n
Cornell University Law Library.
THE GIFT OF
LILLIAN HUFFCUT
BINGHAMTON, N. Y.
November 27, 1915
9181
Cornell University Library
JC 11.W75
State.
3 1924 024 903 050
'^ a^^
Cornell University
Library
The original of tliis bool< is in
tine Cornell University Library.
There are no known copyright restrictions in
the United States on the use of the text.
http://www.archive.org/details/cu31924024903050
THE STATE.
ELEMENTS OP HISTORICAL AND PRACTICAL
POLITICS.
A. SKETCH OF INSTITUTIONAL HISTORY
AND ADMINISTRATION.
BY
WOODROW WILSON, Ph.D., LL.D.,
Author of " Congbessiohal Govbbnment."
oXMo
BOSTON, U.S.A.:
D. C. HEATH & CO., PUBLISHERS.
1889.
COPTBIGHT, 1889,
By WOODROW WILSON.
TlPOQKAPHT BY J. S. CUSHINe & CO., BOSTON.
•iJOHinV 3Hi
/Cq
pgjiBOipaQ /(||n^8jB49 s] \\
SuNEclgjj ^Q
JOqE-| 9Ul p3U81L|S!-| XliBSJC) OS SABH
;s3J^bj;^Ak^ip^jddy puy
X^)EdijuXs a;Euo|p3j.^y ^^^HM
01
TABLE OF CONTENTS.
CHAPTER PAGE
Topical Analysis vi
Preface xxxiv
"* I. The Probable Origin of Government 1
^ 11. The Probable Early Development of Government 17
III. The Governments of Greece and Rome 30
i TV. Roman Dominion and Roman Law 129
^ V. Teutonic Polity and Government during the Middle Ages 147
-< VI. The Government of France 176
•>■ VII. The Governments of Germany 226
^ VIII. The Governments of Switzerland .301
IX. The Dual Monarchies : Austria-Hungary, Svceden-Norway 334
X. The Government of England 366
XI. The Government of the United States 449
XII. Summary ; Constitutional and Administrative Develop-
ments 575
XIII. The Nature and Forms of Government 593
XIV. Law : Its Nature and Development 610
XV. The Functions of Government 637
XVI. The Ends of Government 656
Index 669
TOPICAL ANALYSIS.
I. The Probable Origin of Government 1-24
The Nature of the Question 1
The Races to be studied : the Aryans 2
Semitic and Turanian Instance 3
Government rested First upon Kinship 4
Early History of the Family : Was it originally Patri-
archal ? 5
The Evidence: India 6
Slavonic Communities, Ancient Irish Law, and Old
Teutonic Customs 7
Greek and Roman Families 8
A Doubt 9
The Non- Aryan Family 10
Aryan Tradition 11
From the Patriarchal Family to the State — 12
Prepossessions to be put away 13
The State and the Land 14
Contract vs. Status 17
Theories Concerning the Origin of the State : the Contract
Theory 18
Traditions of an Original Law-giver 19
Theory of the Divine Origin of the State 20
The Theories and the Facts 21
The Truth in the Theories. . ." 28
Conclusion 24
II. The Probable Early Development of Government 25-46
The Beginnings of Government 25
The Family the Primal Unit 26
Persistence of the Idea of Kinship 27
Fictitious Kinship : Adoption 28
Kinship and Religion 29
TOPICAL ANALYSIS. vii
Sbc.
The Bonds of Religion and Precedent 30
Tlie Kelgn of Custom 31
Fixity of System the Rule, Change the Exception 32
Changes of System outrun Changes of Idea 33
How Did Change enter ? 34
Differences of Custom 35
Antagonism between Customs 36
Competition of Customs 37
The Better Prevail 38
Isolation, Stagnation 39
Movement and Change in the West 40
Migration and Conquest 41
Inter-tribal Imitation 42
Individual Initiative and Imitation 43
Institutional Changes : Choice of Rulers 44
Hereditary replaced by Political Magistracy 45
Summary 46
III. The Governments of Greece and Rome 47-187
The Evolution of Government 47
(1) The Governments of Greece : 48-110
The Patriarchal Presidencies : Legislation 48
Tribal Justice 49
Patriarch and Priest 50
Not Lord, but Chief 51
The Primitive Arj/ios 52
The Antique ' City ' 53
Confederate Growth of Family Groups 54
The ' City ' a Confederacy of Gentes 55
The Elders 57
Religion : the Priesthood 58
Primogeniture 60
The City's Religion 61
Decay of the Antique City 62
The City absorbs its Constituent Parts 64
Decline of the Elders' Separate Powers 65
Political Disintegration of the Gens 66
Athens 67-94
The City of Solon : Kingship gone 67
The Archonship 68
viii - TOPICAL ANALYSIS.
Ser.
Nine Archons 69
Solon Arclion Eponymus : the Crisis 70
Tlie Draconian Code 71
Solon's Economic Keforms 72
Solon's Political Reforms : the Four Property
Classes ■ • ■ 73
Eligibility and Election to Office 75
The Assembly and the Senate 76
The Senate of the Areopagus 77
The Judiciary 78
The New Principles introduced 79
Pisistratus and the Solonian Constitution. 80
Clisthenes ■ 81
The New Demes and the New Tribes 82
The Arrangement of the Demes 83
Eellgion and the Tribal Organization 84
Expansion of the Popular Jur'y Courts 85
The Ten Strategoi 86
Ostracism 87
Success of the Clisthenian Constitution 88
The Persian Wars and the Extension of Political Privi-
lege 89
Constitutional Measures of Pericles 90
Powers of the Areopagus Further Curtailed 91
Decline of Athens 92
The Metoeci 93
The Athenian Slaves 94
Spakta 95-110
Fixity of the Spartan Constitution 95
The Spartans a Garrison of Conquerors '. 96
Slaves and Helots 97
Perioeci 98
The Spartiatce: Property Laws and State Guardian-
ship 99
The Two Kings 100
The Council of Elders 101
The Assembly 102
Election of Elders 103
The Ephors 104
The Administration of Justice 106
TOPICAL ANALYSIS. . ix
Sec.
The State Discipline 107
Principle of Growth in the Spartan Constit>ition 108
Lycurgus 109
Greek Administration 110
Hellas 111-143
Greece not Hellas Ill
Original Migrations of the Greeks 112
The Phoenician Influence 113
Later Migrations of the European Greeks 114
Re-settlement of the Asiatic Coasts from Greece. . . 115
The Greek Mediterranean 116
Eace Distribution 117
The Greek Colonial System 118
Colonial Constitutions 119
Law of Constitutional Modification in Hellas. . 121
Union and Nationality among the Greeks 122
Eeligious Community: the Delphic Amphictyony. . 123
The Delphic Oracle : its Influence 124
Political Aggregation ; the Achsean Supremacy 125
Cretan Power 126
Supremacy of Argos 127
Games and Festivals : the Hellenic Spirit 128
The Dellan Confederacy 129
Athenian Empire 130
The Peloponnesian War : Oligarchies vs. De-
mocracies 131
Macedon 133
The Hellenization of the East 134
The Achsean League 138
The iEtolian Eeague 140
Rome and the Western Greeks 142
After Roman Conquest 143
(2) The Government of Rome ; 144-187
The Ancient Roman Kingdom ,. 144
Leading Peculiarity of Roman Political Development. . . 145
Reforms of Servius 146
The Centuries 147
Beginnings of the Republic 148
The Senate 149
Composition of the Senate ISO
TOPICAL ANALYSIS
Sec.
