
rather than to the creation or reestablishment of a social order. The
rules of the early church, the canon law of following centuries, were
taken up with the regulation of the duties of individuals. Marriage,
divorce, chastity, and celibacy, and the whole round of the domestic
virtues were treated almost wholly from the individualistic point
of view. Indeed, one may go through a volume giving a digest of the
entire canon law of marriage and divorce without meeting with the
word family or its idea a single time. It is always the individual
that is under treatment. The same is largely true of all except the
more recent treatises on divorce. They scarcely mention the family.
For this reason and for its excessive reliance on the grammar and
lexicon for the interpretation of the Scriptures of the Christian
church the ecclesiastical literature of the divorce question is dreary
reading for the student of sociology who knows how profoundly this
and all questions of the family are at the root of sociological ques-
tions. And this early trend of Christianity was unwittingly acceler-
ated by the condition of Roman law at the time when the canon law
was formed. For, as Sir Henry Maine pointed out, Roman law had
at that time passed from the family as its unit to the individual, and
in its conception of social relations from status to contract. It was
this debased form of the Roman law that became the matrix in
which the canon law was molded. Thus the method of the early
church and the condition of the Roman law of the times combined
to treat domestic relations along individualistic lines with little
consciousness of the family and its significance.

The social ideas of a later period emphasized this tendency. The
Protestant Reformation was a protest against the claims of the
church by an assertion of the individual. The note of Protestantism
is distinctly individualistic. The position of Luther on divorce was
a natural consequence of it. But the influence of it on the religious
methods of the churches that came into being as a result of the
Reformation contributed still more powerfully to the forces that
made for an individualistic conception of the social order. Then
the invention of printing in a degree took the power of control over
life away from the church and put it into the hands of every one
who could read. The invention of gunpowder made the individual

THE PROBLEM OF THE FAMILY 711

soldier a new force in war as compared with the mounted officer and
his retainers. The discovery of America opened a new field to
individual enterprise. And a little later the impulse to modern
science was given by the beginnings of the method of scientific
study.

Within the last two centuries individualism received another
impetus. The ethical philosophy of Locke made its mark on the
theology of New England. It powerfully affected the political
thinking of the times. Rousseau and Jefferson either directly or
indirectly felt its profound influence. And through its effect on
the theology of New England it came to mold in some degree the
thinking of the political leaders of the American Revolution. The
war of American Independence was fought on the rights of the indi-
vidual. Blackstone is an example of the influence of individualism
in law and Adam Smith of its power in the new science of political
economy. Priestley and Franklin may be noted in the realm of
natural science. And we should not overlook the results of the
inventions of the period. The coming of the power loom and the
spinning-jenny, also in the latter part of the eighteenth century, led
to the transfer of labor from the home to the factory.

The early half of the nineteenth century witnessed another series
of events in the same direction. The spread of the Sunday-school
relieved the home of much of its responsibility for the religious train-
ing of the young, and the growth of the public school system had
a similar effect in another direction. Perhaps a better statement
would be that the rise of these two institutions withdrew attention
from the home as a source of education and unconsciously prevented
its development as an educational force. The great revival work
of the first half of the last century and the tendency of the general
work of the churches had the same effect. It was a century of the
device and use of societies of the communal form and not one that
attended directly to the home.

Then followed the temperance reformation, based on the rescue of
persons one by one by the individual pledge, the anti-slavery reform
founded on the rights of the individual, and the woman's rights
movement, which wTas another application of the same principle.
The use of steam power in manufacture, in transportation, and in
printing, the invention of the uses of electricity, and the great migra-
tion to the west in this period all aided the movement of forces
making for individualism and supporting it. America has felt the
force of this movement beyond any other country, both for good and
for evil. The United States have been the very centre of this stream
of modern civilization. The problem is, therefore, more acute here
than anywhere else. The subject is a most serious one. What has
been done towards its treatment?

712 THE FAMILY

The Civil War marked a turn in our political conceptions. It
changed us from a federation to a nation. This introduced to the
popular mind the political idea of a status, or perhaps that of organic
relations instead of a social relation of mere contract. Horace
Bushnell had still earlier taught the principle of organism to the
churches of his faith, though little heed was given to its wide applica-
tions. Sir Henry S. Maine of the historical school and Bachofen of
the evolutionary, both in the same year — 1861 — pointed out the
significance of the family to the student of society. Then came the
work of Spencer — begun much earlier — and that of Morgan,
Lubbock, McLennan, Hearn, Lyall, Fustel de Coulanges, Starcke,
Westermarck, and others on the Continent of Europe, less accessible
to English readers. All these dealt more or less directly with the
family but in ancient or early types of society. Still there was no
study of the family in any of our higher educational institutions.
There was no book on the family in the English language prior to
1880. Probably there were few with that title in any language.

But within the last twenty-five years a great change has been
going on in the literature of the subject. Bodio in Italy, Bertillon in
France published their pamphlets on statistics of divorce. In 1889
our government issued its great report on statistics of marriage and
divorce in this country and Europe ; and later the British House
of Lords published a collection, though a much less extensive one.
Germany, France, England, Australia, Japan, and two -or three
more American states have begun to collect and publish this class of
statistics annually. We are now able to study the subject statis-
tically with some completeness.

Within the last twenty years the laws of many of our states have
been amended for the better. New York has practically abolished
its old so-called common-law marriage. The marriage of defective
persons has been forbidden in several states. The systems of mar-
riage licenses have been improved so as to check improper marriages,
and the marriage of minors better regulated. Many states have pro-
vided for the more accurate record and return of marriages. Six
states have raised the term of residence before a divorce can be
sought in their courts from ninety days, and six months, to one year,
and Congress has made this term the law for all the territories. One
state — Delaware — now forbids divorce to all non-residents unless
the cause for which divorce is sought is also a statutory cause in the
state of former residence. Limited divorce has been provided in
three more states. Stricter provisions regarding notice, the aboli-
tion of the notorious "omnibus" clause in nearly the last of the
states where it existed, the reduction of the grounds for divorce from
four to one in the District of Columbia, the prohibition of legislative
divorces in Delaware — the only state where this practice lingered —

THE PROBLEM OF THE FAMILY 713

the restriction of the remarriage of the defendant or of both parties
in fourteen states, and the prohibition of the advertising of divorce
business in six, are some of the features of the divorce legislation
of the last twenty-five years.

Meanwhile Congress has, as already intimated, made the term of
residence before a divorce can be sought one year for all the terri-
tories and for the District of Columbia, and thirty or more states
have created commissions to secure uniformity of law on these and
other subjects of common concern. France enacted a new divorce
law in 1884, and an imperial law uniform for all the Empire went into
operation in Germany in 1901. New South Wales greatly modified
its divorce law a few years ago, and now the new constitution of
Australia provides for a uniform law throughout the federation.
Japan has for the first time brought her people under the control of
public law in respect to marriage and divorce, having established
a marriage and divorce code very much like the Familienrecht of
Germany. The age of consent — so-called — has been raised in
many states of this country.

An important educational work relating to the family has begun
within the last twenty years. Twenty-five years ago there was no
study of the family in any of our educational institutions. Indeed,
"there was not then a single course of lectures given on the subject
anywhere in the entire country. Now such courses of lectures or of
study are frequent. Perhaps it may already be said that the higher
educational institution that does nothing with the family has become
the exception rather than the rule. The colleges for women have
opened this important line of study to their students. And the
study is taking on more practical form in what is now known as
domestic science, but which, as pursued, is confined pretty closely to
the study of housekeeping in its practical aspects, but along scientific
lines. Domestic science has also become a department in some of our
best secondary schools and is rapidly growing in public favor. There
has been, too, a marked increase of attention to the home in the
periodical press. Departments or pages for the home have taken
the place of the old single column and are of a much more scientific
character and more valuable as a whole.

I am speaking of the United States. Perhaps more has been done
in parts of Europe. Within the last twenty-five years attention has
been given in new ways to the practical value of the home in a number
of directions, that is full of promise for the future. Our American
churches, in their large use of the voluntary principle of organization,
have had unusual opportunities for experiment, which some of
them have used to advantage. They have developed a great
number of small societies within the local churches for doing work
by collections of individuals in groups of a portion of their adherents.

714 THE FAMILY

These have grown so that it is not uncommon to find a dozen of
these little societies within a single church with a congregation of
three hundred people. An incidental evil of this movement has been
the concentration of attention and effort on collections of people in
some central place of assembly to the neglect of the neighborhood
and the home as centres of work.

But perception of this incidental evil has led to the invention of
the Home Department of the Sunday-school. This provides for the
use of the home as a place of Bible study for those who cannot or will
not attend at the place of public assembly. Its practical value in
additions to the Sunday-school — already numbering 400,000 — has
won for it great favor. But its higher aim of showing that a great
gain comes to the church when it brings the dormant forces of the
home into activity is its best credential.

Interest has been awakened in the home as a factor in public
school education. Under the lead of our National Superintendent of
Education our people are beginning to see that there is more than one
social institution at work in education; that, as he puts it, the great
educational factors are the school, the church, the home, and the
vocation; and the problem is to get each of these to do its share in
the common task, and that in intelligent cooperation with each
other. While the public school has as yet nothing like the Home De-"
partment of the Sunday-school, unless it be its required home study,
it is having more aid than formerly in progressive communities from
parental associations. It has already in some degree the benefit of
the conviction that educational work constantly goes on in the life
of the home and in the activities that engage the child outside the
school-room. There is, too, it can hardly be doubted, a deeper sense
of the fact that the educational processes of the adult in daily life are
not essentially unlike those of the school-room and that there is more
real unity between the study of the child at school and that of the
parent at his work than we once thought. This is giving an educa-
tional importance to the home that is slowly telling for its good as
well as for the good of parent and child.1

In philanthropy we may note a steadily growing recognition of the
place of the home in social reform. In Massachusetts and perhaps
elsewhere, the charitable institution where large numbers of children
have been gathered for care has given place to the single home.
For it has been found that the average home available for the care of
destitute children is a more natural, and, therefore, a better place, for
the training of a child than the artificial life of a great caravansary.
Poor relief is abandoning its former habit of reliance on the alms-
house and the gift of money. It now seeks to keep the family

1 As this jroes to press two educational experts tell me that the proper connec-
tion of the home -with the school and the discovery of the educational function
of the home is now, in their opinion, the most urgent of educational problems.

THE PROBLEM OF THE FAMILY 715

together and to put the home on its own feet and lead it to self-
support. The use of the social settlement in our cities tends strongly
in the same direction. Indeed, it is almost a first principle of all
expert charitable work now to make respect for the home and all
possible use of its resources a cardinal principle of all philanthropic
effoit. The vigorous attack on the tenement-house problem pro-
ceeds on the assumption that the single home is the goal of its efforts
and is already doing much to demonstrate the social and moral value
of the home. Those who are dealing with the criminal are more and
more impressed with the need of a better home life as the greatest
single aid to the relief of society from the burdens of crime, and the
surest protection against the beginnings of a criminal career. And
the students of the evils of intemperance and licentiousness have of
late come to see that the home, in its moral training, its cooking, and
social activities, is, after all, one of the most important objects of their
concern. Some go so far as to say that it is the most important of all.
Something has been done to meet the evils of sexual vice. The
more noticeable of these efforts are those of the Woman's Christian
Temperance Union and the report of the Committee of Fifteen in
New York.

I think a careful study of the conditions in these several directions
can hardly fail to convince the thoughtful student that, with all the
apparent evils of an excessive individualism, there has been slowly
gathering within the last quarter of a century the forces of a strong
movement in the direction of a better understanding and a better
use of the home. I am speaking, let it be noted, of the excesses of
individualism and am not forgetful of its invaluable contributions to
social progress. Beneath all is a growing sense of the importance
of those social relations that lie back of individual agreements and
individual interests. The conviction that life is a unity and that this
unity implies what may properly be called an organism is growing.
And we are beginning to perceive that what is true of society as a
whole may be true of its constitutional and characteristic institutions.

Such in brief outline is the present condition of the problem of the
family under the treatment it has received in the last twenty years
or so. From this survey it is not difficult to learn something of the
work immediately before us. This work is both practical and scien-
tific. Let us look first at the practical phases of it.

It is obvious that the experimental work of our state legislation
should go on. Our political system has the great advantage for a
democracy, with all its peculiar disadvantages, of enabling one or
more states to make experiments for the benefit of the rest without
involving the whole country in their risk. The summary of the
legislation on marriage and divorce already given illustrates this.
We have the results of these independent experiments and can see in

716 THE FAMILY

them a tendency towards a common system of family law. Now
that we have Dr. Howard's history of the entire legislation of the
country from the earliest times, comparative study will undoubtedly
greatly increase this tendency towards uniformity. Our whole
course will be more intelligently taken.

The work of the State Commissions on Uniform Laws on our
marriage and divorce laws, and on the other subjects assigned to
them, will probably promote this object. There are now, or have
been, thirty-five states and territories engaged in this work. If
Congress could appoint a commission on the part of the general
government to cooperate with the state commissions and also
provide a moderate sum of money for the necessary expenses of the
work, which is now done by men who serve without pay, progress
would be greatly facilitated.1

The proposal for an amendment of the Constitution of the United
States presents so many difficulties that it has been laid aside, at
least until the commissions have time to show what they can do and
what the elements of a good uniform law are. It is apparently
impossible to get three fourths of the states to agree to any transfer
of power from the states to the general government. And it is
coming to be understood that the attempt to prescribe by an amend-
ment a uniform system of marriage and divorce law, to be admin-
istered by the states, would expose the law to those risks that have
defeated the object of the amendments adopted at the close of the
Civil War. Then, should marriage and divorce be brought under the
jurisdiction of the general government and its courts, what about
the other branches of family law? Would the laws affecting in-
heritance and the care of children have to come under the same class
of courts, whether state or federal? Or may these difficulties be
surmounted? Such are some of the questions to be answered.

The possibility of working all our laws touching the family in any
way into a consistent system of family law, such as I understand the
Familienrecht of Germany to be, is also a part of the subject that should
receive due consideration. And the growing intimacy of the nations
may lead to some efforts at international uniformity.

A peculiarity of the political attitude in this country towards the
family should not be overlooked. In Great Britain the family has
a marked place in the political system of the country. The Crown
depends on the family. One branch of Parliament is made up in the
main of those whose position depends on the family relationship.
And the British family is further protected by the right of primo-
geniture. The family in this way is wrought into the very texture of

1 Under the lead of Pennsylvania the official delegates of thirty-nine states
met in Washington in February, 1906, and agreed on seventeen resolutions as
a basis for a uniform divorce law. A special committee is to report a proposed
code, incorporating the ideas of these resolutions, at a later meeting.

THE PROBLEM OF THE FAMILY 717

the British constitution. The conserving influence of this system
must be very considerable. But in the United States the family
has no such constitutional position. It has no place either in the
constitution of the United States or in the constitutions of the
states themselves. We are as democratic in respect to the family as
we are regarding the individual. With us the legal protection of
the family is unsupported by any political recognition of it. And
this difference is characteristic of most European countries. We
are marked by a democracy of the family as clearly as we are by
a democracy of the individual. And this imposes on us the disad-
vantages as well as the advantages of our democracy. I do not
think this point has received the serious attention it deserves if,
indeed, it has been noticed at all.' Certainly this condition would
seem to imply that, lacking the advantage of political recognition,
the American family should receive unusual care in other ways to
insure its integrity and social effectiveness.

The place of the family in the practical problems of economics and
philanthropy will call for much more attention than it has been
receiving. It is singular that, though the very word economics
means the law of the house, yet the modern science, until within
a very recent period, has largely neglected to consider the home as
a very serious factor in the science. It is becoming to be understood
now, however, that for the mass of mankind the home supplies by far
the greater part of the motives for industry and for the accumulation
of capital. The home, too, has a great deal to do with the efficiency
of both labor and capital. For its training does much to supply
those qualities of mind as well as those habits of industry which
determine the value of both labor and capital. But the attention
of those interested in the problems of capital and labor has not been
sufficiently concentrated on this economic value of the home. The
business need of an intelligent and advancing home life should have
even more attention than it has been getting. The mere search for
a laborer of simply industrial efficiency needs to be accompanied by
more attention to those influences that make him valuable. Our
entire people ought to see more clearly that they cannot afford to
convert all the women and children of a family into wage-earners
while they reduce thereby the home to a mere place for feeding and
sleeping. The rights of the home to its own highest development
must not be sacrificed.

The problem of the housing of the poorer classes should be the
subject of much further care and experiment. The provision of a
home for a family having an income of at least eight or nine hundred
dollars in our largest cities is perhaps in the way of easy solution.
But there still remains the more difficult problem of securing a whole-
some tenement for the family with a smaller income, or else of

718 THE FAMILY

raising the income to meet the need. And then there is the condition
of the hundreds of thousands, if not of millions, of people who are
living outside the cities in houses of one or two rooms, whose condi-
tions are of the worst, but whose scattered situation or good air keeps
them from attracting attention to their unwholesome character.

The relation of the home to poverty, to pauperism, to crime, to
intemperance and to licentiousness needs far more attention than we
have yet given to it. Those who work in these fields of philanthropy
are increasingly sensible of the connection of their problems with the
home. But this is not true of our people as a whole. Nor will the
people perceive the connection until it has some concrete demonstra-
tion. More statistical work, therefore, should be done in this
direction. But the old method of studying a single cause of a social
evil at a time, like crime or intemperance, should be abandoned
generally, as it now is by some few, who are expert in the subject, as
unsound. Its results are misleading and have done much to make
progress in social improvement slow. For every social effect, like a
crime or a vice, is the result of more than one cause. And it is only
as we analyze the conditions that meet us and try to recognize and
measure the several contributing causes to a given social effect that
we can reach conclusions of much value. The beginnings made in
the last few years in a sounder method of statistical study need to be
followed up. When this is done we shall have a better appreciation
of the influence of the home for good or for evil in respect to the
defective and delinquent classes of society.

More attention is undoubtedly to be given in the early future to
the place of the family in education and in religion. I think this the
most important direction for our practical work for the home to take.
I say .this both for the intrinsic value of the home in education and
religion and because of the strong tendency away from the home
that has been going on in both these fields the last hundred years,
incidental to the growth of the public and Sunday-school systems,
and of the large use that has been made of societies within the local
church, which have either taken over to themselves the natural
work of the home or have turned away attention from its develop-
ment. The Sunday-school and the numerous societies for the training
or activities of the young have absorbed the thought and care of
pastors and churches so much that the home has not received its
share of attention. The home has no such array of organizations,
conventions, literature, and study to show as we have for our religious
and secular schools. The Home Department of the Sunday-school
is the only invention of any importance that has been made in the last
hundred years in the interests of the home as a religious force.

But the growing perception that education is the result of several
important educational agencies, that the home, the ch

THE PROBLEM OF THE FAMILY 719

vocation, and the library, together with the school, make up the great
educational force of society and that a sound educational system
must give due place to all of them, carefully adjusting them to each
other, will soon make a careful study of all the field a necessity.
The growing conception of the interorganic nature of all social
problems will press this on us more and more. With it will, of course,
come a much greater attention to the home as .an educational factor
of the greatest importance, both in the work of the church and the
public school. The plea that the home is negligent or incompetent
and that for this reason the church and school must do its neglected
work, will be met under a sense of obligation to do something to
make it competent and get it to attend to its own part of the common
work. One of the greatest opportunities of the church and the
school lies just here.

These are practical needs. But back of them all lies the need of
much scientific study. Anything like an adequate science of the
family is yet to be created, though considerable has been done in the
last twenty years. The early history of the family has been pretty
well explored in connection with the study of the evolution of society.
And the monumental work of Dr. Howard just published on the
History of Matrimonial Institutions, a work of wonderfully complete
survey and much of it a contribution in an unexplored field, has laid
every scholar under the greatest obligations. But there is a large
unoccupied territory remaining to be entered or more fully explored.
Dr. Howard's work, great as it is, concentrates attention on marriage
and divorce — the beginning and the premature end of the family.
The history of the modern family as a whole, as he well knows,
remains to be written. Its place in the history of the Christian
Church needs to be studied. It is a singular fact that ecclesiastical
literature is singularly barren on this subject. All the great ques-
tions of the family — marriage, divorce, chastity, celibacy, and the
like — have been much discussed, but very seldom has the family as
a whole been distinctly taken into the consideration. These facts
need to be brought out and their reasons set forth. The story of the
family in the history of law, of politics, of education, of economics,
almost needs discovery and relation. The statistical study of mar-
riage and divorce, which was well begun in our Government Report of
1889, needs to be, and it is hoped will soon be brought down to date.1
The number of American states and foreign countries that collect
annually their statistics of marriage and divorce should be increased,
so that this world-wide movement can be studied comparatively and
be treated intelligently. Special investigations should be made here
and there into the causes of the great increase of divorces, and perhaps

1 Congress has since made provision for this and the supplementary report
ordered may be ready in 1907.

720 THE FAMILY

some effort can be made to determine the extent of licentiousness.
The decline of the birth-rate should receive careful attention. The
determination of the classes among which the birth-rate is declining
is very important. For if it is greatest among those best fitted by
their intelligence and pecuniary condition to rear large families it
becomes a far more serious problem than if it be found chiefly among
the ignorant and the poor. The difficult but most important subject
of sex merits scientific treatment.

Still farther and most pressing of all is the need of the most thor-
ough investigation of the nature of the family and the home into
which it grows, and its actual place in the human society of to-day
and the place it should have. At present we are acting blindly and
by rule of thumb. We rarely get beyond some conventional remarks
and speak of the family as the " unit of society." It would puzzle
most who use that phrase to tell what it means, even in their own
thought of it. We need to ask ourselves, What is the family?
What is the home? What is its true composition? What is its
place in society? What are its functions? And what does it need
from the point of view of the highest scientific consideration? What
are the scientific defenses of monogamy as against polygamy on the
one hand and free love on the other? What are the sound scientific
reasons against easy divorce? How far and in what sense is marriage
a contract? Is it a contract of such a nature as to permit of the
remedies applied to contracts in business relations? Or is it a con-
tract that establishes a status by which the parties are to abide? Is
this status creative morally, and perhaps politically, of a new unity
that is essentially an organic one? If so, may this unity be in some
sense a moral personality, such as some have ascribed to the state?
How far can the American people admit the contract theory in their
treatment of the family after having rejected it as the political
doctrine of the state?

Then in the flux of social conditions which marks our times
nothing is more important than to have some sound basis of action
to guide us. We must ask ourselves scientifically, for we shall have
to do it practically, where are we to place the home in our work in
religion, in education, in economics, in politics, and in social reform.
Does the history and constitution of society point to any clear ideas,
by which we may hope to guide ourselves in the readjustments that
are going on?

Fundamentally these are problems for the sociologist. If the
family, or rather the home, is in any considerable degree to social
science what the atom is in physics and the cell is in biology, it is
almost inevitable that social science must follow the method of those

1 On these last points the reader may consult my paper on " The Theory of
the Marriage Tie," in the Andover Review of November-December, 1893.

THE PROBLEM OF THE FAMILY 721

sciences so far at least as to concentrate attention on its study and
discover that the home contains within it the great secrets of all the
social sciences. Indeed, if this be true, the problems of the several
social sciences themselves depend on this work for the home. Es-
pecially is it true of the problems of government, economics, religion,
and pedagogy, that they all need a scientific knowledge of the home
as an indispensable condition of their solution.

Take certain problems in religious organization for an illustration.
The churches of the simpler type of organization, those of the inde-
pendent polity especially and those closely approaching it, are facing
the problem of reducing their heterogeneous collection of societies and
committees to order. For a century these internal organizations of
the communal type have been growing up until the distraction and
overlapping of their work have led to confusion and waste, and the
energies of pastors are scattered in so many directions that they can
do almost nothing at all thoroughly The pastor is the one man and
the church is the one institution in the community that have profited
least by the modern method of specialization of work and the organ-
ization of the corporation that brings specialization about. As has
already been pointed out, the absorption of the ecclesiastical mind
on the development of communal forms of association in the minor
societies has led to neglect of the family as an agency of the greatest
importance to the church. And the church is in need of the aid of
sociological study. Its problems of polity are at bottom sociological
problems and demand sociological treatment. The historical and
comparative methods have an inviting field in the study of the struc-
ture and function of our social institutions as they are to-day. The
church, for example, needs to see itself, its structure, and working in
comparison with the town, the school, and the shop or other industry.
The church needs to see how it has within it all the essentials of the
municipal problem, and that the solution of the two problems — the
ecclesiastical and the municipal — must go on together.1

Two forms of social institutions need study above all others.
These are the domestic and the communal — what are very nearly
the cell and the tissue of modern society. Both have received much
attention in their archaic forms. The early village community has
been pretty thoroughly exploited by the students of primitive
society. So, too, has the early history of the family. But we
have, somewhat prematurely I must think, jumped the next
proper step and turned to the wider problems of race and the like,
instead of mastering the present constitution of society, especially
in the domestic and communal forms of to-day, in a scientific way.

1 The insurance scandals have, since the above was written, greatly intensi-
fied interest in the problems of public service corporations and subsidiary organ-
izations. But we have yet to see that some of our churches are not lacking in
either of these forms of social organization, with possibly similar dangers.

722 THE FAMILY

We do not understand the structure of our society of to-day and the
way in which it has grown out of the past. We do not see that our
corporations, our churches, our schools as well as our municipal
organizations, are the outgrowth of communal institutions of long
ago and that the history of the modern home is closely interwoven
with their rise and development. We do not see that municipal
reform is closely allied with ecclesiastical reform and with corporate
reform in general.

Here we must look to our universities for the original work that
needs to be done in what may properly be called American sociology.
The field for original work and for contributions to social science here,
as well as for practical usefulness, is an open one and to my mind
very attractive. Let us hope that it will soon be entered with
enthusiasm. Some of us recall the great value of a little book on
zoology by Agassiz and Gould that was put into the hands of college
students forty or fifty years ago. How its classification and grouping
of animal life stirred our imagination and opened to our boyish
minds in an intelligent way the world it described ! How it disclosed
to us the value of the comparative method! And we remember the
similar work that botanical science did for us in that day. Since
those days other men have climbed on the shoulders of Agassiz and
his co-workers and have seen farther and clearer. But the method
remains and is continually winning new fields. But why should we
not soon have a similar stimulating work done in social institutions?
When it is done we shall have a different story of progress in the
knowledge and treatment of the family than the one we tell to-day.

SHORT PAPER

DR. FRANK SEWALL, of Washington, D. C., presented a short paper to this
Section on " The Civic Ideal in the Family."

SECTION B — THE RURAL COMMUNITY

SECTION B — THE RURAL COMMUNITY

(Hall 5, September 21, 3 p. TO.)

CHAIRMAN: HON. AARON JONES, Master of National Grange, South Bend,
Indiana.

SPEAKERS: PROFESSOR MAX WEBER, University of Heidelberg.

PRESIDENT KENYON L. BUTTERFIELD, Rhode Island State Agri-
cultural College.

SECRETARY: PROFESSOR WILLIAM HILL, University of Chicago.

(Translated by Professor Charles W. Seidenadel, Ph. D., University of Chicago)

BY MAX WEBER

[Max Weber, Regular Honorary Professor, University of Heidelberg, b. Erfurt,
Germany, April 4, 1864. Dr. juris. Berlin, 1899. Assessor, Berlin, 1890; Pri-
vat-docent, University of Berlin, 1892: Special Professor of Commercial Law,
ibid. 1893; Regular Professor of Political Economy, University of Freiburg,
1894; of Heidelberg, 1897; Regular Honorary Professor, Heidelberg, 1903. Au-
thor of History of Commercial Societies ; The Condition of Agriculture in Ger-
many, and numerous articles in commercial and scientific journals. Editor of
Archiv fur SozialwissenscJiaft.]

YOUR committee has invited me to speak on " rural community,"
which I can understand only in the sense of " rural society," on
account of the opposition of this society to the city and to industry
as other topics of your programme. Your wish cannot possibly be
fulfilled if taken in its literal sense. The social constitution of rural
districts is the most individual and most connected with historical
development of all social communities. It would not be reasonable
to speak collectively on the rural conditions of Russia, Ireland, Sicily,
Hungary, and the Black Belt. But even if I confine myself to the
districts with developed capitalistic culture, it is scarcely possible
to treat the subject from one common point of view. For a rural
society, separate from the urban social community, does not exist
at the present time in a great part of the modern civilized world. It
does not exist in England any more, except, perhaps, in the thoughts
of dreamers. The constant proprietor of the soil, the landlord, is not
an agriculturist but a lessor; the temporary owner of the estate,
the tenant or lessee, is an undertaker, a capitalist like others. The
laborers are partly migrating laborers of the season, and the rest are
journeymen of exactly the same class as other proletarians. All are
joined together for a certain time and then are scattered again. If

726 THE RURAL COMMUNITY

there is a specific rural social problem it is only this: Whether and
how the no longer existing rural community or society can arise anew
so as to be strong and enduring. •

But also in the United States, at least in the vast regions producing
cereals, there does not exist now what might be called "rural soci-
ety." The old New England town, the Mexican village, and the old
slave plantation do not determine any longer the physiognomy of
the country. And the peculiar conditions of the first settlements
in the primeval forests and on the prairies have disappeared. The
American farmer is an undertaker like others. Certainly there are
numerous farmers' problems, mostly of a technical character or
pertaining to the politics of communication, which have played their
role in politics and have been excellently discussed by American
scholars.

But there exists not yet any specific rural social problem. This
is not the case since the abolition of slavery and the solution of the
question, how the immense area of settlement which was in the hands
of the Union have been disposed of. The present difficult social
problems of the South are also in the rural districts essentially eth-
nical and not economical. You cannot establish, on the basis of
questions concerning irrigation, railroad-tariff, homestead laws, etc.,
however important these matters are, a theory of rural community as
a characteristic social formation; this may become different in the
future. But if anything is characteristic in the rural conditions of
the great wheat-producing states of America, it is — to speak in
general terms — the absolute individualism of the farmers' econom-
ics, the quality of the farmer as a mere business man. This is quite
different on the European Continent. It will, therefore, probably be
better to explain briefly in what respect and for what reason it is
different. The difference is caused by the specific effects of capitalism
on the soil of old civilized countries and the much denser population
of these countries. If a nation, as the German, supports its inhab-
itants, whose number is but little smaller than the white population
of the United States, in a space smaller in size than the State of
Texas, if it has founded and is determined to maintain its political
position and the importance of its culture for the world upon this
narrow, limited basis, the manner of the distribution of the soil gains
determinative importance for the differentiation of the society and
all economical and political conditions of the country. In conse-
quence of the close congestion of the inhabitants and the lower
valuation of the bare working forces the possibility of quickly acquir-
ing estate which has not been inherited is limited. Thus social
differentiation is necessarily fixed — a fate which also your country
approaches. This increases the power of historical tradition, "which
is naturally the greatest in agricultural production, for which the

RELATIONS OF THE RURAL COMMUNITY 727

so-called " law of the decreasing production of the soil," the stronger
bondage by the natural limits and conditions of production, the
more constant limitation of quality and quantity of the means of
production, diminish the importance of technical revolutions. In
spite of technical progress production can be revolutionized least
by purely rational division of labor and concentration of labor,
acceleration of the change of capital, and substitution of the organic
parts of raw material and working forces by inorganic raw materials
and mechanical means of labor. This inevitably predominating
power of tradition in agriculture creates and maintains, on the
European Continent, those types of rural population which do not
exist in a new country, as the United States; to these types belongs
first the European peasant.

This peasant is totally different from the farmer in England or in
America. The English farmer is, to-day, a sometimes quite remark-
able undertaker and producer for the market; almost always he has
rented the estate. The American farmer is an agriculturist who has
mostly acquired, by purchase or as the first settler, the soil as his
property; sometimes he has rented it. He produces for the market —
the market is older than the producer here. The European peasant
of the old type was a man who had, in most instances, inherited the
soil and who produced mostly for his own wrants. The market in
Europe is younger than the producer. Of course, for many years
the peasant sold the superfluous products and, though he spun and
wove, could not satisfy his wants by his own work. But he did not
produce to gain profit, like a business man, for the past two thou-
sand years had not trained him to this. Up to the time of the French
Revolution the European peasant was only considered as a means for
the purpose of supporting certain ruling classes. In the first place his
duty was to provide, as cheaply as possible, the neighbor-town with
food. The city prohibited, as far as possible, rural trade and the
exportation of cereals as long as its citizens were not provided.
Thus matters remained up to the end of the eighteenth century;
for the artificial maintenance of the cities at the expense of the
country was also a principle of the princes who wanted to have
money in their countries and large intakes from the taxes. Moreover,
the peasant was doomed to support, by his services and by paying
taxes, the proprietor of the land who possessed the superior ownership
of his land and quite often also the right of the peasant's body. This
remained so up to the revolutions of 1789 and 1848. Another of
the peasant's duties was to pay to his political lord the taxes for
his estate — from which the knight was exempt — and to supply
the armies with recruits, from which the cities were exempt. This
remained so until the tax-privileges were abolished and the service
in the army became the duty of every one, in the nineteenth century.

728 THE RURAL COMMUNITY

Finally, the peasant was dependent upon the rural productive com-
munity into which the half-communistic settlement had placed him
two thousand years ago. He could not manage as he wanted, but as
the primeval rotation of crops prescribed. This remained so up to
the dissolution of these half-communistic bonds. But also after the
abolition of all this legal dependency the peasant could not become a
rationally producing little agriculturist as, for instance, the American
farmer. Together with the village and its characteristic contrast
to the individual settlement of the American farmer, numerous relics
of ancient communistic conditions of forest, water, pasture, and even
arable soil, which united the peasants extraordinarily firm and tied
them to the inherited form of husbandry, survived the liberation of
the peasants. But to these relics of the past which America has
never known, certain factors are added nowadays whose effects also
America will one day experience, — the effect of modern capitalism
under the conditions of completely settled old civilized countries.
The limited territory causes there a specific social estimation of the
ownership of land, and the tendency to retain it, by bequest, in the
family. The superabundance of labor forces diminishes the desire to
save labor by, the use of machines. Where now by migration into the
cities and foreign countries the working forces become limited and
dear, there, on the other hand, the high price of the soil by purchase
and hereditary divisions diminish the capital of the buyer. To gain a
fortune by agriculture is not possible in Europe nowadays. The
time in which this will be possible in the United States is ap-
proaching its limit. We will not forget that the modern boiling heat
of capitalistic culture is connected with heedless consumption of
natural material for which there is no substitute. The supply of
coal and ore will still last for future times, which it is difficult to de-
termine at present. The utilization of new forces, farm-land, here
will also soon have reached an end; in Europe it no longer exists.
The agriculturist can never hope, as husbandman, to gain more
than a modest equivalent for his work. He is, in Europe, and also
to a great extent in this country, excluded from participating in the
great chances of speculative business talent.

The strong blast of modern capitalistic competition rushes, in
agriculture, against a conservative opposing current, and it is exactly
rising capitalism which, in old civilized countries, increases the
counter-current. The use of the soil as investment of capital, and the
sinking rate of interest in connection with the traditional social
valuation of rural soil, push the price of real estate to such a height
that the price of farm-land is always paid partly au fonds perdu, so
to say, as enLr£e, as entrance fee into this social stratum. Thus
capitalism causes the increase of the number of idle renters of land
by the increase of capital for agricultural operation. Thus peculiar

RELATIONS OF THE RURAL COMMUNITY 729

contrasting effects of capitalism are produced; and these contrasting
effects alone make the " flat land " in Europe appear as the support
of a separate " rural society." For with the conditions of old
civilized countries the differences caused by capitalism assume the
character of a cultural contest. Two social tendencies resting upon
entirely heterogeneous bases wrestle with each other. The old
economic constitution asked: How can I give, on this given soil, work
and sustenance to the greatest possible number of men? Capitalism
asks: How can I produce as many crops as possible for the market
from this given soil with as few men as possible. From the technical
economical point of view of capitalism the old rural settlement of
the country is, therefore, considered overpopulation. Capitalism
produces the crops from the soil in mines, foundries, and machine
factories. The past of thousands of years struggles against the
invasion of the capitalistic spirit.

This combat assumes, however, partly the form of peaceable trans-
formation. As to certain points of agricultural production the little
peasant, if he knows how to free himself from the fetters of tradition,
is able to adapt himself to the conditions of the new husbandry.
The rising rate of rent in the vicinity of the cities, the rising prices for
meat, dairy products, and garden vegetables, the intensive care of the
young cattle, which the self-working small farmer can employ, con-
nected with the higher expense for hired men, usually opens very
favorable opportunities to the little farmer who works without hired
assistance, near wealthy centres of industry. This is the case every-
where, where the process of production is developed in the direction
of increasing intensity of labor, not of capital.

The former peasant is transformed here, as we observe in France
and southwestern Germany, into a laborer who is in the possession
of his means of production and perseveres in this independence, be-
cause the intensity and high quality of his work, increased by his
private interest in it, and his adaptability of it to the demand of
the local market, procures for him an economical superiority, which
continues to exist, even where the agriculture on a large scale would
preponderate technically.

The great success of the formation of corporations among the small
farmers of the Continent must be ascribed to these peculiar advan-
tages which, in certain branches of production, the work of the
responsible small agriculturists possesses in opposition to the hired
labor of the large farmer. These corporations have proved to be the
most influential means of the peasants' education for husbandry. But
through these corporations new communities of husbandry are created,
which bind the peasants together, and change this way of economic
thinking and feeling from the purely individualistic form which the
economic struggle for existence in industry assvmes under the pres.

730 THE RURAL COMMUNITY

sure of competition. This, again, is only possible because the great
importance of the natural conditions of production in agriculture, its
being bound to place, time, and organic means of work, and their
publicity weaken the effectiveness of the individual competition of
the farmers among each other. But where those conditions of a spe-
cific economic superiority of small farming do not exist, because the
importance of self-responsible work as to quality disappears behind
that of capital, there the old peasant struggles for his existence as
a hireling of capital. It is the high social valuation of the owner
of the land that makes him a subject of capital and ties him
psychologically to the clod; the loss of the estate means for him
degradation in an old civilized country with stronger economic and
social differentiation. Not rarely the peasant's struggle for exist-
ence becomes the economic selection in favor of the most frugal,
i. e., those most lacking culture. For the pressure of agricultural
competition is not felt by him who uses his products not as articles
of trade, but for his own consumption, sells but little thereof, and
can, for this reason, buy but few other products. Thus sometimes
a partial retrogression into natural husbandry occurs. Only with
the French "system of two children" the peasant can maintain
himself, for generations, as a small proprietor in the inherited pos-
session. The obstacles which the peasant meets who wants to be-
come a modern agriculturist urge the separation of the possession
from management; the landlord keeps his capital for operation, and
he can draw it out from husbandry. Partially the government
tries to create a mean between property and lease.

The peasant cannot remain a peasant, and he cannot becoma
a land-owner on account of the high valuation of the land.

It is not yet possible to speak of a real " contest " between capital-
isms and the power of historical influence, in this case of growing
conflicts between capital and ownership of the soil. It is a process
of selection partly, and partly of depravation. Quite different con-
ditions prevail where not only an unorganized multitude of peasants
are powerless in the chains of the financial powers of the cities, but
where there is an aristocratic stratum above the peasants, which
struggles not only for its economic existence, but also for the social
standing which the history of centuries has granted this class. This
is the case especially where this aristocracy is not tied to the rural
districts by pure financial interest, as is the English lord, or only
by the interests of recreation and sport, but where its representa-
tives are concerned, as agriculturists, in the economic conflict and
are closely connected with the country.

Then the dissolving effects of capitalism are increased. Because
ownership of land gives social position, the price of the large
estates rises high above the value of their productivity. " Why did

RELATIONS OF THE RURAL COMMUNITY 731

God create him in his wrath?" The answer is: "Rents! Rents!
Rents!" says Byron of the English landlord. And, in fact, rents
are the economic basis of all aristocracies that need a gentlemanly,
workless income for their existence. But exactly because the Prus-
sian "Junker" despises the urban possession of money, capitalism
makes him the rent-debtor. A strong, growing tension between
city and country results therefrom. The conflict between capitalism
and tradition is now tinged politically, for the question arises, if the
economic and political power shall definitely pass over into the hands
of the urban capitalism, whether the small rural centres of political
intelligence with their peculiarly tinged social culture shall decay and
the cities, as the only carriers of political, social, and esthetic culture,
shall occupy the field of the combat. And this question is identical
with the question whether people who were able to live for politics
and the state, as the old, economically independent land aristo-
cracy, shall be replaced by the exclusive domination of professional
politicians who must live on politics and on the state. In the
United States this question has been decided, at any rate for present
days, by one of the bloodiest wars of modern times, which ended
with the destruction of the aristocratic, social, and political centres of
the rural districts. Even in America, with its democratic traditions
handed down by Puritanism as an everlasting heirloom, the victory
over the planters' aristocracy was difficult and was gained with great
political and social sacrifices. But in countries with old civilization
matters are much more complicated. For there the struggle between
the power of the historical notions and the pressure of the capitalistic
interests summon social forces to battle, as adversaries of civil
capitalism, which in the United States were partly unknown, or
stood partly on the side of the North.