Roman Conquests and their Constitutional Effects 151
The Plebeians 152
Secession of the Plebeians (b.c. 494) 153
The Tribunes 154
Progress of Plebeian Predominance 155
The Plebeians and the Magistracies 156
Breakdown of the Republic. 157
Provincial Administration 158
Causes of Failure : 159
Establishment of the Empire 160
Evolutions of Government under the Empire. . . . 161-187
Genesis of the Empire 161
Tiberius Gracchus to Augustus 162
Transmutation of Republican into Impe-
rial Institutions imder Augustus 16S
The Completed Imperial Power 169
The New Law-making 170
Judicial Powers of the Senate 171
Growth of New Offices 172
The Provinces 173
The Empire overshadows Rome 174
Nationality of the Later Emperors 175
The Army 176
Changes in the System of Government 177
Constitutional Measures of Diocletian 179
Reforms of Constantine 181
The Household Offices 184
The Eastern and Western Empires: Greek and
Teuton 186
Religious Separation ahd Antagonism 187
Summary 188-195
The City the Centre of Ancient Politics 188
The Approaches to Modern Politics : Creation of the
Patriarchal Presidency 189
Citizenship begins to be dissociated from Kinship. . 190
Influence of a Non-Citizen Class 191
Discussion determines Institutions 192
Politics separated from Religion 193
Growth of Legislation 194
Empire jgg
TOPICAL ANALYSIS. Xi
Sec.
IV. Roman Dominion and Roman Law 196-220
Currency of Roman Law 196
Character of Early Roman Law 197
Plebeian Discontent with the Law : the XII. Tables. . . 198
.The Growth of the Law : Interpretation 199
The Praetors : the Prsetor Urbanus 200
The Law and the Prsetor's Application of it 201
The Prsetor's Edict 202
The PrsBtor Peregrinus 203
The Jus Gentium 204
The Jus Gentium not International Law. . . 205
Influence of the Jus Gentium upon the Jus
Civile J 206
Administration of Justice in the Provinces 207
The Law of Nature 208
Roman Citizenship and the Law 210
The Jurists 211
Influence of the Jurists 212
The Jurisconsults und^r the Empire 213
Imperial Legislation 21t
The Codification of the Law 215
The Corpus Juris Civilis 216
The Completed Roman Law 217
Diffiision and Influence of Roman Private Law 218
Roman Legal Dominion in the Fiftli Century 219
Influence of Mosaic Institutions 220
V. Teutonic Polity and Government during the Middle Ages 221-267
Contact of the Teutonic Tribes with Rome 221
Primitive Teutonic Institutions 222
Free, Unfree, and Noble 223
Inter-Commuilal Government 224
Military Leadership : The Comitatus 225
Contrasts between the Teutonic System and the Roman 226
Roman Allegiance to the State 227
Teutonic Personal Allegiance .^ 228
Temporary Coexistence of the Two Systems 229
Relative Influence of the Two Systems 230
Roman Influence upon Private Law 231
Roman Towns 232
Xil TOPICAL ANALYSIS.
Sec.
The Fusion of the Two Systems 233
Effects of Movements of Conquest upon Teutonic Institu-
tions 234
(1) The New Kingship 235
(2) The Moclifled Land Tenure 236
The Feudal System 238
Local Differences in Feudal Development 239
Commendation 240
Political Disintegration 241
The Feudal Conception of Sovereignty 243
Feudalism and the Towns 244
The Guilds 245
.The City Leagues 246
Unifying Influences : 247
(1) The Roman Catholic Church 248
(2) The Holy Roman Empire 250
Centralizing Forces : the Carolingians 252
The Capets : Concentration of Feudal Power 253
Piecing together of Austria and Prussia 254
Roman Law in Modern Legal Systems 255
The Barbarian Codes 256
Custom and Written Xaw in France 257
The Study of the Roman Law 258
Entrance of the Roman Law into the Legal Systems
of Europe 259
In France 260
Local Custom in France 262
Unifying Influence of the Royal Prerogative. . . 263
The Parliament of Paris 265
In Germany 266
In England 267
VI. The Government of France 268-357
Growth of the French Monarchy 268
Perfection of the Feudal System in France 270
Materials of the French Monarchy 272
Local Self-Go vernment 273
Rural Communes 274
Liberties of Towns : the Roman Municipalities 276
The Non-Roman Municipalities 277
TOPICAL ANALYSIS. Xlll
Sec.
The Towns and the Crusades 279
Municipal Privileges 280
Forms of Town Government 281
Decay or Destruction of Municipal Self-Gov-
ernment 282
The Pays d'iltats 283
Functions of Local Estates in Finance .... 284
Territorial Development of the Monarchy 285
The Crusades and the Monarchy. 286
Institutional Growth 287
The States General 288
Character of the States General 289
Administrative Development 290
Growth of the Central Administration 291
The Council of State 292
The Parliament of Paris 293
Departments of Administration 294
The Ministerial System 295
Growth of Centralized Local Administration : Louis
IX .' 296
Steps of Centralization 297
Personal Government : Louis XIV 298
The Completed Centralization : the Intendant. . 299
The Province 300
The Office of Intendant 301
Judicial Centralization 302
The Royal Council and the Comptroller
General. 303
Spirit of the Administration 304
The Revolution 305
Administrative Work of the Revolution 306
The EeconstriJction by Napoleon 307
Advances towards Liberal Institutions 309
The Third Republic 310
The Framing of the Constitution 311
Character of the Constitution 312
Sovereignty of the Chambers 313
The Senate 314
The Chamber of Deputies 315
In case of Usurpation 316
XIV TOPICAL ANALYSIS.
Sec.
The National Assembly : its Functions 317
Revision of the Constitution 318
The President of the Republic 319
Influence of the President and Senate 321
The Cabinet and the Council of Ministers 322
The Ministries 323
The Cabinet 324
The Council of Ministers 325
Relations of the Ministers to the President 326
Ministerial Responsibility 327
Questions and Interpellations 328
The Course of Legislation , 330
Committees 331
The Budget Committee 332
Government by the Chambers 333
Departmental Organization 334
Departmental Functions 335
Local Government 336-352
The Department : the Prefect 338
The Spoils System in France 340
The General Council of the Department 341
The Departmental Commission 345
Central Control 346
The Arrondissement 347
The Canton 348
The Commune 349
The Communal Magistracy 350
The Communal Council 351
Oversight of the Commune 352
Administrative Courts : the Council of State 353
The Prefectural Council 354
Ordinary Courts of Justice 355
Jury Courts 356
Tribunal of Conflicts 357
VII. The Governments of Germany 358-504
The Feudalization of Germany 358
Oflicial System of the Frankish Monarchy ; the Graf en. . 359
The Magistracy of Oflice and the Magistracy of Pro-
prietorship 3g0
TOPICAL ANALYSIS. XV
Sec.
Hereditary Chiefs 36i
Full Development of Territorial Sovereignty 362
The Markgraf 363
The Empire 364
The Saxon Emperors : Otto the Great 365
The Salian Emperors : Henry III 367
The Hohenstauf en : Frederic Barbarossa 368
The Interregnum and the Electors 369
The First Habsburg Emperor 370
The Golden Bull 371
Imperial Cities 372
The Swiss Confederation 373
Austria and the Empire 374
Maximilian 1 375
Maximilian's Reforms 376
The Habsburg Marriages 378
The Thirty Years' War 379
Until 1806 380
End of the Old Empire 381
Austria's Rival, Prussia 382
The Mark Brandenburg 383
Independence of the Markgraf 385
Anarchy in Brandenburg 386
The HohenzoUern 387
The Dispositio Achillea 388
Joachim II 389
Prussia 390
The Great Elector 391
The Kingdom of Prussia 392
Frederick the Great 393
Napoleon : The Confederacy of the Rhine 394
The German Confederation 395
Period of Constitutional Reform 396
The North German Confederation 397
Austria out of Germany 398
The German Empire 399-437
Austria and Germany : Character of the German Empire 400
The Central German States and the Empire 401
The Constitution of the Empire 402
The Emperor 403
XVI TOPICAL ANALYSIS.
Sec,
Sovereignty of tie Empire in Legislation 404
The Bundesrath : its Composition and Character. . . 405
Representation of the States in tlie Bundesrath. 406
Functions of the Bundesrath 407
Organization of the Bundesrath 411
Committees 412
The Reichstag : its Character and Competence 413
Composition of the Reichstag 414
Sessions of the Reichstag 417
Organization of the Reichstag 418
Course of Legislation 419
Election of Officers 420
Imperial Administration 421
The Imperial Chancellor 422
The Vice Chancellorship 426
Foreiga Affairs 427
Internal Affairs 428
Weights and Measures 429
Money 430
Railways 431
Posts and Telegraphs 432
Patents, etc 433
Military and Naval Affairs 434
Finance 43^
Justice 436
Citizenship 437
The Government of Prussia 438-504
Stages of Administrative Development 439
History of Local Government 440
Early Organization of the Mark Brandenburg 441
Early Local Officials 442
Subsequent Developments in Town Government 443
Resulting Units of Local Government 445
Process of Centralization 446
First Results of Centralization 448
Justice and Finance 449
Fusion of Departments of War and Domains. . 450
Differentiation of the Central Bureaux 451
Reforms of Stein and Hardenberg 452
Reform of Local Government before 1872 454
TOPICAL ANALYSIS. Xvii
Sue.
Landgemeinde and Manors 455
Kef orm of 1872 ' 456 •
The Executive Departments 457
The Council of State j,-,8
The Staatsministeriuvi 4eo
The Supreme Chamber of Accounts 461
The Economic Council 462
The Ministers in the Legislature 464
The Landtag : the House of Lords 465
The House of Representatives 466
The Electoral System 467
Equality and Competence of the Houses 469
Th(^ King's Eov\fer of Adjournment and Disso-
lution 470
Local Government 471-493
The Province 473
Communal Estates 479
The Government District 480
The " President of the Administration " 483
The District Committee 484
The Circle 485
The Landrath and the Circle Committee 486
The Diet of the Circle 487
The Magisterial District 488
The Rural Commune 4Sl)
The City Commune 490
General Principles of Prussian City Government 49]
The Administration of Justice 494
Administrative Courts 500
The Court of Conflicts 502
The Prussian Courts and Constitutional Questions. . 503
VIII. The Governments of Svritzerland 505-577
Feudalism in Switzerland 505
First Movements towards Cantonal Independence 506
The Processes of Confederate Growth 507
French Interference 508
The Sonderbund War 509
The New Constitution 510
Character of the Constitution 511
Ill TOPICAL ANALYSIS.
Sec.
Nationality and State Sovereignty 512
' Indefinite Constitutional Grants 513
Guarantee of the Cantonal Constitutions. . 514
The Cantonal Governments 51 5-526
The Cantonal Constitutions and the Federal Constitution 515
Position of the Legislative Power 516
A Single House 517
Functions of the Cantonal Legislatures 518
Share of the People in Legislation : Imperative Petition 519
The Popular Veto 520
The Referendum 521
History of the Referendum 522
The Executive Power 523
Local Government : the Districts 52<l;
The Gemeinde 525
The Federal Government 527-577
The Federal Executive 527
The Executive and the Legislature 533
The Executive Departments 534
Mixed Functions of the Executive. '. 536
The Army 540
Preservation of Internal Order 541
Extradition 542
Appeal in Judicial Cases 543
The Federal Chancellor 545
The Federal Legislature 546
Composition of the Houses : I. The National Council 547
II. Th6 Council of States 552
Functions of the Houses 555
Revision of the Constitution 556
The Federal Referendum 557
Functions of the Federal Assembly 558
Administration of Justice : I. The Cantonal Courts .... 559
II. The Federal Court 567
Criminal Jurisdiction of the Federal Court 569
Cases in Public Law 57O
Civil Cases in Private Law 573
Criminal Cases 575
III. The Federal Council : Administrative Cases. . . 576
Inter-Cantonal Judicial Comity 577
TOPICAL ANALYSIS. xix
Sec.
IX. The Dual Monarchies ; Austriar Hungary, Sweden-Norway. .578-650
The Dual Monarchies 578
Austria-Hungary 579-614
Austria's Historical Position 379
Acquisition of Hungary and Bohemia 580
Bohemia 581
Moravia 582
Hungary 583
Transylvania, Slavonia, Croatia 584
Galicia, Dalmatia 585
Bosnia and Herzegovina 586
Aflstria-Hungary : Nature of the Union 587
Variety of Race 588
Home Rule : Bohemia, Hungary 589
The Constitution of 1867 592
Dual Character of the Monarchy 593
The Fundamental Laws 594
The Common Government: the Emperor-
King 595
Succession, Regency, etc 596
The Common Ministries 597
The Economic Relations of Austria
and Hungary 600
Patents, Posts, and Telegraphs 601
The Delegations 602
Citizenship 603
The Government of Austria: The Executive 604
The Ministry 605
Legislation : The National and Provin-
cial Legislatures 606
The Beichsrath 607
The Landtags 609
Local Government 610
The Government of Hungary : The Execu-
tive..'; 6U
The Reichstag 612
Local Government 613
Croatia-Slavonia 614
Sweden-Norway 615-650
Danes and Northmen 615
XX TOPICAL ANALYSIS.
Sec.