A few remarks concerning this:

In the countries of old civilization and of limited possibilities of
economic expansion money-making and its representatives play
necessarily a considerably smaller social role than in a country that is
still new. The importance of the class of state officials is and must
be much greater in Europe than in the United States. The much
more complicated social organization makes a host of specially
trained officials, employed for lifetime, indispensable in Europe,
which will exist in the United States only in a much smaller number
even after the movement of civil service reform shall have attained
all its aims. The jurist and officer of administration in Germany, in
spite of the shorter and more intensive German college education for
the university, is about thirty-five years old when his time of prepara-
tion and his unsalaried activity is completed and he obtains a salaried
office. Therefore he can come only from wealthy circles. On the
other hand, he is trained to unsalaried or low-salaried service, which

732 THE RURAL COMMUNITY

can find its reward only in the high social standing of his vocation;
thus a character is stamped on him which is far from the interests of
money-making and places him on the side of the adversaries of their
dominion. If in old civilized countries, as in Germany, the necessity
of a strong army arises, which Germany needs to maintain its inde-
pendence, this means, for the political institutions, the support of
an hereditary dynasty. Also the decided follower of democratic insti-
tutions — as I am — cannot wish to remove it where it has been
preserved. For it is in military states, if not the only, yet the best,
historically indorsed form (because it is interested personally in
preservation of right and of a legal government), in which the
Caesarian dominion of the sword of military parvenus can be averted,
by which France is again and again menaced. Hereditary monarchy
— one may judge about it theoretically as one wants to judge —
warrants to a state, which is forced to be a military state, the greatest
freedom of the citizens — as great as it can be in a monarchy — and
so long as the dynasty does not become degenerated, it will have the
political support of the majority of the nation. The English Parlia-
ment knew very well why it offered Cromwell the crown, and equally
well Cromwell's army knew why it prevented him from accepting it.
Such an hereditary, privileged dynasty has a natural affinity with
the holders of other social privileges. To these conservative forces
belongs in the European countries the church; first the Roman
Catholic Church, which, in European countries, even on account
of the multitude of its followers, is a power of quite different im-
portance and character that it possesses in Anglo-Saxon countries;
also the Lutheran Church. Both churches support the peasant, with
his conservative conduct of life, against the dominion of urban
rationalistic culture. * The rustic movement of corporation stands,
to a great extent, under the guidance of clergymen, who are the only
ones capable for leadership in the rustic districts. Ecclesiastic,
political, and economic points of view are here intermingled. In
Belgium the rural corporations are means of the clerical party in
the conflict against the socialists; the latter are supported by the
consumers' unions and the productive associations. In Italy almost
nobody who does not present his confessional certificate finds credit
with certain corporations. Likewise the aristocracy of a country
finds strong backing in the church, although the Catholic Church
is, in social regard, more democratic nowadays than formerly. The
church is pleased with patriarchal conditions of labor because they
are of personal human character, contrary to the purely commercial
relations which capitalism creates. The church possesses the senti-
ment that the relation between a lord and a serf, but not the bare
commercial conditions created by the labor market, can be developed
and penetrated ethically. Deep, historically conditioned contrasts,

RELATIONS OF THE RURAL COMMUNITY 733

which have always separated Catholicism and Lutheranism from
Calvinism, strengthen that anti-capitalistic attitude of the European
churches.

Finally, in an old civilized .country, the "aristocracy of education,"
the Bildungsaristokratie, as it likes to be called, a strong class
of the population without personal interest in economics, views
more skeptically and criticises more sharply the triumphal procession
of capitalism than can be naturally and justly the case in a country,
such, for instance, as the United States.

As soon as intellectual and esthetic education has become a
profession, their representatives are bound by an inner affinity to all
the carriers of ancient social culture, because also for them that
profession cannot and must not be a source of heedless gain. They
look distrustfully upon the abolition of traditional conditions of the
community and upon the annihilation of all the innumerable ethical
and esthetic values which cling to them. They doubt if the dominion
of capital would give better, more lasting guaranties to personal lib-
erty and to the development of intellectual, esthetic, and social cul-
ture which they represent, than the aristocracy of the past has given.
They want to be ruled only by persons whose social culture they
consider equivalent to their own; therefore they prefer the dominion
of the economically independent aristocracy .to the dominion of the
professional politician. Thus it happens nowadays in the civilized
countries — a peculiar and, in more than one respect, serious fact —
that the representatives of the highest interests of culture turn their
eyes back, stand w7ith deep antipathy opposed to the inevitable
development of capitalism, and refuse to cooperate in the rearing of
the structure of the future. Moreover, the disciplined masses of
working-men created by capitalism are naturally inclined to unite in
a class party, if new districts for settlement are no longer available,
and if the working-man is conscious of being forced to remain inevi-
tably a proletarian, as long as he lives, which is bound to come about
sooner or later also in this country, or has already come. The pro-
gress of capitalism is not hemmed in by this; the working-man's
chances to gain political power are insignificant. Yet they weaken
the political power of the citizen and strengthen that of the citizen's
aristocratic adversaries. The downfall of the German civic liberalism
is based upon the joined effectiveness of these motives. Thus in old
countries, where such a rural community, aristocratically differ-
entiated, exists, a complex of social and political problems arises.
An American cannot understand the importance of agrarian questions
upon the European Continent, especially in Germany, yea, even
German politics, and must arrive at entirely wrong conclusions if he
does not keep before his eyes these great complexes. It is a peculiar
combination of motives which is effective in these old countries and

734 THE RURAL COMMUNITY

explains its deviation from American conditions. Besides the
necessity of strong military preparations, there are essentially two
factors: First, something which never existed in the greater part of
America, which may be designated as Riickstdndigkeit, viz., the
influence of a gradually disappearing older form of rural social
constitution. The second factor, circumstances which have not
yet become effective in America, but to which this country, which is
so elated by every million of increased population and by every rise
of the valuation of the soil, will infallibly be exposed, exactly as
Europe has been: the dense population, the high value of the soil,
the stronger differentiation of the profession and the peculiar condi-
tions resulting therefrom, under which the rural community of old
civilized countries opposes capitalism joined to the influence of great
political and social powers which are only known to old countries.
Capitalism produces, under these circumstances, even to-day effects
in Europe which can be produced in America only in future days.
In consequence of all those influences, European capitalism, at
least on the Continent, has a peculiar authoritative stamp which
contrasts with the citizen's equality of rights and is usually distinctly
felt by Americans. These authoritative tendencies, and that anti-
capitalistic sentiment of all those factors of Continental society of
which I have spoken, find their social backing in the conflict between
the country aristocracy and the urban citizens. But the country
aristocracy undergoes, under the influence of capitalism, serious
inner transformations which alter completely the character the
aristocracy has inherited from the past. I should like to show how
this has taken place in the past and how it continues to be carried on
in the present, by the example of Germany.

The social constitution of the rural districts in Germany shows sharp
contrasts which every one traveling in the country does not fail to
observe : the farther toward the west and south, the denser is the rural
settlement, the more the small farmers predominate, the more
dispersed and various is the culture; the farther toward the east, es-
pecially the northeast, the more extended are the fields of cereals, of
sugar-beets, and potatoes, the more the gross culture prevails, the
more numerous a rural class of journeymen without property stands
in opposition to the aristocracy of land-owners. This difference is of
great importance.

The class of the rural land-owners of Germany, consisting partic-
ularly of noblemen residing in the region east of the Elbe, rules
politically the leading German state. The Prussian House of Lords
represents this class, and the right of election gives them also a de-
terminative position in the Prussian House of Representatives. It
imprints upon the corps of officers of the army their character, as

RELATIONS OF THE RURAL COMMUNITY 735

well as upon the Prussian officials and upon the German diplomacy,
which is almost exclusively in the hands of noblemen. The German
student adopts their custom of life in the students' fraternities in
universities, and also the civilian " officer of the reserve ; " a growing
part of all the more highly educated Germans belong to this rank.
Their political sympathies and antipathies explain many of the most
important presuppositions of German foreign politics. Their obstruc-
tionism impedes the progress of the laboring-class; the manufacturers
alone would never be sufficiently strong to oppose the working-men
under the democratic rights of electing representatives for the German
Reichstag. They are the props of protectionism which industry
alone would never have been able to accomplish. They support
orthodoxy in the state church. Whatever remains and vestiges of
authoritative conditions surprise the foreigner — who only sees the
exterior side of Germany and has neither the time nor opportunity
to enter into the essence of German culture — and cause the errone-
ous opinions which are circulated in foreign countries concerning
Germany, results directly or indirectly from the influence of these
classes, as many of the most important contrasts of our interior
politics are based upon that difference of the rural social constitu-
tion between the east and the west.

The question arises : How can this difference be explained histor-
ically; for it has not always existed. Five centuries ago landlordship
ruled the social constitution of the rural districts. However various
were the conditions of the peasant's dependency which arose from
this, and however complicated the social constitution of the country
was, in one point harmony prevailed, in the thirteenth and fourteenth
centuries; the usually far extended possessions of the feudal lord
were nowhere — also not in the east — connected with gross culture ;
though the landlord cultivated a part of his estate, this culture was
but little larger than peasants' culture. By far the greater part of
his income depended upon the taxes which the peasants contributed.
It is one of the most important questions of the German social
history, how from this comparatively great uniformity the present
strong contrast has arisen.

Exclusive landlordship was dissolved at the beginning of the nine-
teenth century, partly in consequence of the French Revolution or of
the ideas disseminated by it, partly in consequence of the Revolution
of 1848; the division of the rights of ownership of land between land-
lords and peasants has been abolished, the duties and taxes of the
peasants have been removed. The brilliant investigations of
Professor G. F. Knapp and his school have shown how decisive,
for that kind of agrarian constitution which originated then and still
exists, \vas the question: How was the estate divided, after the
dissolution of the manor community, between the former land-

736 THE RURAL COMMUNITY

lords and the peasants? In the west and south the soil came, the
greater part, into the hands of the peasants (or remained therein),
but in the east a very large part fell into the hands of the' former
masters of the peasant, the Rittergutsbesitzer, who established there
gross cultures with free laborers. But this was only the conse-
quence of the fact that the uniformity of the agrarian constitution
had disappeared before the emancipation of the peasants. The dif-
ference between the west and east was confirmed but not cre-
ated by the same. The difference had existed, in its main points
since the sixteenth century, and meanwhile had constantly grown.
Landlordship had undergone interior changes before its dissolution.
Everywhere in the east and west the endeavor of the landlords to
increase their intakes was the urging factor. This desire had sprung
up with the invasion of capitalism, the growing wealth of the in-
habitants of cities, the growing possibility of selling agricultural pro-
ducts. The transformations effected in the west and south date
partly back to the thirteenth century, in the east to the fifteenth
century. The ways by which the landlords pursued their aim were
characteristic. In -the south and west they remained landlords, i. e.,
they increased the rates of rent, interest, and taxes of the peasants,
but they did not go into rural culture. In the east they became
Gutsherren, cultivating lords; they appropriated parts of the
peasants' land (the legten Bauern, as the saying was), procured
thus a large estate for themselves, became agriculturists, and used
the peasants as serfs to till their own soil. Gross culture existed
there — only to a smaller extent and with labor of serfs — even
before the emancipation of the peasants; but not in the west. What
has caused this difference?

When this question is discussed, vast weight is laid upon the con-
duct of political power; indeed, this power was greatly interested in
the formation of the agrarian constitution. Since the knight was
exempted from paying taxes, the peasant was the only one in the
country who paid them. When standing armies were established, the
peasants furnished the recruits. This, in connection with certain
points of view of commercialism, induced the rising territorial state
to forbid by edicts the Bauernlegen, i. e., the appropriation of the
peasants' land by the lords, hence to protect the existing peasants'
farms. The stronger the ruler of the country was, the better he
succeeded; the mightier the nobility was, the less he succeeded.
According to this the differences of the agrarian constitution in the
east are based, to a great extent, upon these conditions of power.
But in the west and south we find that, in spite of the greatest weak-
ness of a great many states, in spite of the indubitable possibility to
appropriate peasants' land, the landlords do not attempt this at all.
They do not show at all any tendency to deprive the peasant, to

RELATIONS OF THE RURAL COMMUNITY 737

establish a gross culture, and to become agriculturists themselves.
And also the important formation of the conditions of the peasants'
rights to the soil cannot have been the decisive reason. In the east
great numbers of peasants with originally very good rights of pos-
session have disappeared; in the west also those with the most
unfavorable rights of possession have been preserved because the
landlords did not at all want to remove them.

The decisive question is, therefore: How did it happen that the
landlord of the German south and west, although he had ample
opportunity of appropriating the peasants' land, did not do this,
while the eastern landlord deprived the peasants of their land in spite
of the resistance of the power of the state?

This question can be put into a different form. The western land-
lord did not renounce the utilization of the peasants' land as a
source of income when he renounced its appropriation. The differ-
ence is only that he used the peasants as taxpayers, while the landlord
of the east, by becoming Gutsherr, began to use the peasants as
a laboring force. Therefore, the question must be asked: Why there
one thing, here another?

As with most historical developments, it is rather improbable that
a single reason could be assigned as the exclusive cause of this
different conduct of the landlords; for in this case we should chance
upon this cause in the sources. Therefore, a long series of single
causative factors have been adduced for explanation, especially by
Professor von Below in a classical investigation in his work Territo-
rium und Stadt. The question can only be, if the points of view can
be augmented, especially from economical considerations. Let us
see in which points there was difference between the conditions, in
which the eastern and the western landlord were when endeavoring
to extort from their peasants more than the traditional taxes.

The establishment of gross operations was facilitated, for the
eastern landlords, by the fact that their landlordship as well as
patrimonialization of the public powers had grown gradually on the
soil of ancient liberty of the people; the east, on the contrary, was
a territory of colonization. The patriarchal Slavonian social consti-
tution was the edifice invaded by German clergymen in consequence
of their superior education, German merchants and artisans in con-
sequence of their superior technical and commercial skill, German
knights in consequence of their superior military technic, and Ger-
man peasants in consequence of their superior knowledge of agricul-
ture. Moreover, in the time of the conquest of the east, German
social constitution, together with the political forces, had been com-
pletely feudalized. The social constitution of the east was, from the
very beginning, adapted to the social preeminence of the knight, and
the German invasion altered this but little. The German peasant,

738 THE RURAL COMMUNITY

even under the most favorable conditions of settling, had lost the
support given to him, also in the feudal period, by firm traditions,
the old mutual protection, the jurisdiction of the community in the
Weistumer in the west. The regularly more numerous Slavonian
peasantry did not know anything of such traditions. Besides, in the
west regularly the parcels of which the estates of the lords consisted,
because they had gradually arisen upon originally free land, were
intermingled even in single villages; they crossed everywhere the
patrimonial rights of the small owners of territory and thus they
secured for the peasant, by their variety and mutual conflicts, his toil-
some existence; very frequently the peasant was politically, person-
ally, and economically subjected to quite different lords. In the east
the combination of lordship and patrimonial rights over a whole vil-
lage was in the hand of one lord; the formation of a "manor," in
the English sense, was regularly facilitated because much more fre-
quently, from the very beginning, but one knight's court had been
founded in a village or had originated already from the Slavonian
social constitution. And finally there is an important factor, upon
which Professor von Below correctly lays special stress: the estate
of the knights in the east, though at first small in proportion to the
entire territory of a village, was nevertheless usually much larger than
was customary in the west. Therefore, the enlargement of the culti-
vation of his estate was, foi the lord, not only much more easy than
in the west, but also a much less remote idea. Thus from the very
beginning there existed, in the method of the distribution of the land,
the first inducement to differentiation between east and west. But
this difference of the size of the original estate of the landlord was
connected, as to its causes, with differences between the economic
conditions of the east and those of the west; even in the Middle Ages
considerably different conditions of existence were thus created for
the ruling social class.

The west was more densely settled, and, which is decisive in our
opinion, local communication, the exchange of goods within and
between the smallest local communities, was undoubtedly more
developed than in the east. This becomes evident by the fact that
the west was so much more densely settled with towns. It is based
partly upon the simple historical fact that the culture of the west
was, in each respect, older, partly upon a less evident, but important
geographical difference, the far greater variety of the agricultural
division of the west in comparison with the east. Considered from
a purely technical view, the communication on the extended plains
of the German east must have met with less impediments than in
the much intersected and differentiated territory of the west. But
such technical possibilities of communication do not determine the
measure of exchange; on the contrary, because, in the west and

RELATIONS OF THE RURAL COMMUNITY 739

south, bottoms, valleys of rivers, plateaux, are intermingled, because
climatic and other natural conditions of the production of goods
are very noticeably differentiated within narrow districts, the eco-
nomic inducement to trade, to the development of a relatively in-
tensive communication were so much stronger than on the large
plains of the east where the neighboring towns have much more
frequently nothing to exchange with each other (as even to-day),
because all of them produce the same goods in consequence of the
greater uniformity of production caused by their geographical situ-
ation. Historical and natural conditions of an intensive local trade
were (and still are), for these reasons, more favorable in the west.
It is Professor von Below's merit to have pointed to the fact that,
in the Middle Ages, the knighthood of the west was not only not
exclusively but not even predominantly founded upon territorial
possession. Taxes, toll traverse, rents, and imposts which depend
upon a certain amount of local traffic played a role. This was
undoubtedly much less possible in those days (as at present) in the
east. Whoever wanted to live there as a knight must found his
existence rather upon the income from his own operation of agricul-
ture. Large organizations for the production of goods and for exter-
nal commerce, as those of the " German Order," are only a different
phase of the same fact; the monotony of Eastern production directed
transportation into more distant regions, and the local money
economy remained considerably inferior to that of the east, ac-
cording to all symptoms. If the very uncertain possible estima-
tions are only approximately correct, also the conditions of the
peasants' existence in the east and west must have been very
different. It is scarcely probable that the lord would have taken up
the operation of agriculture with its toil, risk, and the little gentle-
manly contact with the mercantile world, if he could have lived as
well in the east as in the west on the peasants' taxes, tolls, tithes,
and rents. But we may conjecture why it was not equally possible
in the east as in the west; for to make it possible, the peasants
must be economically able to pay taxes of considerable amount,
sufficient for the wants of the landlord; it is by no means evident
that the peasants could afford to do this. This would presup-
pose that the peasant's self-interest in the productivity of his
land had reached a certain degree, that he himself had attained a
certain amount of economic education. But nothing could and
can be substituted for that educating influence which is exerted
upon the peasant by an intensive formation of urban communities,
by well-developed local communication, by opportunity and induce-
ment to sell rural products in the nearest possible local markets;
this great difference may still be seen by comparing the peasant of
the plain of Baden with the peasant of the east.

740 THE RURAL COMMUNITY

It is not the natural difference of physical and chemical quantities
of the soil or difference of the economic talent of the races, but the
historically established economic milieu which forms the determin-
ative factor in the difference of the results of peasants' agriculture.

A certain number of towns upon a given area was necessary to
inspire the mass of the peasants with at least such a degree of interest
in production that the lord was only enabled to draw from them the
means necessary for his sustenance, using the peasants as " funds
for interest." Where these influences of culture, which cannot be
replaced even by the best labor and best will, were lacking, the
peasant lacked frequently the possibility and always the incentive
to push the income from his land beyond the traditional measure of
his own needs.

But if number and area are compared, the cities in the east were
much fewer in number than in the west and south. And the develop-
ment of gross agriculture in the east dates characteristically from an
epoch in which not the rise but the decadence of the cities, and a
quite noticeable decadence, can be observed. For its surplusage of
grain the east was thus directed to its development to an agricultural
export territory, with all qualities of such. This direction reached
its culmination in our century after the abolition of the English grain
duties. On the other hand, several parts of the west needed, even
at the end of the Middle Ages, large importations of foodstuffs,
especially cattle. The entire contrast is perhaps most evidently
expressed by the difference in the prices of almost all agricultural pro-
ducts in the east and west in favor of the latter, which difference
was only lately removed in consequence of the hidden premiums
of grain exportation which we now have granted for a decade.
Even the railroads had somewhat diminished this difference, but
left them, in the middle of the last century, still very great. The
unreliable condition of German numismatical history, besides many
other technical difficulties, prevents us from obtaining a sufficient
quantity of reliable data for the Middle Ages, but it seems well-nigh
impossible that it has been different in general in that period, in spite
of great fluctuations in single instances.

If, therefore, the landlord wanted to make a more intensive use of
his peasants, much greater difficulties obstructed in the east his
plan to use them as funds for interest, on account of the peasants'
traditional lack of development, the weakness of the local markets
for rural products, and the smaller intensity of communication.
I should like to ascribe to this circumstance a much greater import-
ance — of course only in the form of an hypothesis yet to be proved
at the sources — than has been done before, so far as I know : The
landlord of the east has selected the method of operating his own
agricultural estate, not because the gross operation was technically

RELATIONS OF THE RURAL COMMUNITY 741

more rational, — for this would have been true also for the west,
— but because it was, under the historically established condi-
tions, the only possible economic means to obtain a higher in-
come. He became an operating landlord, and the peasant, bound
more and more to the soil, became a serf with the duty to give his
children to his lord as menials, to furnish his horses and wagons for
husbandry, his own working force for all sorts of work of the entire
year, while his own land was considered more and more a mere
reward for his labor. In spite of the state's opposition the lord
constantly expanded the land which he cultivated. When later on
the emancipation of the peasants came, it could not, as on a 4th of
August in France, cancel, in the German east, the landlords from the
agrarian constitution. Not only because an impecuniary state with
still undeveloped industry could not easily determine to renounce
their gratuitous service in the administration and in the army,
but above all, because the decree of the abrogation of the feudal
rights there where lord and peasants found themselves in a pro-
duction community did not decide at all the most important point:
the fate of the soil which was considered to be in the possession of the
landlord, not of the peasant. To declare it simply to be the peasants'
property — as was done later in Russian Poland for political pur-
poses, in order to ruin the Polish nobility — would have annihilated
in Prussia some twenty thousand large operated estates, the only ones
which the country then possessed; it would not only have obliterated
a class of renters, as it did in France. Therefore only a part of the
peasants, the larger estates, and only a part of their lands were saved
from being encompassed by the landlords, the remainder was appro-
priated by the latter.

The east continued to be, and became henceforth more and
more, the seat of agricultural capitalism, as industrial capitalism
took its seat especially in the west. This development was com-
pleted by the Russian frontier, which cut off the rear country, for a
gross industry which might arise in the east now placed its develop-
ment closely behind that frontier to Russian Poland.

The Prussian Rittergutsbesitzer of the east, who was originated
under these conditions, was a social product, very different from the
English landlord. The English landlord is generally a lessor of
land, not an agriculturist. His tributaries are not peasants, as in the
Middle Ages, but capitalistic enterprises for cultivation of the land.
He is the monopolist of the soil. The estate in his possession is
kept in the family by the artful juristic mechanism of " entails,"
which arose, like the modern capitalistic monopolies, in a constant
struggle with legislation; it is withheld from communication,
obligation, division by bequest. The landlord stands outsftle of the
rural productive community. Occasionally he assists his lessee with

742 THE RURAL COMMUNITY

loans of capital, but he enjoys an intangible existence as a lessor.
As a social product he is a genuine child of capitalism, arisen under
the pressure of those above-mentioned contrasting effects which
capitalism produces in completely populated countries with an
aristocratic social constitution. The " landed aristocrat " wishes to
live as a gentleman at leisure. His normal striving aims at rents,
not at profit. The technically sufficient measure of the estate and
the measure of the property necessary for his maintenance are by
no means in harmony with each other; more intensive operation,
in German places, demands, for instance, the diminution of property;
the rising luxury of the aristocratic class requires its enlargement,
especially as the prices of products fall. Each purchase, each com-
pensation of co-heirs, burdens the estate with heavy debts, while the
operation of the estate becomes the more sensitive to fluctuating
conjunctures the larger and more intensive it is. Only in an agra-
rian constitution, as the English, this development is abolished,
which, together with the increased density of population and rising
valuation of the land, endangers everywhere, nowadays, the exist-
ence of large rational agriculture, instead of the state's land mono-
poly which many reformers demand. The opposite extreme has
been carried out — private monopoly of the land. But the private
monopoly of the land produces, in certain economic. respects, effects
similar to those of the state's monopoly; it withdraws the soil from
communication and separates operation from possession. Either may
now go its own way. The interest of the capitalistic farmer striving
after the undertaker's profit and the land-owner's interest in the
rents, striving after the preservation of an inherited social position,
run side by side without being tied to each other, as is the case
with the agricultural operation of the free owners. The practical
significance of this is that the elasticity of husbandry against agri-
cultural crises is powerfully increased. The shock falls upon two
strong shoulders, the land monopolist and the capitalistic landlord.
The crisis results in lowering the rent, probably in the change of
the lessee, in a gradual diminution of the cultivated soil, but not
in a sudden destruction of many agricultural estates nor in any
sudden social degradation of many land-owning families.

Quite different are the conditions of the eastern Prussian lunker.
He is a rural employer, a man of a thoroughly civilian type, esteemed
according to the size of his estate and income; he possesses scarcely
more than one and a half to two United States " sections," but by
tradition he is incumbered with high life and aristocratic wants. He
is usually the free owner of the soil which he cultivates, and which is
sold and mortgaged, estimated for bequests, and acquired by compen-
sating the co-heirs; hence it is always burdened anew with running
interests. Therefore the owner alone is exposed to the fluctuation of

RELATIONS OF THE RURAL COMMUNITY 743

the market prices; he is involved in all economic and social conflicts,
which always menace directly his existence. As long as the exporta-
tion of grain to England flourished, he was the strongest supporter of
free trade, the fiercest opponent to the young German industry of the
west that needed protection; but when the competition of younger
and cheaper soils repelled him from the world market and finally
attacked him at his own home, he became the most important ally
of those manufacturers who, contrary to other important branches
of German industry, demanded protection; and joined them in a
common struggle against the workmen's demands. For meanwhile
capitalism had also gnawed at the social character of the luriker
and his laborers. In the first half of the last century the lunker
was a rural patriarch. His laborers, the peasants whose land he
had formerly appropriated, were by no means proletarians. They
received, in consequence of the lunker' s impecuniosity, no wages,
but a homestead, land, and the right of pasturage for their cows;
during harvest-time and for threshing a certain portion of the grain,
paid in wheat, etc. Thus they were, on a small scale, agriculturists
with a direct interest in their lord's husbandry. But they were
expropriated by the rising valuation of the land; their lord withheld
pasture and land, kept his grain, and paid them wages instead.
Thus the old community of interest was dissolved, the laborers became
proletarians.' The operation of agriculture became operation of the
season, viz., restricted to a few months. The lord hires wandering
farm-hands, since the maintenance of unoccupied laborers through-
out the year would be too heavy a burden.

The more German industry grew up, in the west, to its present
height, the more the population underwent an enormous change; em-
igration reached its culmination in the German east, where only
lords and serfs existed in far extended districts and whence the farm
laborers fled from their isolation and patriarchal dependency either
across the ocean, to the United States, or into the smoky and dusty
but socially more free air of the German factories. On the other hand,
the owners of estates import whatever laborers they can get to do
their work: Slavonians from beyond the frontier, who, as " cheaper
hands," drive out the Germans. The owner of an estate acts to-day
as every business man, and he must act thus, but his aristocratic
traditions contrast with such action. He would like to be a landlord
and must become a commercial undertaker and a civilian. Instead
of him other powers endeavor to snatch the role of a landlord.

The industrial and commercial capitalists begin to absorb more
and more the land. Manufacturers and merchants who have become
rich buy the knights' estates, tie their possession to their family
by a "feoffment in trust " (or "entails"), and use their estate as
means to invade the aristocratic class. The fideicomissum of the

744 THE RURAL COMMUNITY

parvenu is one of the characteristic products of capitalism in an
old country with aristocratic traditions and a military monarchy.
In the German east the same thing takes place now which has
been going on in England for centuries until the present conditions
were established there and which America will also experience in
future days, though only after all free land has been exhausted
and after the economic pulsation of the country has slowed
down.

For while it is correct to say that the burden of historical tra-
dition does not overwhelm the United States and that the problems
originating from the power of tradition do not exist here, yet the
effects of the power of capitalism are the stronger and will, sooner
or later, further the development of land monopolies. When the
land has become sufficiently dear so as to secure a certain rent, when
the accumulation of large fortunes has reached a still higher point
than to-day, when, at the same time, the possibility of gaining pro-
portionate profits by constant new investments in trade and industry
has been diminished so far that the " captains of industry," as has
occurred everywhere in the world, begin to strive for hereditary pre-
servation of their possessions instead of new investments that bring
both gain and danger, then, indeed, the desire of the capitalistic
families to form a " nobility " will arise, probably not in form though
in fact. The representatives of capitalism will not content them-
selves any longer with such harmless play as pedigree studies and
the numerous pranks of social exclusiveness which startle so much
the foreigner. Only when capital has arrived at this course and
begins to monopolize the land to a great extent, will a great rural
social question arise in the United States, a question which cannot be
cut with the sword, as was the slave question. Industrial monopo-
lies and trusts are institutions of limited duration; the conditions of
production undergo changes, and the market does not know any
everlasting valuation. Their power lacks also the authoritative
character and the political aristocratic mark. Monopolies of the
soil create infallibly a political aristocracy.

As far as Germany is concerned, in the east a certain approach to
English conditions has begun in consequence of the tendencies of
development, while the German southwest shows similarity with
France in the social formation of the country. But, in general, the
intensive English stock-breeding is not possible in the German east
on account of the climate. Therefore capital absorbs only the soil
which is most favorable for agriculture. But while the inferior
districts in England remain uncultivated as pastures for sheep, in
the German east they are settled by small farmers. This process
has a peculiar feature, inasmuch as two nations, Germans and
Slavonians, struggle with each other economically. The Polish

RELATIONS OF THE RURAL COMMUNITY 745

peasants who have fewer wants than the Germans, seem to gain
the upper hand.

While thus under the pressure of conjuncture the frugal Slavonian
small farmer gains territory from the German, the advance of
culture toward the east, during the Middle Ages, founded upon the
superiority of the older and higher culture, has changed completely
to the contrary under the dominion of the capitalistic principle of the \
" cheaper hand." Whether 'also the United States will have to
wrestle with similar problems in the future, nobody can foretell.
The diminution of the agricultural operations in the wheat-producing
states results, at present, from the growing intensity of the operation
and from division of labor. But also the number of negro farms is
growing and the migration from the country into the cities. If,
thereby, the expansive power of the Anglo-Saxon-German settlement
of the rural districts and, besides, the number of children of the old,
inborn population are on the wane, and if, at the same time, the
enormous immigration of uncivilized elements from eastern Europe
grows, also here a rural population might soon arise which could not
be assimilated by the historically transmitted culture of this country;
this population would change forever the standard of the United
States and would gradually form a community of a quite different
type from the great creation of the Anglo-Saxon spirit.

For Germany, all fateful questions of our economic and social
politics and of our national interests are closely connected with that
contrast between the rural constitution of the east and that of the
west and with its further development. To discuss here, in a
foreign country, the practical problems arising therefrom I should
not consider correct. Destiny which has incumbered us with a
history of thousands of years, which has placed us in a country
with a dense population and an intensive culture, which has forced
us to maintain the splendor of our old culture, so to say, in an
armed camp within a world bristling with arms, has placed before us
these problems. We must match them.

The friendly nation whose guests we are does not yet know such
problems ; several of them this nation will probably never encounter.
It has no old aristocracy; hence there do not exist the tensions caused
by the contrast between authoritative tradition and the purely
commercial character of modern economic conditions. Rightly it
celebrates the purchase of the immense territory in whose centre we
are here, as the real historical seal imprinted upon its democratic
institutions; without this acquisition, with powerful and warlike
neighbors at its side, it would be forced to wear the coat of mail like
ourselves, who constantly keep in the drawer of our desks the
march order in case of war. But on the other hand, the greater
part of the problems for whose solution we are now working will

746 THE RURAL COMMUNITY

approach America within but few generations; the way in which
they will be solved will determine the character of the future culture
of this continent. It was perhaps never before, in history, made so
easy for any nation to become a great civilized nation as for the
American people. But according to human calculation it is also
the last time, as long as the history of mankind shall last, that such
conditions for a free and great development will be given, the areas
of free soil vanishing now everywhere in the world.

One of my colleagues has quoted here the words of Carlyle:
" Thousands of years have passed before thou couldst enter into
life, and thousands of years to come wait in silence what thou
wilt do with this thy life." I do not know if, as Carlyle believes,
the single man can or will place himself, in his actions, upon the
sounding-board of this sentiment. But a nation must do so, if its
existence in history is to be of lasting value.

THE SOCIAL PROBLEMS OF AMERICAN FARMERS

BY KENYON LEECH BUTTERFIELD

[Kenyon Leech Butterfield, President of Rhode Island College of Agriculture and
Mechanic Arts since 1903, and Professor of Political Economy and Rural
Sociology. Since July 1, 1906, President of Massachusetts Agricultural College.
b. Lapeer, Michigan, June, 1868. B.S. Michigan Agricultural College; A.M.
University of Michigan. Assistant Secretary of Michigan Agricultural College,
1891-92; Editor, Michigan Grange Visitor, 1892-96; Superintendent. Michigan
Farmers' Institutes, 1895-99; Field Agent, Michigan Agricultural College, 1896-
99; Instructor in Rural Sociology, University of Michigan, 1902.]

THE title of this paper indicates that, for the present purpose,
the words " the rural community " have been interpreted to apply
chiefly to farmers. Eight millions of our people are classed by
the census as " semi-urban." The village problem is an interesting
and important field for social investigation, but we shall discuss only
the conditions and needs of farmers.

In America the farm problem has not been adequately studied. So
stupendous has been the development of our manufacturing indus-
tries, so marvelous the growth of our urban population, so pressing
the questions raised by modern city life, that the social and economic
interests of the American farmer have, as a rule, received minor con-
sideration. We are impressed with the rise of cities like Chicago,
forgetting for the moment that half of the American people still live
under rural conditions. We are perplexed by the-labor wars that are
waged about us, for the time unmindful that one third of the workers
of this country make their living immediately from the soil. We are
astounded, and perhaps alarmed, at the great centralization of cap-
ital, possibly not realizing that the capital invested in agriculture in
the United States nearly equals the combined capital invested in the
manufacturing and railway industries. But if we pause to consider
the scope and nature of the economic and social interests involved,
wre cannot avoid the conclusion that the farm problem is worthy
of serious thought from students of our national welfare.

We are aware that agriculture does not hold the same relative
rank among our industries that it did in former years, and that
our city population has increased far more rapidly than has our
rural population. We do not ignore the fact that urban industries
are developing more rapidly than is agriculture, nor deny the serious-
ness of the actual depletion of rural population, and even of com-
munity decadence, in some portions of the Union. But these facts
merely add to the importance of the farm question. And it should
not be forgotten that there has been a large and constant growth
both of our agricultural wealth and of our rural population. During

748 THE RURAL COMMUNITY

the last half-century there was a gain of 500 per cent in the value of
farm property, while the non-urban population increased 250 per cent.
Agriculture has been one of the chief elements of America's industrial
greatness; it is still our dominant economic interest, and it will long
remain at least a leading industry. The people of the farm have
furnished a_ sturdy citizenship and have been the primary source of
much of our best leadership in political, business, and professional
life. For an indefinite future a large proportion of the American
people will continue to live in a rural environment.

In a thorough discussion of the " social problems of American
farmers " it would be desirable first of all to analyze with some detail
the general question which we have called the farm problem. Only
thus can we understand the social difficulties of the rural community,
the significance of the social agencies designed to meet those diffi-
culties, and the real ambitions and needs of the farming class. But
time will permit merely a concise, and necessarily a somewhat
dogmatic, statement of what the writer believes to be the ultimate
farm problem in America. We may perhaps most quickly arrive at
the conclusion by the process of elimination.

Current agricultural discussion would lead us to think that the
farm problem is largely one of technique. The possibilities of the
agricultural industry, in the light of applied science, emphasize the
need of the farmer for more complete knowledge of soil and plant and
animal, and for increased proficiency in utilizing this knowledge to
secure greater production at less cost. This is a fundamental need. It
lies at the basis of success in farming. But it is not the farm problem.

Business skill must be added, business methods enforced. The
farmer must be not only a more skillful produce-grower, but also
a keener produce-seller. But the moment we enter the realm of
the market we step outside the individualistic aspect of the problem
as embodied in the current doctrine of technical agricultural teaching,
and are forced to consider the social aspect as emphasized, first of
all, in the economic category of price. Here we find many factors —
transportation cost, general market conditions at home and abroad,
the status of other industries, and even legislative activities. The
farm problem becomes an industrial question, not merely one of
technical and business skill. Moreover, the problem is one of a
successful industry as a whole, not merely the personal successes of
even a respectable number of individual farmers. The farming
class must progress as a unit.

But have we yet reached the heart of the question? Is the farm
problem one of technique, plus business skill, plus these broad eco-
nomic considerations? Is it not perfectly possible that agriculture
as an industry may remain in a fairly satisfactory condition, and yet
the farming class fail to maintain its status in the general social

SOCIAL PROBLEMS OF AMERICAN FARMERS 749

order? Is it not, for instance, quite within the bounds of probability
to imagine a good degree of economic strength in the agricultural
industry existing side by side with either a peasant regime or a
landlord-and-tenant system? Yet would we expect from either
system the same social fruitage that has been harvested from our
American yeomanry?

We conclude, then, that the farm problem consists in maintaining
upon our farms a class of people who have succeeded in procuring
for themselves the highest possible class status, not only in the
industrial, but in the political and the social order — a relative
status, moreover, that is measured by the demands of American
ideals. The farm problem thus connects itself with the whole ques-
tion of democratic civilization. This is not mere platitude. For
we cannot properly judge the significance and the relation of the
different industrial activities of our farmers, and especially the
value of the various social agencies for rural betterment, except by
the standard of class status. It is here that we seem to find the only
satisfactory philosophy of rural progress.

We would not for a moment discredit the fundamental importance
of movements that have for their purpose the improved technical
skill of our farmers, better business management of the farm, and
wiser study and control of market conditions. Indeed, wre would
call attention to the fact that social institutions are absolutely
necessary means of securing these essential factors of industrial
success. In the solution of the farm problem we must deliberately
invoke the influence of quickened means of communication, of cooper-
ation among farmers, of various means of education, and possibly
even of religious institutions, to stimulate and direct industrial activ-
ity. What needs present emphasis is the fact that there is a definite,
real, social end to be held in view as the goal of rural endeavor.
The highest possible social status for the farming class is that end.

We may now, as briefly as possible, describe some of the difficulties
that lie in the path of the farmers in their ambition to attain greater
class efficiency and larger class influence, and some of the means at
hand for minimizing the difficulties. A complete discussion of the
farm problem should, of course, include thorough consideration of
the technical, the business, and the economic questions implied by
the struggle for industrial success; for industrial success is prerequi-
site to the achievement of the greatest social power of the farming
class. But we shall consider only the social aspects of the problem.

Rural Isolation

Perhaps the one great underlying social difficulty among American
farmers is their comparatively isolated mode of life. The farmer's

750 THE RURAL COMMUNITY

family is isolated from other families. A small city of perhaps
twenty thousand population will contain from four hundred to six
hundred families per square mile, whereas a typical agricultural
community in a prosperous agricultural state will hardly average
more than ten families per square mile. The farming class is isolated
from other classes. Farmers, of course, mingle considerably in a
business and political way with the men of their trading town and
county seat; but, broadly speaking, farmers do not associate freely
with people living under urban conditions and possessing other than
the rural point of view. It would be venturesome to suggest very
definite generalizations with respect to the precise influence of these
conditions because, so far as the writer is aware, the psychology of
isolation has not been worked out. But two or three conclusions
seem to be admissible, and for that matter rather generally accepted.

The well-known conservatism of the farming class is doubtless
largely due to class isolation. Habits, ideas, traditions, and ideals
have long life in the rural community. Changes come slowly.
There is a tendency to tread the well-worn paths. The farmer does
not easily keep in touch with rapid modern development, unless the
movements or methods directly affect him. Physical agencies which
improve social conditions, such as electric lights, telephones, and
pavements, come to the city first. The atmosphere of the country
speaks peace and quiet. Nature's routine of sunshine and storm, of
summer and winter, encourages routine and repetition in the man
who works with her.

A complement of this rural conservatism, which at first thought
seems a paradox, but which probably grows out of these same con-
ditions of isolation, is the intense radicalism of a rural community
when once it breaks awTay from its moorings. Many farmers are
unduly suspicious of others' motives; yet the same people often
succumb to the wiles of the charlatan, whether medical or political.
Farmers are usually conservative in politics and intensely loyal to
party; but the Populist movement indicates the tendency to ex-
tremes when the old allegiance is left behind. Old methods of
farming may be found alongside ill-considered attempts to raise new
crops or to utilize untried machines.

Other effects of rural isolation are seen in a class provincialism
that is hard to eradicate, and in the development of minds less
alert to seize business advantages and less far-sighted than are
developed by the intense industrial life of the town. There is
time to brood over wrongs, real and imaginary. Personal preju-
dices often grow to be rank and coarse-fibered. Neighborhood
feuds are not uncommon and are often virulent. Leadership is
made difficult and sometimes impossible. It is easy to fall into
personal habits that may mark off the farmer from other classes

SOCIAL PROBLEMS OF AMERICAN FARMERS 751

of similar intelligence, and that bar him from his rightful social
place.