Early Institutions of Sweden and Norway 616
Union of Denmark, Sweden, and Norway 617
The Independence of Sweden 618
Oscillating Development of the Swedish Constitu-
tion 619
'Bernadotte and the Accession of Norway 620
Norway's Fight for Independence and her
New Constitution 621
Constitutional Contrast between Sweden
and Norway 623
The Fundamental Laws 624
The Common Government : The Iting 625
The Throne 627
Foreign and Common Affairs 628
War 630
Legislative Control of Foreign Rela-
tions 632
Concurrent Legislation 633
The Joint Councils 634
Citizenship 635
The Government of Sweden 636
The Swedish Executive : The King and
Council 637
The Biksdag 640
Joint Legislation upon Financial Ques-
tions 641
Local Government 642
Changes in the Constitution 643
The Government of Norway: The Norwegian
Executive 644
The Storthing 646
Local Government 648
Changes of Constitution 649
The Two Countries 650
X. Tlie Government of England 651-812
I. Central Government 651-747
Origin of the Constitution Teutonic 651
Primitive Teutonic Institutions 652
Institutional Changes effected by Conquest , . , 653
TOPICAL ANALYSIS. Xxi
Sec.
The Hnndred-moot and the Folk-moot 654
The English Kingdom and the English County 655
The Witenagemot 656
Powers of the Witenagemot 657
The Norman Feudalization 658
The Great Council of the Norman Kings 659
The Feudal System in England 660
Character of English Institutional Gi'owth 661
The Course of Development 662
The Permanent Council 663
Composition of the Permanent Council 664
The Powers of the Permanent Council 665
The Law Courts 666
Parliament 667
Genesis of the Two 'Houses 671
The Privy Council 672
The Privy Council assumes Judicial Powers . . . 673
Origin of the Cabinet 674
Development of the Cabinet 675
Parliament and the Ministers 676
Disappearance of Impeachment 677
The Executive. 678
Position of the Cabinet 680
Appointment of the Cabinet Ministers 681
Composition of the Cabinet 682
Ministerial Responsibility 686
Legal Status of the Cabinet 688
Initiative of the Cabinet in Legislation 689
The Prime Minister 690
Departments of Administration 691
The Five Great Offices of State 69a
The Admiralty, the Board of Trade, and
the Local Government Board 694
The Post Office 695
The Treasury 696
The Chancellor of the Exchequer 697
The Estimates 698
Administrative Departments of the Privy
Council 699
Other Executive Offices 700
Xxii TOPICAL ANALYSIS.
Sec.
The Lord Privy Seal 701
The Chancellor of the Duchy of Lan-
caster 702
Political Under Secretaries 703
Administration of Scotland and Ireland 704
The Lord Chancellor 705
The Cabinet as Executive '. 706
Parliament : I. The House of Commons, its Origin,
Position, and Character 707
Historical Contrasts between County and Bor-
ough Representatives 708
Geographical Relations of Boroughs and
Counties 709
Parliamentary Reform 710
Election ancl Term of the Commons 716
Summons, Electoral Writ, Prorogation 720
Organization of the House 724
II. The House of Lords : its Composition 726
Function of the House of Lords in Legis-
lation 727
The House of Lords as a Supreme Court. . 728
Legislation 729
The Constitution of England 730
The Courts of Law 731
Judicial Reform : the Reorganization of 1873-
1877 732
The Chancery Division 733
The Court of Appeal 734
The House of Lords 735
A Judicial Committee of the Privy Council 736
The Lord Chancellor 737
Civil Cases 738
The County Courts 739
Juries 742
Criminal Cases , 743
Quarter and Petty Sessions 744
The Justices of the Peace 745
Police 747
II. Local Government 748-81 2
Complex Character of Local Government in England. . . 748
Topical astalysis. xxiii
Sec.
General Characterization 750
The County : its Historical Rootage 751
Early Evolution of the County Organs 752
Decline of the Sheriff's Powers 753
Justices of the Peace 754
Functions of Justices of the Peace prior to
Recent Reforms 756
Character and Repute of the Office of Jus-
tice 757
The Lord Lieutenant .... 758
The Reform of 1888 759
Administrative Counties and County Boroughs. 7G2
The County Councils : their Constitution 764
The Number of Councillors 766
The County Franchise 769
Powers of the County Councils 770
The Licensing Function 771
The Financial Powers of the Council 772
Additional Powers 773
The County Budget 774
The Police Powers 777
Boundaries 779
The Parish 780
The Poor-law Parish 781
The Highway Parish 786
The Union 787
The Rural Sanitary District 789
Municipalities 793
I. Municipal Corporations 794
Judicial Status of Boroughs 796
County Boroughs 797
Other Boroughs 798
The Financial Powers of a Municipal Council. . 800
II. Urban Sanitary Districts 802
Central Control of Urban Authorities. '. 805
Improvement Act Districts 806
London 807
School Districts 810
Central Control 812
The Government of the English Colonies 813-831
XXIV TOPICAL ANALYSIS.
Sec.
English Colonial Expansion 813
English Colonial Policy 814
Lord Durham in Canada 81S
The Self -Governing Colonies 817
The Government of Canada 818
The Governments of Australia 825
The Powers of the Colonial Courts 826
The Crown Colonies 827
Powers of Colonial Governors 828
India 829
Greater Britain 831
XI. The Government of the United States 833-1120
The English Occupation of America 832
Adaptation of English Institutions 833
The New England Colonies 835
The Separate Towns 837
Union of the Towns 838
Eorms of Town Government 839
Colonial Organization 840
The Southern Colonies 841
Expansion without Separation 842
Southern Colonial Society 843
Government of Colonial Virginia 844
Virginia's Colonial Assembly 845
The Constitutions of the other Southern Colo-
nies 846
The Middle Colonies 847
The Charters : Massachusetts 848
The Connecticut Charter 849
Rhode Island's Charter 850
Proprietary Governments 851
Direct Government by the Crown 853
Development of the Assemblies 854
Development of Constitutional Liberty in the Colonies. . 866
Political Sympathy of the Colonies 857
American as compared with English Constitutional
Development 858
Process of Growth in America Federation, in
England Consolidation 859
TOPICAL ANALYSIS. XXV
Sec.
Conscious Development of Institutions in
America 860
English Law and Precedent 861
Union : Preliminary Steps 863
Separateness of the Colonial Governments 864
The Confederation 865
The Articles of Confederation 866
Weakness of the Confederation 867
Need of a Better Union 868
The Constitution : Colonial Precedents 869
Character of the New Government 872
Character of the Government Changes with
Opinion 873
Early Sentiment towards the Union 874
Early Tolerance for Threats of Secession 875
Growth of the National Idea 876
Railroads, Expansion, and War aid the
National Idea 878
Slavery stands in the Way of Nation-
ality 879
Civil War completes the Union 880
Present Character of the Union 881
Present Character of the Government
of the Union 882
The States not Administrative Di-
visions but Constituent Members
of the Union 884
Character, Organs, and Functions of the States 885-1044
The Law of the States : its Character 886
Functions of the State Courts with Regard to the
Interpretation of Federal Law 888
Scope of State Law 889
Legislative Powers of the Union 890
Powers withheld from the States 891
Powers left with the States 892
Non-Constitutional Provisions in State Constitu-
tions 894
Distrust of Legislation 895
Objections to the Practice 896
Constitutional Amendments 898
XXVi TOXICAL ANALYSIS.
Sbc.