It would, however, be distinctly unfair to the farm community
if we did not emphasize some of the advantages that grow out
of the rural mode of life. • Farmers have time to think, and the
typical American farmer is a man who has thought much and
often deeply. A spirit of sturdy independence is generated, and
freedom of will and of action is encouraged. Family life is nowThere
so educative as in the country. The whole family cooperates for
common ends, and in its individual members are bred the qualities
of industry, patience, and perseverance. The manual work of the
schools is but a makeshift for the old-fashioned training of the
country-grown boy. Country life is an admirable preparation for
the modern industrial and professional career.

Nevertheless, rural isolation is a real evil. Present-day living is
so distinctively social, progress is so dependent upon social agencies,
social development is so rapid, that if the farmer is to keep his status
he must be. fully in step with the rest of the army. He must secure
the social viewpoint. The disadvantages of rural isolation are
largely in the realm of the social relations, its advantages mostly on
the individual and moral side. Farm life makes a strong individual;
it is a serious menace to the achievement of class power.

A cure for isolation sometimes suggested is the gathering of the
farmers into villages. This remedy, however, is of doubtful value.
In the first place, the scheme is not immediately practicable. About
three and one-half billions of dollars are now invested in farm build-
ings, and it will require some motive more powerful than that
inspired by academic logic to transfer, even gradually, this invest-
ment to village groups. Moreover, it is possible to dispute the
desirability of the remedy. The farm village at best must be a mere
hamlet. It can secure for the farmer very few of the urban advan-
tages he may want, except that of permitting closer daily inter-
course between families. And it is questionable if the petty society
of such a village can compensate for the freedom and purity of rural
family life now existing. It may even be asserted with some degree
of positiveness that the small village, on the moral and intellectual
sides, is distinctly inferior to the isolated farm home.

At the present time rural isolation in America is being over-
come by the development of better means of communication among
farmers who still live on their farms. So successful are these means
of communication proving that we cannot avoid the conclusion that
herein lies the remedy. Improved wagon-roads, the rural free mail
delivery, the farm telephone, trolley-lines through country districts,
are bringing about a positive revolution in country living. They
are curing the evils of isolation, without in the slightest degree

752 THE RURAL COMMUNITY

robbing the farm of its manifest advantages for family life. The
farmers are being welded into a more compact society. They are
being nurtured to greater alertness of mind, to greater keenness of
observation, and the foundations are being laid for vastly enlarged
social activities. The problem now is to extend these advantages
to every rural community — in itself a task of huge proportions.
If this can be done and isolation can be reduced to a minimum, the
solution of all the other rural social problems will become vastly
easier.

Farmers' Organization

Organization is one of the pressing social problems that American
farmers have to face. The importance of the question is intrinsic,
because of the general social necessity for cooperation which char-
acterizes modern life. Society is becoming consciously self-directive.
The immediate phase of this growing self -direction lies in the attempts
of various social groups to organize their powers for group advantage.
And if, as seems probable, this group activity is to remain a dominant
feature of social progress, even in a fairly coherent society, it is
manifest that there will result more or less of competition among
groups.

The farming class, if at all ambitious for group influence, can
hardly avoid this tendency to organization. Farmers, indeed,
more than any other class, need to organize. Their isolation
makes thorough organization especially imperative. And the
argument for cooperation gains force from the fact that relatively
the agricultural population is declining. In the old days farmers
ruled because of mere mass. That is no longer possible. The
na'ive statement that " farmers must organize because other classes
are organizing " is really good social philosophy.

In the group competition just referred to there is a tendency
for class interests to be put above general social welfare. This
is a danger to be avoided in organization, not an argument against
it. So the farmers' organization should be guarded, at this point,
by adherence to the principle that organization must not only
develop class power, but must be so directed as to permit the farmers
to lend the full strength of their class to general social progress.

Organization thus becomes a test of class efficiency, and con-
sequently a prerequisite for solving the farm problem. Can the
farming class secure and maintain a fairly complete organization?
Can it develop efficient leaders? Can it announce, in sound terms,
its proposed group policy? Can it lend the group influence to
genuine social progress? If so, the organization of farmers becomes
a movement of preeminent importance.

Organization, moreover, is a powerful educational force. It
arouses discussion of fundamental questions, diffuses knowledge,
gives practice in public affairs, trains individuals in executive
work, and, in fine, stimulates, as nothing else can, a class which is
in special need of social incentive.

Organization is, however, difficult of accomplishment. While
it would take us too far afield to discuss the history of farmers'
organizations in America, we may briefly suggest some of the diffi-
culties involved. For forty years the question has been a prominent
one among the farmers, and these years have seen the rise and
decline of several large associations. There have been apparently
two great factors contributing to the downfall of these organizations.
The first was a misapprehension, on the part of the farmers, of the
feasibility of organizing themselves as a political phalanx; the
second, a sentimental belief in the possibilities of business coopera-
tion among farmers, more especially in lines outside their vocation.
There is no place for class politics in America. There are some things
legislation cannot cure. There are serious limitations to cooperative
endeavor. It took many hard experiences for our farmers to learn
these truths. But back of all lie some inherent difficulties, as, for
instance, the number of people involved, their isolation, sectional
interests, ingrained habits of independent action, of individual
initiative, of suspicion of others' motives. There is often lack of
perspective and unwillingness to invest in a procedure that does not
promise immediate returns. The mere fact of failure has discredited
the organization idea. There is lack of leadership; for the farm
industry, while it often produces men of strong mind, keen percep-
tion, resolute will, does not, as a rule, develop executive capacity for
large enterprises.

It is frequently asserted that farmers are the only class that
has not organized. This is not strictly true. The difficulties
enumerated are real difficulties and have seriously retarded farm
organization. But if the progress made is not satisfactory, it is at
least encouraging. On the purely business side, over five thousand
cooperative societies among American farmers have been reported.
In cooperative buying of supplies, cooperative selling of products,
and cooperative insurance the volume of transactions reaches large
figures. A host of societies of a purely educational nature exists
among stock-breeders, fruit-growers, dairymen. It is true that no
one general organization of farmers, embracing a large proportion of
the class, has as yet been perfected. The nearest approach to it is
the Grange, which, contrary to a popular notion, is in a prosperous
condition, with a really large influence upon the social, financial,
educational, and legislative interests of the farming class. It has
had a steady growth during the past ten years, and is a quiet but

754 THE RURAL COMMUNITY

powerful factor in rural progress. The Grange is, perhaps, too con-
servative in its administrative policy. It has not at least succeeded
in converting to its fold the farmers of the great Mississippi Valley.
But it has workable machinery, it disavows partisan politics and
selfish class interests, and it subordinates financial benefits, while
emphasizing educational and broadly political advantages. It
seems fair to interpret the principles of the Grange as wholly in line
with the premise of this paper, that the farmers need to preserve their
status, politically, industrially, and socially, and that organization
is one of the fundamental methods they must use. The Grange,
therefore, deserves to succeed, and indeed is succeeding.

The field of agricultural organization is an extensive one. But
if the farm problem is to be satisfactorily solved, the American
farmers must first secure reasonably complete organization.

Rural Education

It is hardly necessary to assert that the education of that por-
tion of the American people who live upon the land involves a
question of the greatest significance. The subject naturally divides
itself into two phases, one of which may be designated as rural
education proper, the other as agricultural education. Rural
education has to do with the education of people, more especially of
the young, who live under rural conditions; agricultural education
aims to prepare men and women for the specific vocation of agricul-
ture. The rural school typifies the first; the agricultural school, the
second. Rural education is but a section of the general school
question; agricultural education is a branch of technical training.
These two phases of the education of the farm population meet at
many points, they must work in harmony, and together they form
a distinct educational problem.

The serious difficulties in the rural school question are perhaps
three: first, to secure a modern school, in efficiency somewhat com-
parable to the town school, without unduly increasing the school
tax; second, so to enrich the curriculum and so to expand the
functions of the school that the school shall become a vital and
coherent part of the community life, on the one hand translating
the rural environment into terms of character and mental efficiency,
and on the other hand serving perfectly as a stepping-stone to the
city schools and to urban careers; third, to provide adequate high-
school facilities in the rural community.

The centralization of district schools and the transportation of
pupils will probably prove to be more nearly a solution of all these
difficulties than will any other one scheme. The plan permits the
payment of higher wages for teachers and ought to secure better

SOCIAL PROBLEMS OF AMERICAN FARMERS 755

instruction; it permits the employment of special teachers, as for
nature-study or agriculture; it increases the efficiency of superin-
tendence; it costs but little, if any, more than the district system; it
leaves the school amid rural surroundings, while introducing into the
school-room itself a larger volume, so to speak, of world-atmosphere;
it contains possibilities for community service; it can easily be
expanded into a high school of reputable grade.

There are two dangers, both somewhat grave, likely to arise
from an urgent campaign for centralization. Even if the move-
ment makes as great progress as could reasonably be expected, for
a generation to come a large share, if not a major portion, of rural
pupils will still be taught in the small, isolated, district school;
there is danger that this district school may be neglected. Moreover,
increased school machinery always invites undue reliance upon
machine-like methods. Centralization permits, but does not
guarantee, greater efficiency. A system like this one must be
vitalized by constant and close touch with the life and needs and
inspirations of the rural community itself.

Wherever centralization is not adopted, the consolidation of two
or three schools — a modified form of centralization — may prove
helpful. Where the district school still persists, there are one or
two imperative requirements. Teachers must have considerably
higher wages and longer tenure. There must be more efficient
supervision. The state must assist in supporting the school, although
only in part. The small schools must be correlated with some form
of high school. The last point is of great importance because of the
comparative absence in country communities of opportunity near
at hand for good high-school training.

Agricultural education is distinctively technical, not in the re-
stricted sense of mere technique or even of applied science, but
in the sense that it must be frankly vocational. It has to do with
the preparation of men and women for the business of farming and
for life in the rural community.

Agricultural education should begin in the primary school. In
this school the point of view, however, should be broadly pedagogical
rather than immediately vocational. Fortunately, the wise teaching
of nature-study, the training of pupils to know and to love nature,
the constant illustrations from the rural environment, the continual
appeal to personal observation and experience, absolute loyalty to
the farm point of view, are not only sound pedagogy, but form the
best possible background for future vocational study. Whether
wre call this early work " nature-study " or call it " agriculture "
matters less than that the fundamental principle be recognized. It
must first of all educate. The greatest difficulty in introducing such
work into the primary school is to secure properly equipped teachers.

756 THE RURAL COMMUNITY

Perhaps the most stupendous undertaking in agricultural education
is the adequate development of secondary education in agriculture.
The overwhelming majority of young people who secure any agri-
cultural schooling whatever must get it in institutions that academ-
ically are of secondary grade. This is a huge task. If developed to
supply existing needs, it will call for an enormous expenditure of
money and for the most careful planning. From the teaching view-
point it is a difficult problem. Modern agriculture is based upon the
sciences; it will not do, therefore, to establish schools in the mere
art of farming. But these agricultural high schools must deal with
pupils who are comparatively immature, and who almost invariably
have had no preparation in science. Nor should the courses at these
schools be ultra-technical. They are to prepare men and women for
life on the farm — men and women who are to lead in rural develop-
ment, and who must get some inkling at least of the real farm ques-
tion and its solution. The agricultural school, therefore, presents
a problem of great difficulty.

A perennial question in agricultural education is: What is the
function of the agricultural college? We have not time to trace the
history of these colleges, nor to elaborate the various views relative
to their mission. But let us for a moment discuss their proper
function in the light of the proposition that the preservation of
the farmers' status is the real farm problem, for the college can be
justified only as it finds its place among the social agencies helpful
in the solution of the farm question.

In so far as the agricultural college, through its experiment station
or otherwise, is an organ of research, it should carry its investigations
into the economic and sociological fields, as well as pursue experi-
ments in soil fertility and animal nutrition.

In the teaching of students, the agricultural college will continue
the important work of training men for agricultural research, agri-
cultural teaching, and expert supervision of various agricultural
enterprises. But the college should put renewed emphasis upon its
ability to send well-trained men to the farms, there to live their
lives, there to find their careers, and there to lead in the movements
for rural progress. A decade ago it was not easy to find colleges
which believed that this could be done, and some agricultural edu-
cators have even disavowed such a purpose as a proper object of the
colleges. But the strongest agricultural colleges to-day have pride
in just such a purpose. And why not? We not only need men thus
trained as leaders in every rural community, but if the farming
business cannot be made to offer a career to a reasonable number of
college-trained men, it is a sure sign that only by the most herculean
efforts can the farmers maintain their status as a class. If agri-
culture must be turned over wholly to the untrained and to the

SOCIAL PROBLEMS OF AMERICAN FARMERS 757

half-trained, if it cannot satisfy the ambition of strong, well-educated
men and women, its future, from the social point of view, is indeed
gloomy.

The present-day course of study in the agricultural college does
not, however, fully meet this demand for rural leadership. The farm
problem has been regarded as a technical question, and a technical
training has been offered the student. The agricultural college,
therefore, needs " socializing." Agricultural economics and rural
sociology should occupy a large place in the curriculum. The men
who go from the college to the farm should appreciate the significance
of the agricultural question, and should be trained to organize their
forces for genuine rural progress. The college should, as far as
possible, become the leader in the whole movement for solving the
farm problem.

The farm home has not come in for its share of attention in existing
schemes of agricultural education. The kitchen and the dining-
room have as much to gain from science as have the dairy and
the orchard. The inspiration of vocational knowledge must be the
possession of her who is the entrepreneur of the family, the home-
maker. The agricultural colleges, through their departments of
domestic science — better, of " home-making " — should inaugurate
a comprehensive movement for carrying to the farm home a larger
measure of the advantages which modern science is showering upon
humanity.

The agricultural college must also lead in a more adequate develop-
ment of extension teaching. Magnificent work has already been
done through farmers' institutes, reading courses, cooperative
experiments, demonstrations, and correspondence. But the field is
so immense, the number of people involved so enormous, the diffi-
culties of reaching them so many, that it offers a genuine problem
and one of peculiar significance, not only because of the generally
recognized need of adult education, but also because of the isolation
of the farmers.

It should be said that in no line of rural betterment has so much
progress been made in America as in agricultural education. Merely
to describe the work that is being done through nature-study and
agriculture in the public schools, through agricultural schools,
through our magnificent agricultural colleges, through farmers'
institutes, and especially through the experiment stations and the
federal Department of Agriculture in agricultural research and in
the distribution of the best agricultural information — merely to
inventory these movements properly would take the time available
for this discussion. What has been said relative to agricultural
education is less in way of criticism of existing methods than in way
of suggestion as to fundamental needs.

758 THE RURAL COMMUNITY

The Ethical and Religious Problem

Wide generalizations as to the exact moral situation in the rural
community are impossible. Conditions have not been adequately
studied. It is probably safe to say that the country environment is
extremely favorable for pure family life, for temperance, and for
bodily and mental health. To picture the country a paradise is,
however, mere silliness. There are in the country, as elsewhere,
evidences of vulgarity in language, of coarseness in thought, of social
impurity, of dishonesty in business. There is room in the country
for all the ethical teaching that can be given.

Nor is it easy to discuss the country church question. Condi-
tions vary in different parts of the Union, and no careful study
has been made of the problem. As a general proposition it may be
said that there are too many churches in the country, and that these
are illy supported. Consequently, they have in many cases inferior
ministers. Sectarianism is probably more divisive than in the city,
not only because of the natural conservatism of the people and a
natural disinclination to change their views, but because sectarian
quarrels are perhaps more easily fomented and less easily harmonized
than anywhere else. Moreover, in the city a person can usually find
a denomination to his liking. In the country, even with the present
overchurched condition, this is difficult.

The ideal solution of the country church problem is to have in
each rural community one strong church adequately supported,
properly equipped, ministered to by an able man — a church which
leads in community service. The path to the realization of such an
ideal is rough and thorny. Church federation, however, promises
large results in this direction and should be especially encouraged.

Whatever outward form the solution of the country church question
may take, there seem to be several general principles involved in a
satisfactory attempt to meet the issue. In the first place, the country
church offers a problem by itself, socially considered. Methods suc-
cessful in the city may not succeed in the country. The country
church question must then be studied thoroughly and on the ground.

Again, the same principle of financial aid to be utilized in the
case of the schools must be invoked here. The wealth of the whole
church must contribute to the support of the church everywhere.
The strong must help the weak. The city must help the country.
But this aid must be given by cooperation, not by condescension.
The demand cannot be met by home missionary effort nor by church-
building contributions; the principle goes far deeper than that.
Some device must be secured which binds together the whole church)
along denominational lines if must be, for a full development of
church work in every community in the land.

SOCIAL PROBLEMS OF AMERICAN FARMERS 759

Furthermore, there is supreme necessity for adding dignity to the
country parish. Too often at present the rural parish is regarded
either as a convenient laboratory for the clerical novice, or as an
asylum for the decrepit or inefficient. The country parish must be
a parish for our ablest and strongest. The ministry of the most
Christlike must be to the hill-towns of Galilee as well as to Jerusa-
lem.

There is still another truth that the country church cannot afford
to ignore. The rural church question is peculiarly interwoven with
the industrial and social problems of the farm. A declining agri-
culture cannot foster a growing church. An active church can
render especially strong service to a farm community, in its influence
upon the religious life, the home life, the educational life, the social
life, and even upon the industrial life. Nowhere else are these
various phases of society's activities so fully members one of another
as in the country. The country church should cooperate with other
rural social agencies. This means that the country pastor should
assume a certain leadership in movements for rural progress. He is
splendidly fitted, by the nature of his work and by his position in the
community, to cooperate with earnest farmers for the social and
economic, as well as the moral and spiritual, upbuilding of the farm
community. But he must know the farm problem. Here is an
opportunity for theological seminaries: let them make rural sociology
a required subject. And, better, here is a magnificent field of labor
for the right kind of young men. The country pastorate may thus
prove to be, as it ought to be, a place of honor and rare privilege.
In any event, the country church, to render its proper service, not
alone must minister to the individual soul, but must throw itself into
the struggle for rural betterment, must help solve the farm problem.

Federation of Forces

The suggestion that the country church should ally itself with
other agencies of rural progress may be carried a step farther.
Rural social forces should be federated. The object of such federa-
tion is to emphasize the real nature of the farm problem, to interest
many people in its solution, and to secure the cooperation of the
various rural social agencies, each of which has its sphere, but also its
limitations. The method of federation is to bring together, for con-
ference and for active work, farmers, especially representatives of
farmers' organizations, agricultural educators, rural school-teachers
and supervisors, country clergymen, country editors, in fact, all who
have a genuine interest in the farm problem. Thus will come
clearer views of the questions at issue, broader plans for reform,
greater incentive to action, and more rapid progress.

760 THE RURAL COMMUNITY

Conclusion

In this brief analysis of the social problems of American farmers
it has been possible merely to outline those aspects of the subject that
seem to be fundamental. It is hoped that the importance of each
problem has been duly emphasized, that the wisest methods of
progress have been indicated, and that the relation of the various
social agencies to the main question has been clearly brought out.
Let us leave the subject by emphasizing once more the character of
the ultimate farm problem. This problem may be stated more con-
cretely, if not more accurately, than was done at the opening of the
paper, by saying that the ideal of rural betterment is to preserve upon
our farms the typical American farmer. The American farmer has
been essentially a middle-class man. It is this type we must main-
tain. Agriculture must be made to yield returns in wealth, in oppor-
tunity, in contentment, in social position, sufficient to attract and to
hold to it a class of intelligent, educated American citizens. This is
an end vital to the preservation of American democratic ideals. It
is a result that will not achieve itself; social agencies must be invoked
for its accomplishment. It demands the intelligent and earnest
cooperation of all who love the soil and who seek America's perman-
ent welfare.

SHORT PAPER

MR. JOHN M. STAHL, of Quincy, Illinois, read a paper before this Section on
" Present Problems in Social Science affecting the Rural Community."

SECTION C — THE URBAN COMMUNITY

SECTION C— THE URBAN COMMUNITY

(Hall 5, September 22, 10 a.m.)

SPEAKERS: PROFESSOR J. JASTROW, University of Berlin.

PROFESSOR Louis WUARIX, University of Geneva.

THE RELATIONS OF THE URBAN COMMUNITY TO
OTHER BRANCHES OF SOCIAL SCIENCE

BY J. JASTROW

(Translated by Professor Charles W. Seidenadel, Ph.D., University of Chicago)

[J. Jastrow, Ph.D., Professor of Political Economy, University of Berlin; Eco-
nomic Adviser of the Berlin Senior Merchants' Association; Member of the
Executive of the Charlottenburg Municipality, b. September 13, 1856.
Universities: Breslau, Berlin, Gottingen, 1874-78; Ph.D. Gottingen, 1878.
Decent at the Berlin University, 1885. Author of Strafrechtliche SteUung
der Sklaven bei Deutschen und Angelsachsen (1878); Geschichte des deutschen
Einheitstraumes (1884; 4th ed. 1891; prize paper); Deutsche Geschichte im
Zeitalter der Hohenstaufen (1893); Dreiklassensystem (1894); Einrichtung von
Arbeitsnachweisen (1898); Kommunale Anleihen (1900); Sozialpolitik und
Verwaltungswisscnschaft, Vol. i: Arbeitsmarkt und Arbeitsnachweis, Gewcrbe-
gerichte und Einigungsdmter (1902); Krisis auf dem Arbeitsmarkte (1903).
Editor of Jahresberichte der Geschichtswissenschaft (1881-94); Soziale Praxis
(1893-97); Das Gewerbegericht and Der Arbeitsmarkt (since 1897).]

IF we want to gain information about the relations of the subject
of this paper, the urban community, to kindred sciences, we proceed
in the easiest way by considering that the urban community has three
other communities beneath itself, above itself, and at its side:
beneath itself the family, above itself the state, and at its side the
rural community.

Wherever an urban community formed itself, it found the already
existing family; by this fact it has been directed in its development.
Nowhere is the urban community an original community grown out
of individuals, but it is everywhere a coalition of existing social
formations. The formation of a higher order is determined by the
elements from which it has grown. And even to-day, after the urban
community has long ago attained to independent activity separated
from the family, the influence of that origin is still evident in the
selection of the objects of its activity. Perhaps there is no country
in which this dependency is more apparent than in Germany.

The principal objects of activity of a German urban community,
i.e., those which bring the greater part of the citizens, either actively

764 THE URBAN COMMUNITY

or passively, in contact with the community and which characterize
the urban community, are the school and charities. Both are an
integral part of familiar activity.

The school originated when a part of education, instruction, was
separated from the family and instituted for several families in
common. The municipal school is an institution established for the
purpose of making this part of education common to all families of
the city (or to make the common education possible). As long as
the families paid school fees according to the number of the children
using the school, the public school was a common institution of all
participating families. Where the fees are abolished this connection
is dissolved and a part of the familiar duties have been transferred to
the community. But now the different parts of education are so
closely connected that no part could be separated from the whole
without drawing other parts along. Even the school libraries which
furnish the pupils reading material in their leisure hours recognize
that the child is, in a certain measure, under their supervision and
care during the time in which it does not go to school. Since not
only mental but also physical culture is the object of instruction, and
since special stress must be laid upon this in accordance with the
old saying "mens sana in corpore sano," also the care of the body
becomes a part of the activity of this institution. The cities begin,
therefore, to connect baths with the institutions (Schul-brause-
bcider), and the sanitary supervision, in the hands of school physi-
cians, is performed from the higher point of view that in a country
with universal education this supervision gives the best opportunity
to review the sanitary condition of the future generation and to
prevent, at least with good advice and little remedies, the diseases
of eyes, teeth, etc., on which the necessary care is not bestowed in
the families, as experience has shown. Free instruction contains the
recognition that the community has taken up this part of education
instead of the family. From this the deduction is made that the
community must furnish not only the common means of instruction,
but also the individual means for every child, not only the means
of teaching, but also of learning. To a certain degree an agreement
in this much-disputed demand has been reached, inasmuch as it is
considered to be, under all circumstances, the duty of the school ad-
ministration to provide children with school-books. There is still
a controversy whether this provision shall become general or shall be
confined to the cases of poor families (more expressly: whether the
provision of school-books shall be general or subsidiary). If, accord-
ing to the Latin proverb, " plenus venter non studct libenter," — a full
stomach is not inclined to study, — certainly an empty one is less
capable of it. The impossibility to instruct hungry children urges
the necessity of feeding the pupils; it is done as a formal school

THE URBAN COMMUNITY AND SOCIAL SCIENCE 765

institution (in Switzerland, and in Norway) or in connection with
charitable societies, as is preferred in Germany. This development
is spreading fast. Now the needs of life urge to proceed from
feeding of children also to clothing them (to furnish shoes in
mountainous regions) ; now the apparently useless recreations which
make life more enjoyable cause play and sport to be added to
instruction; they open an infinite space for the extension of the
school to activities which had formerly belonged to the family. In
no country of the world is this more evident than in America.

But also in other respects the activity of the urban community
of the public school draws its objects from the family. Formerly the
family itself had been the school for the education of the girls;
the daughters received their education for their duties as mother
and wife by their activity in the family. The more the family is
dissolved by the drift of the women to the trades, and the more the
home education is impaired, the more the family is in danger of
losing that important historical connection which is founded Upon
the tradition of the mother to her daughter. Here the school appears
as a remedy, as it offers instruction to girls in domestic science for
their future activity in the family.

The familiar origin of urban activity shows itself also in charity,
in a different way but not less clearly, either in public institutions for
the poor or in the care for the poor in their homes. In either case
urban charity has the same object as the care of the family for its
members. Only in one instance the activity of the family is entirely
replaced; in the other it is supplemented; this difference determines
the two systems of the charity administration. English charity, a
large indoor relief system, gives every one who does not find in the
family what life demands, a compensation, but it demands (at least
according to the rules) that the poor give up his family and move
into the urban poorhouse; only exceptionally he is supported while
living within the family. The opposite system is followed in Ger-
many: as long as it is possible, the poor is permitted to remain in his
abode, and urban charity furnishes only the necessary additional
support; only in exceptional instances, if no other way is possible,
is the poor separated from his family and sent to the poorhouse.
But in either system familiar duties are transferred to the city.
It would be a mistake to believe that this development is confined
to those countries in which legislation recognizes the obligation of
charity. • There are no longer any large cities without public charity,
whether legislation urges it or not. France is considered the
classical country of exclusively voluntary charity. But while
French legislation has not mentioned expressly the obligation to
establish administrations of charity, it has instituted obligatory
branches of charity for a great many special cases, so that France

766 THE URBAN COMMUNITY

surpasses, in many respects, even the countries with obligatory char-
ity; and where charity is voluntary, it is voluntary not only for the
individuals but also for the communities, the largest of which have
gone farthest in performing voluntary charitable duties. In the
United States of America, where there is no uniform system and
where all intermediate degrees from strictly voluntary to com-
pletely obligatory charity exist, the necessity of uniform administra-
tion appeared most urgent in the urban centres of population. As
London has set an example by its Charities Directory, so did
New York with the great idea of the local concentration of its chari-
table institutions. A constantly growing circle of private, of
familiar activity occupies itself with charity, by rising from the
idea of removing existing need to the higher idea of preventive
charity. Thus the administrations of charity either endeavor to
improve sanitary conditions as sources of pauperism, or they attempt
to diminish the lack of employment and occupation by caring for
finding work more easily, by erecting small houses at the right time
in order to prevent the ill effects of abnormal high rates of renting,
etc. With all these aspirations charity does not create any new
objects of its activity, but it selects certain activities from those of
the family which are appropriate for the wide circle of the com-
munity. Charity is the intermediate stage through which a number
of activities pass in order to be taken out of the hands of the family
and to be performed at first only under compulsion of necessity and
in a provisory manner, and later to become a problem of enormous
significance.

For example: To procure a dwelling is the matter of the family.
A place of refuge for the homeless and the inducement to build little
cottages when no houses are available is a provisory assistance
through charity; the policy of land and of home is a great modern
communal problem.

While school and charity demonstrate, especially by the example
of Germany, that the sphere of communal activity is determined by
the condition that the authority finds everywhere the family, yet a
number of other urban problems represent activity taken from the
family, as water-supply and canalization. Often it is said that the
modern technic has not done anything to facilitate housekeeping,
since the wife stands even to-day at the primitive hearth and must
work with the same primitive utensils which her great-grandmothers
and their ancestors had possessed. But in those days housekeeping
comprised also carrying water into the house and removing the
garbage. To-day it is difficult to imagine how in high apartment
houses the burdens of housekeeping could be overcome, if these two
functions had not been taken by the urban community from the
family. And this transition was accomplished so thoroughly that it

THE URBAN COMMUNITY AND SOCIAL SCIENCE 767

is not even noticed, because it does not occur any more to any one
that the powerful accomplishments of modern technic in water-supply
and canalization are only common activities of housekeeping.

II

As the little cell of the family exists beneath the urban community,
so there is, above it, the great encompassing circle of the state.
(Department 20, Section C, " National Administration"). Here, how-
ever, the features of a uniform typical picture cannot be ascertained;
but two absolutely different cases must be distinguished: First, the
state, extended over wide areas which needs a division into provinces
for its own purpose. Even if a subdivision is made, the smallest
district will still be apt to contain several settlements. By mere self-
division a state does not yet attain to formation of communities; an
urban community cannot be spoken of, because there does not exist
any local community. In this wise, we must think, the old division
into counties and hundreds in entire western Europe was made in
the epoch when the Roman-Germanic states were constituted. If
in reality sometimes the smallest district, the hundred, coincided
with a settlement, it was a mere accident. This can still be seen
in countries where the constitution of the parish depends upon
geographical division. Even the smallest district, the parish,
comprises the parochial village with the filial villages. By accident
the entire parish may be one settlement, no more nor less; but
usually either the parish will comprise several settlements, or a large
urban settlement will be divided into several parishes.

The opposite extreme we find, if the community itself is the state.
The classical example for this city-state is Athens. Here the com-
monwealth has never been anything else but the community of the
Athenian citizens. The market-place where they assembled to dis-
cuss the affairs of their community and their environs remained
the centre in which the most important affairs of an insular empire
were decided, whose members are considered only allies of the
Athenians. In a greater measure the same was repeated at Rome.
The city of Rome remained the Roman commonwealth (republica
Romano). Only he who possessed citizen's rights in this city was
a citizen of the empire. In order to appease the revolting Itali, who
wanted to have their share in the government, no other means
could be found than to grant them citizens' rights in the city of
Rome. And the unity of the empire, as it was understood since
Caracalla, was only founded upon the fact that every inhabitant of
each province of the far-spread empire was simultaneously a citizen
of the city of Rome. While city and family stood in close relations
from the very beginning, the relations between state and city cannot

768 THE URBAN COMMUNITY

be traced on those distinctly visible natural lines which pointed out
the ways to the statesman.

The embodiment of free urban communities into a firmly organized
state is a problem. An important part of the difficulties in the
structure of the administrative organization of the different states
has to deal with this one problem. How difficult it is to comprehend,
in this regard, national peculiarities is shown especially by the
various, partly contrasting opinions which can be heard, in a foreign
country, about the condition of the urban communities of Germany.

Frequently one finds there the notion that a free civic activity
does not exist at all in Germany. This conception was formed in
consequence of certain occurrences in German urban life which have
gained publicity and attracted greatest attention. These were cases
in which the government of the state had not sanctioned the elections
of mayors and members of the magistracy. Of foreigners who have
spent some time in Germany, especially of Americans, one hears
quite often the opposite opinion, that they were astonished by the
great, free, and fruitful activity of citizens' spirit which they recom-
mend to their own countries as an example. In reality, either
conception is correct; there exist limitations for the German cities
which are unconformable to citizens' self-administration and, as
the experience of other states shows, unnecessary for the purpose of
a firm state organization. But there remains, nevertheless, a con-
siderable space for free activity, for great aims. However conscious
we must remain in Germany that we have to strive after the im-
provement of the position which is prescribed to the cities in the
state, yet we are not forced, in view of this need of improvement, to
decline the favorable judgment of the foreign nations about the
accomplishment and partly also the organization of our cities. We
must not believe that the difficult problem of the embodiment of the
free city into the German state organism has been solved; but we
may probably accept the complement that a remarkable attempt is
made in this line. The difficulties to be considered can be clearly
seen from history.

From the thirteenth to the sixteenth century the urban develop-
ment of entire western Europe bears that bold feature of autonomic
expansion of culture and power which we have seen in the ancient
" city-states " of Athens and Rome. The history of Italy consists
almost exclusively of the history of its urban communities. If
Milan sacks Lodi and Como, this means that in its realm no other
citizen's right shall exist besides the Milanese. At the time of the
Crusades, Genoa and Venice founded a circle of settlements around
the eastern part of the Mediterranean Sea which had their common
government in the city authorities of Venice and Genoa. The same
was the case when in Spain the urban community of Barcelona took

THE URBAN COMMUNITY AND SOCIAL SCIENCE 769

an equally independent position by which it was enabled to establish
its own maritime law and to spread it among all maritime nations;
when the Provencal and French cities, at the time of the great wars
with the English kings, appeared as independent powers, and when
in Germany Liibeck and its allies engaged in northern European
politics with the supremacy over Scandinavian empires. In Ger-
many the development was furthered by the assumption that the
monarch, by virtue of his imperial title, was at the same time
the lord of the world; even the recognition of their belonging to
the empire did not, therefore, diminish their independence. This
period of the independency of the cities was followed in Germany
by an epoch (about from the sixteenth to the eighteenth century) of
rising princely territorial power which forced the cities into the
greater organism, justifying their despotism by their utility. In
a third period beginning with Stein's municipal order (Stein's
Stddteordnung') an attempt is made to reanimate the free forces of
the citizens and to retain them nevertheless in connection with the
state. In four years Prussia and Germany will celebrate the cen-
tennial anniversary of this law enacted in 1808; but we stand,
nowadays, still in the midst of the attempt which had then only
been begun.

The relations between city and state go far beyond politics and
administration; it is only a section from the problem of the relations
between large centres of population and the community of the
people. As an example of the influence of a capital upon the entire
country, always the position is mentioned which Paris holds in France.
Not only the three great French revolutions have originated in Paris,
but also literary taste, theater, painting, sculpture and architec-
ture, the fashions are dictated to the country by Paris. The very
contrary relations exist in America. The founders of the Union have
placed the seat of the government in a city which should be nothing
more but the seat of the federal authorities. And, although Wash-
ington has developed, contrary to the intentions of its founders, into
a metropolis and enjoys to-day the just reputation of being one of the
most beautiful cities of the world, yet this urban community has
never been of much political importance in the history of the Union.
Its inhabitants, excluded from the right of voting, are rather bound to
let themselves be ruled than to claim predominance. While in the
position which Paris ta-kes in France there is still a faint remembrance
of the ancient city-state, Washington represents the strongest logical
contrast. Also in the whole intellectual life of the American people
there is no movement that has taken its issue from the population of
Washington.

770 THE URBAN COMMUNITY

III

The urban community which has beneath itself the family and
above itself the state, has at its side the rural community. Although
much has been written about the difference between urban and rural
communities, yet the simple truth should not be forgotten that the
natural difference between city and village is in their size. That
the city is large and the village is small, nobody will dispute. Only
in the question where the limit shall be drawn, the opinions differ.
Frequently it is said that only the metropolis, cities with more than
one hundred thousand inhabitants, are real cities. This opinion
imparts to the word " city " a significance that never before had
been attached to it. If the languages of all peoples have formed the
word " city " without thinking of a large city, there must be some-
thing which the smallest communities (that may still be named
cities) have in common with the largest centres of population and
which, at the same time, separates them from the still smaller places,
the villages. It is not difficult to find it out. One needs only wander
from village to village, for a few weeks, and then arrive in a town
of two to three thousand inhabitants in order to become aware of
the difference. There one can find shelter only through a villager's
good will or be received hospitably by some one who only occa-
sionally accommodates a transient stranger, though he is not a
professional hotel-keeper. Here one finds regular hotels which pro-
vide for the stranger. There it is difficult to find a servant who
can do the most necessary repairing of clothing, and, in emergencies, as
sickness, one is helpless. Here one finds tailors, shoemakers, phy-
sicians, druggists, etc. The city begins with the division of labor.

In this point our subject does not only approach the subject of
industrial common life (Department 22, Section D, " The Industrial
Group,") and economic history (Department 19, Section A), but also
the whole large group of social culture (Division G). I shall add
some words about the manifold relations of urban life to social
culture. In social regard the city differs from the country in two
points: the few inhabitants of a village are, generally considered,
homogeneous ; the many inhabitants of the city are dissimilar.
These combined factors give the urban community its importance
in the cultural movement.

In the programme of this Congress under "Social Culture" the
topics " Education " and " Religion " are discussed. Of the first
group, Education (Department 23), we have discussed at length one
of the most important points, the School (Section B), as an example to
show how the urban community takes its tasks from the familiar
community. The school is certainly not an urban, but just as well a

THE URBAN COMMUNITY AND SOCIAL SCIENCE 771

rural institution; it belongs to the urban community not because
this is a city but a community. But no other example demon-
strates so clearly that the solution of the cultural problems of the
community is really reached except in the urban communities. Also
in all other points of this Department (23) the enormous urban
influence becomes manifest. The educational theories originated in
cities. The two great founders of modern pedagogy, Rousseau
and Festalozzi, have sprung from cities. The universities can,
in their modern, organization, be traced back, in Europe as well as
in America, to the model established by Bologna and Paris, centres
of urban culture. The numerous foundations of universities in the
fourteenth and fifteenth centuries were made exclusively in cities;
they represented the reaction against the older, monastic, world-
shunning learnedness, as also only those monastic orders took hold
of them, which in the two preceding centuries had sought their seats
not in rural loneliness, but in the cities, and were supported there
by the people, the beggar monks, the mendicant friars.

If we call the cities centres of culture, we want to express, of
course, that they shall not wish to retain their acquired possession of
culture. The city acquires cultural treasures, but only in order to let
them laiiate and in order to begin, thereupon, the work again on
new materials. Its educational work is a constant renunciation of
acquired privileges. This is shown especially clearly in America in
the history of the library movement. This movement has begun
especially in the cities. First it was the ambition of each city to
surpass the country by the possession of a public library, accessible
to everybody. To-day it is the ambition of the cities to induce the
country to follow their example. On my wanderings through small
towns on the coast of Massachusetts I have visited, in each place, the
public libraries, such as in no European state have been carried oat
into the villages.

The country can, however, claim for itself a certain superiority
in religious culture (Department 24), much rather than in education.
The development of Buddhism proves that rural solitude and contem-
plation are able to imprint their stamp upon great world religions.
But Christianity shows the influence of urban culture. Though the
origin of Christianity may be found in the synagogue of Capernaum,
a little community, almost more rural than term-like, that was so
poor that it had to accept its house of worship as the donation of
the foreign captain, yet the work of the founder of this religion
attained to its penetrating significance only when He stepped upon
the soil of the city. And this fact lives still in tradition so power-
fully that it is scarcely comprehended that Christ passed but few
days in Jerusalem. The founder of the Mohammedan religion was
a merchant, and even in the oldest doctrines of Islam the interest

772

in communication becomes evident. The connection of religious
and urban culture is shown also by the fact that a sanctuary and
sacred place to which the processions of many pilgrims are directed
bears in itself the germ of an urban centre; not only Mecca and
Medina, but also the Parthenon and Capitol, the height of Zion, the
medieval Rome, and the multitude of bishops' seats in all European
countries. And even if, now, we want to designate the life after
death with a worldly metaphor, we do not select any of those steads,
removed from the world, which have induced lonesome men to con-
templative meditation about the last truths, but we select even now
the idea of an urban community and we speak of the " heavenly
Jerusalem."

The universal cultural significance of the urban community is also
expressed by the secondary meaning which the expression " urban "
has in various languages. As in classical Latin urbanus and rusticus
point out the difference between higher and inferior culture, so the
word " urbane " is still used to denote refined manners, contrary to
boorish manners. But we find also, in languages, traces of that
mission of the city to spread culture and to gain advantages only in
order to let others partake of them. From the city the word "citizen"
is derived, as " burgher" from burgh and borough, and citoyen from
cite. But after the citizens' rights and duties had been placed in
relations of more general validity, they were transferred to the larger
community.

The notion of the citizen is probably the most important contri-
bution made by the urban communities to modern political culture.

Literature

My treatise occupies itself merely with the formal character of the
urban community. Only through examples has it been shown how
its formal peculiarities find actual expression. To treat exhaustively
this part of the subject it wbuld be necessary to discuss all branches
of urban administration. But this is the subject of a special theme
(Department 20, Section E, "Municipal Administration"). By
means of the different branches of administration the doctrine of the
urban community is connected with each human discipline whose
object can become in some way the object of administration; hence
not only, as has been shown by an example, by means of the school
administration with the entire pedagogical science, but likewise by
means of the sanitary administration with medical science (Depart-
ment 17), by means of the administration of buildings and ways with
the entire science of engineering and architecture (Department 18; cf.
the example of water-supply and canalization), by means of the ad-
ministration of transportation and economics with political economy

THE URBAN COMMUNITY AND SOCIAL SCIENCE 773

(Department 19), etc. All these connections are left to Department
20, Section E, which, in a certain sense, runs parallel to this section.
But in the following review of the literature I shall consider it at
least so much that a bridge is formed for the investigator.

German literature on urban community is split in three literary
directions, that exist side by side almost without mutual contact:
the historical, juristic, and administrative.

Historical literature, especially the literature on the origin of the
German municipal constitution, is very copious. Into the hypotheses
concerning this origin Heusler attempted to bring light by his
orientating treatise. Although more than thirty years have elapsed
since, this orientating treatise is still indispensable. (A. Heusler,
Der Ursprung der deutschen Stddteverfassung, Weimar, 1872.) Doch
muss fur den gegenwartigen Stand der Forschung hinzugenom-
men werden: K. Hegel, die Entstehung des deutchen Stddtewesens,
Leipzig, 1898. The extraordinarily large literature on the develop-
ment of single German cities is collected in the section Stddtewesen
in Dahlmann-Waitz, Qudlenkunde der deutschen Geschichte, Neubear-
beitung von Altmann und Bernheim, Gottingen, 1904. The German
history which describes adequately the influence of city and country
is: K. Nitzsch, Geschichte des deutschen Volkes bis zum Augsburger
Religionsfrieden. Nach dessen hinterlassenen Papier en und Vorles-
ungen Jierausgegeben von G. Maithdi, Leipzig, 1883-1885.

The German juristic* literature on municipal law is influenced
especially by the fact that the most prominent German thinker who
made the legal relations between state and city the object of his
studies made only occasional scientific remarks about Germany.
This is Gneist, in whose works the investigation of English conditions
is treated almost exclusively. Thus the juristic literature has
remained in the hands of officials. The juristic literature on the
position of the cities within the state organism reproduces especially
the opinions of governmental bureaucracy expressed in ministerial
rescripts, etc.; the municipality yields to these opinion!? now unwill-
ingly, then unconsciously. Also the more liberal teacher of state
law is under this influence. In Ronne's Preussisches Staatsrecht
this subject is not treated by the author, but in an additional volume:
Schon, Recht derCommunalverbdnde in Preussen, Leipzig, 1897. Only
lately new life has been brought into this state literature, as the
juristic side of municipal constitution was regarded from the urban
point of view. Preuss, a student of Gneist, is at present the only
teacher of state law who follows this direction. Preuss, Das Stddt-
ische Amtsrecht in Preussen, Berlin, 1902.

The administrative and social literature starts, in Germany at
present, with the numerous attempts of reform of different parts of
urban life, which are being made in almost all German cities. How-

774 THE URBAN COMMUNITY

ever, it might suffice to point to the results which we owe to the great
German municipal exposition of 1903. The administration of almost
all important cities of Germany had united for this purpose. The
exposition was held in Dresden where, during the preceding winter,
the Gehe-Stiftung established a course of lectures in which an his-
torian, a geographer, a statistician, a political economist, a phil-
osopher, etc., should each express his opinion about urban culture.
The lectures have been collected and printed in the Jahrbuch der
Gehe-Stiftung, 9 Bande, Die Grosstadt, Vortrdge und Aufsdtze von
Backer, Ratzel, v. Mayr, Waentig, Simmel, Th. Petermann, D. Schdfer.
After the close of the municipal exposition its president caused
a large work to be compiled about each of the different sections; this
book may be considered a synopsis of the latest progress in the
different branches of German municipal administration; its author
is Wuttke (Dresden, 1904). Finally the pamphlets which the city of
Dresden had distributed at the exposition and in which the various
branches of administration were described offer an intelligible intro-
duction into a municipal administration which can serve as an
example. (Ftihrer durch das Vorwaltungsgebiet der Stadt Dresden,
1903.)

Most German municipal regulations prescribe the annual publica-
tion of an administrative report. The city of Berlin goes beyond the
legal obligation and publishes besides these annual reports quin-
quennial statements of acknowledged excellence. Where the putting
m print was not usual, even this has been of advantage to literature,
as in the first edition a comprehensive review was given. In this
way the first administrative report of the city of Essen contains an
introduction into the development of modern municipal administra-
tion. (Die Verwaltung der Stadt Essen im 19. Jahrhundert, 1 Band,
Verwaltungsbericht erstattet von Oberburgermeister Zweigert, Essen,
1902.) Schoeneberg, one of the quickly risen suburbs of Berlin
which had been a rural community until lately, at the time of its
admission t£ the immunities and privileges of a town, published an
exhaustive and retrospective report of its administration which
describes the development of a great urban community (1899). In
connection with the bicentennial jubilee of the city of Charlotten-
burg, in 1905, the same subject will be treated, upon a broad his-
torical basis, in Gundlach's work (under the press) Geschichte der
Stadt Charlottenburg, Berlin, 1905; the entire modern municipal
administration will there be discussed. Finally I should like to call
attention to the fact that I have taken the examples in the first
volume of my work Socialpolitik und Verwaltungswissenschaft,
Berlin, 1902, mostly from the modern municipal administration of
Germany and foreign countries.

THE PROBLEMS OF THE URBAN COMMUNITY

BY LOUIS WTJARIN

(Professor of Sociology, University of Geneva)

THE causes of the rural exodus and the rapid growth of cities,
which form the characteristic feature of our times, are familiar to
every mind. Though numerous, they can, in fact, be reduced to
the appearance of steam and then of electricity as practical means
of mechanical power, motion, and communication.

Should these two forces be ever suppressed, things would be
reversed and come back to their primitive condition, but they are
permanent and insuppressible agents. We must, therefore, expect
to see the great demographic revolution continue its course, not-
withstanding the amazement mingled with anxiety as to its ultimate
results which it awakens.

The era of scattered population has definitely given way to that
of agglomerated population. Every reasonable man ought, at
every turn, to reflect on the best way of facing new situations;
now it is but the bare truth to say that the public are painfully
indifferent to problems of vital importance. It is evident, for in-
stance, that cities, their future development and necessities, have not
received proper consideration. Have not most of them grown
unrestrained and without order, so as to become a dread to thinking
men? Grievous, irreparable blunders have been committed; errors
more deplorable still will be added to these, if we are not on our
guard. Then the question arises: " What shall be done to avoid the
disastrous results of these shortcomings? "

It has been my privilege, after a long search, to discover the
city of the future. A worthy friend, Initiator, helped me to see it
thoroughly. All that I saw filled my mind with a kind of rapture,
and roused my indignation at the deplorable apathy in which most
of the modern cities remain as to their supreme interests. Indeed,
I had a clear sense of the needs and responsibilities of the present
hour, and consequently felt justified in accepting the flattering in-
vitation, for which I thank you most heartily, gentlemen, to come
to St. Louis to speak about the urban community.

I. Moral Reforms

Great was my impatience on entering the city of the future to get
new light about the material conditions best fitting our agglomera-
tions. I was, perhaps, too sanguine about the result of my inquiry,

776 THE URBAN COMMUNITY

for Initiator stopped me a while and pointed in another direction.
" Your strictures, " said he, " about our modern cities are correct; still
allow me to observe that housing the body is not everything, housing
the soul requires consideration.

" Not long ago cities in general were held in bad repute. They
were dreaded as hot-beds of agitation, for the citizens were constantly
clamoring to obtain broader liberties. This danger is now removed.
On the democratic basis they lead or follow, according to circum-
stances, and have no other will than that of the nation as a unit.
Still, if the political revolutionary era is closed, other terrible pertur-
bations have followed which, as a rule, take place again in crowded
cities. We allude to the economic conflict, to the labor wars which are
called strikes. These alarming feuds rapidly degenerate into everlast-
ing struggles between fratricidal factions. Such a state of affairs must
be remedied. And how can this be accomplished? To put it briefly,
by justice and liberty; but justice and liberty are handicapped both
when workmen are denied the right of joining trade-unions and of
giving voice to their political or religious opinions, and when em-
ployers are denied the right of taking non-union as well as union men.

" Moreover, justice and liberty are imperiled when strikers interfere
with the work of non-strikers or maliciously invade the premises of
dissenting employers. Such trade-unions as exist in England will,
in the opinion of the best judges, become a social safeguard, and the
day is not far 'off when workmen will consider violence as hurtful to
their cause, for a lasting change can only be brought about when
public opinion backs it, since the laws take their stand on actual
conditions of life and not on artificial devices.

" A committee of control and arbitration should be intrusted with
the duty of adjusting the difficulties that may arise between em-
ployers and employees, of warding off violations of contract, and
providing for full publicity to be given to the claims of both parties.
Let me repeat that public opinion must be considered as the supreme
tribunal. The New Zealand arbitration committee, whose decisions
are compulsory, has a tinge of absolutism which may threaten both
justice and liberty.

" Many people in comfortable circumstances are apt to be one-
sided. They believe that men on a strike must necessarily be agents
of disorder, to be brought to better feelings by the police and the
army — a foolish view, for the way that leads to peace, in spite of
a dangerous old proverb, is not war, but peace. In times of peace,
let us then strive to reconcile economic antagonisms.

" There are also methods of making money which are responsible
for much evil. I have not in view only mischievous trusts; cases
have occurred where labor organizations have joined hands with
employers and had work done at abnormal prices. The benefits

URBAN COMMUNITY PROBLEMS 777

stealthily obtained are shared between the conspirators, who thus
oblige the public to purchase articles at an advanced price. There
remains much to do to found an effective economic order resting, so
to speak, on axioms which would be received as those on which
modern democracy has been established. The present economic
order of things is still often blurred by the stain of its origin, for it
was drawn up by the privileged classes. Let democracy also come
here and put things aright. The rule of life is reciprocity, Confucius
says, and the gospel upholds the same principles."

Thereupon Initiator denounced another peril. He insisted on the
duty to fight systematically against the demagogues who but too
often succeed in imposing upon a community their disgraceful
tyranny and forming a state within the state. " This grave pro-
blem," he asserted, " is not solved by intermittent fits of indigna-
tion. All the energy of good citizens should be employed to thwart
the rascals, whose only aim is to take possession of power and then
divide the spoils and to make allies by corruption and unworthy
promises. The domination of such men is spreading its pestilential
effects in all directions. To support them in any way, even by
remaining indifferent in their presence, is a crime. But let it be
remembered that the institutions which have permitted the poli-
tician to burrow his way into our public administration, like a rat
into the floors of old houses, have to be remodeled according to
the fruits of experience. And here we would like to have the
following measures taken into consideration:

" First. State supervision over local boards, for self-government,
however desirable, may be abused by astute men ready to shout:
' We are masters here, close the doors! ' And again a detailed
publication of municipal accounts wherein the sums paid and the
names of the persons receiving them are fully stated. This would
not be a superfluous incumbrance.

"Extension of the principle of direct democracy are represented
by the referendum, the popular initiative, and, last but not least,
proportional representation, this reform being the principal instru-
ment for the regeneration of public life. Besides, there ought to be
compulsory voting and an extensive local option for various issues.

" Finally, the starting of an independent press ready at any time
to expose and break abominable rings."

"The supreme task," Initiator continued, "will consist in stimu-
lating morality. There are holy crusades to organize against drunk-
enness, gambling, libertinism, obscene literature, the demoralizing
theater. Every effort is needed 'to develop institutions, secular and
religious, official and private, all associations which aim at pro-
pagating instruction, education, a taste for wholesome pleasures
conducive to good health, both physical and moral.

778 THE URBAN COMMUNITY

"' Jean Jacques, love your country,' said Rousseau's father to his
son. This should be our motto. We look with suspicion on globe-
trotters whose country is nowhere. The soul, the soul of the city,
I tell you, should be looked after in the first place."

II. Material Reforms

" (a) General Principles. But since you have come here especially
to investigate the material structure of our city, a walk through the
streets will serve as a practical lecture on the subject," continued
Initiator, and we then began to visit the new city. As we went on
along wide streets broadening into squares or across gardens and
crescents enlivened by unexpected vistas of sky, our guide enlarged
on the principles which have inspired the founder of the up-to-date
urban agglomeration. I was amazed both at the simplicity and the
grandeur of the scheme.

" Plenty of air, and sun for everybody! Air, an abundance of air,
everywhere! Down with stuffy buildings! Light and air are
primordial necessities. The sun brightening dwellings and streets,
even the humblest of huts! Let us benefit by the progress of science!
We know now upon the best authority that a dwelling deprived of
light is predisposed to be the receptacle and the nursery of per-
nicious microbes. Among them there will be found the germ of
tuberculosis, the most terrible plague of modern times, causing
more victims than war and cholera together. An Italian proverb
says that where the sun does not go, the doctor surely will. Air
and sun! this is the problem in a nutshell, but great difficulties had
to be overcome. Our end could not be attained without a consider-
able outlay of money. Well! there is no reason to regret the ex-
pense, which proved an excellent investment. A badly built city
means a superabundance of invalids and an increase of the death-
rate. Therefore, from a business point of view, a sacrifice of money
to the public health is a saving to the public purse. Prevention is
better than cure.

" In our city, as in all towns, the ancient part stands shoulder to
shoulder with the modern quarters. It was not easy to harmonize
these two parts so different one from the other, and our success has as
yet only been partial. At all events, we have done our best to
prevent the old quarters from becoming more objectionable, by
improving them as much as possible. First of all, we have drawn up
a plan of rectification which we are gradually working out to the best
of our ability. Our municipal authorities buy up numerous houses
situated on the lines of projected streets and especially those which
pay a fair interest. With the sanction of the law, we appropriate
others at fair prices. Indeed, according to our improved regulations,

URBAN COMMUNITY PROBLEMS 779

the prices paid are the real value of the houses. At the same time,
we forbid the letting of unhealthy tenements, as we forbid the sale
of poisonous mushrooms, and here is the result. Some house-owners
whom we compel to repair their houses prefer to sell these to the
town or to builders who will hasten to demolish them. Thus,
sooner or later, the plan of rectification will be carried out, the filthy
buildings being either reconstructed or removed for widening the
street or the square. Such is our method of rational transformation.

" Our old quarters require a plan of rectification, the new ones one
of extension, stating how they must be laid out and comprising
the streets, the public gardens, the parks, the athletic grounds, the
future schools, hospitals, and other official buildings. The area of the
open spaces is always in proportion to the importance of the quarter
they are intended to serve, and we endeavor to have many of them
rather than a few big ones.

" The building of the federal city, now Washington, under the
inspiration of the French engineer, Major L'Enfant, has been to us an
object-lesson. 'The thoroughfares and streets were traced according
to ' celestial observation/ says the original plan of 1792, so as to
assure an equal distribution of the sun's rays between the two sides
of houses. We do not exactly follow the directions N-S, W-E of
the compass; in drawing our streets, where we have more freedom
of action than in laying out avenues (these being often a result of
circumstances) ; we take the line N-S with an inclination of 19 degrees
toward N-S — S-W. Roman cities, as archeologists assert, already
presented a fixed orientation.

" But the crucial point of our campaign was reached when we had
to draw up our Building Code. We were met by violent prejudices.
We insisted on limiting the height of houses as a primary condition
of health. Being requested to make an exception for the business
quarter, we turned a deaf ear. We remembered having seen elsewhere
in ' sky-scrapers,' offices situated above the tenth story, where gas
or electricity was needed at mid-day. We declined to consider
modifications of any kind. Had we proposed setting the quarter
on fire every twenty years, we would not have elicited a more indig-
nant outburst. What? No sky-scraper? And why? And how?
Are they to be doomed in cities where land is worth its weight in gold?

" We believe that the exorbitant price of city land is the outcome of
the free hand given to builders, that if lower houses were the rule,
houses would, nevertheless, be required and found, and that if land
went cheaper, the calamity would not be a national one. We were
surprised to find citizens in favor of houses whose height is injurious
to the public health. We could not help exclaiming in our turn:
' And why? And how? What should we be guided by? Private or
public interest? '

780 THE URBAN COMMUNITY

" Our opponent maintained that our exacting ordinances would put
a stop to city building and cause the rents to rise enormously, thus
terribly cramping the working classes. ' Well, be it so/ we an-
swered. ' In that case, both the outskirts of cities and the neighbor-
ing country where land is less expensive will be utilized; suburban
villas will be built, a result which is highly satisfactory. Indeed, it
becomes more and more apparent every day that large cities with
their railroad stations, their ports, their proximate canals, their
market-place, their exchange, their workshops and their warehouses,
are destined to become, in the course of time, business centres. The
tramway enables their inhabitants to have a dwelling-house at some
distance and there quickly to enjoy the open air in the midst of
nature.' This reasoning seemed to be acceptable, and we need not
add that the building spirit has not in any way suffered. On the
contrary, the same rule that made order prevail in the growth
of the city has given it fresh life. The thing is plain enough. A
great contractor pointed out to me that if our buildings are not as
high as some would have wanted them, our houses at least, thanks
to the existing laws, are not liable to be depreciated by the enormous
and brutal sky-scraper. The tenements of the city being less
numerous, we obtained higher rent for them, the more so as many
of these, provided with lifts, are used as offices and command larger
prices than ordinary flats. If building technicalities are sometimes
rather aggravating, we accept them, however, in consideration of
the benefits derived from them.

" Our Building Code has proved a decided success. We have gone
into minute details in order to defeat the objections that were raised
against the system. Just one or two instances. In new houses we
have fixed the height of the fagade cornice, but having heard that
in other cities builders evaded this rule by constructing a kind of
second edifice above the regulation cornice, we have determined also
the conditions of structures for the roof itself.

" And again, a small paragraph in our code, like a snake in the grass,
would have made it possible for the authorities to infringe the code
itself. We did not permit the introduction into it of exceptions to
the stated ordinances. We were opposed to such sentences as this:
' However, in certain cases the authorities will have a right — ' well,
not to submit to the law. We have avoided giving carte blanche.
Why should the public powers be authorized, not to say encouraged,
to do the reverse of what the code established?

"To sum up: three leading interests have inspired us in drafting
our legislation for the city of the future: sanitation; public safety;
beauty.

" (6) Sanitation. Streets drawn according to the compass, as has
been stated, are favorable to sanitation, but further dispositions are

URBAN COMMUNITY PROBLEMS 781

also required. While we approve of spacious courtyards with bed-
rooms in the back part, in order that sleepers may be protected
against the noise of the circulation, we disapprove of those suffocating
pits the occupants of which are condemned to inhale impure air
coming from the kitchens and the lavatories. When compelled by
circumstances to tolerate these narrow courtyards, we have done
our best to ventilate them. To prevent abuses in the line of insuffi-
cient yards, we have made the dimensions of lots such as to permit of
a good-sized-yard or no yard at all.

" We have also taken measures to prevent there being narrow side-
streets and awkward lanes, windowless servants' rooms, underground
porters' lodges, miasmatic and microbic alcoves.

" We have an eye to doors and passages, to the proper height of
ceilings, to honest work in all the details of the buildings. More than
once we have put our veto on buildings whose contractors tried to
elude our rules. We supervise the laying down of sewers, water-
pipes, gas and electricity in houses, all of which, if badly done, may
be dangerous to the tenants. Intelligent architects and builders
understand and back our regulations, thereby increasing their credit
and patronage."

Initiator begged me to notice a tablet fixed on the walls of a newly
built house; it bore the name of the architect, the builder, and of the
municipal officer who authorized the building to be constructed.
He also pointed out to me another house full of blunders. The men
who built it were tabooed by public opinion, and the municipal magis-
trate responsible for its existence was deemed unfit to occupy his
post and not reflected.

"Pehaps you take it for granted that we do away with the sky-
scraper. By no means; but it is true we allow it only in streets or
places too broad to be injuriously overshadowed by its immense
size. Besides it is bound to be incombustible, and we command it
to be constructed of genuine fireproof materials. It is known that
shrewd speculators have more than once helped the erection of the
mammoth house with no other purpose than to retain the business
centre on land which they own and to which they confer, by so
doing, a great additional value. Why should we encourage such
schemes?

" Neither do we neglect a supply of the purest drinking-water.
Within a few years we have entirely eliminated typhoid fever, the
result, as a rule, of contaminated water. The frequent breaking-up
of the streets for underground municipal work is an unhealthy and
costly necessity which may be avoided, as will be explained later on.

" Our parks and public squares are our glory. Rich citizens occa-
sionally contribute to their enlargement and to their maintenance
and are rewarded by the gratitude of the inhabitants. English-

782 THE URBAN COMMUNITY

speaking people justly qualify these oases as the city's lungs. Be-
sides trim gardens, neat lawns, shady avenues and clusters of trees,
we have borne in mind the requirements of sport. We have reserved
a playground which is useful for every kind of game and out-of-door
amusement. Nurses and their babies have at their disposal sand-
heaps near water-basins filled with gold and silver fishes. The
picnicking public feels at home here. A refuse-box is near at hand,
where are thrown the remains of their repast, such as paper, tins, etc.
Untidy individuals are called to order by the keeper of the place.
Ill-behaved people must be trained by law, a principle justified by
experience.

" But how prevent the crowding of these pleasure-grounds? This
eventuality is not to be feared in view of the fact that many people
of every class, having their own pleasant home in the suburbs, make
but little use of public places."

" You must admit," went on Initiator, " that towns provided with
rural suburbs are a great blessing. Well, let us look at our pretty
suburbs. See the outskirts of one of them covered with peaceful
little houses of varied styles. Behold the sweet scenes, charming
terraces, vegetable and flower gardens, a clear fountain, friendly
birds flitting about the trees and the eaves. Many are the houses,
but no giant house is to be found among them; we give a permit to
such an intruder only when two thirds of the landlords of the quarter
consent to it. The rising piece of land may sometimes make it
difficult for us to resist the temptation of admitting the big houses,
but still we manage to put some order in the spontaneous growth of
our city. The will of the majority of the interested parties decides
also concerning the admission of workshops into the midst of the
residential district.

" Had these general sanitary conditions of our city prevailed every-
where, as they should have done, there would have been no sufficient
reason for Mr. Ebenezer Howard to start his ' Garden City ' scheme.
Look at these roads of reasonable width, on both sides of which are
open spaces leading up to the dwelling-houses. These open spaces
may be cultivated and arranged according to the taste of the owners.
Proper sewers, supplies of water and electricity, as well as telephones,
are to be found in every home. The satisfactory development of
these remote parts of our city is due in some measure to a system of
restrictions, final or temporary, adopted by the original land-owners
and forced upon the new-comer. The measures may be more or
less repealed when the suburbs of the garden city come into contact
with the advancing town. Indeed, the rural illusion is complete,
though, thanks to the means of rapid and cheap transit, the garden
of the townsman is within a few minutes of the neighboring me-
tropolis.

URBAN COMMUNITY PROBLEMS 783

" Virgil and Horace would congratulate us on the successful inter-
pretation of their verses:

O fortunatos nimium . . . agricolas !

Pauca ruris jugera . . .

In culpa est animus qui se non effugat unquam.

" Now every one of us may aspire to the pleasures of country life.
Numerous building-societies, through their credit and agency, have
helped those persons wishing to leave the town and settle in these
rural districts.

" As you stroll out of them, you may have noticed many small
inclosures on the roadside, where plants of different sorts, intended
to please the eye or to serve in the kitchen, are grown. Here and
there a green arbor or a little shed peeps out. These inclosures are
small gardens let at a very low rent to those of our fellow townsmen
who might fancy them. Philanthropic land-owners having large
estates or vacant lots contribute their share for this needed work.
These gardens are the resort of numerous citizens of small means.
You may see them coming in the evenings or on Sundays; their rosy
children and themselves enjoy there the country air and develop
a love for nature. Such feasts are due to the commoner as well as
to the nobleman, and we are very happy to see other people following
our experiment on this point.

" Other special reforms have been accomplished. Thus, for in-
stance, we have found out an excellent system for the removal of
street-sweepings. We turn them into a fuel out of which we produce
electricity, while the heat so obtained is used for preparing the water
of our public baths. Further, we wage war against the street dust;
for the present we sprinkle the road with tar or petroleum, but we
hope to be able to improve upon this treatment. We wage war
against town smoke; we have prevailed on those who burn coal to
use smoke-consumers. In all things we consult the most experi-
enced specialist, we invite competition, and we institute inquiries to
be made where practical processes are fully tested.

" Lastly, we plant along our public highways, as well as along the
roads radiating in the interior of the country districts, trees known
for their hygienic properties, strictly avoiding those that spread
unpleasant odor or irritating particles.

" (c) Public Safety. Beside our vigilance in behalf of sanitation,
we had to insure public safety, especially as regards buildings.

" Limiting the height of buildings is, in an indirect way, a precau-
tion against fires, for the deep air-shafts of enormous houses produce
strong drafts, thus sending the flames rapidly through the numer-
ous stories and the neighborhood. Skyscrapers, being very rare
and at the same time absolutely fireproof, are no longer a danger.
We insist on easy exits for all kinds of houses, and on abundant

784 THE URBAN COMMUNITY

water-supply with special fire apparatus kept in working order; our
fire-brigade is not large, but always on the alert. We even insist on
things which might surprise a new-comer; we should, for instance, feel
very much ashamed if we heard that a child had fallen from a window
because it was not provided with a sufficient railing.

" We condemn the cruel neglect with reference to the dangers of
electricity. We have taken technical precautions, and explanatory
warnings have been posted wherever needed. A century of elec-
tricity commands unceasing efforts to avoid accidents.

" Automobiles, bicycles, motor-cycles, and in fact all vehicles, are
kept under severe control. Our ideal is not Shakespeare's school-boy,
creeping like a snail, but we require that all means of rapid trans-
portation be accompanied with automatic brakes, insuring a moderate
speed.

" Everything which might lead to wanton misfortunes on land or
water must be strictly forestalled. Unsafe river-boats must disap-
pear from the public piers; bathers must be reminded by a special
notice that bathing too soon after meals means risking one's life.
Mountain-climbers must be made to beware of rashness, by placards
or even fences indicating danger in particular places.

" If, according to Montesquieu virtue is indispensable to republics,
we think that respect for human life is the first of republican virtues.
The invitation to the public to attend shows reminding one of the old
gladiatorial fights seems to us absolutely monstrous. We are not
satisfied with the enforcement of laws made in the interest of the
citizens; we are anxious to make citizens wise and prudent, even in
spite of themselves. In circuses we would not allow professionals to
expose their lives to amuse us. Bull-fighters and wild-beast tamers,
who court death to satisfy the morbid brutality of some spectators,
are, with us, things of the past. We should do our utmost to check
those tempters of Providence who, packed up in a cask, would shoot
the wild rapids of a river for the entertainment of thousands. Were
not dueling and boxing out of fashion among our advanced people,
we would certainly have stopped such practices. It is not in vain that
philosophy and religion have taught us the love of our fellow creatures.

" (d) Beauty. Sanitation and public safety being provided for, we
can turn our attention to the embellishment of our city.

" We have many charming points of view which show to advantage,
our mountains, our pleasant river, our public buildings, and our
historic spots. We are always anxious to prevent anything which
might impair their beauty. Builders are not permitted to obstruct
the view of any interesting scenery if it can be spared; special laws
and regulations have been laid down for that purpose.

" Straight streets, more or less lined on both sides by gardens and
shrubs, are restful to the eyes. The footpaths, being separated from

URBAN COMMUNITY PROBLEMS 785

the carriage-road by a ribbon of grass where trees stand as sentinels,
are protected against the dust. We have drawn up elaborate plans
to secure rational and esthetic streets. Even the workman's dwelling
may contribute to the charm of our familiar vistas. For beauty's
sake we are ready to sacrifice a building-plot, to open up a new
street plunging into old quarters, which will also become more
healthy, to plant a tree or to relieve the monotony of a bleak spot
with a fountain. Our parks, our bridges, our public edifices, are
sober but elegant. At the street-crossings we substitute rounded,
instead of sharp corners; this is more graceful, and wayfarers are
protected against unforeseen jostling. We fight for beauty and
against ugliness. Down with conspicuous party-walls; we cover and
disguise them. We make our chimneys a pleasant accessory of
the building. We will have nothing to do with gigantic signs on the
stores, and are opposed to glaring advertisements on our street-cars,
but we do not oppose placards posted on special stands, for they
give some gayety to the street, while they render service to the public.
We do not permit booths and repulsive erections to occupy privileged
places and spoil the general impression.

" Our esthetic efforts have met with the sympathy of all, and any
attempt to spoil the nice features of our city is sure to awake a prompt
and unanimous resistance.

" (c) Roads and Municipal Services. Roads being of primary
importance, we keep ours in good repair, after having constructed
them with the necessary expense.

" On the inside of footpaths, a little tunnel easily opened at the
surface contains, beside the sewers, pipes and wires necessary to
the needs of each house and of the street. Thus no repairing
causes any trouble.

" The clearing-awayof the dust has been dealt with, and its removal
causes no nuisance to the pedestrian. We use our sewerage for
fertilizing gardens and meadows, and we thus turn it into a source of
profit, making it at the same time inoffensive to the senses.

" Our city tramways, for a moderate fare, put the inhabitant in
rapid contact with every quarter. Some of the tramways work
on a short-time concession. If their profits exceed a certain sum, we
provide that the surplus be divided between the corporation and
the city, or partly spent in reducing the fares. Other lines are
worked by the municipality. Time will show which of the two
systems is the most advantageous to us.

" The ticklish railway question is now settled. Our central railway
station will eventually be removed from its outlying position. The
land -reserved for other railways has been bought up by the city,
which pro tern is letting it for different uses. The question of rapid
transit has also been studied and solved.

786 THE URBAN COMMUNITY

" We are careful that municipal services, such as drinking-water, gas,
electricity, and street-cars, be not injured by the mercantile spirit.
We need moderate tariffs; we obtained them, and to the surprise of
many we found them sometimes more remunerative than high ones,
while they add to the comfort of the people by inducing them to
make a liberal use of necessaries.

" Domestic service in some parts of our agglomeration is offered by
the community, as for instance the heating of houses by a central
station. This interesting house service will probably be extended
before a long time to the supply of hot water and even of meals.
The advocates of cooperation, with their keen acumen, had long ago
foreseen that what is now called municipal socialism would come to
their help in the achievement of their programme.

"(/) The General Headquarters of the City of the Future. And now
let me explain to you what I consider to be the mainspring of all
our efforts," said Initiator. " The growth and development of our
city are continually supervised by a parliament which is formed by
engineers, electricians, architects, medical men, artists, Competent
administrators, and citizens distinguished for their ability and
devotion to the public welfare. Come and see for yourself, since our
Organum meets this very afternoon."

In this important body Initiator occupied the presidential chair.
He had been appointed for four years Supreme ^Edile, with extensive
powers. In municipal matters, experts affirm, nothing is worse than
irresponsible administration. Find a good man, pay him well, and
give him a free hand. This is the principle upon which we work.

The Organum lays before the municipal authority the requirements
and the necessary information to carry them out. Then the alder-
men act according to their best judgment, but, as a matter of fact,
they simply ratify the decisions of the Organum, thus giving them
the force of law.

A Technical Committee presided over by the Supreme ^Edile en-
forces the rules of the Building Code in letter and spirit. The library
of this committee contains the Building Archives, wherein may be
found the history of each house, and especially the sanitary repairs
it may have undergone. These archives may be consulted by
every one.

Practical Conclusions

Having returned to my old-fashioned home in the city of my
forefathers, I resolved to aid the advent of the city of the future in
my own country.

But some one may ask, " Tell me where is the wonderful city
which you visited and described to us ! " Complete it is not to be

URBAN COMMUNITY PROBLEMS 787

found anywhere at the present time. Old cities, however, such as
Berlin, London, and Paris, are evolving toward it, and new localities,
such as Washington, some model villages or towns in different coun-
tries, and ahead of all Garden City, near Hitchin, Hertfordshire, just
now making its appearance, approach it still more closely. Moreover,
the city of the future is an ideal which every one should try to achieve,
since reflection and common sense command it. Let us then unite
to bring about the noble and desirable city.

Here we have no time to spare, for it has become evident to all
thinking men that our urban communities frequently present a
regular state of anarchy, which makes one shudder with a feeling of
awe \vhen looking at them.

But some one objects: Why should not every landlord assert his
right to make the most of the property he owns and erect upon it
what he likes? If he dwarfs surrounding houses, deprives them of
their part of light and air, and, in fact, depreciates considerably his
neighbor's property, well, he is not to blame. It is the conflict of
human interests, the struggle for life which is to be found everywhere.
The weak shall certainly be defeated if they are too weak to protect
themselves. Look at the business competition; the department
stores crush the small shops, the trusts kill the small industries.
Look at nations with their rivalries and their wars for supremacy.

This is, in some countries, a pretty general form of reasoning, but
that does not make it any more conclusive. Indeed, anarchy is
unorganized society, and if it appears that things have been allowed
to go adrift, it becomes then the imperative duty of civilized men not
to accept them, but to bring them under proper control. Moreover,
we do not hesitate in affirming that if unlimited power should be
given to private interests, such a state of affairs could not but end
in great distress, nay, in bloody and disastrous convulsions. And, to
confine ourselves to this point, let us proclaim again that cities must
be made convenient for men to live in, and that if they were to become
hells, this would be our fault and our punishment.

There are three periods in the onward march of human progress.
First, the period of complaints, criticisms, and inaction. Secondly,
the period of intermittent, tentative, half-hearted efforts. Thirdly,
the period of thorough-going reforms, enthusiastically taken up by
every citizen conscious of the duty of the hour.

The first period is absolutely fruitless. The second period presents
an apparent effort on the part of administrative bodies to enroll
themselves for the public good; but this interest is more apparent than
real, and w7hat they aim at is not so much to make effective work and
go to the bottom of the evil as to avoid the reproach of being careless
or inactive if some evil should happen wrhich might have been
prevented. It is then that conflagrations take place like those of the

788 THE URBAN COMMUNITY

Charity Bazaar at Paris, the Paris Ope'raComique, the Iroquois Theater
at Chicago, and the General Slocum at New York, rousing the indigna-
tion of the world. It is then that the community is lulled by the
setting of deceptive fire-escapes running along dizzy house facades.
The same shuffling spirit is manifest in politics; what can we think,
for instance, of the Berlin treaty meant to protect Armenians and
then permitting their periodical extermination?

The thorough-going reform period carries everything before it,
for the people and the government are one. The welfare of humanity
now requires a concerted initiative from public-spirited men of all
countries. An International League for the Rational City must be
formed whose aim would be to prepare the best conditions to suit the
special needs of urban communities. It ought to work through its
congresses, by competitive prizes, petitions to the authorities, and by
the agency of a widespread journal giving authoritative information.

Let us consider and not forget for a moment that our apathy
toward this momentous object is responsible for the sufferings of
millions affected in mind, soul, and body, so many of whom are
doomed to become an early prey to disease and death. " O Varus,
give us back our legions ! "

SECTION D — THE INDUSTRIAL GROUP

SECTION D— THE INDUSTRIAL GROUP

(Hall 14, September 22, 3 p.m.)

SPEAKERS: PROFESSOR WERNER SOMBART, University of Breslau.

PROFESSOR RICHARD T. ELY, University of Wisconsin.
SECRETARY: PROFESSOR THOMAS S. ADAMS, Madison, Wisconsin.

THE INDUSTRIAL GROUP

BY WERNER SOMBART

(Translated from the German by W. H. Price, Harvard University}

[Werner Sombart, Special Professor of Political Economy, University of Breslau,
since 1890. b. Ermslehen, Saxony, January 19,1863. Ph.D.; Recorder of
Chamber of Commerce of Bremen, 1888-90. Author of Socialism and Social
Movements of the Nineteenth Century; Modern Capital; and numerous other
works of note on political and social economy.]

MY task is to sketch the historically peculiar circumstances of life
amid which the industrial proletariat lives. By the industrial
proletariat I mean the body of wage-earners in the service of modern
industrial capitalism. And I intend to point out the relation of
these conditions to modern progress in general. This problem
might be attacked in either of two ways, — first by making promi-
nent those phenomena, such for instance as state interference, which
have a peculiar significance in the establishment of a definite social
ideal and which furnish encouragement, as well, for undertaking
definite reforms. This is the political point of view.

A second method would be to correlate such of these phenomena
as we are able to recognize as the points of departure, the occasions,
or the conditions from which arise the movements of the laboring
class itself. This is the evolutionary point of view, from which can
be answered the question, What makes the social movement possible?
In the language of Hegel and Marx this sort of inquiry would be
called the dialectic method. And this is the method of inquiry
which will be adopted here.

In order rightly to judge the conditions of existence of the modern
proletariat we must first of all understand what it has lost as com-
pared with other groups of people, what it no longer possesses of
the conditions of living of its own former generations. Hence I must
pay special attention to European conditions, which indeed are
necessary to an understanding of all social phenomena. My dis-
course cannot be more than an introduction to a big subject.

Estrangement from nature is the most important feature of the
proletarian existence. The contact of the country lad with nature

792 THE INDUSTRIAL GROUP

ceases, — the friendly relation with the animal world, the growing up
with the elements, rain, storm, and inclement weather, the depend-
ence upon the events of nature, the rotation of summer and winter,
of day and night. The modern industrial wage-earner becomes a
characteristic representative of that artificial race of men now
growing up in cities. Away from his natural environment, that is,
away from home, the thousandfold spiritual ties and tender senti-
ments are lost. His home is the world, he is a child of the world.

Another feature of the laborer's existence is his liberation from old
institutions which confined him but restrained him as well. Among
these was the village community with its customs and its usages, its
festivals and fashions, which in part survive in the smaller towns.
Propinquitas ! But the proletariat has cosmopolitan customs and
usages. Thanks to the development of commerce, provincial man-
ners are abandoned.

There was also the family group. Not only is the old family con-
nection, with its far-reaching interdependence, giving way, but the
immediate family is also losing its binding power because the eco-
nomic basis upon which it rests is disappearing owing to labor away
from home, night work, and the labor of children and women who
no longer find satisfactory employment at home. The early employ-
ment of children and youth makes them independent at an early age,
and thus is weakened the discipline over children by parents. To
this must be added the sordidness of the dwelling-houses in cities,
for this narrow's even more the basis of family life.

We must note, also, the decay of trade-associations built up by
the medieval handicrafts, by which membership in a definite craft
provided the individual ample internal and external status. Mem-
bership in a trade, however, is losing its hold as a result of the frequent
change of occupation. For an individual passes with greater ease
than formerly from one occupation to another, while the array of
labor arrangements mobilized for a united productive activity has
to be constantly remarshaled owing to the influence of the modern
revolutionizing technique. The mechanical arrangement of indi-
vidual operations which constitute an industry leads to a constant
change, just as surely as a personal classification leads to the stereo-
typing of the industry.

Another cause of the decay of the trade fellowship is the disso-
lution of the intimate relation of the worker and his work. Activity
is no longer the expression of a lively human interest, it is only
the mechanical turning-off of some one simple process. The empir-
ical technique of the olden time rested upon personal skill; the
modern technique rests upon objective science. The organization of
industry upon the principle of the division of labor separates the
laborer from his work and makes him a mere soulless piece-worker

THE INDUSTRIAL GROUP 793

in the social process of production. The capitalistic organization
also separates the worker economically from his work. He is no
longer economically interested in the results of his work.

The old servile rights and obligations have been destroyed. Every
earlier time has recognized mutual responsibilities with respect to
the dependent man, which indeed bound him, made him unfree, but
gave him physical and moral support, protected him from hunger,
and helped him over crises in his life, such as sickness. Even the
slave or serf had this claim upon his lord. The journeyman of the
Middle Ages was united to his master by a close fellowship supported
by the feeling of moral obligation. This relation is disappearing.
The modern workman is a " free " laborer, legally free, who now
stands only in a business relation with his employer; services are
rated on both sides at a money value. Therewith he is free to go
hungry because without protection from commercial crises. He
must win his bread from day to day and be prepared at any time to
lose his position. In other respects his freedom is a mere formality;
he cannot exercise it by not working; he can at best change masters.
But this is becoming closed to him because capital is being mono-
polized in trusts. As soon as he succeeds in finding work, he is
for the greater part of his life driven to the hardest drudgery in the
service of the capitalistic undertaker. He is then less free than any
Turkish peasant who plows with his oxen in a free field.

How will, how can this " free," that is to say, uprooted cos-
mopolitan live? This is the question which presents itself for him as
well as for all who have experienced the same process of emancipa-
tion. This is the question of the time, which receives only one
definite response from the proletariat. The recovery of the content
of life is to be sought in two ways, — by means of pleasure and by
means of labor. Pleasure as one of the features of life is necessarily
denied to the great mass, clearly from external causes, perhaps also
from internal causes, because people are still too " sensible " to find
a motive of life in pure pleasure, material or spiritual, i. c., in
estheticism! They still require self-sacrifice, an object, morals.
There remains clearly open only the second way, — labor. " To
labor and not to despair," has been proclaimed as the watchword for
our hollow age. And the poet sings so sweetly

" Tis labor alone that helps us along

Over this wilderness of gloomy doubt;
It gives to each passing moment a goal
Which our life itself is without."