In England, France, and Geitnany 899
Preliminary Steps of Amendment. 900
Proposal of Amendments 901
Conflict of Laws 904
Detrimental Effects 905
In the Matter of Taxation 906
In the Criminal Law 907
Bankruptcy 908
Proposals of Reform 909
Evils of the Case easily exaggerated 910
Louisiana and New Mexico 911
Interstate Law : Commerce 912
Posts and Telegraphs 913
Citizenship 915
Elements of Confusion 917
Naturalization 918
In Germany and Switzerland 919
Citizenship under a Confederation 920
Central Governments of the States 921
The State Legislatures : their Powers 923
Limitations of Length of Session, etc 924
Other Limitations 925
State Legislatures not Sovereign Bodies 927
Legislative Organization 928
Reasons for Two Houses in State Legisla-
tures 929
Historical Precedents 931
Terms of Senators and Representatives . . . 932
Names of the Houses 933
Qualifications of Senators and Representa-
tives 934
Legislative Procedure 935
Standing Committees 936
The Suffrage 937
The State Courts 940
Common Law Courts : (1) Justices of the Peace 944
(2) County or Municipal Courts 945
(3) Superior Courts , 946
(4) Supreme Courts 948
(5) Supremest Courts 949
TOPICAL ANALYSIS. XXVU
Sec.
Courts of Equity 954
Fusion of Law and Equity 955
Probate Courts 957
Judges 959
Qualifications of Judges 961
Ministerial Officers of the State Courts 962
The State Executives 964
Terms of Office of Governor and Lieutenant
Governor j 967
Qualifications of Governor and Lieutenant
Governor 968
Terms of Other Officers 969
Contrast between State and Federal Execu-
tives 972
Real Character of a State " Executive "... 974
Relations of the Local to the Central
Organs of Government in the States 976
The Governor 978
The Secretary of State 982
The Comptroller or Auditor 989
The State Treasurer 990
The State Superintendent of Education 992
Constitutional Diffusion of the Executive
Power 993
Full Legal but no Hierarchical Control. . . 994
Local Government : General Characteristics 995
Duties of Local Government 996
Local Varieties of Organization 997
The Township : its Historical Origin 999
Absorption of the Town in Larger Units
of Government 1001
Town-Meeting 1003
The Town Officers 1004
The Township of the Northwest 1006
Its Origin 1009
Spread of Township Organization 1010
Township Organization 1012
The Township in the Middle At-
lantic States -1019
The New York Township 1020
xxviii TOPICAL ANALYSIS.
Sec.
Tlie Pennsylvania Township 1021
Origins of Local Government
in the Middle States 1022
The Township of the South 1023
The Virginia Township 1024
The County 1025
The Southern County 1028
Where the Township exists 1029
Villages. Boroughs, Cities 1030
The Authorities of Urban Districts 1033
A Common Model of Organization. . . 1034
Organization of Government in Cities 1035
School Administration 1038
In the Northwest 1040
Taxation 1042
General Remarks on Local Government 1044
The Federal Government: the Constitution 1045
Amendment of the Constitution 1045
Amendment of Foreign Constitutions 1046
The Federal Territory 1047
The District of Columbia 1048
Arsenals and Dockyards 1051
The Territories 1052
Post-oflBces, Custom-houses, etc 1063
Congress 1054
The Senate 1055
The Vice-President of the United States 1060
Organization of the Senate 1061
Influence of the Standing Committees .... 1062
The Senate and the Executive 1063
The President ^ro Tempore 1064
The House of Representatives 1065
Apportionment of Representatives 1066
Elections to the House 1067
The Fourteenth Amendment 1070
Organization of the House 1071
Acts of Congress 1077
The Federal Judiciary : its Jurisdiction 1082
Power of Congress over the Judiciary 1084
The Existing Federal Courts 1085
TOPICAL ANALYSIS. XXIX
Sec.
The Division of Jurisdiction 1086
In Criminal Cases 1087
The Federal Judges 1088
The District Attorney and the Marshal 1091
The Courts of the District of Columbia and of the
Territories 1093
Procedure of a Federal Court 1095
Tlie Federal Executive 1097
Election of a President 1098
Practical Operation of the Plan: the Party
Conventions lOO'J
Qualifications for tlie Office of President 1100
Duties and Powers of the President 1102
Reform of Methods of Appointment to Fed-
eral Offices 1104
The Presidential Succession 1106
Relations of the Executive to Congress 1107
The Executive Departments 1109
Department of State 1111
Department of the Ti-easury 1112
The Bureau of Printing and Engraving. . . 1113
Department of War 1114
Department of the Navy 1115
Department of Justice 1116
Post Office Department 1117
Department of the Interior 1118
Department of Agriculture 1119
Department of Labor 1 120
Interstate Commerce Commission 1120
Civil Service Commission 1120
Commission of Fish and Fisheries 1120
XII. Summary : Constitutional and Administrative Develop-
ments : 1121-1 153
Continuity of Development • 1121
The Order Discoverable in Institutional Development. 1122
Course Of Development in the" Ancient World 1123
The Feudal System and the Modern Monarch . 1124
England's Contribution 1125
The Romans and the English 1126
XXX TOPICAL ANALYSIS.
Sec,
Likenesses between the Two Imperial Nations 1127
Popular Initiative in Kome and England 1128
Eome's Change of System under the Empire 1129
Fundamental Contrast between English and Eomau
Political Method 1130
The Development of Legislatures 1131
Powers of a Bepresentative 1133
Scope of Modern Legislation 1134
The Making, Execution, and Interpretation of Law 1135
Charters and Constitutions 1137
Ci-eation tis. Confirmation of Liberties by Constitution 1139
The Modern Federal State contrasted with Confederations 1141
Distinguishing Marks of the Federal State 1144
Existing Parallels and Contrasts in Organization 1147
Administrative Integration : Relation of Ministers to
the Head of the Executive 1148
Relations of the Administration as a Whole to the
Ministers as a Body 1150
The Administration and the Legislature 1151
XIII. The Nature and Forms of Government 1154-1181
Government rests upon Authority and Force 1154
Not Necessarily upon Obvious Force 1155
The Governing Force in Ancient and in Modern Society 1156
The Force of the Common Will in Ancient Society 1157
Public Opinion, Ancient and Modern 1158
The True Nature of Government 1159
Society an Organism, Government an Organ 1 160
The Forms of Government : their Significance 1161
Aristotle's Analysis of the Forms of Government 1162
Cycle of Degeneracy and Revolution 1 164
Modern Contrasts to the Aristotelian Forms of Govern-
ment 1165
The Modern Absolute Monarchy ' 1166
The Modern Monarchy usually ' Limited ' . 1168
Is Monarchy now succeeded by Aristocracy ? 1169
English and Ancient Aristocracy contrasted 1170
Present and Future Prevalence of Democracy 1171
Differences of Form between Ancient and Mod-
ern Democracies 1173
TOPICAL ANALYSIS. XXxi
Sec.
Nature of Democracy, Ancient and Modern. . . 1173
Growth of the Democratic Idea 1174
Subordination of the Individual in the
Ancient State. . '. 1175
Individualism of Christianity and Teutonic
Institutions 1176
The Transitional Feudal System 1177
Rise of the Modern State 1178
Eenaissance and Reformation 1179
The Modern Force of Majorities 1 180
New Character of Society 1181
XIV. Law : its Nature a,nd Development 1 182-1229
What is Law f 1182
The Development of Law : its Sources 1183
1. Custom 1184
2. Religion. . ; 1186
3. Adjudication .' 1187
4. Equity 1189
5. Scientific Discussion 1191
6. Legislation 1192
Custom Again 1194
Typical Character of Roman and English Law 1196
The Order of Legal Development 1197
The Forces Operative in the Development of Law .... 1200
The Power of the Community must be behind Law 1202
Roman Law an Example 1205
The Power of Habit 1206
Law's Utterance of National Cliaracter 1207
Germanic Law 1208
Sovereignty : Who gives Law ? 1209
Certain Legal Conceptions Universal 1212
Law and Ethics 1213
Mala Prohibita 1214
Interifetional Law 1216
Laws of Nature and Laws of the State 1218
Limitations of Political Law * 1219
Public Law 1220
Private Law 1221
Jurisprudence 1223
XXXll TOPICAL ANALYSIS.
Sbc.
The Analytical Account of Law 1226
The Analytical Account of Sovereignty , 1227
Summary 1229
XV. The Functions of Government 1230-1264
What are the Functions of Government ? 1230
The Nature of the Question 1231
Classification 1232
I. The Constituent Functions 1233
II. The Ministrant Functions 1234
History of Governmental Function : I'rovince of the
Ancient State 1236
Koman Conception of Private Rights 1238
Powers of Roman Senate 1240
Government the Embodiment of Society 1241
Feudalism : Functions of Government Functions
of Proprietorship 1242
The Feudal Monarchy 1243
Modern De-socialization of the State 1244
More Changes of Conception than of Practice . . . 1245
Functions of Government much the Same now
as always 1246
The State's Relation to Property 1247
In Sparta 1248
Peculiar Situation of the Spar-
tans 1249
Decay of the System 1250
In Athens 1251
In Rome 1252
Under Modern Governments 1253
The State and Political Rights 1254
As regards the State's Ministrant Func-
tions 1255
The State in Relation to Trade 1256
The State in Relation to Labor? 1257
Regulation of Corporations 1258
The State and Public "Works 1259
Administration of the Conveniences of
Society 1260
Sanitation 126i
TOPICAL ANALYSIS. XXxiii
Sec.
Public Education 1262
Sumptuary Laws , 1263
Summary 1264
XVI. The Objects of Government 1265-1287
Character of the Subject 1265
The Extreme Views held 1266
Historical Foundation for Opposite Views 1267
The State a Beneficent and Indispensable Organ of Society 1269
Socialism and the Modern Industrial Organization 1271
A Middle Ground 1272
' The Objects of Society the Objects of Government. . . 1273
Natural Monopolies 1275
Control not necessarily Administration 1277
Equalization of Competition 1278
Society Greater than Government 1279
Natural Limits to State Action 1280
The Family and the State 1284
The State and Education. 1285
Historical Conditions of Governmental Action 1286
Summary 1287
PREFACE.
The scope and plan of this volume I need not explain ; they
are, I trust, self-evident ; but a word or two of cominent and
suggestion I would fain address to those who may use the book
in class instruction. In preparing it I labored under the dis-
advantage of having had no predecessors. . So far as I have
been able to ascertain, no text-book of like scope and purpose
has hitherto been attempted. I was obliged, therefore, to put
a great deal into this volume that I might have omitted had
there been other compact and easily accessible statements of
the details of modern governmental machinery. Had there
been other books to which the student might easily resort for
additional information, I should have confined myself much
more than I have felt at liberty to do to the discussion of gen-
eral principles and the elaboration of parallels or contrasts
between different systems. As it was, I saw no way of doing
adequately the work I had planned without putting in a great
deal of detail.
The book, as a consequence, is very large. Eealizing this, I
have put a great deal of matter, containing minor details and
most of my illustrations and parallels, into small print, in order
that any part of such matter that the teacher saw fit to omit
iu class work might be omitted without breaking the continuity
of the text. At the same time, the small print paragraphs are
integral parts of the text, not separated from it as foot-notes
would be, but running along with it as continuously as if they
were in no way distinguished from the main body of it.
In the historical portions I have been greatly straitened for
space and must depend upon the active and intelligent assist-
PEEPACE. XXXV
ance of the teacher. Picking out governmeiital facts, as I
have done, from the body of political history, and taking for
granted on the part of the reader a knowledge of the full his-
torical setting of the facts I have used, I have, of course, been
conscious of relying upon the teacher who uses the volume to
make that assumption good as regards his own pupils. Large
as the book is, it will require much supplement in the using.
I trust that it will on that account prove su£B.ciently stimulat-
ing to both pupil and teacher to make good its claim to be the
right sort of a text-book.
In hoping that the book will be acceptable to teachers at the
present time 1 have relied upon that interest in comparative
politics which has been so much stimulated in the English-
speaking world in very recent years. I have meant that it
should be in time to enter the doors of instruction now in all
directions being opened wider and wider in American colleges
to a thorough study of political science. I believe that our
own institutions can be understood and appreciated only by
those who know somewhat familiarly other systems of govern-
ment and the main facts of general institutional history. By
the use of a thorough comparative and historical method, more-
over, a general clarification of views may be obtained. For
one thing, the wide correspondences of organization and method
in government — a unity in structure and procedure much
greater than the uninitiated student of institutions is at all
prepared to find — will appear, to the upsetting of many pet
theories as to the special excellences of some one government.
Such correspondences having been noted, it will be the easier
to trace the differences which disclose themselves to their true
sources in history and national character. The differences are
in many instances nation-marks; the correspondences speak
often of common experiences bringing common lessons, often
of universal rules of convenience, sometimes of imitation.
Certainly it does not now have to be argued that the only
thorough method of study in politics is the comparative and
XXXVl PEBPACB.
historical. I need not explain or justify the purpose of this
volume, therefore : I need only ask indulgence for its faults of
execution.
The "work upon which I have chiefly relied in describing
modern governments is the great Handhuch des Oeffentlichen
Eechts der GegenwaH now being edited by Professor Heinrich
Marquardsen of the University of Erlangen. This invaluable
collection of monographs on the public law of modern states
has been appearing in parts since 1883 and is now nearing com-
pletion. In most cases it embodied the latest authoritative
expositions of my subjects accessible to me, and I have used it
constantly in my preparation of this work. Without its assist-
ance, what has been the labor of three years might have re-
quired twice as much time in the doing.
My chapter on the government of the United States was
written before the appearance of Mr. Bryce's great work, Tlie
American Commonwealth. Only in one or two minor points,
therefore, have I been able to make use of his invaluable com-
mentary.
To some of my friends I am under special obligations, of
which I gladly make grateful acknowledgment, for that most
self-sacrificing of services, the critical reading of portions of
my manuscript. This kindness was extended to me by Pro-
fessor Herbert B. Adams and Mr. J. M. Vincent of Johns Hop-
kins University, Professor J. P. Jameson of Brown University,
and Professor Munroe Smith of Columbia College. To these
gentlemen I make my public acknowledgments, together with
my public condolences, for their connection with this work. I
am sure that they are responsible for none of its inaccuracies
and for many of its excellences.
WOODEOW WILSON.
MlDDLETOWN, CoNN.,
August 8, 1889.