But how is it with the labor of the wage-earner? Often enough
he has no work at all. The condition known as " being out of work "
has established itself as a matter-of-course accompaniment of capital-

794 THE INDUSTRIAL GROUP

ism, — another novelty of our age. But also, by the time he finds
work its power of yielding satisfaction has for the most part been
lost. This is, perhaps, the most significant consequence of modern
civilization. Labor as the sanction of life, as the director of energy,
has ceased to round out the worker into the complete man and hence
to make him peaceful and contented. The reason for this lies in the
peculiarity of modern technique as well as the organization of modern
business, for the modern factory labor is in large measure destructive
of health, above all because it calls for too intense an exertion, and
because of that disregard for the limits of human endurance which
characterizes the modern technical development.

Moreover, labor has frequently become a disagreeable, repulsive
act, in the depths of the earth and amid the noise, dust, and heat
of many modern factories. Labor has become more and more mono-
tonous and unrhythmical, mere piece-work of unvarying nature in
the modern great industries built up by division of labor and consoli-
dation. The laborer is now separated from his work, he creates no
longer, he fashions no longer, he brings nothing to completion, nothing
appears as his work, nothing in which his labor is embodied. He is
no more than a secondary wheel in a gigantic mechanism.

The labor of the modern industrial wage-worker has thus lost all
concreteness, all qualitative significance, and so has for him only an
abstract and hence purely quantitative significance. And so it
becomes a burden of which he seeks to be relieved as much as possible.
(If we realize this we come to comprehend the endeavors for shorten-
ing the hours of labor, which give the characteristic impress to the
modern labor movement.) And so also it comes to be measured
in the terms of the money for which it is exchanged. Thus it was
that the wage-earner was involved in the circle of ideas of the capi-
talistic world. The mechanism 'which accomplished his inclusion
was the piece-wage system, after the pure money- wage had already
accustomed him to value all labor power in terms of money. This
valuation in money is imbued in him from early youth, for he enters
" service " early, at a period of life when hitherto a youth lived
without responsibility as a dependent member of a family.

Here lie the roots of all class strife between proletariat and entre-
preneurs, who are now at odds regarding their respective shares in the
joint product. " The right to the whole produce of labor ! " The
foregoing sketch of the peculiarities of proletarian life explains
what we mean by the modern " social movement," wherein the
proletariat struggles against the position into which capitalism has
brought it.

When we observe the proletariat setting forth to emancipate itself
from its position, and see how the movement is carried on with the
passions of hatred and envy, the conviction forces itself upon us that

THE INDUSTRIAL GROUP 795

the origin of the movement is not hopeless misery, for this is no
characteristic of the proletariat. The cause is rather the contrast
which the laborer observes between his own frequently pinched posi-
tion and that superabundance of wealth in which many of the em-
ploying class live, wealth which the laborer has, in his own opinion,
produced. For in their service he wears himself out. And this
contrast is constantly brought to his attention, not so much because
he sees that insolent wealth used in display, oftentimes vain enough, —
the poor serfs of the Middle Ages endured that sight, — but rather
because he daily witnesses the accumulation of new fortunes, wrhose
possessors grow rich before his very eyes. Frederick Albert Lange
accurately and forcibly expressed this attitude when he once said,
" The spirit of jealousy never completely disappears while a poor
man lives in the neighborhood of a rich man; it may, however, be
rendered very dull by constant relative wealth." But by fluctuat-
ing relations and by every occasion which makes the present con-
trasts more striking, the feeling of envy is quickened. To this, what
we might call objective insecurity of wealth relations, which is
characteristic of our times, and which the proletariat observes, is
added another insecurity which for the laborer is a subjective one.
This is the uncertainty as to the means of his livelihood, the fact that
he does not know from day to day whether he is going to earn his
bread. For an industrial depression may result in the wholesale
discharge of laborers, and thus in widespread famine.

It is this continual change which brings to a member of the pro-
letariat a consciousness of his position. The increasing intellectual
training, to which his life in great cities powerfully contributes,
enables and inspires him to reflect upon the causes of this insecurity
and upon the contrast between his own position and that of the rich.
And then a secret is revealed to him, the discovery of which becomes
the ground of justification for the modern agitations of the laboring
class, the secret, namely, that all the circumstances of his exist-
ence are not founded in unchangeable, natural relationships. On
the contrary, they are based upon the peculiarities of the prevailing
social and economic organization. " No man can assert any right
against nature, but in society distress at once assumes the form of
an injustice inflicted upon this or that class." (Hegel.) Thus the
ground is prepared upon which a social movement may be developed,
for now a point of attack is found, — the existing social order.

And to the extent that social criticism of this sort becomes refined
and sharpened, as discontent and the desire for improvement become
intensified, another circumstance which defines the position of the
wage-earner becomes more and more intolerable. This is his depend-
ence upon his employer. This dependence is no longer a legal
one, as in the time of slavery, but is no less complete on that account.

796 THE INDUSTRIAL GROUP

It appears in the fact that the laborer is assigned to his position by
the entrepreneur through stress of hunger; it appears in the humiliat-
ing subordination under the command of an entrepreneur. It often
assumes a medieval form when the factory-owner regards himself as
the " patriarch " of his people and seeks to guide and determine their
lives. It reaches out into the sphere of political right when the
capitalist classes use their power in order to limit the participation
of the wage-earners in the activity of the state.

Apparently these are the causes of the proletarian criticism of the
existing organization of society, yet we must attend to some other
special conditions of life among the modern laboring classes in order
to understand the peculiar current of ideas which we continually
meet with in all clamors for the " emancipation " of the proletariat.
These might be distinguished on the one hand as a tendency toward
communistic dreams, and on the other as a love for the masses.

The love of the masses and regard for the masses follows imme-
diately from the association of each individual wage-earner with his
thousands of fellow workers, all of whom are united by no other tie
than their common labor in the service of the entrepreneur. They
are grouped together without distinction, like grains in a heap of
sand, and outside the factory undertake no higher social activity
than some sort of union. What capitalism has tossed together, in
crowds, in great cities and centres of industry, is, as we say, an
inarticulate mass of individuals who have completely broken with
the past, who have cut themselves loose from all communal ties,
from home, village, and kindred, beginning life anew with a complete
destruction of their old ideals. The laborer's only support is the
comrade of his fate, who signifies as little as he, and who like himself
does not belong to any historic community. With this individual he
allies himself, and becomes his confederate. Hence arises a host of
confederates who are distinguished by one thing above all others, not
by individuality, not by common tradition, but by their mass, their
massiveness. Never in the history of the world have so many
individuals stood together for united action. Never in history has
the impetus of mass-action so characterized any movement as has
this of the proletariat. Everywhere we hear " the heavy tramp of
the labor battalion " with which Lassalle sought to frighten his
opponents. And if we would picture to ourselves the social move-
ment of our day, it invariably appears to us as an inexhaustible
stream of men hardly one of whom stands out clearly, flowing over
the whole land as far as the eye can see, to the farthest horizon where
the last of them roll away into the darkness. Translated into
psychological terms, it signifies that there has grown up in the indi-
vidual a tremendous strengthening of the consciousness of combined
power, and a strong mass-ethical feeling to conflict with class-ethical

THE INDUSTRIAL GROUP 797

doctrine. Membership in his class, therefore, signifies for the wage-
earner exactly what for others membership in a noble rank, in a
community, a city, or a state has implied. With pride, he proclaims,
Proletarius sum.

This dissolution of all quantitative or individual distinction in
the mass, now viewed and, therefore, now valued only qualitatively,
is parallel with and affects in the same manner the development of
modern technique in other directions. Only he who has familiarized
himself with their peculiarities will be in a position to understand the
important features of the proletarian movement, and above all to
comprehend the above-mentioned communistic tendency.

The increasing differentiation and integration of separate econo-
mies, their absorption into an indissoluble whole, on the one hand,
and on the other, the progressive specialization and organization of
labor in the modern " great industries " constitute what has been
called the socialization of the process of production. This socializa-
tion has brought it about that a particular commodity appears no
longer as the product of individual labor but as the joint product of
common labor. Formerly the cobbler who made a pair of boots
regarded himself as the fashioner of this particular article. The
laborer in a modern shoe factory, who pursues only a single task in the
general process, has lost this personal relation to the particular pro-
duct. To-day the actual process is collective for individual articles,
and, therefore, to the task laborer engaged in it, the conception of a
collective organization of general production is no more strange. In
the same way, however, and at the same time, the idea occurs to the
laborer in the great city, of a common, of a communistic consumption.
This idea is made more and more familiar to him by the character of
his own home surroundings.

The separate dwelling, which satisfies man's original instinct for
privacy, loses for the poor man in his congested tenement more and
more of its charm. Instead, he feels a growing liking for public
places where he can satisfy more completely his material and imma-
terial' needs. Workingmen's clubs, public reading-rooms, concert-
halls, and beer-gardens become a new home for the masses in great
cities. The aggregated advantages of the public institutions, the
public gardens and parks and museums, with their uninterrupted
series of pleasures and delights, rise in the estimation of the laborers
as the charm of their private or family life diminishes. The family
itself dissolves under the influence of the excessively long day or
night work away from home, through woman's labor, and the early
employment of children. The result is that the proletariat is invol-
untarily led to transfer the weight of its interest from the individual
to the social life.

Now, however, to gain a full understanding of the modern social

798 THE INDUSTRIAL GROUP

movements, we must become acquainted with the general conditions
of the time under which they operate. Here also a few remarks are
necessary. That which distinguishes the modern time is, above all,
an alertness such as I can think of in no other time. A current of life
flows through present-day society, of which no other time has known,
and thus is made possible a stimulus between individual members of
society, which was before inconceivable. This has been brought
about by the machinery of commerce which capitalism has provided.
The possibility of communicating across a great country within a
few hours by means of the telegraph, the telephone, and the news-
paper; the possibility of transferring from one place to another great
masses of people" by the modern facilities of transportation, has
brought about an appreciation of the solidarity of the great masses,
and a sense of omnipresence that to earlier times was unknown.
This is especially true of the great towns of the present. The possi-
bility of great mass-movements is thus extraordinarily increased.
And in like manner is attained that development within the mass
which we are accustomed to call education. Knowledge, and with
knowledge pretensions.

Closely connected with this activity, however, is that phenomenon
which we call the nervousness of our time, the lack of composure, the
hurrying, the restlessness pervading all the walks of life. Through
the peculiarity of business relations in all branches not only of
economic, but also of social life, this restless spirit prevails. The era
of free competition is manifest in all fields. Every one vies with his
neighbor. No one longer finds joy in life. Beautiful contemplative
peace is gone.

And finally, one more suggestion. This might be called revolu-
tionism. For there never has been a time which has experienced such
a complete subversion of every form of existence. Everything is in a
fluid state, business, science, art, morals, religion. All ideas are in
such a ferment that we are finally driven to the conclusion that there
is nothing certain left. And this is one of the most important criteria
for the interpretation of the modern social upheaval. For it explains
two different things. In the first place it accounts for that destruct-
ive criticism of existing conditions which seeks to throw a bad light
upon everything; which casts to the scrap-heap all former ideas
in order to bring new ones to market. This critical spirit first took
its rise among the bourgeoisie, who applied it to political, moral,
religious, and esthetic relations. The proletariat is now adopting the
same critical spirit, and applying it to the whole intricate field of
economic and social institutions.

That revolutionary spirit produces, furthermore, fanatical ideas
concerning the possibility of a blissful future state. Since miracles
have been realized before our own eyes, such as none could have hoped

THE INDUSTRIAL GROUP 799

for; why not still more? Why not anything we wish? Thus the
revolutionary present becomes the breeding-ground for the social
Utopias of the future. Edison and Siemens are the spiritual fathers
of Bellamy and Bebel. Here we have at hand the elements of which
are constructed the " Socialism and Social Movements " of our time.

CERTAIN PSYCHOLOGICAL PHASES OF INDUSTRIAL
EVOLUTION

BY RICHARD T. ELY

[Richard T. Ely, Ph.D., LL.D., Professor of Political Economy, University of
Wisconsin, b. Ripley, New York, 1854. Graduate, Columbia University,
1876; Fellow in Letters, Columbia University, 1876-79; student at Uni-
versities of Halle, Heidelberg, and Geneva, and at Royal Statistical Bureau,
Berlin, 1877-80; Ph.D., Heidelberg University, 1879. Professor of Political
Economy, Johns Hopkins University, 1881-92; Director, School of Economics,
Political Science, and History, University of Wisconsin, 1892; Secretary, Ameri-
can Economic Association, 1885-92; President, American Economic Association,
1899-1901. President, American Association for Labor Leoislation, 1906. Edi-
tor, Macmillan's Citizen's Library of Economics, Political Science and Sociology.
Author of French and German Socialism; Taxation in American States and Cities;
Introduction to Political Economy; Outlines of Economics; Socialism and Social
Reform; Social Law of Service; Monopolies and Trusts; Labor Movement in
America; Past and Present of Political Economy; Problems of To-day; Social
Aspects of Christianity; The Coming City; Studies in the Evolution of Industrial
Society; with Dr. George Ray Wicker, Elementary Principles of Political Economy.]

A FEW years ago we heard a great deal about a new forward
movement in economic theory that was attributed to a profounder
study of the psychological forces at work in man's socio-economic
activities than had previously been made. Professors Menger,
Bohm-Bawerk, and Wieser, leaders in the so-called Austrian school
of economists, were most prominent in this renaissance, and their
chief service was a new elaboration of the theory of value based upon
a more careful analysis of man's mental processes. But the dis-
tinguished German economist, Adolph Wagner, of the University of
Berlin, who long before the Austrians were widely known, achieved
fame, has frequently insisted upon a deeper study of psychological
forces in our industrial life as a condition of an improvement in
economic science. Wagner's treatment of capital affords illustra-
tion. An examination of psychical considerations disclosed by the
study of economic society, he tells us, gives reason to believe that
only under private ownership will there be a sufficient accumulation
of capital.

Strangely enough, with all this emphasis upon the psychology of
economic life, the peculiarly psychical elements at work in industrial
evolution have received little distinctive attention even at the hands
of scientists, while their existence appears to be almost unknown to
those whom we ordinarily call the educated public. Nevertheless,
it is precisely the so-called psychological considerations which are
decisive in the elaboration of a wise policy as well as in the correct
scientific treatment of industrial problems. In other words, in my
opinion we have had the smallest attention given to the psycholog-
ical considerations precisely in that field of economics where the

INDUSTRIAL EVOLUTION 801

psychological method is likely to yield the richest returns. It is my
purpose now and here simply to throw out a few suggestions which
go to prove that we cannot understand industrial evolution unless we
give careful consideration to psychical forces at the same time.
These considerations, it is hoped, will throw some light upon a correct
solution of important industrial problems.

The fact of the evolution of industrial society is generally recog-
nized, although its implications are not a part of our familiar know-
ledge. A study of the history of industrial society reveals clearly
that we have passed through various stages. It is not necessary
when we say this that we commit ourselves to any particular theory
of stages. According to the old and well-known classification man-
kind has gradually progressed from the hunting and fishing stage to
the pastoral stage, from the pastoral stage to the agricultural stage,
and then has passed through the agricultural stage to the handicraft
stage, and finally to the machine stage of production. Each one of
these economic stages has, of course, a subclassification into phases.
This gives us simply a general line of industrial evolution and does
not imply that every portion of the human race must pass through
the same stages and the same phases of evolution within the stage.
It would take an undue amount of space to enter into a discussion of
the scientific arguments and reasons for the position that this classi-
fication is sound. It seems necessary, however, on account of the
limitations of the human mind, to divide our industrial evolution,
which has a history of thousands of years, into periods in order to
help us arrange our facts systematically and accumulate knowledge.
We find men in historical periods living in each one of these stages.
Each stage has in its full development characteristics of its own"
distinguishing it from the preceding and likewise from the following
stage, when we consider these also in their full development. Be-
tween the stages at their culmination we have the transitional
periods where one gradually changes into the other. No one will
deny that the handicraft stage of the Middle Ages is radically different
from the industrial life that we live now. Now, it is precisely when
we consider our industrial evolution psychologically that we find the
most meaning in the division of our economic or industrial life — for
the two terms here are used interchangeably — into stages and
sub-stages, designated as phases. As we pass from stage to stage
and from phase to phase in the stages we notice certain changes in
those habits, mental traits, and characteristics which lead to success.
We have a certain psychical type of man corresponding to every
phase in our industrial evolution. Where an individual has this
psychical nature he is in harmony with his environment. The
absence of this psychical nature results in disharmony and lack of
adjustment. This is our first main position.

802 THE INDUSTRIAL GROUP

Our second main position is that as we advance from lower to
higher stages a better man is required. What is essential in a higher
stage is not a later period of time but a greater control gained over
nature by man. The purpose of our economic activity is to gain
subsistence through control over nature, and just in proportion as we
gain more abundant subsistence through increased control over
nature we may be said to advance to higher stages and phases in our
economic life.

Our third position is that there are those who in their life do not
keep pace with the general industrial movement. They are left
behind and, unless special measures are taken to prevent it, a period
of rapid movement means a relatively large number who are unable
to adjust themselves to conditions.

Our fourth main position is that the movement in our economic life
has continued for thousands of years and that those who are most
advanced economically are separated psychologically by thousands
of years from those living in the earliest conditions. They are the
descendants of generations of men who have had all this time for
adjustment, an adjustment secured very largely by natural selection.

If we reflect upon the change from the agricultural stage to the
handicraft stage it will help us to understand these psychological
features in industrial evolution. The handicraft stage is one in
which man gained a greater control over nature, first, through the
larger use of tools of a higher kind; second, through greater wealth
accumulation with a devotion of a larger part of this wealth, par-
ticularly in the form of capital, to the preparation for future needs;
third, through closer association with his fellows. Let us examine
in its implications each one of these three methods by means of
which nature has, to an increasing extent, been subjugated. The use
of more tools of a higher kind means more complex brain operations.
As we go forward in our industrial life an examination of the features
of this life shows clearly that the man who is fully equal to it has
to meet increasingly severe mental tests. Next we observe that
a greater degree of self-control is required as a condition of success
in a higher stage of economic life. Wealth must be accumulated not
for immediate consumption but for future consumption. This means
abstinence and self-control. It has been found necessary to pay
some men of a low type twice a day in order to induce them to
continue their work. A man of an advanced economic type will
make an effort now without the slightest thought of reaping the fruit
of the effort inside of ten years. The closer association of man with
his fellows is one of the means whereby we gain increased power over
nature; and as our efforts in production advance associations of an
economic character continually become larger and closer. This
means the ability to work for others steadily and persistently in

INDUSTRIAL EVOLUTION 803

organic relations. If large success is to be achieved there must be
power to command and a readiness to obey while a state of liberty is
at the same time maintained.

What has been said finds an increased emphasis when we compare
the present machine stage of production, characterized by a high
degree of competition, with the earlier handicraft stage. Especially
are alertness, adaptability, and quickness of adjustment conditions
of large success at the present time. The ties of an economic char-
acter binding us to our fellows have increased extensively and in-
tensively with unprecedented rapidity. The term " industrial
society " has only recently become familiar, arid this is a result of
these ties. As a further result we have a growing social self -conscious-
ness which imposes its own problems upon members of an economic
society, but which at the same time is one of the essential conditions
of our advanced life.

It follows naturally enough that those who succeed in a lower stage
are crowded down and out in a higher stage. It is proved conclu-
sively by history and by present observation of easily accessible
facts. The piratical merchant who is a hero in an earlier stage hangs
from the yardarm in our stage. The ancient Germans, Tacitus tells
us, thought it a disgrace to gain by the sweat of the brow what could
be secured by the sword. There is no room for doubt that many
a modern bandit would, in an earlier and cruder stage of society,
have been a hero. This is, perhaps, a sufficiently familiar observation,
but the implications of it are often overlooked even by scholars when
they come to treat present economic problems. Men are in varying
degrees mentally prepared for the present economic conditions which
have been gradually reached during thousands of years. Within the
nation there are those who, in mental traits and characteristics, are
only imperfectly prepared for modern economic life and must be
treated correspondingly. Man's mental and moral makeup is
capable only of a limited modification after the period of maturity,
and even in the case of children heredity sets a limit to the possi-
bilities of modification, although this limit is a far more flexible one.
To take a very marked illustration, we have, in the United States, on
the one hand, the Negroes, and on the other hand, the Redmen, who,
themselves or their near ancestors, were brought up in a stage. of
industrial society separated from ours by a period of hundreds if not
thousands of years. Is it conceivable that in a short period they can
acquire those characteristics, such as forethought, careful planning,
and a\vaiting results, which lead to success in the most advanced eco-
nomic society? What is true of these races is true only in a less
marked manner of other classes of society. We may lay it down as
a general proposition that during the past century the generalization
of economic progress has been more rapid than the generalization of

804 THE INDUSTRIAL GROUP

psychical traits corresponding to the phases of industrial evolution
through which we have been passing. We have a society which,
broadly speaking, has become cooperative under competition, but
many men have not acquired those psychical characteristics which
adapt them to a society at the same time cooperative and com-
petitive.

This point, that there is a lack of correspondence between many
men and classes of men and the particular phase of industrial evolu-
tion reached at a given moment is one to which in my opinion great
importance should be attached; and I beg, therefore, to offer an
illustration taken from the changed and changing conditions of
American agriculture. Not that I mean thereby to imply the absence
of similar changes elsewhere. Quite the contrary. I take this
illustration because it is familiar to me from observation and because
it is especially striking.

Successful agriculture is becoming daily a more complicated occu-
pation, requiring a larger and higher type of man as time goes on.
We have more and better machinery and less and less merely manual
toil. We plant, cultivate, dig, and harvest by machinery. This
means the accumulation of an increasing amount of capital, an
awaiting results or a lengthening-out of the period between effort and
the fruition of effort; also it means the capacity to handle the
machinery effectively.

We have a continuous evolution from simplicity to complexity.
As Professor Elwood Mead has well said in one of his Irrigation
Reports: "The traction engine and the automobile have both an
assured place in the economic operations of farms. Improvements
in electrical transmission render it certain that water power is to be
used more largely than in the past. Farm buildings, instead of being
simply storage places for grain or shelters for live-stock, are becoming
as complex in their designs and uses as factories." 1

Irrigation also shows the need of a new type of man in agriculture.
The old-type farmer was by training an individualist. He looked to
himself for success, and his isolation in his activities so influenced
his character that his individualism seemed to become a part of his
nature. But when the farmer from Old England or New England
goes to the " Far West," where the only agriculture is irrigated
agriculture, he must unlearn his individualism and become a co-
operative man as a condition of success. The first farmers in a state
like Colorado cultivate the bottom lands by means of simple, inex-
pensive ditches. Even this implies the use of more brain power, as a
knowledge of the proper ways to apply water to secure the best result

1 Review of Irrigation Investigation for 1902, Washington, D. C., in the
Annual Report of the Office of Experiment Stations, p. 368, United States De-
partment of Agriculture.

INDUSTRIAL EVOLUTION 805

is required. But as time goes on the ditches must be made increas-
ingly large and expensive in order to cultivate the higher, so-called
bench lands, which it is discovered are the more fertile. A single
ditch means the investment of hundreds of thousands of dollars.
Reservoirs are next constructed so as to save the flood-waters and
to equalize the supply of water, bringing water to crops late in the
season when natural streams run dry. The relations of farmer to
farmer and of farmers to others who need water for manufacturing
purposes or for urban purposes become daily more complicated, until
the solution of the problem thus presented becomes a task worthy of
the best intellects of our time. Now it is said that it requires a high
type of man to succeed in agriculture in a state like Colorado, and I
must say that I have never elsewhere seen farmers who, as a whole,
impressed me as so active and alert, so much like capitalistic manu-
facturers. Those equal to the task set by irrigated agriculture seem
to make large gains, and the others to be crowded down and out. At
the same time the proper regulation of the economic relations
involved in irrigated agriculture is a condition of the utilization of
natural resources and also a condition of liberty, for without regula-
tion we have the oppression of the weak and the tyranny of the
strong.

The American Economic Association has recently published a
monograph by Dr. H. W. Quaintance, instructor in economics in
the University of Missouri, that throws a good deal of light on the
nature of agricultural development. It is entitled The Influence
of Farm Machinery on Production and Labor. One fact brought
out clearly is the newness of our present farm implements and
agricultural methods. It is stated that agriculture in our colonial
period was not markedly different from that of Egypt two thousand
years ago. On the other hand it is shown that on an average for our
nine principal crops, namely, barley, corn, cotton, hay, oats, rice,
wheat, potatoes, and rye, nearly four fifths of the present yield is due
to the use of farm machinery. That is to say, farm labor is esti-
mated to be nearly five times as effective in the production of these
crops as it was as recently as 1850. With the exception of one of the
nine crops, namely, cotton, a decrease of labor is absolute as well as
relative. But this means difficulty of adjustment along several lines
and also increased demands upon brain power and moral force. It
requires a far larger amount of capital than formerly to carry on
agriculture with success and consequently hired laborers have been
increasing rapidly in states like Illinois. It requires a better man to
use machinery than to carry on agriculture by the old methods.
Consequently we find a large increase in the daily wages of workmen
employed in the production of crops which require a use of machinery
and a knowledge of machinery on the part of the hired laborers. On

806 THE INDUSTRIAL GROUP

the other hand it is stated that the average daily wages of agricul-
tural laborers who are engaged in those branches of agriculture which
require little machinery have actually decreased.

Even more striking are recent methods in corn culture which are
being introduced in the Central West. We have long heard about
pedigreed stock and now we are becoming familiar with pedigreed
corn (maize). A bulletin published by the University of Illinois in
August, 1903, gives an analysis of corn taken from forty ears, each of
which represents seven generations of pedigreed corn and each bred
with reference to some particular quality. It is not enough to raise
corn, but corn must be raised for special purposes in order to achieve
the largest success. Stock-feeders want protein in corn, and by
breeding it is easy to make a variation of 100 per cent in protein.
Manufacturers of starch and of glucose sugar want more starch in the
corn. They, however, want less protein. It is stated in an earlier
bulletin, likewise of the University of Illinois, that " the yield of corn
can be increased and the chemical composition of the kernel can be
changed as may be desired either to increase or decrease the protein,
the oil, or the starch." The purpose of this reference to pedigreed
corn is to bring out clearly the significance of economic evolution
with respect to the kind of man who is going to achieve the greatest
success in agriculture.

The use of automobiles elsewhere than in agriculture affords
further illustration of the thesis under consideration. Automobiles
are not used- so much as they wTould be in retail trade because the
employees are so frequently not equal to the higher requirements
thereby set. A grocer's boy who can drive a horse may not always be
trusted with the automobile. But progress is simply delayed. In
the end those not equal to the higher requirements will be pressed
down and out and will render existence more difficult in the over-
crowrded ranks of those with the minimum skill and capacity.

Let us now seek illustration in certain phases of the labor problem.
A good illustration is afforded by a comparison between transporta-
tion by the steam railway and transportation by a wagon drawn by
oxen or horses. The more advanced kind of transportation carries
with it higher physical and moral requirements for those engaged in
it. Not only are temperance and sobriety requisites, but eyesight
must be tested as a condition of employment for the locomotive-
driver, whereas an inferior man may drive a team of horses.

The minimum wage established so generally by trades-unions has
a similar consequence. Those who are not equal to that degree of
efficiency warranting this minimum wage are crowded out of their
trade. This is a condition for which, in some cases at least, provision
has been made by labor organizations, so clearly has it been recog-
nized.

INDUSTRIAL EVOLUTION 807

On the other hand we have an antinomy, as we may call it, in the
fact that this same industrial evolution has in consequence of the
division of labor given us some employments of a routine character
exceedingly simple, apparently soul-deadening, and very poorly paid.
These occupations fall to the most helpless classes in the community,
recruited by those crowded down and out of those kinds of labor
requiring growing efficiency.

All this we may bring into direct connection with the struggle
for equality of opportunity. The progressive evolutionary stages
of industrial society set increasingly difficult tasks, and as a result of
the unequal development of men we have capacities almost infinitely
varied when they are applied to these tasks.

The subject of contract brings before us in a new way the increas-
ingly complicated nature of modern industrial society and enables us
to see it from a new viewpoint. This is of particular importance
in the consideration of the labor problem. Labor remuneration is
governed by contract and contract determines the other conditions
of employment. Now modern contract becomes daily a more intri-
cate affair, which, for its interpretation, taxes the ingenuity of our
ablest legal minds. On the other hand it requires a rather developed
mind to grasp even the essential elements of contract. One of the
obstacles to reform in Turkey is said to be the difficulty the ordinary
Turk has in understanding the significance of time.1 Yet the con-
cept time is one of the first elements in the labor contract. Let us
pause for a moment to consider the difficulties with which we are
confronted when we consider contract. Contract must be viewed as
sacred. It is a necessary foundation of our socio-economic order.
We admire the man " that sweareth to his own hurt and changeth
not." Thomas Jefferson wrote in his Bible opposite that verse and
the verses accompanying it in the Psalms, " the description of a
perfect gentleman." And we feel that he was right. Yet in con-
tract we have all the hardnesses, injustices, and cruelties of nature.
It is simply a medium through which existing forces find expression.
The individual must obey his individual contract; but it is apparent
that there must be a higher power, a public power, controlling,
regulating contract, forbidding some contracts, determining the
conditions of others, and in extreme cases dispensing from the
obligation of contract, as the courts in Germany may do in the case of
usury. Public authority must be the binding and loosing power.
Let us again seek an illustration in irrigation. From the Platte
River system in Colorado, Wyoming, and Nebraska more than two
thousand ditches take water. The absurdity of the idea that volun-
tary agreement expressed in unregulated private contract can divide

1 North American Review, August, 1904, " Obstacles to Reform in Turkey,"
by Charles Morawitz.

808 THE INDUSTRIAL GROUP

up this water satisfactorily becomes apparent on a few moments' re-
flection to one who knows even the primary elements of the problem
involved.1

If space were sufficient it would be interesting to consider at some
length those who are left behind by industrial evolution and the
problem that they present. We have those who make up the element
in our population that has been called the submerged tenth. These
must be carried as painlessly as possible for themselves but without
injury to society. Criminals are included in this submerged tenth.
It is now generally conceded by criminologists that they should be
shut up during criminality and that the aim in their incarceration
should be reformation. It is also clearly perceived that we must
define our terms and not place among the criminal class those who
by nature do not belong to it. No one can say how large the class
of natural criminals is, but it is much smaller than has been frequently
supposed. When we look at the facts of the case we discover that in
our bungling we have been making criminals of men. It is as true as
it is trite to say that the ordinary county jail is a school of crime.
Through juvenile courts and modern methods we know how to
reduce the number of criminals.

We may consider also the feeble-minded who require custodial care
and those educational methods that will give them the highest
development possible. At the same time they must be confined to
prevent reproduction.

We have the insane who are not equal to the strain of modern life.
Thus we could continue. We have a permanent condition in those
left behind in the transition from stage to stage and from phase to
phase. The only way that this can be prevented is through the con-
trol of reproduction of human species. Something can be done in
this direction and is being done, as for example, in Wisconsin, where
the feeble-minded are confined, and as in Connecticut, which has the
most advanced legislation in this country on the subject of marriage.

The main industrial problem is found in the conditions of the
great mass of men who are capable of development, but require help
to help themselves in order that they may become equal to modern
industrial conditions.

We have, as we advance, and with every stage in our advancement,
an increased expensiveness of adjustment on account of the greater
demands on the individual in the more complex society. This is part
of the price of industrial progress, and the wealth to pay this price
is furnished in the very increased productivity which causes the
higher price.

1 Elwood Mead's " Review of Irrigation Investigation," in the Annual Report
of Experiment Stations for 1902, pp. 374, 375, United States Department of
Agriculture.

INDUSTRIAL EVOLUTION 809

The great problem then is the creation of institutions in accordance
with the needs of the different elements in the community, if we
arrange these into classes to correspond to their mental and moral
characteristics. We have as a matter of fact been creating such insti-
tutions during the past one hundred years. All civilized lands have
been engaged in this activity and they have created institutions to
serve the purposes of classes of men with widely varied needs and
capacities even in opposition to preconceived and generally accepted
theories. This has been particularly the case in the United States.
I believe that this is an explanation which throws new light on social
progress. The movement is destined to continue as it is an inevitable
outcome of that mighty struggle for equality of opportunity which is
shaping human history.

We also have this economic problem when we come to deal with
those of other nations as we do in this era of expansion. It is a pro-
blem, for example, to what extent landed property in severalty, with its
free sale and purchase, is adapted to those tribes of people who have
not acquired the type of mind which has been gradually evolved by
the most civilized nations during the course of their history. Let
us once more take the case of the North American Indian. If this
line of argument is valid, is it possible that in a few short years he
should become adapted to that form of property which the most
highly developed people in the world have reached as a result of an
evolution of hundreds and thousands of years? If the problem is to
change the nature of the Indian, must we not shape our institutions
to his conditions and allow him generations to adapt himself to the
most modern institutions? If this line of argument is true, we must
expect that the results of property in land in severalty among the
Indians will be that they will lose their land. To prevent alienation
of the land allotted to the Indians for the period of twenty years
seems absurd, as the real problem is a change of Indian nature.

Continuing this line of thought, that we must provide institutions
adapted to the needs of the various classes in the community, we
come to the problem of insurance. The gifted and capable can
make their way and do make their way in competitive society based
upon private property if they do not meet with accidents. It is
absolutely impossible that the ordinary man should prepare for all
the contingencies of modern industry. Accidents may befall the
worker just at the initial period of activity, and they may come in
middle life. It is beyond possibility for the ordinary man with
ordinary wages to make adequate provision therefor through his own
unaided efforts. The solution of the problem of contingencies is
found in insurance, which is making such rapid headway throughout
the world and in which Germany has left all the rest of the world so
far behind. There is no greater labor problem than that of insur-

810 THE INDUSTRIAL GROUP

ance. This can be provided by government or by private individ-
uals. In the United States great private corporations are doing
something in this direction. There are obvious limitations to what
can be accomplished by private effort. A great proportion of the
wage-earners must always be employed by private individuals or by
firms and corporations not sufficiently powerful and stable to furnish
satisfactory insurance. Apart from this, there arises the question,
To what extent may a really desirable freedom of movement be
impeded if employment and insurance are furnished by the same
persons?

I think it is now generally conceded that the risks of industry
should be borne as a part of the cost of production, and this must be
secured by general measures. England has, perhaps, gone as far as
possible through employers' liability. The investigations of the
Industrial Commission of the United States show that, to a very
great extent, the blame for accidents cannot be laid either on the
employer or on the employee, as accidents are a natural outcome of
production. In many cases there is blame, especially when the best
safety appliances are not provided, but the establishment of blame
does not bring with it a remedy for the economic incapacity of the
individual wage-earner. Much governmental activity in the way of
supervision is required to make the industry bear the burden of the
accidents and contingencies which befall the workers and to make
indemnity certain.

The question of pensions is closely connected with that of insur-
ance. When old age is reached we have also reached an appropriate
period of rest. Competition has done its work and society has no
further economic services to expect from the individual. The
problem is to provide for those who have reached old age without
weakening the springs of right economic activity in others.

Returning once more to competition, the trite phrase, a high
ethical level of competition, suggests a large number of problems and
appropriate methods for their solution. Society determines what we
may call the rules of the game and does so in accordance with its
ideals, which gradually become clearer as social self -consciousness
becomes more pronounced. When we determine that no child under
fourteen shall be employed in a manufacturing establishment we do
not lessen competition, but we simply determine one of its conditions.
We make one of the rules of the game. That is what we do in all
our labor laws, in our pure-food laws, etc.

This suggests in the United States the subject of interstate com-
petition and, for the world as a whole, the subject of international
competition and its bearing upon the general level of competition.
Just as we cannot in local matters rely upon voluntary effort, because
we have the problem of the twentieth man who, through the force of

INDUSTRIAL EVOLUTION 811

competition, tends to drag others down to his own mean ethical level,
so it would seem that in one state or nation we cannot rely upon
other states and nations to establish as high a level of competition
as we might desire. This subject has been agitated more or less for
three quarters of a century, but so far little that is very tangible has
been reached. An International Labor Conference was called by
Switzerland fifteen years ago, but Switzerland gave way to the
German Emperor, William II, and a congress was held in Berlin,
March 15 to 29, 1890. But the first international treaty designed to
protect labor is that between Italy and France dated April 15, 1904.
A beginning has been made and that is all that we can say. For-
tunately up to the present time it has not been clearly demonstrated
that any nation or even a state within a nation has suffered on
account of a high level of competition. Success in competition
depends upon the kind of man who is engaged in industrial pursuits,
and a high level of competition naturally means a larger and better
man, and consequently an ability to maintain one's own in com-
petition. Generally speaking it is those nations and those parts of
nations which have done the most for the workers that are most
dreaded in competition. It must be admitted, however, that as we
draw closer and closer together in our economic life and as world
economy gains relatively upon national economy, the problem of
international economic legislation, particularly international labor
legislation, gains in importance.

The presence of monopoly in modern industry is one of the facts
revealed by a survey of industrial history; monopoly has existed
in the past in all civilized countries as well as in the present. In
a study of the industrial history of England we come upon the words
" monopoly " and " exclusive privilege " on almost every page of
that history. The ceaseless iteration of the terms becomes almost
wearisome. So far as monopoly itself is concerned, meaning thereby
exclusive control over some portion of the industrial field, we have
no new thing. The character of monopoly has simply changed with
the progress of industrial evolution. The significant monopolies of
our own time are those which are extra-legal. They have not grown
up as a result of the intention of the lawmakers nor indeed have
they come as a result of any conscious desire on the part of society as
a whole. Certain industries have shown monopolistic tendencies by
virtue of their inherent properties, and there is an increasing tendency
in civilized countries to recognize this fact and to make these pur-
suits, the so-called natural monopolies, also legal monopolies in order
to prevent waste and to secure certain gains resulting from mono-
polistic methods. It is recognized by the common law of England
and America and, I think I may say, by what corresponds to our
common law in other countries, that private monopoly uncontrolled

812 THE INDUSTRIAL GROUP

is a menace to public weal, inasmuch as it removes the benefits of com-
petition and creates special privileges. Monopoly due to external
conditions is not like those extra gains coming to one as a result of
peculiar excellence and which are suitable rewards for social service.
The monopoly due to external conditions or to facts and forces
external to the individual tends, so far as we can judge from history,
to repress initiative and invention on the part of the individual.
Consequently, the extra gain from monopoly is a gain not for social
service but for social disservice. We have rewards either without
service or without adequate service. We have then a special privi-
lege which is hostile to the general interest and particularly to the
wage-earning classes. The problem then before us is a problem of
control of monopoly in such a way that we may remove the op-
pression of laborers and of others and retain equality of opportunity.
This control may be secured either through direct ownership and
management of the monopolistic industry or through regulation.
We find both methods resorted to. In the case of industries of a
routine character which can be carried on in accordance with certain
general principles, public ownership seems on the whole to secure
better results. It is in accordance with the principles of property to
give control, and when we have private ownership and public control
we are attempting to unite two antagonistic principles. This is an
industrial problem which carries with it a great many subordinate
problems. It is enough at this time and place to point out the nature
of the problem.

Closely connected with the foregoing is a compact organization,
(a) of capital, (6) of labor, also revealed to us by a general survey
of industrial history and present economic industrial life. This
survey reveals to us, and in my mind demonstrates the futility of
efforts to suppress the large organization of capital and the large
organization of labor. The only right method can then be to guide
and direct both kinds of organizations in such a way that they may
subserve the public interest.

What has been said in regard to industrial problems is general
in its nature and designed to be merely suggestive. It presents
specific problems of industrial society as problems produced by
industrial evolution and also as problems which are largely psychical
in their nature. The laws and institutions demanded are those
which are required to meet the needs of the various classes in the
community which are almost infinitely varied with respect to
acquisitions, achievements, and capacities. We present one side of
the problem when we say that we must create institutions to answer
the needs of the various classes in the community. We present a
different side of the problem when we say that we must attempt to
adjust all members of society by educational processes to their

INDUSTRIAL EVOLUTION 813

physical and more particularly their social and economic environ-
ment in its highest manifestation. This gives us the dynamic side of
our problem. We must not simply attempt to meet the needs of a
class with a low average of mental traits and moral characteristics,
but we must attempt so far as possible to raise each class to the
highest level. We have thus indicated the two great lines of move-
ment of modern nations in their attempts to solve the industrial
problems of the present age.

THE MISSIONARY'S STORY
Photogravure from the Painting by J. O. Vibert

This is one of the masterpieces of the famous French painter, Vibert, and
was sold in New York some years ago for $25,500. The scene is in a palace of
one of the Cardinals in Rome. Six dignitaries of the church have given
audience to the returned missionary, who is apparently tailing the story of
his experiences in a foreign land in the cause of Christianity and Civiliza-
tion. The scar on his shaven head is a telling reminder of his heroic struggle,
while the coarse dress of his order is in eloquent contrast to the luxuriott-
rohes and sumptuous surroundings of his clerical listeners, who are taking light
refreshments in various attitudes of prosperous ease.

SECTION E — THE DEPENDENT GROUP

SECTION E— THE DEPENDENT GROUP

(Hall 5, September 23, 10 a. TO.)

CHAIRMAN: DR. ROBERT W. DEFOREST, New York City.
SPEAKERS : PROFESSOR CHARLES R. HEXDERSOX, University of Chicago.
DR. EMIL MUNSTERBERG, President, City Charities, Berlin.

THE DEFINITION OF A SOCIAL POLICY RELATING TO
THE DEPENDENT GROUP

BY CHARLES RICHMOND HENDERSON

[Charles Richmond Henderson, Professor of Sociology, University of Chicago,
and Head of Department of Ecclesiastical Sociology in the Divinity School.
b. Covington, Indiana, December 17, 1848. A.B. University of Chicago,
1870; A.M. ibid. 1873; B.D. Baptist Union Theological Seminary, 1873; D.D.
ibid. 1885; Ph.D. Leipzig, 1901. Pastor, Terre Haute, Indiana, and Detroit,
Michigan, 1873-92; Professor, University of Chicago since 1892. Member of
American Economic Association; Academy of Political and Social Science;
Membre de la Socie"t6 generale de prisons; President of National Conference
of Charities and Corrections, 1899; President of National Prison Association,
1902; Membre du Comite International institu par le Congres de 1900
pour la preparation du Congres de 1905; Member of Executive Committee,
Bureau of Charities, Chicago; President of National Children's Home Society.
Author of Social Settlements; Social Spirit in America; Social Elements;
Modern Methods of Charity; Modern Prison Systems; Introduction to the Study
of the Dependent, Defective, and Delinquent Classes ; and other works on soci-
ology; also associate editor of American Journal of Sociology, and others.]

THE subject of the social treatment of dependents has been
approached through several different disciplines, according to the
previous training and bias of the investigator and writer. The
economists have dealt with the topic as a problem of finance, of
public expenditure, and of production, wages, and the distribution
of the product of industry. Since the money spent in public relief
must be raised by taxation, and since the method of giving relief
affects the efficiency of labor and the rate of wages, the economists
were right in giving serious attention to this matter.1 The Poor-Law
has naturally been treated by legal writers because it was a vital
partoT the system of control by governments in all modern countries,
especially in northern Europe and the English colonies and their
offspring. The " police power " of the state covers this function.2

The older " moral philosophy " or " moral science " sought to
answer the question: " What is our duty to the very poor, and
how can we best fulfill that duty?" In reality that is one problem

1 Here may be mentioned, among many, Malthus, Chalmers, J. S. Mill, Fawcett,
Roscher.

2 See E. Freund, Police Power, 1904.

818 THE DEPENDENT GROUP

of what may be called a branch of social science, differentiated as
" social technology." l For the steps that we take in accumulating
facts about the dependent group, in the classification of sub-
groups, in the determination of causes, in the statistical measure-
ment of misery, and in the definition of social aims, all culminate
and find their supreme value in their contribution to the solution
of this question: " What is our duty to the helpless poor and how
may we best fulfill that duty? "

When we come to deal with special classes of dependents we
encounter a series of professional disciplines and arts. For example,
the care of the insane is a branch of the medical art, and only alienists
who devote their lives to this department are trusted to speak with
highest authority. This is also true of the public care of epileptics.
The care of the feeble-minded, idiots, and imbeciles is chiefly a matter
of a pedagogical specialty, although medicine and surgery lend
important aid, as in physical culture, the thyroid treatment, etc.
The care of normal dependent children is best determined by con-
siderations of general education, and here we are brought into the
field of the teacher and to the problems of domestic institutions.

It thus appears that the study of the social treatment of depend-
ents makes drafts on almost all the funds of human knowledge,
uses all the methods and results of investigation, and employs in
turn all the great institutional agencies of the community.

This essay does not profess to announce for the first time any
new discoveries or results of special original investigations as yet
unpublished, but rather to mark the present stage of knowledge
on the matter before us, and to indicate some of the points on the
frontier of experiment and research where further data are needed.
If, in thus restating the subject, some slight increment to science
may be added, it will be incidental to the main purpose of the
exposition.

Any attempt to describe the system of charity even in one country
would result in a dry, tedious, and disappointing sketch. The
essential features of modern methods fill a large volume, and detailed-
accounts require many volumes.2

It would seem expedient to select a theme which will lead us to
consider the most recent and successful endeavor of students of
social science, (1) to construct a special discipline which is clearly
marked off by its subject-matter and is deserving of independent and
systematic treatment; and (2) to consider a method of taking up
particular problems of practice, so as to guide experiment into the
most economical and promising paths.

1 Mv article, American Journal of Sociology, January, 1901.

2 Modern Methods of Charity Systems, by the writer and others, Macmillan Com-
pany, 1904.

A SOCIAL POLICY TOWARD DEPENDENTS 819

A social policy is not aimless and irrational, but moves toward
an end, seeks to realize a good. Soon or late social science, in the
course of its development and specialization, must encounter the
problem of values and standards which does not complicate the
studies of inorganic nature, as chemistry, physics, and astronomy,
and only incidentally biology. Thus, for example, we are forming
judgments as to the best methods of dealing with dependents. What
do we mean by " best "? We are really thinking of the welfare of
dependents and of the people of the community of which they are
members. Many specific ends we have in mind, as the restoration
of the sick and the insane to health, or the mitigation of distress when
cure is impossible; the improvement of the touch, hearing, sight,
and skill of the feeble-minded ; the proper nutrition and development
of neglected infants; peaceful and quiet existence for aged men and
women in almshouses; and many more such purposes. We give
social honor and praise to the rich men who endow hospitals, and to
the physicians and nurses who faithfully give their lives to the sick.
It is evident that modern societies act as if they knew that such ends
are rational and worthy.

But there is both theoretical and practical interest in the wider
scientific problem: What is the general social end? For we neither
know the full extent of social obligation nor the relative value of a
particular object or institution until we see the specific action in its
place in a comprehensive system of ends. Our theory is incomplete
and our system of agencies falls short, and our devices are either
superfluous and exaggerated, or halting and inadequate, until our
definition of the ultimate purpose of social action and conduct is
clear and rationally justified.1

Since we cannot, here at least, critically follow this argument
to a satisfactory conclusion, we may assume what society actually
takes for granted, and what we find implied in all social institutions,
laws, societies, movements, governments, that health, sanity,
intelligence, morality, beauty, etc., are desirable for every human
being.

The standard by which we judge a social policy must be a mul-
tiple standard, like the compensating pendulum of a reliable clock.
The standard here assumed as valid includes the following ideas:
(1) Welfare, well-being, analyzed into its various unanalyzable
elements of health, wealth, knowledge, beauty, sociability, ethical
right ness, and religious faith, is the most general conception
involved (analysis of A. W. Small). (2) The welfare of all men, not
of a limited class, must be the ideal, the regulative principle. Neither
1 See Stammler, Wirthschaft und Recht.

820 THE DEPENDENT GROUP

the political will of a democratic age nor the authority of an ethical
philosophy countenances any standard for social conduct which is
not universal, purely human. Persons cannot ethically be treated
as means to ends outside themselves. No policy which is partial to
a family, a dynasty, an order, a church, a class, at the expense of
others, can be defended. (3) Therefore our standard is set up
for the defense of the helpless child, the undeveloped, the tardy, the
incapable; not because of what they can now do for society, but
because they are human and have potential capacity for future
development. (4) The analysis of social ends shows that we include
all qualities and kinds of the humanly desirable. As a nature-object
every person must have a certain minimum of food and shelter, and,
normally, the race-interest asks for provision for propagation,
maintenance, and protection of healthy offspring. Hence the
demand of our standard that all capable human beings have a chance
to work and produce wealth, material objects of desire. As a
psychical person, one who must find his own way in a knowable
world, each human being must be taught what he can learn of the
knowledge possessed by his community, and his power to learn must
be developed. Culture must be many-sided, even in an asylum for
idiots or a prison for the criminal. (5) Scientific social ethics tran-
scends merely qualitative analysis of social elements of welfare, and
is ambitious to employ mathematics as far as possible in the accurate
and quantitative measurement of its standard. Our age is trying to
define at least a minimum standard of life for all citizens. This
process has already gone farther than many citizens are aware.
The standardizing of weights and measures is a recent addition to the
functions and offices of our federal government at Washington, and it
marks an advance in the technical arts. At many points l we are
seeking to standardize the conditions of welfare of human beings.
Naturally we are here concerned with a minimum standard; if we
can discover and fix this measure, the more capable, aspiring, and
energetic members of society may safely be left free to enjoy all
above that level which they can justly acquire and rationally use.

At this hour no rational (scientific) standard for the minimum
income of wage-earners has been generally accepted. (1) The
rough rule of average employers is " the law of supply and demand; "
which law actually leads to the destruction of human life on a
gigantic scale for the sake of profits. It has no final social justifi-
cation. (2) The gradation of wages according to the rate of profits
is not rational nor equitable. The fluctuations and inequalities under
such a rule would be unendurable.2 (3) The rule of the " sliding

1 See C. R. Henderson, Practical Sociology in the Service of Social Ethics,
" Decennial Publications of the University of Chicago," 1902.

2 The Outlook, August, 1904, articles by Messrs. Hand and Fuole.

A SOCIAL POLICY TOWARD DEPENDENTS 821

scale." which means that the rate of wages fluctuates with the price
of the commodity produced, has no ultimate basis in reason, and does
not provide a socially acceptable minimum rate. (4) The rule of
the strongest, in the fight between trade-unions and employers'
combinations, which gives the advantage to the party which holds
out longest, is simply a barbarous makeshift, with a rational standard
far in the dim background. And where unions and combinations do
agree the result is simply more hardship for the consumers, and
bears with greatest weight on the very poor. (5) The only rational
starting-point is a minimum standard below which public morality
expressed in sentiment, custom, trade-union regulations, moral maxims,
and law, will not permit workers to be employed for wages.

As I have elsewhere discussed this minimum in relation to the
industrial group, it remains only to indicate the contribution which
charity work has made to the discussion of a standard. The dietaries
of asylums, orphanages, hospitals, and prisons are the outcome of a
long series of experiments in chemical and physiological laboratories,
in army and navy, in camp and mine, as well as in these institutions
of charity and correction.

One field for the adoption of a standardized minimum remains
to be cultivated, that of adequate outdoor relief to needy families
in their homes. The stupid complacency with which only too many
public officials and private benevolent societies pretend to relieve
the destitute, while leaving many of them still partly to depend on
begging, theft, or vice, is a sad commentary on the state of knowledge
in this region. One result of this unscientific guesswork, where
measurement is already possible, is that much public money is spent
on the burial of pauper children which should have gone to feed and
nourish them into vigorous producers of wealth.

Charity, in American cities, is far behind its task. It does not
even have knowledge of those who need its aid. Under the " Elber-
feld " system there are friends of the dependent in every small
district of the city, and the individuals on the border of suffering can
easily find their way to a helper. In America the public funds are
frequently accessible only in one central office, and even when there
is outdoor relief it is limited in amount.

There are many people in comfortable circumstances, and many
charity workers, who think that our American charity is very nearly
adequate. This optimism, I believe, is not based on facts, and is
positively a barrier to necessary improvements. My own conviction
is based on long personal observation and on certain professional
testimonies and statistical data. For example: Physicians who
practice among the poor frequently report sickness and mortality
which arise from " starvation diseases." Teachers of public schools
in poor quarters make similar statements. The London and Chicago

822 THE DEPENDENT GROUP

measurements of children in reformatory schools show an enormous
ratio of dwarfed, underfed children. The reports of boards of health
in American cities contain evidence of the same conditions.

A very common answer of some charity societies to this charge
is that they are able to give relief to all applicants. But, with these
facts before us, the answer is not decisive. People by the tens of
thousands are trying to exist and bring up children in homes which are
unfit for human habitation, and on food which is insufficient to meet
the minimum requirements of growth. They do this because they
either do not know where to apply for help, or because they know
that, unless actually ready to perish, they will be treated as able-
bodied and " not needing relief," or because they prefer to suffer
from hunger and cold and disease rather than ask alms.

I do not claim that charity should attempt to relieve all distress.
No doubt the idleness and vices of men produce much misery which
philanthropy cannot reach. No doubt moral reformation and
schemes of thrift, insurance, education, and general sanitation will
in time remove many of the causes of this distress. But what I urge
is that we do not now realize the actual enormity of suffering from
poverty, that our methods of finding out are very inadequate, and
that our optimism is as cruel as it is unscientific. So long as many
influential charity workers are teaching rich and well-to-do people
that we are almost at our goal we shall never awaken the public to
put forth the necessary effort to cope with the overwhelming evils of
extreme need in our industrial centres.1

The present efforts of the permanent Census Bureau of the nation,
supported by the National Conference of Charities and Correction,
by the National Prison Association, and by all experts, to collect
continuous and reliable statistics relating to paupers and criminals,
should be supported by all citizens. It is to be hoped that funds will
be furnished to professors and students in university departments of
social science for investigations in this field.

It might be thought that the elements of welfare in the higher
regions of intellectual, esthetic, and moral culture are too refined,
indefinite, and ethereal to be standardized. But all countries which
have compulsory school attendance, at least up to a certain age,
declare thereby that they have adopted a minimum standard of
education; and they compel competitive exploitation of youth

1 One illustration of an attempt to fix a minimum standard may here be given :
"Dr. Frankel, of the United Hebrew Charities of New York, in a study of income
and expenditure of a family just above the line of dependency, shows the dis-
bursements for one month to have been about $32, the receipts from all sources
(including $5 from lodgers) during the same period were from $33 to $35."
Solomon C. Lowenstein in Jeivish Charity, June, 1904, p. 210. See also, Charles
Booth, Life and Labor; Rountree, Poverty: a Study of Town, Life; E. T. Devine,
Principles of Relief. Dr. Devine 's book was not yet published when this paper
was written.

A SOCIAL POLICY TOWARD DEPENDENTS 823

to wait for maturity of body and mind. Child-labor laws are
themselves the definite legal expression of a mathematical measure-
ment of a social duty.

The trade-union world is stating its minimum standard more
and more definitely, and insisting on it with courage and constancy,
though sometimes also with acts of lawlessness and atrocity which
show disregard of community welfare. This minimum standard
includes such factors as the eight-hour day, the sanitary work-place,
protected machinery, the age of beginning apprenticeship, and a
minimum rate of wages for each branch of industry. The effect of
the successful and general application of this standard upon the
incapable and the feeble deserves our attention; but the enforcement
of the minimum, being a community interest, should not be left to
trade-unions, but should be, as far as possible, a matter of law and
governmental action.

In the maintenance of this minimum standard we are compelled
to face the problem of immigration of foreigners whose standard of
living is below this minimum. So long as hordes of this class are
permitted to come freely to America, to live herded in unfit habita-
tions, and to compete for places with our naturalized citizens who
have already won an advance, the case is hopeless for our own people.

Uncritical and traditional requirements of ethics produce an
unreasoning sentimentalism which wreaks injury upon the race.
The ethical demands of the future will become more exact, more
capable of explanation and justification, because they will rest both
upon inherited instincts of sympathy and also upon calculations of
the consequences of methods on social welfare in our own and coming
ages. Many of the moral standards of our times need to be pro-
foundly modified by this process of scientific testing and experimen-
tation.

II

The general form of our present problem is this: What is the
best system and method of promoting the welfare of the dependent
group considered as a vital part of the entire community? It is
chiefly a problem of technique. This technique is a mode of action
by a community. It is known and has its reasons in relation to the
rational order of society. It can be taught and learned, for it is
taught and learned. Hence it is a subject of science and has won
proper recognition as a topic in this Scientific Congress. This
technique is learned originally as other scientific conclusions are
reached, — by systematic observation of social phenomena, by
induction from facts, by performing experiments with methods
under varied conditions, by inventing working hypotheses and
putting them to the test of reality.

824 THE DEPENDENT GROUP

We are students of causes in a rational system of life; only we are
trying to discover forces and conditions which will bring about a
desired result, and we are not merely trying to explain a fact com-
pleted. We set before us not merely an effect to be accounted for,
but a state of society and of persons which we desire and will to
produce, on the ground that we represent it to ourselves as desirable.
We are mentally adjusting a system of means to good ends, and not
merely looking for the process by which what actually exists once
came to be. One of these processes is just as truly scientific as the
other, although the difficulty of prevision and provision is greater
than that of explaining the past.

Ill

Elements in a Social Policy relating to the Dependent Group

(1) We need to distinguish as sharply as possible, both in social
thought and action, the members of this group from those who belong
to the industrial group. Perhaps one of the most disastrous forms of
mental confusion is that of confounding these two groups and so
treating them alike. The dependents have long been played off
• against the wage-earners, and are even now frequently used to lower
the standard of living of the competent so as to reduce many of the
self-supporting to beggary, shame, and demoralization, with a long
train of vicious consequences through heredity for the future race.
The typical historical example here is the national degradation
which threatened the English people before the reform of the poor-
law about 1834, when poor-relief was given as a supplement to wages,
with the consequence that all common, unskilled laborers were fast
becoming paupers as a condition of mere existence; and pauper labor
proved to be incapable of producing wealth enough to support the
nation.

But we do not have to go so far to discover flagrant illustrations of
the same tendency, even in the fortunate economic conditions of the
United States. There has not been an important strike in the past
decennium, involving large numbers of low-skilled laborers, when
charity-supported or charity-assisted persons or semi-criminals did
not offer themselves in crowds to compete with the strikers.1 The
" parasitic industries " are found in all cities, that is, industries in
which the income which supports the family comes partly from
wages, partly from charity, partly from vice, and partly from the
physical and moral capital of the next generation.

Under a previous head the minimum standard of human existence
has been defined as closely as the nature of the subject and our

1 It is notorious that many of the professional " strike-breakers " are of the
vagrant class, on the borderland between vice, pauperism, and crime.

A SOCIAL POLICY TOWARD DEPENDENTS 825.

present knowledge permit. The critical test lies here: Those who can
earn the minimum in competitive society belong to the industrial
group; those who cannot earn this minimum belong to the dependent
group. This is a rough measure, but it is far better than no standard,
and it is practically correct. In fact, it is already more or less con-
sciously applied in every instance where public poor-relief is given.
Of course, no thoughtful person will take us to mean that there is an
impassable barrier between the two classes, so that dependents cannot
be helped to ascend into and remain in the industrial group; and there
will always be some difficulty to decide the status of those on the
border-line.

The members of the dependent group, who cannot earn even the
minimum wage necessary to a human existence, are now actually
supported by society; but frequently, and on a large scale, in such
a way and by such methods as to keep them down and drag others to
their level. For example, the products of charitable and correctional
institutions are sometimes put upon the market in such quantities
and massed at such points as to reduce the wages of self-supporting
work-people below the level of the minimum. In the sewing indus-
tries very serious evil is thus introduced.

(2) A social policy relating to the dependent group must isolate
the criminal group. One of the plagues of public and private charity
is the anti-social criminal, the sturdy rogue and vagrant, the debased
drunkard, the cunning thief, who mix in the throng of the merely
dependent and appropriate by impudence or craft the fund intended
for the helpless and incapable. At the door and desk of the municipal
lodging-house may be seen daily the sifting and judging process —
one of the most delicate and difficult tasks which ever test the judicial
faculties of man. The same problem often confronts the friendly
visitor in the homes of the poor, — as when one is called to help the
wife and infant children of a lazy or absconding husband and
father.

Recent experiments and discussions at this dividing-line have
shown that the rough and ready, but overworked, " work-test, "
even as a " workhouse test," is but one factor in the best method.
One difficulty is that the motley multitude called the " unem-
ployed " is composed of unlike elements, the vagrant, the inebriate,
the petty unsuccessful thief, the burglar " down on his luck," the
physical degenerate, the enfeebled convalescent just staggering back
from a hospital, the stranded country youth, the unskilled laborer
seeking a job without trade-union card, and others; some with hard
palms and thick muscles, some with deft but delicate fingers, some
accustomed to cold and heat, some with prophetic cough ready to
perish with slight exposure to sun or storm.

In order to treat with fairness, discrimination, wisdom, and

826 THE DEPENDENT GROUP

humanity all these " unemployed," and to transfer to the machinery
of the criminal law those with whom charity cannot deal, several
tests are necessary, and a merely automatic, mechanical method is
totally irrational, (a) First of all a judicious, firm, courageous, and
humane agent is necessary. The evil of depending entirely on a
single coarse test, as the stone-pile, the bath, the workhouse, is that
it seems to make the man unnecessary. It has long been observed
that in an asylum for the insane where all the patients are kept
within steel cages, one or two brutal attendants can carry out the
policy; but where freedom, fresh air, play, industry, and rational
treatment are given, the hospital must have many gentle, strong,
and trained nurses. So exclusive reliance on a stone-breaking test
tends to place surly and cruel keepers in charge of all applicants for
shelter and aid, and thus the institution designed for charity and
justice becomes an insult to honest workmen and a discouragement
to the sensitive, without furnishing the quick insight which most
unerringly discovers real criminals. (6) The work-test, in many
forms, is only one useful method which works well under good direc-
tion, since crime is as parasitic as pauperism, and the mark of the
parasite is that he wishes to live at the expense of others, (c) The
employment bureau, with a reliable record and a sharp watch-care, is
another means of marking the industrious man and discovering the
cheat, (d) In cities, and often in towns, a certain amount of personal
guardianship, a kind of probation work, is necessary to hold a moral
weakling back from sliding down the easy incline toward criminality.
All this information which is necessary for a wise treatment must be
collected instantly, by means of messengers and telephone and
telegraph, and from every available source. For the moment when
a man can be helped and turned away from beggary or crime is the
moment when he is under treatment and within the grasp of the
official. The German Verpflegungsstationen, with their simple inns
and their system of certificates and records, have much to teach us.

But whatever the tests employed, in some way the members
of the criminal group must be distinguished, known, and isolated
from the dependent group. Charity, public or private, has no
machinery of compulsion, and ought not to have. The steamboat
is not made to sail on land; the school-house is not constructed to
hold burglars in confinement; and a charity bureau is not fitted for
the task of managing deserting husbands, petty thieves, and con-
firmed inebriates. Society must erect specially adapted machinery
for dealing with this class of men, and it must have agents trained for
each particular branch of its service.

(3) Part of our social policy must be a better understanding between
the public and private agencies of relief. So far as principles of admin-
istrative methods are concerned there are no radical differences,

A SOCIAL POLICY TOWARD DEPENDENTS 827

both must aim at the real good of the recipients and of the community.
It is also true that the division of labor need not be the same in every
state and every county or municipality.

But the necessity of agreement and cooperation is easily illus-
trated and demonstrated from examples taken from practice. Thus
private charity sometimes supports a feeble alien who has been
rejected by the agent of public outdoor relief until he has gained the
rights of settlement and becomes henceforth a public charge; and this
happens even in states where it is a punishable offense to import a
pauper from one county into another. This understanding should go
far enough, in cities where there is legal outdoor relief, to secure for
the salaried agents the assistance of voluntary, unpaid, friendly
visitors. Our public relief in American cities sins against the
fundamental principle of individual treatment, because it refuses
thus far to learn from the German cities, which employ unpaid
visitors and give to them, within certain regulated limits, the respon-
sibility for the distribution of public funds.

The essential principles of division of labor seem to be: (1) the
relief which is required by law is only that which is necessary to life
and industrial efficiency, while private relief can deal with exceptional
cases and provide a measure of comfort; (2) public relief is more
suitable where there can be common, general regulationt; private
relief is more adaptable and can act in exceptional ways; (3) public
relief may properly provide for permanent and universal demands;
private relief, being optional and voluntary, may rise to meet chang-
ing situations, and hence can more readily try experiments for which
the voting public is not ready to expend money or erect adminis-
trative machinery.

But division of labor is only one aspect of social cooperation, and
it really implies and demands a conscious and concerted effort to
work for the common welfare. This division of labor and this
cooperation require organs and agents to make them effective.
In German cities the initiative is naturally taken by the municipal-
ity; in American cities it must at first be taken by the Charity
Organization Society or some kindred association.

(4) A social policy relating to the dependent group must include
an extension of experiments with positive social selection. Each
year competent thinkers come nearer to agreement on this principle,
although it is not so clear that we have yet hit upon the most effective
devices in its application. It is more than formerly assumed that
persons who cannot improve, or at least will not degrade, the physical
and psychical average of the race, should be prevented, so far as
possible, from propagating their kind. Accidental and sporadic
deflections downward from the average would still occur; but one of
the principal causes of race-deterioration would cease at the source.

828 THE DEPENDENT GROUP

The device of extermination by painless death has not been
seriously discussed among the competent.

The device of sterilization has been frequently suggested, and,
in a few instances, chiefly on the ground of advantage to the indi-
vidual, it has been employed. There is nothing absurd, cruel, or
impracticable in this proposition, although it would be helpful
only within a limited area at best, and would not make segregation
unnecessary, since even a sterilized degenerate can do injury by
example and actions. It could be useful only upon the recom-
mendation of a medical administrator and in the case of persons
isolated from social contacts.

A beginning has been made with the device of the custodial
colony for segregation, already in quite general use with the insane,
the feeble-minded, the epileptic. The idea is not absolutely new,
but the scientific grounds and economic methods have not yet
been worked out in a way to frame a cogent argument and appeal
to electors and legislators. We must still interpret the partial and
tentative experiments already made so as to throw light on extended
applications of the principle. Until the entire community, or at
least the governing majority, has accepted this policy with open
eyes and united will, we must expect to pay the heavy costs of
neglect.

Conviction of the importance of a rational and humane policy
of social selection has been diluted, and aggressive effort has been
delayed, by certain widely accepted errors. Thus we have a large
number of citizens who cling to the belief that " natural selection "
is adequate and preferable. They speak of the " evanescence of
evil;" they cite the high rate of mortality of starved and sick
infants, the sterility of prostitutes, the frequent celibacy of vicious
and criminal men, the disappearance of degenerate families, the
ravages of alcoholism and disease among the neurotic and inefficient.
Doubtless, as was long ago abundantly illustrated by Malthus,
misery, pain, weakness, vice, do tend to extinction without any
conscious, concerted, and rational effort of the community through
law. Why not leave the weeding-out process to these destructive
agents and forces?

False modesty has been an important factor in hindering the
calm and reasonable discussion of the selective process. Ignorance
of biological science has contributed to the obstacles in the way of
progress. We need to consider what the waiting, laissez-faire policy
involves in order to understand why a humane society 'will not
always stand by without a positive effort to modify the process and
reduce its cost. It would mean, first of all, that hundreds of thou-
sands of our fellow men who fail in competition would starve or freeze
before our eyes in our streets. Among these would be innumerable

A SOCIAL POLICY TOWARD DEPENDENTS 829

innocent little children and helpless old men and women, unfortunate
and crippled veterans of the army of labor. We do not need to
depend on imagination for a knowledge of the effect of such conduct.
It is what Bill Sykes did, what miserly stepfathers and heartless
tyrants have done. The king who heard that his subjects had
nothing to eat, and sent word that they were welcome to eat grass,
was inviting a revolution — and it came. Hunger breeds despair,
and those who are left on the verge of starvation have nothing to risk
when they steal and rob, or set the torch to palaces, and rob public
stores and granaries in the glare of conflagrations.

The instinct of sympathy is too deep and general to permit neglect.
The moral obligation of charity is now with us organic, institutional,
and fortified by ethical philosophy. While we cannot " prove " it,
as we can a physical cause of disease, we can show to all who are
capable of appreciating the argument that charity is an essential
factor in a rational view of life and the universe. In spite of the
powerful and influential protest of Mr. Herbert Spencer, the civilized
nations have gone on their way of extending the positive agencies of
benevolence. The let-alone policy is impracticable. Evidence is
accumulating to prove that charitable support, without a positive
general policy of segregation and custody, is, in the case of those who
are seriously defective, the certain cause of actually increasing misery
by insuring the propagation of the miserable. We cannot go back-
ward to mere natural selection, the process which was suitable with
vegetable and animal life, and inevitable in the stages of early human
culture. Nor can we rest with merely mitigating methods of relief.
We are compelled to consider devices for direct elimination of the
heredity of pauperism and grave defect.

Fortunately we have already discovered that an effective colony
method is technically and economically possible, humane, and
financially advisable. For example, it is not difficult to estimate the
average cost per year for the support of a feeble-minded woman of
child-bearing age in a farm colony where all the inhabitants work,
learn, play, but none breed. If she were free to roam, the county
or state would have during these same years to support the woman
and her defective illegitimate children. The future generations of
" the Jukes family " are in sight, and the burdens they will bring.
We know the effects of these two policies; they " spring to the eyes."
The method of segregation, as a device of negative social selection, is
already at work and its results are before us. Gradually, tentatively,
carefully, the method will be employed with others, as they are found
to be manifestly unfit for the function of propagation and education
of offspring; from the insane and feeble-minded society will proceed
to place in permanent custody the incurable inebriate, the profes-
sional criminal, the hopelessly depraved. The marriage of consump-

830 THE DEPENDENT GROUP

lives and of others with feeble constitutions will be increasingly
diminished under pressure of enlightened public opinion.

But the policy of segregation is applicable only within rigid
limitations. Only those members can be cut off from family life
and social freedom who are manifestly unfit for parenthood and
for contact with fellow citizens in competitive industry. Many of
the children of criminals may be so nourished and taught in a new
domestic environment as to become valuable citizens. But society
cannot afford to play the nurse and teacher for a very large horde of
incapables and criminals. The cost would be too great and the sacri-
fice would fall on the wrong parties. It is in the improvements and
reforms which promise the elevation of the group not yet either
pauper or criminal that we may most reasonably hope to secure
the best returns for our efforts. Something may be done to compel
parents now negligent to perform their duties as parents and make
better use of their wasted resources. The extension of probation
work to parents, already begun in some of our juvenile courts, is
a hint of what may be done.

(5) Not even a brief outline of a social policy relating to the
dependent group can omit reference to the agencies of " preventive
and constructive " philanthropy. Omitting details, yet bearing in
mind the impressive array of inventions in this line, let us seek to
define the essential regulative principles which at once inspire and
direct these methods.

Pauperism is, in great part, the effect of known and removable
causes. These causes are not obscure, concealed, or beyond our
grasp. They are consequences of human choices which may be
reversed. The reception of alms even in cases of innocent mis-
fortune, is a social injury; it lowers self-respect, weakens energy,
produces humiliation and mental suffering, diminishes productive
efficiency, tends to the increase of pauperism. Hence those who
know most of relief are most desirous of reducing the necessity for it
to the lowest possible terms.

The National Consumers' League and the recently organized
National Child Labor Committee represent a policy of prevention
which is full of promise. It is perfectly clear to all competent ob-
servers, who are not blinded by some false conceptions of personal
financial interest, that the vitality, industrial efficiency, fitness for
parenthood, and intelligent social cooperation of the rising genera-
tion are profoundly affected by neglect of the children of the poor.
In order to prevent juvenile pauperism and youthful vice and crime, the
entire nation must work steadily to introduce and make operative some-
thing like the following programme of legislation and administration: *

1 Suggested by the paper of Mrs. Florence Kelley, published in the American
Journal of Sociology.

A SOCIAL POLICY TOWARD DEPENDENTS 831

All children must complete the first eight years of the common
school curriculum and attain a certain standard of education before
they are permitted to engage in bread-winning occupations, and
none under sixteen years should be wage-workers unless this standard
has been reached.

All children, when they begin work, should be examined by a
public physician, and held back from intense labor if in weight,
stature, and development of muscles and nerves they are dwarfed.
Physicians and nurses should be charged with the duty of seeing that
school-children are kept in good health.

All defective, deaf, and subnormal children, as well as the crippled,
should have proper separate and special instruction.

Boards of education should provide playgrounds and vacation
schools, under careful supervision, in order, to prevent the evils of
idleness, misdirected energy, and vicious associations.

Public libraries should extend their branch work, not only to
different districts of the city, but, by means of home library agencies,
into the very homes of the poor; and the easy and pleasant use of
the English language should thus be promoted.

The street occupations of boys should be carefully regulated
and supervised, and the employment of girls in public ways should
be prohibited.

Boys under the age of sixteen years should not be permitted to
labor in mines or with dangerous machinery.

If parents and other adults are in any way responsible for the
delinquency of children, they should be held penally responsible.

At the same time, the curriculum of the schools should be so
planned as to lead by a natural transition from the play and study
of childhood to the specialized industries of maturity, by means of
evening schools, technical instruction for apprentices, regulation
of hours and shifts, so that youth may lay a broad foundation for the
specialization of the factory and mill.

Among the methods of preventive philanthropy is that of new
applications of the principle of averaging risks or " insurance."
The only nation which has thus far developed a system as com-
prehensive as social need and as our present social science justify
is Germany, and any discussion which ignores that splendid system
must be regarded as tardy and provincial. No doubt each country
must construct its own system, but any legislature which
neglects German experience and success falls short of the best
wisdom.

Sickness being one of the chief causes of dependence, all recent
improvements in hygiene and sanitary science, with their practical
applications in municipalities, must be counted among the direct

832 THE DEPENDENT GROUP

means of preventing pauperism. The contest with tuberculosis is
a familiar and happy illustration of labors in this field.1

(6) Philanthropy would still have a large and even higher mission
if the commonwealth could by a stroke abolish pauperism in all its
present forms. Philanthropy will never become obsolete, but will
merely move up to higher levels. There will always be superior and
inferior; stronger men in advance, feebler men in the rear; but all
will be members of the same community, knit by economic, political,
and moral ties into one organization. Already the condition of
social dependents is far higher than it was a century ago. When
actual misery and depravity have been abolished, if that time ever
comes, there will still be work for the most successful on behalf of
those less gifted. Much of our charitable work is already on this
level. In rural communities the desperate and tragical struggle
with shameless pauperism is often absent; there are no " poor,"
none dependent on public or private relief; yet in many villages the
higher charity has a very earnest mission. There are still spiritual
and intellectual dwarfs to be stimulated; gossip dissipates; low vice
lurks in unsuspected places; and those who lag in the rear hinder
the march of the most advanced.

The philanthropic measures which have been developed in presence
of pathological phenomena have reacted upon normal activities.
Thus, for example, the methods of studying and training the feeble-
minded and the juvenile offenders, and the vacation schools for
summer vagrants among children, have made substantial and appre-
ciated contributions to the science of education.

Crises in commerce and industry are felt to be pathological; but a
scientific study of crises reveals the principles which should regulate
ordinary business in such a way as to avoid widespread financial
ruin, as rules and laws controlling the issue of currency, the straining
of credit, and the fluctuations in the production of commodities.

The labors of the philanthropist awaken and sustain those social
habits of thought and sympathy which elevate and ennoble family
life, refine customs, and inform legislation with a universal moral
aim. Medieval charity was full of blunders, but its failures are our
warnings, and its spirit of devotion inspires us through the literary
monuments of its typical heroes. In a similar way the institutions
and laws which public and private charity are now constructing
will shine over the waste of years a veritable pharos for the centuries
to come.

1 Other illustrations are given by Dr. E. Miinsterberg in his paper.

THE PROBLEM OF POVERTY

BY EMIL MUNSTERBERG

[Emil Mtinsterberg, Member of the County Council, and President, City Charities,
Berlin, Germany, since 1898. b. Dantzic;, Germany, July 13, 1855. Dr. Jur.
Judge in Menden, Westfalen, 1887-90; Mayor in Iserlohn, 1890-92; Director
of Public Charities, Hamburg, 1893-96. Author of numerous books and papers
treating subjects of charity and social welfare.]

POVERTY means a condition where there is lack of the necessaries
of life. The preservation of the life of the body is a necessity, and
the man who does not possess the means necessary to such preserva-
tion is poor. Whether it be directly through starvation, or indirectly
through sickness brought on by insufficient nourishment, poverty
must necessarily lead to the extinction of the physical life. The
individual's instinctive love of life will not allow him to submit to this
result without resistance, and so in one way or another, according to
the circumstances in which he lives, he struggles against it. He will
either beg the means of subsistence from his fellows, or, if this fails,
he will resort to fraud or force in his efforts to obtain it. This means
that he will strive to escape want by seciet or forcible appropriation
of the necessary means of subsistence. But so far as begging and
force fail, whether it be because his fellow men are also poor, or
because they take sufficient precautions to protect themselves against
fraud and force, so far the condition of poverty continues to exist,
and that consequence of physical degeneration makes its appearance
which penetrates the whole being through disease, through moral
neglect, and through embitterment of soul. Where wider circles of
population fall into this condition we speak of collective poverty, in
contrast to individual poverty.

There is this great difference between poverty and all other human
conditions, that the man who suffers from it has at his disposal no
means of resistance out of his own power; that here there is no
service rendered which furnishes a claim for a counter-service, as is
the case in all other human relations. Hence, when help is rendered
to the poor, be it by the individual or by society in its various forms,
the question is always of a service without return. For this reason,
therefore, such service cannot, without further ceremony, be left to the
general principles governing economics and equity which otherwise
regulate the relation between service and counter-service. There
are many other points of view on which the necessity of helping the
poor is based. They may be briefly classified as " philanthropic "
and " police." The spectacle of a human being suffering from want
is so affecting that it calls out the feeling of sympathy which impels

834 THE DEPENDENT GROUP

his fellow men to help. From the standpoint of the police, however,
the impulse evoked is almost the direct opposite — that of self-
protection.

When an indigent, through need of the necessary means of sub-
sistence, resorts to fraud or force, he can do this only through a
breach of the law. Society, which imposes a penalty on such a
breach of its laws, must guard against allowing such law-breaking,
committed through the force of a natural instinct, to have the
appearance of being justifiable. Means must be taken to anticipate
such an instinctive action by voluntarily supplying the poor man
with the means of satisfying his natural wants. The history of pov-
erty furnishes numerous proofs of the fact that the instinct of
self-preservation is under all circumstances stronger than the fear of
penalty. The whole of the measures by means of which it is sought
to alleviate the many and varied conditions of poverty, we designate
" poor-relief." No civilized state is without such measures, although
in various countries they have undergone a very different develop-
ment. Their foundation is laid by a feeling of fellowship, which at
first centres in the church parish and is directly shown by the mem-
bers of the parish toward one another. Hence the custom passes
over, as a religious exercise, to the church itself, which comes to
recognize a definite religious duty toward the poor. It also grows
up out of that feeling of fellowship which neighbors have, manifests
itself in the mutual help of those bound together by a common occu-
pation or calling into orders of knighthood, religious orders, merchant
and trade guilds, unions, brotherhoods, and associations, and finds
its final comprehensive expression in the recognition of the duty of
poor-relief through political organizations, church, province, state.
Yet its actual development assumes very different forms. In the
Latin countries the exercise of poor-relief and charity continues to
centre really in the church. In the Teutonic countries, on the
other hand, it develops from an ecclesiastical to an ecclesiastico-
civil, and then gradually to a completely civil, poor-relief. In
keeping with this development, the ecclesiastical poor-relief in the
Teutonic countries remains still in a mere modest, supplementary
position, closely confined within the limits of those bound together
by a common creed. The opposite is the case in the Latin coun-
tries. Here charity, which is administered through churches,
monasteries, religious orders, and charitable endowments, is sup-
plemented by state and parish measures. The traces of this his-
torical development are to be found in numerous halfway forms.
For example, even in the England of to-day the public poor-relief
is administered by unions which correspond to the several church
parishes. In the French bureaux de bienfaisance and in the Italian
congregazione di carita the interest of the community at large finds

THE PROBLEM OF POVERTY 835

expression in the fact that the mayor is the chairman of these
associations.

To these public and semi-public forms of poor-relief there is
added an immense number of private charities, which either pur-
sue precisely the same object as the former, or else supplement
them in some way or other. Their promoters are either single
individuals or societies and associations. Above all things, the
standpoint of humanity is predominant among them, although
this takes different forms of expression at different periods. The
simple command to love one's neighbor, which makes it a duty to
help one's suffering fellow beings, expresses itself in almsgiving
and penitential offerings in the medieval church, where the spiritual
welfare of the giver is the idea in the foreground, rather than the
need of the receiver. The charitable foundations of the cities that
grew up after the Reformation are the expression of a powerful sense
of citizenship, which feels itself able to do more for its impoverished
members than afford them mere sustenance. The period of rational-
ism which set in about the middle of the eighteenth century trans-
formed the Christian idea of love of one's neighbor into that of pure
humanity. And still to-day impulses to relieve suffering are pro-
duced by motives of the most various kinds. The means to this end
are pouring in to-day as they have never done before. The applied
methods of relief, especially where sickness and infirmity are con-
cerned, have reached a degree of excellence all out of comparison
with that of any previous period. How much also poor-relief has
extended its scope, increased its means, and improved its methods!
The method of poor-relief in itself, however, can boast of no progress.
It was and continues to be an indispensable, but always crude,
means of contending against poverty. So far as we can speak here
of progress at all, it is not to be found within, but rather without
the proper compass of poor-relief. It begins at the moment when
poverty is no longer reckoned with as a condition established by
the will of God, or as a necessary fact of human existence; and the
question is thus raised whether poor-relief itself cannot be abso-
lutely banished from the world by the absolute abolition of poverty
itself, and, without prejudice to the physical and mental inequal-
ities in natural gifts which divide men, by the removal of that
monstrous inequality which exists in the things of this life. From
this point of view the problem of poverty is a problem of economics
and sociology which investigates the whole relationship of man to
man and to nature about him, and whose final aim must be to render
to all an equitable share in the treasures that are to be wrung
from nature through work, and also, by the creation of universal
prosperity, to banish poverty from the world as the very contra-
diction of such prosperity.