THE PEOBABLB OEIGIN OF GOVERNMENT.
1. Nature of the Question. — The probable origin of gov-
ernment is a question of fact, to be settled, not by conjecture,
but by history. Its answer is to be sought amidst such traces
as remain to us of the history of primitive societies. Facts
have come down to us from that early time in fragments, many
of them having been revealed only by inference, and having
been built together by the sagacious ingenuity of scholars
much as complete skeletons have been reared by inspired natu-
ralists in the light of the meagre suggestions of only a fossil
joint or two. As those fragments of primitive animals have
been kept for us sealed up in the earth's rocks, so fragments
of primitive institutions have been preserved, embedded in the
rocks of surviving law or custom, mixed up with the rubbish
of accumulated tradition, crystallized in the organization of
still savage tribes, or kept curiously in the museum of fact
and rumor swept together by some ancient historian. Limited
and perplexing as such means of reconstructing history may
be, they repay patient comparison and analysis as richly as do
the materials of the archseologist and the philologian. The
facts as to the origin and early history of government are at
least as available as the facts concerning the growth and kin-
ship of languages or the genesis and development of the arts
and sciences. At any rate, such light as we can get from the
knowledge of the infancy of society thus meagrely afforded us
is better than that which might be derived from any a priori
2 THE PROBABLE ORIGIN OF GOVERNMENT.
speculations founded upon our aoquaintanee "witli our modern
selves, or from any fancies, how learnedly soever constructed,
that we could weave as to the way in which history might
plausibly be read backwards.
2. Races to be studied: the Aryans. — For purposes of
widest comparison in tracing the development of government
it would of course be desirable to include in a study of early
society not only those Aryan and Semitic races which have
played the chief parts in the history of the world, but also
every primitive tribe, whether Hottentot or Iroquois, Finn or
Turk, of whose institutions and development we . know any-
thing at all. Such a world-wide survey would be necessary
to any induction which should claim to trace government in
all its forms to a common archetype. But, practically, no
such sweeping together of incongruous savage usage and trar
dition is needed to construct a safe text from which to study
the governments that have grown and come to full flower in
the political world to which we belong. In order to trace the
lineage of the European and American governments which
have constituted the order of social life for those stronger and
nobler races which have made the most notable progress in
civilization, it is essential to know the political history of the
Greeks, the Latins, the Teutons, and the Celts principally, if
not only, and the original political habits and ideas of the
Aryan and Semitic races alone. The existing governments of
Europe and America furnish the dominating types of to-day.
To know other systems that are defeated or dead would aid
only indirectly towards an understanding of those which are
alive and triumphant, as the survived fittest.
3. Semitic and Turanian Instance. — Even Semitic insti-
tutions, indeed, must occujjy only a secondary place in such
inquiries. The main stocks of modern European forms of
government are Aryan. The institutional history of Semitic
or Turanian peoples is not so much part of the history of those
governments as analogous to it in many of the earlier stages
THE PKOB.ABLE ORIGIN OF GOVERNMENT. 3
of develoj)ment. Aryan, Semitic, and Turanian races alike
seem to have passed at one period or another through similar
forms of social organization. Each, consequently, furnishes
illustrations in its history, and in' those social customs and
combinations which have most successfully survived the wreck
of change, of probable early forms and possible successive
stages of political life among the others. Aryan practice may
often be freed from doubt by Semitic or Turanian instance ;
but it is Aryan practice we principally wish to know.
4. Government rested First upon Kinship. — What is
known of the central nations of history clearly reveals the
fact that social organization, and consequently government
(which is the visible form of social organization), originated in
kinship. The original bond of iinion and the original sanction
for magisterial authority were one and the same thing, namely,
real or feigned blood relationship. In other words, families
were the primitive states. The original State was a Family.
Historically the State of to-day may be regarded as in an
important sense only an enlarged Family : ' State ' is ' Family '
writ large.
5. Early History of the Family ; was it originally Patri-
archal ? — The origin of government is, therefore, intimately
connected with the early history of the family. But the
conclusions to be drawn from what is known of the begin-
nings of the family unfortunately furnish matter ior much
modern difference of opinion'. This difference of opinion may
be definitely summed up in the two following contrasted
views : —
(1) That the patriarchal family, to which the early history
of the greater races runs back, and with which that history
seems to begin, was the family in its original estate, — the
original, the true archaic family.
The patriarchal family is that in which descent is traced to a com-
mon male ancestor, through a direct male line, and in which the
authority of rule vests in the eldest living male ascendant.
4 THE PROBABLE OEIGIN OP GOVEKNMENT.
(2) That the patriarchal family, which is 'acknowledged to
be found in one stage or another of the development of almost
every race, was a developed and comparatively late form of
the family, and not its first form, having been evolved through
various stages and varieties of polyandry (plurality of hus-
bands) and of polygamy (plurality of wives) out of a possibly
original state of promiscuity and utter confusion in the rela^
tions of the sexes and of consequent confusion in blood-relation-
ship and in the government of offspring.
In brief, it is held on the one hand that the patriarchal
family was the original family ; and on the other, that it was
not the original but a derived form, others of a less distinct
organization preceding it.
6. The Evidence : India. — As has been intimated, the evi-
dence upon which the first-named view is based is drawn chiefly
from the history of what I have called the central races of the
world, — those Aryan races, namely, which now dominate the
continents of Europe and America, and which, besides fringing
Africa with their intrusive settlements, have long since returned
upon the East and reconquered much of their original home
territory in Asia. In India the English have begun of late
years to realize more fully than before that they are in the
midst of fellow-Aryans whose stayed civilization and long-crys-
tallized institutions have kept them back very near to their
earliest" social habits. In the caste system of India much of
the most ancient law of the race, many of its most rudimentary
conceptions of social relationships, have stuck fast, caught in
a crust of immemorial observance. Many of the corners of
India, besides, contain rude village-communities whose isola-
tion, weakness, or inertia have delayed them still nearer the
starting-point of social life. Among these belated Aryans all
the plainer signs point to the patriarchal family as the family
of their origin.
7. Slavonic Communities, Ancient Irish Law, and Old
Teutonic Customs. — In Russia, in Dalmatia, and in Croatia
THE PROBABLE ORIGIN OP GOVERNMENT. 5
there still survive Slavonic village-communities of a very-
primitive type which give equally unequivocal testimony of
the patriarchal organization as the original order of their social
life. Ancient Irish law says the same thing of the archaic
forms of social organization among the Aryan Celts : that the
patriarchal family was the first political unit of the race. And
to these the antique Teutonic community,' still to be seen
through all the changes of history in England and on the
continent, adds the testimony of many customs of land tenure
and of communal solidarity founded upon a clear tradition of
kinship derived from a common ancestor.
8. Greek and Roman Families. — Besides these comparar
tively modern evidences of survived law and custom, we have,
as clearer evidence still, th» undoubted social beginnings of
Greek and Roman politics. They too originated, if history
is to be taken at its most plainly written word, in the patriar-
chal family. Roman law, that prolific mother of modern legal
idea and practice, has this descent from the time when the
father of the family ruled as the king and high priest of his
little state impressed upon every feature of it. Greek insti-
tutions speak hardly less distinctly of a similar descent. These
great classic Aryan stocks, at any rate, cannot be conclusively
shown to have known any earlier form of social practice than
that of the patriarchal family.