836 THE DEPENDENT GROUP

With an insight into this connection of the matter there begins
a new conception of social and economic events. We hear at the
close of the eighteenth century of the great doctrine of individual
freedom. All legal obstacles which set bounds to this movement
must fall. It is taught that, as soon as every one has liberty to
unfold his own powers, the greatest possible guaranty of universal
prosperity is attained. But the new economic development which,
under the banner of steam and electricity, leads the way to a new
era of discovery and invention, in reality created colossal riches on
the one hand, and appalling poverty on the other. Poverty is not
removed, but increased, and in its opposition to riches appears still
sharper and more pressing. Man's ability to work has become an
article of sale, which, according to the law of supply and demand,
displays a tendency toward continuous depreciation as population
increases. So economic freedom becomes the freedom of " sweating,"
which receives only the slightest check from the good will of phil-
anthropists. The immense pressure from above calls forth the
counter-pressure from below. As their feeling of self-consciousness
develops, the laboring classes seek to realize themselves as a unity,
and in their wishes, needs, and point of view to oppose themselves
to the employing class. One can speak of this movement among the
laboring classes as something quite new in the history of sociology
and of the world. This does not mean that there ever was a time
when the struggle of the impoverished classes to improve their social
and economic condition had no existence. But no movement has
seized hold of such great masses of people. First of all, the modern
means of communication and the press, together with a universal
political freedom which has, in spite of every obstacle, made great
advances, have been the powers which have given that solidarity to
modern labor which is its peculiar characteristic. This movement
of labor to realize itself as a great unity gives rise to the modern social
problem of which the problem of poverty forms a part. As a part of
the social problem it assumes a new aspect. The conception of poor-
relief, in the old sense of the term, is entirely foreign to the labor
programme, the first principle of which is self-help; not pity, but
justice; not a prayer, but a claim.

This social conception of the problem increases the difficulty of
treating it, because the attention is now directed away from the
outer appearance of poverty to its deep-lying cause, and the trouble
now is to find those measures through which the cause of poverty
may be counteracted. We are accustomed to classify the causes
of poverty as " general " and " particular." The former comprise
events over which the individual has no influence, such as the whole
organization of state and society, business crises, wars, discoveries,
and inventions which revolutionize a whole branch of industry, such

THE PROBLEM OF POVERTY 837

as especially the replacing of hand labor by machine labor; further,
destructive events of nature, such as earthquakes, conflagrations,
inundations, epidemics, etc. Through all these causes numberless
individuals are simultaneously rendered penniless and countless
families deprived of their bread-winners. The particular causes of
poverty are disease, infirmity, old age, etc., which are again to be
distinguished as those for which the individual is responsible and
those for which he is not responsible. For idleness, prodigality,
drink-mania, and unchastity he is responsible; for youth, old age,
sickness, and infirmity, and death of the bread-winner he is not
responsible. Yet a sharp line of distinction is not to be drawn here.
A bad course of life, for which a vicious bringing-up is to blame, is
something for which, in a higher sense, the individual is not respon-
sible. Moreover, a similar consideration will show us how the
individual case broadens into the general. Take, for example, the
problem of criminality among the young, a problem which has
lately been the subject of especially earnest consideration and which
is bound up with domestic conditions. In like manner, the sickness
of the individual assumes a general importance when the condition of
dwellings, the general diet, etc., deteriorate the health of the popula-
tion. And if the state of dwellings and food have such a result,
there forces itself to the front the question of wage and labor condi-
tions which do not allow a sufficient expenditure for food and dwell-
ing. And from this wage and labor question we are immediately led
back to the question of economic and social conditions. In short,
we have an immense variety of circumstances produced through
causes the ultimate source of which is hidden in almost impenetrable
obscurity. Personal, physical, intellectual, and mental qualities
exercise a contributive but not decisive influence, where the deter-
mining circumstances are more powerful than the will of the indi-
vidual.

However difficult it may be in particular cases to press back to the
ultimate cause, yet the knowledge of the connection between the
individual case and circumstances in general affords us points of view
for the measures that are to be taken to counteract poverty. Indeed,
it is this insight into the indissoluble connection of the single case
with the general which gives its decisive character to the efforts of
to-day to solve the problem of poverty. The well-worn comparison
between poverty and disease here obtrudes itself. It is not a piece
of court-plaster fastened over a wound which heals a disease whose
causes lie within, but only the treatment of the whole bodily condition,
the improvement of the vital forces, the restoration of regular circu-
lation of the blood, the stimulation of the activity of the heart.
Thus poor-relief, as a means of protecting the poor from direct want,
is only the court-plaster which serves as a temporary relief, but does

838 THE DEPENDENT GROUP

not produce a real cure. The farther the measures taken to coun-
teract poverty are removed from this most external measure of poor-
relief, the more effective are they. In the first rank stand all those
measures which are fitted to elevate the general condition of pros-
perity. Here belong all those measures which concern public and
economic life, commerce, the labor market, the administration of
justice, etc., and also the question of protection and free trade, the
conclusion of commercial treaties, the extension of the means of
communication by land and water. In a similar position stand those
measures for the elevation of the public weal through regulations
promoting health and education, such as the fundamental demand of
universal free elementary schools and of night schools, the equip-
ment of technical, business, and higher educational institutions, the
procuring of a good water-supply, the removal of garbage, the super-
vision of slaughter-houses, a good milk-supply, the promotion of
physical training in the schools and homes, the furtherance of the
building of sanitary dwellings; in short, those measures which are
fitted to improve the mental and physical conditions of all the
various classes of population.

The second division is formed by those regulations which have to
do with single occupations and classes, especially the agricultural,
artisan, and industrial wage-earning classes. Of first importance
here is the regulation of the labor conditions, the legal protection of
labor, labor coalition, and labor employment bureaus. Side by side
with legal regulations, the claim to the highest importance lies with
the activity of the independent organizations, of the artisan asso-
ciations and trade-unions, of producers' and consumers' leagues, of
building-societies; in short, of all those associations of laborers in a
common field which are built upon self-help as their basal principle,
and whose object is the regulation of the conditions of labor and
mutual encouragement and support.

The third division has so far to do with the causes of individual
poverty as certain circumstances can be foreseen which render the
individual, either for a time or permanently, incapable of earning
his bread. Such especially are disease, accident, disability, age,
widowhood, and orphanage. The most important measures in this
division are those comprised under the different forms of labor
insurance, divided into sick, disability, old-age, accident, out-of-
work, and survivors' insurance. Such insurance may rest chiefly on
the basis of legal compulsion, as in Germany and Austria, or on the
basis of friendly societies, as in England and America; which, how-
ever, are to be found in the first-mentioned countries also. Labor
insurance stands in its effects next to poor-relief, in that in single
cases it removes or mitigates the consequences of penury. It has
this difference, however, from poor-relief, that here the claim is based

THE PROBLEM OF POVERTY 839

on the ground of an acquired right. On a similar basis rest the
claims on the state, church, and corporations for pensions, retiring
allowances, or maintenance of widows and orphans.

Sharply divided from these measures for the advance of general
prosperity, of self-help, and of social prophylaxis, there exist, in the
last place, the measures against poverty which constitute poor-relief
proper. The man whom these general measures for the public good
have not been able to prevent from falling into poverty, who, in the
case of lost capacity to earn his living, or want of work, cannot fall
back on the help of those upon whom he has some special claim, nor
has the right to claim help from insurance, — such a man has no other
resource than to accept outside help, which is offered by poor-relief
and charity, a help which has this peculiarity that it stands outside
the compass of that reciprocal service which determines and sets
definite bounds to all other economic relations. The results of this
peculiar relationship are plainly recognizable on the side of both
giver and receiver. The giver is inclined to limit his gifts to what
is only absolutely necessary, because he gives without return; the
receiver is humiliated by the gift, because he can do nothing in
return. Hardness on the one side, bitterness on the other, are conse-
quently in great measure bound up with the exercise of poor-relief.
And where poor-relief is not administered in this hard way, or where
it reaches a lavish or actually prodigal extent, it escapes indeed
arousing the feeling of bitterness, but produces in its stead other and
no less dangerous evils, above all the evil of accustoming the receiver
to free gifts, of making him covetous, of lessening his efforts to main-
tain himself out of his own endeavors. Where poor-relief so degen-
erates it becomes mere almsgiving, which has as its inevitable
consequence the unlimited increase of the number of those seeking
help. The lamentable fact that heads of families desert their wives
and children is really fostered by the feeling, encouraged through the
administration of adequate poor-relief, that sufficient provision will
be made, without the presence and work of the head of the family,
for the maintenance of those dependent upon him. Nay more:
where greater riches afford the means of a lavish distribution of
charity, the begging of charitable assistance becomes a business
which supplies itself with specific expedients in order to secure its
share of the superfluous wealth without any effort. The appearance
of poverty is feigned. Hypocrisy, lying, and cunning in written and
personal representation form the stock in trade of this beggar
business, which, estimated by its moral quality, rivals the trade of
the card-sharper, receiver of stolen goods, and defrauder.

Thus the conduct of society toward poverty continues to oscillate
between two evils — the evil of insufficient care for the indigent, with
the resulting appearance of an ever-increasing impoverishment which

840 THE DEPENDENT GROUP

acts as an incentive to begging and crime; and the evil of a reckless
poor-relief, with the resulting appearance of far-reaching abuses, the
lessening of the spirit of independence, and the patronage of begging
and vagrancy. The history of poverty is for the most part a history
of these constantly observed evils and of the efforts to remove them,
or at least to reduce their dimensions. No age has succeeded in
solving this problem. In the early Christian Church the duty of
poor-relief was based upon the love of one's neighbor, and the
members of this community looked upon each other as brothers and
sisters whose duty it was to render help to one another. Thus it was
possible for a limited circle and for a limited time in some measure
to avoid both these evils. But in the Middle Ages the church, now
become a public power, encouraged and increased poverty to an
appalling extent, without being able in a corresponding degree to
meet the problem of helping the indigent. The state authorities
during the latter part of the Middle Ages, and especially in the six-
teenth and seventeenth centuries, in spite of their stringent laws
against begging, remained powerless to contend with beggary and
vagrancy. The other course which, with overflowing love and
compassion, sought to mitigate the lot of the poor, which finds
expression in the Gilbert's Act of England with its system of allow-
ances, or the French law of 1811 concerning the anonymous reception
of children, plainly showed, in the appalling increase of the number
of able-bodied persons demanding support and of deserted children,
where a too charitable conception of the administration of poor-relief
must lead. To-day we stand face to face with the same problem.
Public poor-relief and private charity wage the thousand-year-old
battle over the successful administration of poor-relief and the
prevention of its abuses, and reap to-day precisely the same experi-
ence as was reaped in times past, — that human nature, in spite of all
economic and technical advance, in this respect has undergone no
change. Hence also arises the very noteworthy fact that the most
modern poor-relief directs its attention more than ever to the simple
administration of poor-relief in the early Christian Church, and that
the much-talked-about " Elberfeld system " is nothing else at bottom
than an attempt to revive that old form of administration on sys-
tematic lines. Thus there stands in the foreground of all discussion
concerning the proper form of poor-relief the question of organiza-
tion. If poor-relief is to help the needy according to his need, and
have a reason for rejecting the undeserving, it must have for this
purpose a thorough knowledge of the circumstances of those who
apply for help. This knowledge can be obtained only through direct
examination in the home of the indigent, through observing his
mode of life, his household management, the conduct of his family,
etc.; and must be supplemented by inquiry in other directions, of the

THE PROBLEM OF POVERTY 841

employer, neighbors, fellow-tenants, etc. This makes necessary
a special equipment for examination which shall stand in fitting
relation to the number of those seeking help. In this regard, the
greatest success is displayed by the communities which are able to
raise a sufficient number of volunteer helpers who enter into inter-
course with the indigent in the spirit of brotherly love. Herein lie
the roots and the power of the Elberfeld system, already referred to.
The paid helper is perhaps better trained, but he lacks that vital
element of love which distinguishes the voluntary helper. It is true
that the voluntary-assistance office must have rooted itself in law
and custom, as has been predominantly the case in German com-
munities. This custom hardly exists in England and America.
Hence the predominance of indoor over outdoor poor-relief in both
these countries. In its place, however, America and England can
point to a very great development in the sphere of private charity,
which centres in the charitable organizations and societies, and offer
here wider opportunities not only to volunteer helpers but also to
paid workers who are trained by various plans and now by highly
developed schools of philanthropy. The most valuable assistance
rendered by woman makes itself conspicuous in the sphere of private
charity, and leads to the demand, now advanced alike in all civilized
states, that in public poor-relief woman shall have equal rights and
duties with man.

The method of rendering assistance is closely bound up with the
question of the organization of poor-relief. The German preference
for outdoor relief is, without doubt, a result of the old custom of
employing the help of volunteer assistants. In England the great
reform of 1834 established as the very test of indigency the readiness
of the applicant for help to enter an institution in which he had to
forego his freedom of movement and many of his accustomed enjoy-
ments of life. Whether this demand is expedient or not is to-day
a matter of much dispute. The transactions of the National Con-
ference of Charities, and the reports of state boards and of the
English Central Poor Board, contain numerous discussions of the
matter. That the number of those receiving assistance is lessened by
a stringent application of the principle is without doubt. But, on
the other hand, it remains doubtful whether in this way adequate
relief is in all cases afforded, and whether it is not much more true
that the rendering of money assistance to the indigent restores him
more quickly to a condition of independence, and that the pool-house
tends to make him a permanent subject of poor-relief. Moreover, it
has often been observed that a strict application of the principle of
indoor relief leads to an increase of those two evils already mentioned
— the want of those who are in real need, but whose pride is too
great to allow them to enter the poorhouse; and the resort of the

842 THE DEPENDENT GROUP

others to begging and vagrancy, which they find more comfortable
and profitable. More than this, neither England nor America would
be in a position consistently to carry out its system of indoor relief,
were it not richly supplemented by private charity which mitigates
the severities of the system. Moreover, an increasing insight into the
connection between poverty on the one hand, and disease and im-
morality on the other, in all civilized countries, and not least in
America and England, has had the result of so narrowing the sphere
of indoor relief that all those classes of indigents are refused admit-
tance which need special medical attendance, and for whose moral
welfare dangers are to be feared from a stay in the workhouse.
Above all is this true of the sick and the young. In its relation to the
children especially is the development of the system of family relief,
and the separation of children from adults, noteworthy. In sick-
relief it is a matter of the first importance to render the relief at the
right moment to insure the cure of the patient and, where possible, to
seize the disease at a stage in which restoration of the power of earning
his own living may be successfully accomplished. In this respect the
movement for combating the evil of tuberculosis is especially of far-
reaching importance.

The question of good organization, as well as the question of
adequate relief, is handled by general efforts of the most various
kinds, in which public poor-relief and private charity take part in
different ways. This very diversity, however, conceals two serious
dangers — lack of unity on the one side, and overlapping on the
other. To counteract these dangers it is necessary that the directors
of public poor-relief and the different representatives of private
charity should associate with one another for the purpose of devising
a systematic and mutually complementary relief. Information
about the indigent, as it is sought in the " charity organization
societies," in the offices centraux des ceuvres de bienfaisance, in the
Vereinen gegen Verarmung, and in the information bureaus, directs
the indigent to the place where he can best find help, and leads to the
discovery of those persons who misuse poor-relief and charity.
Information about charitable institutions, as given in the digests and
directories of great cities, show what measures are available, and how
they can properly be made use of.

Beyond this activity, exercised almost exclusively by private
parties, the need, at any rate, makes itself felt for a definite deter-
mination of the proper management and application of the means
of pooi -relief and charity. And here very different possibilities are
open. The whole public poor-relief may be placed under one central
board of control which is authorized permanently to supervise all the
institutions and establishments that stand under it, to vote the esti-
mates, to censure abuses, and to compel their redress by the authority

THE PROBLEM OF POVERTY 843

of the law. The most stringent form of supervision is exercised by
the Local Government Board in England, with the assistance of
general inspectors, local inspectors, and auditors. All boards of
poor-relief are required to furnish regular returns, which render
possible general poverty statistics at once of scientific and practical
utility. In France, so far as one can speak of a public system of
poor-relief — that is, as far as care for children, aliens, and the
diseased is concerned — the supervision lies with a special depart-
ment of the minister of the interior — the directeur de I 'assistance
publique. He has, as an advisory board, the conseil superieur de
I'assistance publique, which undertakes an exhaustive examination of
all questions relating to poverty and charity, and expresses its judg-
ment upon them. In Belgium a proposed law provides for a similar
institution. In Italy, in accordance with a law which went into
force a few weeks ago, a central government board, the consiglio
superiore di assistenza e beneficenza pubblica, and besides for each
separate province a provincial board of commissioners, com-
missione di assistenza e di beneficenza pubblica, are created. The
latter is authorized to exercise direct supervision over the local
boards of management, and to interfere in their action; while the
intention is that the functions of the central board should be more
of an advisory nature. In the new laws of certain Swiss cantons
and of the Austrian crown lands the institution of inspectors of
poverty has been recently introduced. In Germany there is no
such central authority in charge of -poverty. The supervision of
poverty here forms a part of the general government supervision
whose duty it is to guard against all pernicious measures, whatsoever
they may be.

In the United States, of late years, public opinion has taken a
very lively interest in this question, from the point of view as to
whether such supervision is desirable and permissible. One must
place over against this the institutions of the Old World, where
the old absolutism exercised a strong influence on self-government,
from which in modern times it seeks to free itself. The exact oppo-
site is the case in the United States, where from first to last constitu-
tion and government are based on democratic principles. The
result is that an encroachment here on the part of central government
authorities would be viewed beforehand, from the standpoint of
political freedom, with much greater distrust. At the same time, it
is universally agreed that the government authorities have the right
to remedy public evils and abuses from the standpoint of state
protection, and to exercise supervision over state institutions proper.
The problem becomes more difficult when the question is raised con-
cerning the supervision of the remaining public institutions, and
those which receive aid from public funds; and still more difficult

844 THE DEPENDENT GROUP

when purely private charity comes to be considered. The question
has been answered in the United States, both theoretically and
practically, in very different ways. First of all, a " State Board of
Charities " was founded in Massachusetts in 1863. New York and
Ohio followed in 1867. They bear very different names. Thus the
above-mentioned State Board of Charities is in Washington and
Wisconsin designated as the " State Board of Control;" in Iowa,
" Board of Control of State Institutions; " in Maryland, " Board of
State Aid and Charities; " and so on. Already in the names which
they bear the essential difference makes itself felt, for which the Ohio
and Iowa systems form the respective types. In the one case it
assumes the form of a control, accompanied by the power of com-
pelling, by government authority, the adoption of measures of im-
provement. In the other case there is simply a supervision, with the
authority of exercising advisory powers solely. In some states the
authority is intrusted to several boards. Thus there exists in Massa-
chusetts a State Board of Charities; in Maryland and New York,
besides this, a special Commission in Lunacy. In regard to the
question of the supervision of private charities, the fact must be
taken into consideration that here voluntary contributions are in
question, and that as a rule every one must be allowed to spend his
means in his own way. Yet it is only right to remember that, just
as the state interferes in the management of insurance, banking,
and manufacturing, from the standpoint of the welfare of society,
so also the welfare of society is concerned with certain spheres of
private charity. This is especially the case in the care of children
and the housing of sick, old, and helpless people in institutions.
The movement toward such a conception of the matter, however,
has received a severe check through the decision of the supreme
court of New York, which denied that the State Board of Charities
in New York had the right of supervising the measures of the Society
for the Prevention of Cruelty to Children. As an actual fact, in
consequence of this decision, more than half of the charitable societies
have been withdrawn from the supervision of the board.

In the countries of the Old World this question receives very
different answers. While in Germany again the supervision of
private charity is only a part of state supervision in general, in
England charitable endowments in particular are assigned to charity
commissioners, whose influence, however, is rather limited. In
France the very vigorous fight over this question keeps pace with the
fight over the bounds between church and state. In Italy, on
the contrary, the powers of supervision of the state authorities have
been greatly widened by the law of 1890, and by the institution of the
new central boards of control already mentioned. All these meas-
ures point to where the highest importance lies. This is not simply

THE PROBLEM OF POVERTY 845

in a supervision which shall secure the remedy of whatever abuses
exist, and the inauguration of a well-organized administration; but
in furnishing the instrument of this administration with the most
successful modes of management; in studying and making known
new methods, especially in the sphere of insanity and of disease, as
well as of the protection of children; and in general in elevating
poor-relief and charity to a higher stage. And as the bounds between
public relief and private charity have never been completely denned,
there enters, side by side with the activity of the government, a very
active private propaganda waged by the great charitable societies,
and also by societies confined to the several departments of charitable
effort. Here belong the English Poor Law Conferences, an
annual assembly of those who administer public relief, to take
council on all questions to which poor-relief gives rise; and also
the Congres national d' assistance publique et de bienfaisance privee
in France, and the Congresso di beneficenza in Italy. In
Germany it is the German Association for Poor-Relief and Charity
which, during its twenty-five years of existence, has, in the most
thorough manner, discussed all questions that appertain here, and
has exercised an extraordinary influence on state legislation, on the
control of poor-relief in the cities, and on the development of private
charity. In the United States, the National Conference of Charities
and Correction and the State Conferences possess an equal import-
ance. Very real service is also rendered by the Charity Organization
Societies and the State Charities Aid Association. International
congresses for poor-relief and charity have been repeatedly held, for
the most part in connection with the world's expositions, such as in
1856 in Brussels, in 1857 in Frankfort on the Main, in 1862 in London,
in 1889 and 1900 in Paris, etc. At the international congress held in
Paris in 1900 it was decided, through the appointment of a standing
committee, that an international congress should be convoked at
intervals of five years. The next will take place in Milan in 1905.

In this connection there is still one point that deserves attention.
The distinction between public and private poor-relief rests on the
fact that the one is regulated by law, and the expense, coming out
of the means of the rate-payer, may be contested; while private
relief is voluntary, and is administered out of voluntary contribu-
tions. Nevertheless, the difference between public and voluntary
relief is not so prominent in practical administration as theoretical
considerations would lead one to think. Moreover, in countries
of which voluntary poor-relief is characteristic, the civic authorities
place very considerable public means at the disposal of those who
manage this voluntary relief; while, on the other hand, in the poorer
communities of Germany or England the public relief falls far short
of the demands made upon it. Moreover, the prevalence of voluntary

846 THE DEPENDENT GROUP

relief does not exclude ttie state or the community from appropriating
means for single objects. Thus in France the care for children and
the insane devolves upon the departements, and the care for the sick,
on the local communities, to which, however, the state grants con-
siderable assistance. On the whole, the participation of the state
and its greater associations in the burden of poor-relief forms a
prominent feature of the modern development of public relief. The
whole body of modern legislation on poor-relief in Germany, Switzer-
land, and Austria provides for considerable state and provincial aid
for poor-relief, and lays on the state or the province direct responsi-
bility for the care of certain classes of poor, for example, especially
the insane, the infirm, and .idiots. Moreover, a marked tendency to
introduce, or at least to extend the sphere of public relief makes
itself evident in the Latin countries, as in the French law of 1895
concerning the care of the sick, in the Italian law of 1890 on public
charity, and in the proposed legislation in Belgium and the Nether-
lands which has not yet been discarded.

These efforts to increase the sphere of public relief are at first
surprising, and appear to stand in contradiction to the distinctive
characteristics of the age in which we live — to counteract poverty
rather by methods of prevention and by measures calculated to
increase prosperity in general. Yet here there is no contradiction,
but, on the contrary, a proof of the fact that poor-relief on its side
has imbued itself with a knowledge of the importance of 'all such
measures of prevention, and is directing its efforts to become what
we to-day are accustomed to call " social relief." The legislation
on the education of abandoned children, the oldest of which dates
back scarcely twenty years, rests on the principle of this knowledge.
It administers poor-relief to the children with the aim of preventing
the young who grow up under the direction of this law from falling
in future years into a condition of poverty. A like tendency is
displayed by the societies for the prevention of cruelty to children,
the juvenile courts, the promotion of immigration to Canada, the
equipment of school-ships, etc. The care for disease has a far wider
aim than the mere care of the patient. It searches out the lurking-
places of disease in order to tear it out by the roots. It is no wonder
that new problems have everywhere sprung up, where the light of
new sanitary and social knowledge has lit up the corners and holes
of poverty, and where the young science of sociology has taught us to
understand economic and social phenomena. One need here only
call to mind the very recent movement for attacking tuberculosis and
the abuse of alcohol. At the same time, this movement against
tuberculosis beyond all others makes very manifest how far we are
still removed from a healthy condition of affairs, and how to-day, in
spite of every effort, millions of our fellow beings still live in such

THE PROBLEM OF POVERTY 847

unfavorable conditions in respect to lodging, food, and education,
that they fall victims in frightful numbers to this disease. No one
who knows the circumstances can help seeing that all these meas-
ures, such as dispensaries, sanatoriums for consumptives, and
administration of poor-relief, have no importance in comparison
with the possession of permanent and remunerative employment,
which renders possible the procuring of sanitary dwellings and
sufficient nourishment, and strengthens the power of resistance
against that frightful disease. But just this knowledge points us
the way, not indeed of solving the problem of poverty, but of bringing
ourselves in some degree nearer its solution, in that we see in this
knowledge, which has grown up out of the social subsoil of our time,
the most important sign of progress, and in that we place the further-
ing of general prosperity and the elevation of the working classes
before even the very best measures of poor-relief and charity.

And here we must not be led astray by the fact that to-day these
measures still demand an immense expenditure of public and private
means, and that in the immediate future the question will be rather
of an increase than of a diminution of this expenditure. And so far
as we strive to enlighten the public mind in this sphere, and to effect
improvement, we must always bear in mind that poor-relief and
charity must always be content with the most humble position
among those measures which are directed against poverty. He who
helps the needy to help himself does better than he who supports the
poor. The most earnest effort of every true friend of the poor must
always be directed toward making poor-relief itself superfluous.

SHORT PAPERS

MR. FREDERIC AI<MY, of Buffalo, New York, presented an interesting paper
to this Section relating the story of the foundation and development of the
George Junior Republic at Freeville, New York.

MR. HOMER FOLKS, ex-Commisbioner of Public Charities of New York City,
presented a paper on " Distinctive Features of American Child-Saving Work."

SECTION F — THE CRIMINAL GROUP

SECTION F — THE CRIMINAL GROUP

(Hall 5, September 23, 3 p. m.~)

SPEAKER: MR. FREDERICK H. WINES, Secretary of State Charities Aid Associa-
tion, Upper Montclair, New Jersey.

THE NEW CRIMINOLOGY

BY FREDERICK HOWARD WINES

[Frederick Howard Wines, b. Philadelphia, Pennsylvania, April 9, 1838. A.B.
Washington College, 1857; Princeton Theological Seminary, 1865; I.L.D.
University of Wisconsin. Hospital Chaplain, United States Army, 1862-64;
Pastor, Springfield, Illinois, 1865-69; Secretary, State Board of Public Chari-
ties of Illinois, 1869-93, 1897-99; Assistant Director, Twelfth United States
Census, 1899-1902; Secretary, New Jersey State Charities Association, 1903-04.
Member of National Geographic Society; Royal Statistical Society; Soci£te
des Prisons (France); National Prison Association (President, 1904). Author
of thirteen volumes of biennial reports of the Illinois State Board of Charities;
The Liquor Problem in its Legislative Aspects (joint author) ; Punishment and
Reformation; special decennial reports on crime, misfortune, and benevolence
for the United States Census of 1880 and of 1890 ; and of numerous articles
on charities and corrections.!

WITH the voyage of Columbus in 1492 the world awakened to
self -consciousness. By that event the intellectual horizon of man-
kind was enlarged, and the birth of modern science and civilization
foreshadowed and assured. Of the many changes in habits of
thought and life that may be traced to this original source, not the
least noteworthy is the altered attitude of society and of govern-
ments in general toward crime and criminals. Does the history of
prison reform for the past four hundred years enable us to predict
with any approach to certainty what its future is likely to be? I think
so; because the prison, in common with other social institutions, has
gathered into itself and reflects all the experience and tendencies of
contemporary social evolution. All men of average intelligence and
information know what have been the main lines of progress. The
darkness of superstition has fled before the dawn of science, the arts
have been developed, the art of printing and improved methods of
transportation and communication have placed the experience of
every nation at the service of all mankind, wealth has multiplied
indefinitely, and civil and religious freedom have become the almost
universal heritage of Christendom. Best of all, the material advance
of the race has been accompanied by a moral and humanitarian uplift
not less wonderful and even more beneficent. Since no revolution
ever goes backward, we have no reason to anticipate any permanent

852 THE CRIMINAL GROUP

reaction in a movement which includes in its sweep the entire globe,
with its diversified interests of every sort.

It is in the record of social evolution in the United States in the
West, and in Japan in the East, that this movement can best be
studied, for there it has been most recent, most rapid, and most
conspicuously consistent. Let us confine our attention, however, to
the United States.

It would be an exaggeration of the truth to say that all of the most
fruitful reforms in criminal jurisprudence and in prison discipline
have originated in America, and yet the practical genius of this
nation, unfettered by precedent and tradition, has enabled it to adopt
and realize conceptions formulated by leaders of thought in the Old
World, but which were regarded by their compatriots and con-
temporaries as visionary, until we demonstrated their utility and
value. Prison architecture, may afford an illustration. The plan
of the prison of Ghent was stellar, that is to say, it was constructed
with wings radiating from a common centre; but it was not until an
American architect, who appropriated this fecund Flemish sugges-
tion, had devised the Eastern Penitentiary of Pennsylvania, in the
city of Philadelphia, which is still occupied as a state prison, that
official and unofficial visitors from Europe discovered its merits and
imitated it — at Millbank in London, and elsewhere. The arrange-
ment of cells next the outer walls, on both sides of a central corridor,
at Cherry Hill, was identical with that in the Hospital San Michele,
founded at Rome in 1704 by Clement XI, of which John Howard has
left us a description, illustrated by drawings. In the prison of
Ghent, however, the wing set apart for the detention of criminals
contained a tier or tiers of cells placed back to back, opening into
corridors next the outer walls (another idea borrowed from the
prison of Ghent), which was the method of construction followed in
the erection of the New York state prison at Auburn, the standard
architectural type of the distinctively American prison.

If we turn to the criminal codes of the world, it was William Penn,
the Quaker, who, in giving laws to the commonwealth which bears his
name, erased, by a single stroke of his quill, all those bloody pro-
visions of English law which prescribed the penalty of death for
some two hundred listed offenses, and who limited capital punish-
ment to a single crime, that of willful murder. The theory of the
indeterminate sentence and conditional liberation, now incorporated
in so many American codes, had been advocated as a theory of legal
punishment by various distinguished Europeans — Archbishop
Whateley, the brothers Hill (Frederick and Matthew Davenport),
Bonneville de Marsangy, of France, and others. Captain Macono-
chie, of the Royal Navy of Great Britain, had experimented with it in
Australia, at Norfolk Island, combining it with the graded system;

THE NEW CRIMINOLOGY 853

and Sir Walter Crofton, director of Irish convict prisons, had made
it the cornerstone of his remarkably original and successful adminis-
tration of the trust committed to his hands. But it was not until
it had crossed the sea and been applied in practice at Elmira, in the
State of New York, that it became the theme of a special literature,
of vast extent, in all languages, and began powerfully to influence the
governmental action of Continental Europe.

As to probation and the juvenile court, they are both American
innovations in criminal jurisprudence and practice, for which we are
indebted respectively to the state of Massachusetts and the city of
Chicago.

I beg you to believe that these observations are not prompted by
national vanity, which is a pseudo-patriotic sentiment, but by regard
for the truth of history and in the hope of giving greater definiteness
and stronger emphasis to \vhat is to follow.

In the development of prison reform this country has enjoyed the
advantage, in the first place, of being a new country. It imported
its institutions and its laws from the Old World, but it was not
wedded to them. These laws and these institutions had a tinge or
cast due to their having originated under purely monarchical forms of
government, while democratic ideals were here all but universally
prevalent. The alteration in our laws and the change of form in our
institutions took on a general direction which may be traced to this
political impulse as its source. The one conspicuous exception is the
county jail, the worst and most discreditable feature of the American
prison system. English, not Roman law was the foundation upon
which we builded; and we transplanted to our own shores the
English shire, which was and still is, everywhere but in the New
England States, the political unit; and even in New England the
distribution of courts and their adjuncts, the houses of detention for
prisoners awaiting trial, conforms to the politico-geographical
organization of the state by counties. The population of the original
colonies was sparse and widely scattered ; there were few towns of any
considerable size; roads were bad and travel difficult, locomotion by
steam power not having yet been invented; and there was very little
crime, and only an occasional criminal. The early jails were very
primitive in design, being for the most part nothing more than log
huts with a single room (rarely two), into which the suspected and
the convicted were thrust, pending the disposition of their cases and
while undergoing sentence. This mode of incarceration has survived
the original necessity for its adoption, partly because of the large
investment of capital which has been made by the public in county
prisons, and partly for political and other reasons. The county jail
is acknowledged to be, in this country and at the present time, an
anachronism; but many years may elapse before we are ready, as
a people, to abandon it. It cannot permanently endure.

854 THE CRIMINAL GROUP

There were, too, it must be remembered, in colonial times, no
state prisons. The settlement of America, in the seventeenth
century, antedated the European movement for penal law reform.
From the middle of the sixteenth century, it is true, workhouses and
houses of correction had begun to spring up, here and there, in Eng-
land and on the Continent, but the modern penitentiary dates from
the war of the American Revolution, when a forcible stop was put to
the English practice of shipping felons to this country and disposing
of them by sale to the highest bidder. The prisons inspected and
described by John Howard were county and local prisons. Before
the Revolution there were no penitentiaries, even in England.

We had a virgin field in which to experiment, and we have experi-
mented to some purpose. In other countries, the state or central
prisons are the property of the nation. In the United States, on the
contrary, in consequence of the partition of political sovereignty
between the states and the nation, under which the punishment of
crime is almost wholly relegated to the states, there have been, until
within a few years past, with the exception of naval and military
prisons, no prisons established and maintained by the Federal Govern-
ment. We have, accordingly, as many distinct criminal codes as
there are states and territories in the Union, with even a greater
number of central piisons. Our opportunities for experimentation
and for the comparative study of results would, therefore, have been
unequaled in the history of the world, were it not for the lack of
uniform and adequate criminal statistics, so desirable for scientific
and other reasons, which the federal authorities do not yet feel it
incumbent upon them to collect and publish.

From this hasty and superficial sketch it clearly appears, I think,
that, while the prison reform movement in America has been in one
of its aspects, a phase of a larger movement, in which all civilized
nations have had a share, some of its features have been more or less
local and peculiar. It has been accelerated and intensified by the
unprecedented growth of the New World, its originality and inde-
pendence, its intellectual activity and fertility of invention; and the
peculiar bent of our national life has impressed itself upon the prison,
as upon all other distinctively American institutions.

Let us cast a preliminary glance at the general trend of progress
throughout the world. There was a period, in the remote past, when
there was not a criminal code in existence, none having been yet
formulated. The establishment of the first code in which punishable
offenses were defined and listed was a tremendous step in the direc-
tion of criminal justice and of civil liberty, since it was a limitation
upon the cruel caprice of tyrants; though it may well be questioned
whether it has ever or anywhere constituted in practice a complete
check to their anger and oppression. The earlier codes were short

THE NEW CRIMINOLOGY 855

and simple. They all proceeded upon the principle subsequently
promulgated by the French Revolutionary Assembly, in 1791:
" Penalties should be proportioned to the crimes for which they are
inflicted." They prescribed definite and invariable penalties for
specific offenses. The history of codes, following the general course
of their successive evolution, is characterized by a gradual increase in
the number of punishable offenses, and a tendency to diminution
in the number of distinct varieties of legal punishment, culminating
in the substitution, for most of them, of some form and duration of
simple imprisonment. Imprisonment is, in the United States,
practically the only penalty commonly inflicted. We retain the
death penalty, it is true, but it tends to fall into disuse. We authorize
the imposition of fines, but they may be commuted into terms of
imprisonment at the pleasure of the convict. There is but one state
— and that the least of all the states — in which the pillory and the
whipping-post may still be found. But imprisonment as a penalty
for crime is a historical novelty.1 When it was recognized in France,
little more than a century ago, the code itself prescribed definite
terms of imprisonment. Twenty years later the French courts were
authorized to determine the duration of individual sentences within
certain maximum and minimum limits. The experience of France
in this regard is typical of universal experience, and the growing
tendency in this direction might be illustrated, did time permit, by
references to the history of American legislation. The amendments
made to all codes, both penal and judicial, are the result of dissatis-
faction with their practical operation. They are a confession that
the equitable apportionment of penalty to crime is not the easy
problem of solution that the Revolutionary Assembly imagined it
to be.

Through this entire process of change the subdominant note has
been the gradual amelioration of penalty, or the softening of manners
with the lapse of time.2 If any one lesson has been driven home to
the political consciousness of legislators and of judges, it is that
brutal and needless severity in dealing with crime defeats the ends of
justice and promotes the unnatural growth of crime.

Side by side with the tendency thus described may be noted an-
other, namely, the diversion of attention, in an increasing ratio, from
crime as an abstraction to the criminal as its concrete embodiment,
from the act to the actor,3 and this has bsen accompanied by the

1 " Our criminal procedure appears, in many instances, to point only at the
destruction of the accused" — Beccaria (1704).

* Even in China the number of blows which may lawfully be inflicted upon
an offender has been reduced from one hundred to forty.

3 " All responsible action is primarily postulated along the line of free will
functioned upon the moral intuitions. Where freedom ceases, automatism
begins. Beyond that point conduct may be a menace, but it can never be
a crime; it may be an event, but in no sense an act." — Drahms.

856 THE CRIMINAL GROUP

conviction that if the perpetrator of a criminal act is an object of
blame, he is also an object of pity, and that, if his crime merits
reprobation, he himself may nevertheless be capable of reformation.
This is not a new idea. The inefficacy of punishment has in all ages
impressed the consciousness of those by whom it has been inflicted.
Pope Clement XI declared it to be absolutely inefficacious, unless
accompanied, in its administration, by a reformatory regime. The
moral motive of the penitentiary system in the minds of philan-
thropists and statesmen like Howard, Blackstone, and Bentham was
the hope of saving men. The very word " penitentiary " means a
place for repentance and amendment. What is noteworthy is the
rapid rate at which of late this conviction, this sense of moral obliga-
tion has gained ground in the world and modified penal law and its
enforcement.

In this country prison reform began, as has been said, with the
establishment of state prisons, organized and governed on rival
methods, known as the Pennsylvania and Auburn systems. The
former, also called the solitary system,1 provided for the isolation of all
prisoners both by day and by night; the latter for their isolation by
night only. By day they were employed, at Auburn, in association
in large prison workshops; but to prevent mutual contamination, all
conversation between them was strictly prohibited. The well-meant
purpose of each of these systems was the same. Their authors and
advocates argued that crime is contagious, and that the remedy is
quarantine. The result hoped for by them was reformation; and
the road to reformation was believed to be by the way of discipline.
At Philadelphia the prisoner was left to his own reflections; inter-
rupted by occasional brief visits from volunteer prison visitors. At
Auburn he was flogged for talking contrary to the rules. Odd
impressions of the criminal were then generally current. Captain
Elam Lynds, the warden in charge at Auburn, held that no large
prison can be governed without the aid of the lash. The directors of
the Massachusetts state prison exhorted all its employees to think
of it as " a volcano filled with burning lava," and laid down the rule
that the discipline " must be as severe as the law of humanity would
tolerate, in order to conquer the mind of the convict and reduce it to
a state of humiliation." In Connecticut prisoners slept at night with
their feet fast to iron bars and their bodies attached by chains around
the neck to a great wooden beam. On the occasion of the first
religious service held in the Walnut Street Jail, in Philadelphia, the
jailer, by way of precaution against riot, and to insure the personal
safety of the officiating clergyman, had a cannon placed in the yard,
and stationed a guard beside it, holding in his hand a lighted
match.

1 But more lately, first the " separate " and then the " individual " system.

THE NEW CRIMINOLOGY 857

Between the partisans of these rival systems a furious controversy
broke out, the echoes of which may still be heard reverberating
around the globe, for it has not yet completely died away. The
Philadelphia Society for Alleviating the Miseries of Public Prisons
defended the separate system, which was acrimoniously assailed
by the membeis of the Boston Prison Society and of the New York
Piison Association. The protracted discussion which ensued had the
merit of bringing to light the inherent defects and essential cruelty
of both systems; but victory rested with the opponents of the
Pennsylvania plan, which was tried by three or four states, but soon
abandoned. It nominally survives at Philadelphia, but not in fact,
since that prison, with eight hundred cells, now contains over twelve
hundred sentenced convicts. The Auburn system, with its rule of
perpetual silence, impossible to enforce, has also died a natural death.
Then, as now, prisons were of two sorts: one local and minor, in
which there was no discipline; the other central or state, in which
there was far too much. The juste milieu had not yet been discovered.

Without regard to the theoretical arguments for and against the
separate or individual system, it may be said, in passing, that its
abandonment is primarily attributable to financial and practical
considerations. It is more costly to install. The ordinary American
prison cell contains not more than five hundred cubic feet of space,
while the separate cell requires the provision of at least one thousand
feet, or double the quantity. It is, therefore, more difficult, in a
country with a population multiplying so rapidly as does that of the
United States, to secure adequate accommodation for prisoners on
the separate than on the congregate system. Moreover, the earnings
of the prison are less, since they depend on the employment of labor-
saving machinery driven by the power of steam, which can be used
in the shops of a congregate prison, but is not adapted to use in
prisons of the opposite type.

All progress has its root in the sense of failure to realize an ideal.
There are as many distinct ideals as there are groups of men. The
economic ideal of the prison is that it shall be self-supporting; the
administrative ideal, that it shall be secure and orderly; the political
ideal, that it shall minister to the reputation and the stability of the
party in power; the punitive ideal, that it shall crush its helpless
inmates and strike terror into the hearts of men tempted to enter
upon a criminal career; the sentimental ideal, that it shall be the
abode of comfort and content; the philosophic ideal that it shall be
so conducted as to reform as many of those committed to it as are
susceptible of reformation and rehabilitation. These ideals spring
up partly from within and partly from without. Prison officials have
the opportunity to study the criminal at first hand by close and con-
tinued contact with him. They become familiar with his peculiar-

858 THE CRIMINAL GROUP

ities, his tastes, his notions, his sentiments, his habits. They note
the effect upon him of every detail of the discipline to which he is
subjected , and the changes in their attitude to him correspond to the
keener insight and more accurate judgment gained by a large and
long experience in prison administration. The outside world has a
different standard of comparison. It judges by results as shown on
the ledgers of the state, the dockets of the criminal courts, and else-
where. It asks itself, Does the prison accomplish what the people
expect and demand of it? Does punishment really punish? Does
intimidation intimidate? Does reformation reform? Is there any
appreciable diminution in the volume of crime in the community?

In the development of popular ideals and continually higher
standards of excellence, prison societies and prison congresses play
the leading part. The medieval prison societies were relief-giving
societies, in an age when prisoners, if they did not supply their own
food, got none; when imprisonment for debt was common, and poor
debtors would have starved but for the generosity of the public.
The modern prison society formulates theories of prison discipline,
promulgates them, and endeavors to find employment for discharged
convicts. In the prison congress the official and non-official elements,
the expert and amateur, meet and exchange views, to their mutual
advantage; and thus, step by step, slowly but surely, the cause of
prison reform advances with the onward march of intelligence.
Science ministers to it, and so does religion. Science endows
it with its own rich gains in the knowledge of nature and of
human nature and in the applications of science to the mechanic
arts. Religion contributes the altruistic motive and the sentiment
of moral obligation and of hope, giving to the reformer strength
to persevere in the face of repeated and persistent discouragement.
It supplies, in the prison, a specific element of personal touch,
without which all routine treatment is powerless for good.

Nevertheless, or perhaps as a necessary consequence of this
minute, critical study of results, the belief gains ground that the
penitentiary system, like all the abandoned devices for the suppres-
sion of crime, will ultimately prove a disappointment. It accom-
plishes none of its avowed aims. As punishment, term imprisonment
is inequitable and unjust. As a deterrent, its influence is inappre-
ciable. As a reformatory agent, conducted as most prisons have been
and still are, it is on the whole a failure. The minor prisons, in which
men and women are incarcerated for short periods in association,
unemployed, are pestilential centres of moral infection. The central
prisons benefit a certain percentage of their inmates by the change of
environment, the regular hours, the enforced abstinence, the indus-
trial occupation, and the very partial educational and religious
influence which incarceration in them implies. But the life led in

THE NEW CRIMINOLOGY 859

them is unnatural from every point of view, enfeebling and
demoralizing. The volume of crime in the community does not
diminish; there are even those who claim (but on inadequate
evidence) that it is increasing.

Accordingly, the history of prison reform may almost be written in
terms of progressive disuse of the prison, either for punitive or reform-
atory ends. The supreme folly of the harshness of the earlier disci-
pline practiced by novices in the art of governing criminals soon
became apparent. The second generation of wardens learned that
the criminal is not a beast, but a man, who rebels against oppression,
but responds to kind treatment and encouragement, with whom more
can be done by privileges granted as a reward for good conduct than
by disciplinary punishment.

The original germ of the prison system of the future was the
passage, by state after state, of " good time " laws, which authorized
a deduction from the term of imprisonment prescribed by the court,
proportionate to its length, as the highest reward for obedience to
prison rules. This was disuse, a reduction in the total number of the
imprisoned; and (which merits especial notice) it was the negation
of the principle that a sentence once formally pronounced by a court
must be executed in accordance with its original and literal form.
Either the original sentence was delivered, subject, to modification in
accordance with the new legislation, or else the legislature claimed
and exercised the power to modify it, subsequent to its delivery.
The foundation was thus laid for a complete subversal of the historical
basis of all existing criminal codes.

The second step in the progressive disuse of the prison was the
inclusion in some of these codes of the principle of conditional libera-
tion, and the third was the adoption in others of the principle of
suspended sentence or probation. Conditional liberation empties
the prison at one end, and probation at the other.

We have now a third generation of wardens, trained under tho
later legislation, who are far in advance of their predecessors in point
both of average intelligence and of average humanity, and the moral
tone of the institutions under their charge has been correspondingly
elevated and improved.

The trend of progress in this general direction was greatly aided
by the influx of a stream of European influence, to which reference
must now be made. Captain Alexander Macohochie, R. N., Governor
of Norfolk Island, in Australia, was the inventor of the mark system.
He attached to the marks bestowed by him a pecuniary value, and
made the date of liberation of convicts depend upon the number of
marks earned by them. After his recall to England he was ap-
pointed governor of the Birmingham Gaol, where he experimented
further with it. Sir Walter Crofton, the Director of Irish Convict

860 THE CRIMINAL GROUP

Prisons, borrowed it from Maconochie, adding to it a system of grades.
Marks and grades thus passed into English criminal law, and were
accepted by some other nations, notably by Denmark and Hungary.
Recorder Hill, of Birmingham, was the connecting link through
which the knowledge of the Irish system was communicated to the
American mind. Its philosophic soundness and practical utility
were at once recognized, and an effort was made to apply it to
American conditions. Progressive or conditional liberation was the
heart and core of that system; but it was not carried to its logical
conclusion either by Maconochie or by Crofton, probably because of
its novelty and the natural operation of the cautionary instinct.
The opportunity to transplant it came, when the State of New York
created, at Elmira, the first intermediate or reformatory prison,
designed for young men supposed to have been convicted for the first
time of a felonious offense. Mr. Z. R. Brockway, an experienced
prison officer, with a daring, original, and open mind, and a passionate
love of his work, a man in whom the scientific temperament largely
predominated, who was well versed in the literature of penology, and
who united in his complex and versatile nature the impulse to save
men by uplifting them with the enthusiasm of a born educator,1
was chosen to be its superintendent. This event marked an epoch,
the turning-point in the history of prisons, not only in America, but,
as I believe, in the civilized world. It was the birthday of the new
criminology.

In the organization of the Elmira Reformatory, to the marks and
grades of the Irish system there was added the indeterminate sen-
tence. Strictly speaking, an indeterminate sentence would be one
without either a maximum or minimum limit. Offenders were
formerly consigned to prisons like the Tower or the Bastile, to be
held during the pleasure of the King. That was an arbitrary act.
The contrary idea, in the minds of the advocates of the indeterminate
sentence, was that it should be (and some of them so called it) a
" reformation " sentence, or a sentence to imprisonment until the
convict should give satisfactory evidence of his reformation. It was
felt to be impossible to induce the legislature to take so long a step
in advance, and the New York Reformatory Act fixed an invariable
maximum term of incarceration, usually five years (but in every
case the maximum term authorized by the criminal code for the
offense proved), leaving it to the discretion of the authorities in charge
of the institution to release on parole at an earlier date such prisoners
as they might deem it safe to set at large. At that time this -was an
absolute novelty in legislation. Juvenile delinquents, it is true, were
in some states held to be wards of the state during the period of their
minority, to whom the government stands in loco parentis, and, after
1 Froebel declares that education is " deliverance."

THE NEW CRIMINOLOGY 861

a term of apprenticeship in a reform or industrial school, they might
be, and often were, paroled. This method of disposing of them had
yielded excellent results. But the postulate on which that law
rested was that a child of tender years, because of his immaturity,
is irresponsible for his acts, and, therefore, incapable of crime. No
similar claim could be made on behalf of the fully grown men com-
mitted to Elmira. And yet there must have been intellectual pre-
paration of some sort for so great an innovation in criminal law
and practice. What was it?

The inequity of definite sentences had been demonstrated by
experience to the satisfaction of all competent observers. Almost
invariably the term of imprisonment named in the mittimus was
either too long or too short. The sentence of the court, nevertheless,
once pronounced, was immutable and irrevocable. The only alter-
native was an appeal to executive clemency. After the indeter-
minate sentence (so-called) had gone into effect in New York, in
Massachusetts, and possibly one or two other states, a comparative
study of all sentences for crime in force at the date of the Eleventh
Census (1890) was made, in the scientific spirit, by authority of the
Federal Government. The tabulated result, which is accessible in
the official report published by the Census Office, reveals in a striking
manner the lack of any principle of uniformity or of due proportion in
the distribution of imprisonment for given offenses, as between the
states, or even within the limits of any single state. The inference is
inevitable that the theory of adjustment of penalty to guilt, measure
guilt by what standard you will, is a myth, a figment of the imag-
ination, unsubstantial as a disembodied spirit and infinitely more
dangerous and harmful.

The inequity of judicial sentences for crime having been once
established, the question arises, how to equalize them? What is
the remedy for the evil complained of? Of the three coordinate
branches of the government, two have attempted to establish and
secure penal justice, namely, the legislature and the judiciary.
Neither has succeeded. Obviously, the only remaining alternative
is to impose this duty upon the executive department. Has not the
governor of the state the power to grant pardons and commutations
of sentences? Yes, but the grant is an act of aibitrary sovereign
power. What is needed is something quite different, to wit, the
establishment of a system under which the authorities who have the
custody of the prisoner, and who, being appointed by the governor,
are his representatives and agents, and are empowered to establish
rules, subject to executive (or even joint executive and judicial)
approval, governing the date and the conditions of the prisoner's
release. These officials are members of the executive branch of the
government. They are in a position to gain, by observation and

862 THE CRIMINAL GROUP

inquiry, a full knowledge of the life-history of the convict, and of his
character and intentions, such as no court ever can. They are, or
should be, experts in criminal chicanery, who cannot easily be
deceived by hypocritical professions or by simulated and self-inter-
ested obedience to rules, who are capable of forming a tolerably
accurate judgment as to his actual state, and of determining whether
or not the treatment given him has produced a genuine change in his
attitude. to the law and to the commonwealth. If any analogy is
needed, in order to justify the confidence reposed in them, it may be
found in the grant of precisely similar powers to the medical super-
intendent of every American hospital for the insane.

Let us now go deeper, and probe this problem to the quick. Let us
ascertain, if we can, the underlying cause of the failure of lawgivers
and of judges to secure and establish criminal justice. Nothing could
be simpler or more obvious. The aim of both was to establish a
mathematical proportion between the guilt of every offense and its
appropriate penalty, and so to adjust one to the other. In order to
realize this design, a common measure of guilt and of pain is indis-
pensable. But no such common measure exists. Justice is an
abstraction, elusive as a sunbeam, imponderable as a shadow. A
criminal court is a trap to catch sunbeams. Neither the legislature
nor the court can make use of a non-existing pair of scales with
imaginary weights. Yet this is the instrument which the legislature
gravely presents to the court, with an unuttered prayer that an
infinitely wise God may overrule all judicial blunders to his o\vn glory
and the good of mankind. Grasp this thought firmly, and thereupon
the seemingly solid foundation of the current penal codes of Christen-
dom melts into vapor and disappears like a dream when one awakens
from sleep. Its unreality, its absurdity, at once become apparent to
the aroused normal intellect.

If, then, the indeterminate sentence proposed nothing more than to
transfer responsibility for the achievement of an impossible under-
taking from the courts to the prison officials, its failure would be
assured in advance of its adoption. That is precisely what it does
not propose.

It has been said, but without sufficient information, that the
researches and conclusions of the school of criminologists known as
criminal anthropologists were the original occasion and motive of the
introduction into American criminal jurisprudence of the principle
of the indeterminate sentence. There is no historic proof of the
truth of this assertion. Criminal anthropology, uncertain and vague
as its formulated teachings are in their yet partially developed stage,
has unquestionably rendered valuable service to science, especially
to the sciences of physiology and psychology, and to law. It has
devoted its energies to the study of the criminal. It regards him as

THE NEW CRIMINOLOGY 863

a being to be treated rather than to be punished, and holds that his
treatment must be adapted to the individual, in the light of his actual
condition and possibilities, and not determined by the criminal label
with which he happens to be tagged. It has brought into strong
relief the relations between abnormal physiological conditions
reacting against a special environment and the crimes which such
reaction suggests and induces. The psychological experiences of the
criminal are in fact written, in characters more or less legible, more
or less obscure, upon his physical frame; and their decipherment is
a worthy task, a pursuit which may well absorb the attention of sci-
entific investigators. The labors of the criminal anthropologists
logically lead to the acceptance and adoption of the indeterminate
sentence; but they were little known, and had made no serious
impression in America at the date of the creation of the Elmira
institution.

What was, in fact, the unsubstantial basis of the vanishing crim-
inal code? It was retribution. It was the belief that crime is to be
punished because it merits punishment; that the criminal must
be made to suffer because he deserves to suffer; that guilt can be
removed only by expiation. True it is that crime merits punish-
ment, and that the criminal deserves to suffer. Does it follow that
I, you, or we are under a moral obligation to inflict this punishment?
True it is, that expiation is the antidote to guilt; but is not sorrow,
the pain of penitence, more 'truly expiatory than physical agony?
By what are men saved? By despair? Why may not the punish-
ment of offenses be left to the slow but sure processes of natural or
supernatural law? If it should be said that the reaction against
crime, the horror and indignation that it awakens in the human
mind, is an integral part of the process, that vengeance is a natural
instinct, it is nevertheless a brutal instinct, the same that animates
the murderer, and, therefore, to be held in check. The religious
instinct is opposed to brutality, forbids retaliation, and enjoins the
forgiveness of injuries. In any event it is needless to found impris-
onment on the instinct of retaliation, since the reactionary ends of
justice are met by the fact of imprisonment, and the treatment
accorded to the perpetrator of an unlawful act will be more, not less,
effective for good if its conscious aim is not punitive but restorative.

The criminal code must have a basis. If not retribution, what is
it? Social self-defense. Whatever is essential for the protection of
social order and security is lawful, whether it be the redemption of the
offender, his incapacitation for evil, or his extermination. Whatever
transcends this limit is unauthorized in ethics and contrary to public
policy. We incapacitate the criminal by confining him in prison.
If he can be reformed, this is his right and our duty. If he cannot be
reformed, he has forfeited the right to his personal liberty, and

864 THE CRIMINAL GROUP

society has the right to prolong his disability for any indefinite
period — for life, if necessary, or until he ceases to be a social peril.
This conception of the function of the prison ignores the popular
clamor for vengeance; it protects the criminal, while it protects the
community; and it accords with the humanitarian tendencies of the
present age. The world has shifted its point of view. The material
conquests of advancing civilization have been paralleled by moral
victories no less signal. The power of intellect, both in the material
and the moral world, increasingly takes the place of the grosser, more
violent and primitive methods of brute force.

It is strange that the disbelief in the possibility of amendment on
the part of the criminal should be so deep-seated and universal. Men
and women equally guilty before law, human and divine, but who
have not been exposed to the contamination and shame of prison life,
have abandoned their evil courses in response to influences exerted
upon them in free life. There have been many signal instances of
transformation of character and conduct occurring in prison. It
would be foolish to estimate the exact percentage of corrigible and
incorrigible convicts, or to shut our eyes to the persistence of the
criminal type of character or to expect from the average prisoner
anything more than that he shall cease to be a lawbreaker and
become a law-abiding citizen. Religion encourages this hope. So
does science, as I shall now proceed to show.

The methods and achievements of science have profoundly modi-
fied metaphysical thought, so that a new word, psycho-physics,
has been admitted to the dictionary. In the psycho-physical study
of human nature there is a constant recognition of the vital relation
between mental experiences and the operations of the brain and of the
nervous system in man, of their interdependence and reciprocal
relations and influence. The researches of physiologists have shed
light on much that was formerly obscure in the anatomical structure
and functions of the body. We have learned that every mental
impression and perception, every act of memory, of the imagination,
of the judgment, of the will, every passing thought or emotion, is
accompanied, in this life, the only life of which we have experimental
knowledge, by molecular changes in nerve-tissue, by nervous activity
and motion. The paths followed in the accumulation and discharge
of nerve-force have been partially traced. By the aid of vivisection,
scientific proof of their existence has been secured, and the functional
utility of certain tracts of the brain has been demonstrated, enabling
us to localize, to a limited extent, cerebral action, and to inspire the
hope that the further prosecution to the investigations now in progress
may dispel some portion, at least, of the m}rstery which enshrouds
our present dual existence. The correspondences between the order
of succession cf nervous phenomena and of the phenomena of

THE NEW CRIMINOLOGY 865

thought, feeling, and volition, and the fact that certain of them are
demonstrably simultaneous, have given defmiteness and precision
to metaphysical speculation with reference to purely mental opera-
tions, if such there are; and they have given us an intelligible theory
of the formation of habits which, physiologically speaking, are
neither more nor less than reflex nervous discharges rendered auto-
matic by their repeated recurrence, until the paths worn in the brain
have become, so to say, broad and smooth. The current of nervous
energy accordingly takes the line of least resistance. This parallelism
extends as far as consciousness enables us to follow it, and no doubt
it is still deeper and more far-reaching. It partially explains,
perhaps, the well-known and familiar fact that bodily states, experi-
ences, and habits affect the mind, while mental states, experiences, and
habits equally affect the body.

The truth of this general view is illustrated and confirmed by the
success attending the efforts made by expert neurologists to develop
the mentality of backward children by means of physical exercise
and the systematic training of the senses, and, through them, of
the nerve-centres. It is also illustrated by the success attending the
converse efforts made by mental healers to stimulate or soothe
nervous physical action by means of suggestion addressed to the
mind. We are able to gain admission to the arcanum of life, as it
were, by either of two doors, the avenue of sensation or that of
ideation. We can modify mental operations by securing and exer-
cising control of the body. We can modify physiological action by
controlling the mind. The only question is whether we possess the
requisite knowledge and skill. The knowledge and skill demanded
for success, in either direction, is expert knowledge and skill.

It will not answer, therefore, to contend that, because criminals in
the care and custody of an unskilled warden, with untrained and
incompetent subordinates, have not been reformed, the same indi-
viduals might not have been reformed if they had been subjected to
expert treatment at the hands of an expert. Expert treatment is
the ideal of the new criminology. The new criminology aims at
nothing less than the suppression of evil habits and replacing them
by their opposites; in other words, the wearing of paths in the brain
which shall offer less resistance than the old, familiar paths; the
creation of new habits of thought, speech, and action, with or without
the consent of the convict himself. This is a task of tremendous
difficulty. It is revolution by means of evolution. It is education,
in the etymological sense of the word ; the education of all the pris-
oner's faculties, physical, mental, and moral, on a well-considered,
well-grounded plan, scientific and practical at the same time, but
differentiated to meet the conditions and needs of each individual
case. Kindness must be blended with severity, hope aroused as well

866 THE CRIMINAL GROUP

as fear, obedience insisted upon and enforced, and above all the good
will and cooperation of the patient enlisted for his recovery. Difficult
as the task may be, it is not impossible, but time is essential for its
accomplishment. How long a time is uncertain and cannot ever
be foretold in advance. Hence the necessity for an indeterminate
sentence. No surer method can be devised by which to insure the
desired cooperation on the part of the prisoner than to make the
date of his liberation depend upon his own submission and exertions.
The tendency of the indeterminate sentence is to change the atmo-
sphere of the prison. The convict, when his opposition to a reform-
atory discipline has once been overcome, comes to regard it as the
abode of hope, not of despair. Sooner or later he recognizes in the
warden a friend, whose strongest wish is to lift him out of the degra-
dation into which he has fallen. When he begins to perceive that it
is himself who has made war upon society, and that society is not his
enemy, as he had blindly imagined, his reformation is begun. When
he learns the meaning and intention of law, and becomes reconciled
to it, like a wild animal tamed, his reformation is achieved. Affirm-
atively, therefore, as well as negatively, the indeterminate sentence
is shown to have a rational basis. The indeterminate sentence and
a reformatory discipline presuppose each the other as its essential
complement. The maintenance of any reformatory system of treat-
ment which shall prove in the highest degree effective, without the aid
of the indeterminate sentence, is impossible. The imposition of an
indeterminate sentence to a prison in which skillful and curative
treatment is not supplied is a judicial wrong.

Let no one think that these assertions are the language of a senti-
mentalist or a visionary. Their truth has been verified by experi-
ence. If the American reformatory prisons have not yet fully met
the reasonable expectations of their authors and supporters, this is
because the new codes under which they are operated have been
faultily drawn, or because the courts are not all of them in sympathy
with the new legislation, or because the right men have not been
assigned to the charge of these prisons, or because sufficient time has
not yet been allowed for the realization of the higher and true ideals
set forth in this address. The positions taken, the views advanced,
are essentially correct; and their general, if not their universal,
acceptance may be safely predicted, so soon as they are compre-
hended by that portion of the community which at all concerns itself
with the prison question.

To prevent misconception and misrepresentation it only remains to
add that, while the new criminology regards the antiquated and
obsolescent discipline of the prison of the past as worthy of reproba-
tion on account of its excessive hardness and severity, it does not
deny the necessity for the employment of force in the repression of

THE NEW CRIMINOLOGY 867

crime, nor does it propose to coax criminals to amend their ways by
resorting to the use of flowers, confectionery, and attar of roses.
The government is bound to maintain order and to protect life and
property. The menace implied in all law-breaking must be met
with stern determination to compel obedience to law. The incor-
rigible recalcitrant must be eliminated; he must be shorn of his
power to injure his fellows. What the new criminology stands for
is, in the first instance, discrimination between wrongdoers, and
patient tolerance, under surveillance, of such as do not manifest
marked or habitual criminal tendencies, and of whose amendment
without incarceration there is reasonable hope. This would be se-
cured by the more general use of probation of youthful first offenders.
It then demands that those who cannot be restrained by purely
moral influence exerted outside of prison walls shall be committed
for treatment under the indeterminate sentence, not in the spirit of
retaliation and revenge, but in order that they may be subjected to an
appropriate reformatory discipline, in their own interest and in that
of society. It by no means holds that such discipline, however skill-
fully devised and applied, is a panacea for crime. It entertains no
unsound, sentimental notions of criminal character, conduct, and
accountability. It cherishes no illusive expectation that the methods
employed will accomplish the impossible ; that all prisoners will yield
to them, or that the change actually effected in any individual will
transcend certain fairly well-defined limits. But it insists that the
convict is entitled to his chance, a chance which possibly he never
before had, and that it is the duty of the government to resort to all
practicable means for his restoration and rehabilitation. A reform-
atory discipline is not a weak and vacillating but an heroic discipline.
Of all forms of discipline, it is precisely that which the criminal by
choice and not by chance most hates and dreads. The change of
habits which it seeks to bring about can only be effected by a judicious
mixture of persuasion and compulsion, in which compulsion often
must be the chief ingredient. It is bitter to the palate, but it is
medicine.

When persuasion and compulsion both fail, when it becomes
apparent that the perversity of the criminal is ineradicable by educa-
tion, instruction, or an appeal to his religious beliefs, hopes, and fears,
that the law has no terror for him, that he is in love with evil, and that
he proposes to return, when released, to his former criminal courses,
then, for social protection, but not as a penalty for crime, the new
criminology recommends his permanent detention in custody, or for
so long at least as he is and continues to be a social peril.

Strangely enough, it is this feature of the indeterminate sentence
which excites prejudice and hostility; which renders judges, steeped
in the traditions of a retaliatory penal code, averse to pronouncing it,

868 THE CRIMINAL GROUP

and legislators unwilling to authorize it. Some justification there is
for their mental attitude. It is found in the dearth of capable men
competent to administer the reformatory discipline to which the
indeterminate sentence is an adjunct, and in the probability that,
under the spoils system in American politics, they would not, if
found, be appointed. But we shall by degrees outgrow this phase
of our political history. The creation of an ideal standard of quali-
fication for headship of a reformatory prison will develop the class of
officials required to meet this new demand, and, with the more
general dissemination and acceptance of correct notions of social
organization and social duty, public opinion and sentiment will be
ripe for the reform which we advocate. We have not entered upon
the full possession of our inheritance, but we bequeath it with
confidence to posterity.

WORKS OF REFERENCE FOR THE DEPARTMENT OF

SOCIAL SCIENCE

>i

(Prepared by the courtesy of Mr. Walter L. Sheldon, St. Louis, Mo.)

ADDAMS, JANE, Philanthropy and Social Progress.

BLISS, Encyclopedia of Social Reforms.

BROOKS, JOHN G., Social Unrest.

BUCKLE, HENRY T., History of Civilization, 3 vols.

COMTE, AUGUSTE, Cours de Philosophic Positive, vols. rv-vi. (Translated by

Harriet Martineau under the title of The Positive Philosophy of Auguste Comte.)
CONRAD, Handworterbuch der Staatswissenschaften.
DUPRAT, G. L., La Morale: Etude Psycho-sociologique.
FAIRBANKS, ARTHUR, Introduction to Sociology.
FOUILLEE, A., La Science Sociale Contemporaine.
GIDDINGS, F. H., Principles of Sociology.
HUXLEY, T. H., Evolution and Ethics and other Essays.
JHERING, R. VON, Der Zweck im Recht, 2 vols.
KIDD, BENJAMIN, Social Evolution.
LECKY, WILLIAM E. H., Democracy and Liberty.
LEPLAY, E. F., La Constitution 1'Essentielle de rHumanite".
LETOURNEAU, La Sociologie.
LILIENFELD, PAUL DE, La Pathologic Sociale.
MACKENZIE, J. S., An Introduction to Social Philosophy, 2d ed.
ROBERTY, E. DE, L'Ethique; i, Le Bien et le Mai; n, Le Psychisme Social;

in, Les Fondements de 1'Ethique.
RUSKIN, JOHN, Munera Fulveris.
Unto This Last.
Time and Tide.
Crown of Wild Olive.

SCHAEFFLE, A., Bau und Leben des Socialen Korpers, 2d ed., 2 vols.
SMALL, ALBION W., and G. E. VINCENT, An Introduction to the Study of

Sociology.

SPENCER, HERBERT, Principles of Sociology, 3 vols.
STEPHEN, LESLIE, Social Rights and Duties, 2 vols.
STUCKENBURG, J. H. W., Sociology, the Science of Human Society.
WARD, LESTER F., Dynamic Sociology, 2 vols.
WRIGHT, CARROLL D., Outlines of Practical Sociology.
WUARIN, Une Vue d'ensemble de la question sociale.

See also the important collection of volumes, THE SOCIAL SCIENCE SERIES,
published by Swan Sonnenschein & Co.

The following works in Ethics have important bearings on the Regulative
Department of Sociology.

HOEFFDING, HARALD, Ethik, a translation from the Danish into German.
PAULSEN, FRIEDRICH, System der Ethik.
SPENCER, HERBERT, Principles of Ethics, 2 vols.
STEPHEN, LESLIE, The Science of Ethics.

WUNDT, WlLHELM, Ethik.

870 BIBLIOGRAPHY: SOCIAL SCIENCE

The following novels deal with the social problem :

BELLAMY, EDWARD, Looking Backward.
ELIOT, GEORGE, Felix Holt.
HOWELLS, W. D., A Traveler from Altruria.
KINGSLEY, CHARLES, Alton Locke.
MORRIS, WILLIAM, News from Nowhere.
ZOLA, EMILE, Travail.

The following list of periodicals has been furnished at the request of the Chair-
man through the Department of Sociology of the University of Chicago:

American Journal of Sociology, University of Chicago; Annales de 1'Institute
des Sciences Sociales, Brussels, Belgium; Annals of the American Academy of
Political and Social Science, Philadelphia, Pa.; Archiv fur Kaufmannische
Socialpolitik, Hamburg, Germany; Archiv fur Socialwissenschaft und Social-
politik, Tubingen, Germany; Archiv fur Sociale Gesetzgebung und
Statistik, Berlin, Germany; Association catholique, Revue des questions sociales
et ouvrieres, Paris, France; Charities, Charity Organization Society, New York
City; Critica Sociale, Milan, Italy; Columbia University Studies in History,
Economics, and Public Law, New York City; Cultura Sociale, Rome, Italy;
Humanite" nouvelle, Paris, France; Johns Hopkins University Studies in Histor-
ical and Political Science, Baltimore, Md.; Iowa State University Studies in
Sociology, Economics, Politics, and History, Iowa City, Iowa; Journal of Social
Science, American Social Science Association, New York City; Jahrbuch fur
Gesetzgebung, Verwaltung und Volkswirtschaft im Deutschen Reich, Leipzig,
Germany ; Justice, London, England ; Monatsschrif t f iir christliche Social Reform,
Base"!, Switzerland; Mus£e social, Annales, Musee social, Memoires et Documents,
Paris, France; Re"forme Sociale, Paris, France; Revue des questions sociales et
ouvrieres, Paris, France; Revue du Christianisme social, Roubaix, France;
Revue Internationale de sociologie, Paris, France; Revue Philanthropique, Paris.
France; Revue sociale catholique, Louvain, Belgium; Riforma Sociale, Turin,
Italy; Revista Internationale di scienze sociali e discipline ausiliarie, Rome,
Italy; Rivista italiana de Sociologia, Rome, Italy; Schweizerische Blaetter fur
Wirtschafts- und Sozialpolitik, Bern, Switzerland; La Science sociale, suivante
la me'thode' d'observation, Paris, France; Social Tidskrift, Stockholm, Sweden;
Social Service, Institute for Social Service, New York City; Sociale Rundschau
herausg. vom K. arbeitsstatistischen Amte im Handelsministerium, Vienna,
Austria; Zeitschrift fiir Socialwissenschaft, Breslau, Germany; Soziale Revue,
Essen, Germany; Soziale Praxis, Berlin, Germany; Zeitschrift fiir die gesammte
Staatswissenschaft, Tubingen, Germany ; Zeitschrift fiir Volkswirtschaft, Social
Politik und Verwaltung, Vienna, Austria.

WORKS OF REFERENCE RELATING TO THE SECTION
OF THE FAMILY

(Prepared through the courtesy of Professor George Elliott Howard)

ADLER, FELIX, " Ethics of Divorce," in Ethical Record, n, in, 1889-1890.

BEBEL, AUGUST, Die Frau und der Sozialismus, 31st ed., 1900.

BERTILLON, J., Etude Demographique du Divorce, 1883.

BUYCE, JAMES, " Marriage and Divorce under Roman and English Law," in his

Studies in History and Jurisprudence, i, 1901 .
CAIRO, MONA, The Morality of Marriage, 1897.
COMMONS, JOHN R., " The Family," in American Journal of Sociology, vol. v,

1900.

CONGRESS ON UNIFORM DIVORCE LAWS, Proceedings, 1906.
CONVERS, D., Marriage and Divorce in the United States, 1889.
COOK, F. G., " The Marriage Celebration," four articles in Atlantic Monthly,

vol. LXI, 1888.

DIKE. S. W., Reports of the National Divorce Reform League and its successor,
the National League for the Protection of the Family, 1886-1905.
" Statistics of Marriage and Divorce," in Political Science Quart-
erly, vol. iv, 1889.

" Problemsof the Family," in C3ntury Magazine, vol. xxxix, 1890.
Theory of the Marriage Tie, 1893.
EDSON, CYRUS, " The Evils of Early Marriages," in North American Review,

vol. CLVIII, 1894.

HEINZEN, K., The Rights of Women and the Sexual Relations, 1898.
HOWARD, GEORGE E., A History of Matrimonial Institutions, 3 vols., 1904.

" Marriage and Divorce," in Encyclopedia Americana, vol.

x, 1904.
" The Problem of Uniform Divorc:? Laws in the United

States," in The American Lawyer, xiv, 1906.
" Divorce," in (Bliss, W. D. P., editor) Encyclopedia of Social

Reform, 1906.

MAYO-SMITH, Statistics and Sociology, 1895.

MUIRHEAD, J. II., "Is the Family Declining?" in International Journal of
Ethics, vol. vn, 1896. (An answer to C. H. Pearson, " Decline of the Family,"
in his National Life and Character, 1893.)

OETTINGEN, ALEXANDER VON, Die Moralstatistik, 2d ed., 1874.
POTTER, H. C., " The Message of Christ to the Family," in his Message of

Christ to Manhood, 1899.
PEABODY, F. G., " The Teaching of Jesus Concerning the Family," in his Jesus

Christ and the Social Question, 1900.
PEARSON, CHARLES H., " Decline of the Family," in his National Life and

Character, 1893.

Ross, E. A., Social Control, 1901.
SCHREINER, OLIVE, " The Woman Question," in the Cosmopolitan, vol. xxvin,

1899.
SHINN, MILI.ICENT W., " The Marriage Pate of College Women " in Century

Magazine, vol. L, 1895.

SMITH, MARY ROBERTS, " Statistics of College and Xon-College Women," in
American Statistical Association Publications, vol. vn, 1901.

872 BIBLIOGRAPHY: THE FAMILY

SNIDER, D. J., The Family, 1901.

SNYDER, W. L., The Geography of Marriage, 1889.

STETSON, CHARLOTTE P., Women and Economics, 3d ed., 1900.

STRAHAN, S. A. K., Marriage and Disease, 1892.

THWING, C. F., and C. F. B., The Family, 1887.

WARD, LESTER F., Dynamic Sociology, 2 vols., 1883.

Pure Sociology, 1903.
WILLCOX, WALTER F., " The Divorce Problem," in Columbia College Studies,

2d ed., 1897.

" A Study in Vital Statistics," in Political Science Quar-
terly, vol. vni, 1893.

" The Marriage Rate hi Michigan," in American Statis-
tical Association's Publications, vol. iv, 1895.
WHITNEY, H. C., Marriage and Divorce, 1894.
WOOD, THOMAS D., Some Controlling Ideals of the Family Life in the Future,

1902.

WOOLSEY, T. D., Divorce and Divorce Legislation, 2d ed., 1882.
WRIGHT, CARROLL D., " Marriage and Divorce," La Christian Register, vol. LXX,

1891.
Report on Marriage and Divorce, 1889.

ADDITIONAL WORKS OF REFERENCE FOR THE
SECTION OF THE FAMILY

(Prepared through courtesy of Dr. Samuel W. Dike)

For earlier and fuller presentation of some of the views set forth in this paper
see a paper in the Princeton Review, of March, 1884, on "Some Aspects of the
Divorce Question." This sketches in a crude way the various social tendencies
that have produced our American divorce question. See Christian Thought for
December, 1885, for an outline of the way in which the family has been relatively
suppressed in Christianity. A discussion of the "Contract Theory of the Family
and its Relation to the Same Theory in Church and State " may be found in the
Andover Review for December, 1893. The Andover Review for September, 1885,
in the fourth of a series of articles on the " Religious Problem of the Country
Town " suggests an historic explanation of the excessive use of the communal
principle, and the corresponding suppression of the family in the churches of this
country. Lightfoot, Hatch, Cunningham, and Harnack should be consulted.
See the American Journal of Sociology for December, 1901, for a plea for a more
scientific treatment of the communal organizations of to-day.

The following authorities are suggested on the points of my paper: Sir Henry
S. Maine's Ancient Law; also his Early Law and Custom and Early History of
Institutions; Lecky's History of European Morals, and his Democracy; The
Ante-Nicene Fathers, edited by Bishop Coxe; Dr. John Fulton's (canon) Laws
of Marriage; the histories of ethical and political movements in Europe and
the United States; the chapter in Bryce's Essays in History and Jurisprudence
on " Divorce in Roman and English Law." George E. Howard's History of Matri-
monial Institutions contains the fullest and best bibliography of its subject, and
this is by far the best work on its special subject. Its presentation of original
material on the history of marriage and divorce in the United States from the
earliest colonial times is complete.

For statistics of marriage and divorce see the report of the United States
Department of Labor made in 1889, to be brought down to date in 1907. For
summaries of recent statistics see the report of the National League for the
Protection of the Family for 1903.

On uniform legislation see the annual reports of the National League for the
Protection of the Family, of the American Bar Association, and of the Conference
of the State Commissions on Uniform Legislation.

The annual volumes of Proceedings of the Religious Education Association
contain several valuable papers on the Home in Relation to the Religious Train-
ing of (he Young.

SPECIAL WORKS OF REFERENCE RELATING TO THE
SECTION OF THE INDUSTRIAL GROUP

(Prepared through the courtesy of Professor Richard T. Ely)

BROOKS, J. G., The Social Unrest.

DEVINE, EDWARD T., Principles of Relief.

ELLIS, HAVELOCK, The Criminal.

HENDERSON, CHARLES R., The Dependent, Defective, and Delinquent Classes.

HOWARD, GEORGE E., History of Matrimonial Institutions.

LOMBROSO, Criminal Man.

ROSCHER, WILH., Nationalokonomie des Ackerbaues und der verwandten Urpro-
duction (System der Volkswirtschaft, 2. Band).

SOMBART, WERNER, Socialism and the Social Movement in the Nineteenth Cen-
tury.

WARNER, AMOS G., American Charities.

WEBER, ADNA F., The Growth of Cities in the Nineteenth Century.

WILCOX, DELOS F., The American City.

WOODS, ROBERT A. (Editor), The City Wilderness.

ZUEBLIN, CHARLES, American Municipal Progress.

WORKS OF REFERENCE RELATING TO THE SECTION
OF THE DEPENDENT GROUP

(Prepared through courtesy of Dr. Emil Munsterberg)

CHALMERS, The Christian and Civic Economy of Large Towns, Glasgow, W.

Collins, 1821-26.
CHANCE, The Better Administration of the Poor-Law, London, J. Sonnenschein,

1895.
DEROUIN, GORY, WORMS, Traite Theorique et Pratique d' Assistance Publique,

Paris, Librairie Larose, 1900.

DEVINE, EDWARD T., The Principles of Relief, New York, The Macmillan Com-
pany, 1904.

GERANDO, De la Bienfaisance Publique, 4 vols., Bruxelles, 1839.
LALLEMAND, Histoire de la Charite, Paris, A. Picard & Fils, 1902.
MONNIER, Histoire de PAssistance Publique dans les Temps Anciens et Mo-

dernes, Paris, Guillaumin & Cie, 1886.
MUNSTEKBEHG, EMIL, Die Deutsche Arrnengesetzgebung und das Material zu

ihrer Reform, Leipzig, Duncker & Humblot, 1887.
NICHOLLS, A History of the English Poor-Law, in Connection with the State of

the Country and the Condition of the People, 3 vols., London, King & Son,

1898.
WARNER, American Charities, A Study in Philanthropy and Economics, New

York, J. Crowell, 1894.
WORMS, Le Droit des Pauvres, Reviie Philanthropique, vols. v, vi.

Die Armenpflege, Einfiihrung in die Praktische Pflegetatigkeit, Berlin, O. Lieb-

mann, 1897.
Bibliographic des Armenwesens (Bibliographic Charitable), Berlin, Carl Hey-

mann's Verlag, 1900. Dazu I. Nachtrag, 1902. II. Nachtrag, 1906.
Schriften des Deutschen Vereins fur Armenpflege und Wohltatigkeit, Heft 1-71,

1904, Leipzig, Verlag von Dunker & Humblot.
Annual Reports of the Local Government Board, London.
Proceedings of the Central and District Poor-Law Conferences, with the papers

read and discussion thereon, London, P. S. King & Son.
Proceedings of the Annual National Conference of Charities and Corrections,

United States.

Conseil Superieur de 1'Assistance Publique. Paris. Fascicules.
Congres National d'Assistance Publique et de Bienfaisance Privce, in, Congress,

Bordeaux, 1903.

ADDITIONAL WORKS OF REFERENCE FOR THE SECTION
OF THE DEPENDENT GROUP

(Prepared through courtesy of Professor Charles R. Henderson)

AMERICAN LIBRARY ASSOCIATION, Catalogue, 1904.

DEVINE, EDWAR.D T., Principles of Relief.

HENDERSON, CHARLES R., Introduction to the Study of the Dependent, Defective,

and Delinquent Classes, ed. 1903.
Modern Methods of Charity, 1904.
WARNER, A. G., American Charities.

These books contain references and bibliographies.

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