9. A Doubt. — Still, even Aryan institutions bear some ob-
scure traces — traces of a possible early confusion in blood-
relationships — which suggest a polity not patriarchal; and
those who regard the patriarchal family as a comparatively
late development point to these traces with the suggestion that
thSy are possibly significant of the universal applicability of
their own view as to the archaic types of society. Even where
such traces are most distinct, however, in legend and custom,
they are by no means so distinct as to necessitate a doubt as
to the substantial correctness of the patriarchal theory. They
are all susceptible of explanations which would sustain, or at
6 THE PROBABLE ORIGIN OF GOVERNMENT.
10. The Non-Aryan Family. — All the really substantial
evidence of the absence from early society of anything like
deiinite forms of the family, based upon clear kinship such as
is presupposed in the patriarchal theory, is drawn from what,
from our present point of view, we may call the outlying
races, — the non- Aryan races. Many of these races have re-
mained stationary, evidently for centuries, in what, comparing
their condition with oiir own, we call a savage state, in which
there is good reason to believe that very early systems of social
order have been perpetuated. In such cases evidences abound
of the reckoning of kinship through mothers only, as if in
matter-of-course doubt as to paternity ; of consanguinity signi-
fied throughout the wide circle of a tribe, not by real or sup-
posed common descent from a human ancestor, but by means
of the fiction of common descent from some bird or beast, from
which the tribe takes its name, as if for lack of any better
means of determining common blood ; of marriages of brothers
with sisters, and of groups of men with groups of women, or
of groups of men with some one woman. In the case of some
of these tribes, moreover, among whom polygamy or even mo-
nogamy now exists, together with a patriarchal discipline, it is
thought to be possible to trace clear indications of an evolution
of these more civilized forms of family organization from ear-
lier practices of loose multiple marriages or even still earlier
promiscuity in the sexual relation.
It is thus that color of probability is given to the view that
the patriarchal family, in these cases almost certainly, has in
all cases possibly been developed from such originals.
11. Aryan Tradition. — These proofs, however, reach the
Aryan races only by doubtful inference, through rare and ob-
scure signs. No belief is more deeply fixed in the traditions
of these stronger races than the belief of direct common de-
scent, through males, from a common male ancestor, human or
divine ; and nothing could be more numerous or distinct than
the traces inhering in the very heart of their polity of an
THE PROBABLE ORIGIN OF GOVERNMENT, 7
original patriarchal organization of the family as the achetype
of their political order.
12. From the Patriarchal Family to the State The patri-
archal family being taken, then, as the original political nnit
of these races, we have a sufiiciently clear picture of the in-
fancy of government. First there is the family ruled by the
father as king and priest. There is no majority for the sons
so long as their father lives. They may marry and have chil-
dren, but they can have no entirely separate and independent
authority during their father's life save such as he suffers them
to exercise. All that they possess, their lives even and the
lives of those dependent upon them, are at the disposal of this
absolute father-sovereign. The family broadens in time into
the ' House,' the gens, and over this too the chiefest kinsman
rules. There are common religious rites and observances
which the gens regards as symbolic of its unity as a composite
family ; and heads of houses exercise high representative and
probably certain imperative magisterial functions by virtue of
their position. Houses at length unite into tribes ; and the
chieftain is still hedged about by the sanctity of common kin-
ship with the tribesmen whom he rules. He is, in theory at
least, the chief kinsman, the kinsman in authority. Finally,
tribes unite, and the ancient state emerges, with its king, the
father and priest of his people.
13. -Prepossessions to be put away. — In looking back to
these first stages of political development, it is necessary to
put away from the mind certain prepossessions which are both
proper and legitimat,e to modern conceptions of government,
but which could have found no place in primitive thought on
the subject. It is not possible nowadays to understand the
early history of institutions without thus first divesting the
mind of many conceptions most natural and apparently most,
necessary to it. The centuries which separate us from the
infancy of society separate us also, by the whole length of
the history of human thought, from the ideas into which the
8 THE PROBABLE ORIGIN OF GOVERNMENT.
fathers of the race were born ; and nothing but a most credu-
lous movement of the imagination can enable the student of
to-day to throw himself back into those conceptions of social
connection and authority in which government took its rise.
14. The State and the Land. — How is it possible, for in-
stance, for the modern mind to conceive distinctly a travelling
political organization, a state without territorial boundaries or
the need of them, comjjosed of persons, but associated with no
fixed or certain habitat ? And yet such were the early states, ' —
nomadic grdups, now and again hunting, fishing, or tending their
herds by this or that particular river or upon this or that fa-
miliar mountain slope or inland seashore, but never regarding
themselves or regarded by their neighbors as finally identified
with any definite territory. Historians have pointed out the
abundant evidences of these facts that are to be found in the
history of Europe no further back than the fifth century of
our own era. The Franks came pouring into the Roman em-
pire just because they had had no idea theretofore of being
confined to any particular Erank-Zand. They left no France
behind them at the sources of the Rhine; and their kings
quitted those earlier seats of their race, not as kings of France,
but as kings of the Franks. There were kings of the Franks
when the territory now called Germany, as well as that now
known as France, was in the possession of that imperious race :
and they became kings of France only when, some centuries
later, they had settled down to the unaccustomed habit of con-
fining themselves to a single land. Drawn by the processes
of feudalization (sees. 24.3, 253, 268, 269), sovereignty ihen found
at last a local habitation and a new name.
15. The same was true of the other Germanic nations.
They also had chiefs who were their chiefs, not the chiefs of
their lands. There were kings of the English for many a year,
even for several centuries after a.d. 449, before there was such
a thing as a king of England. John, indeed, was the first o&l-
cially to assume the latter title. Prom the first, it is true,
THE PEOBABLE OKIGIN OF GOVERNMENT. 9
social organization has everywhere tended to connect itself
more and more intimately with the land from which etich
social group has drawn its sustenance. When the migratory-
life was over, especially, and the settled occupations of agri-
culture had brought men to a stand upon the land which they
were learning to till, political life, like all the other communal
activities, came to be associated more and more directly with
the land on which each community lived. But such a connec-
tion between lordship and land was a slowly developed notion,
not a notion twin-born with the notion of government.
16. Modern definitions of a state always limit sovereignty
to some definite land. " The State," says Bluntschli, '' is the
politically organized people ( Volkperson) of a particular land " ;
and all other authoritative writers similarly set distinct physi-
cal boundaries to the state. Such an idea would not have been
intelligible to the first builders of government. They could not
have understood why they might not move their whole people,
'bag and baggage,' to other lands, or why, for the matter of
that, they might not keep them moving their tents and posses-
sions unrestingly from place to place in perpetual migration,
without in the least distu.rbing the integrity or even the ad-
ministration of their infant ' State.' Each organized group
of men had other means of knowing their unity than mere
neighborhood to one another ; other means of distinguishing
themselves from similar groups of men than distance or the
intervention of mountain or stream. The original governments
were knit together by bonds closer than those of geography,
more real than the bonds of mere contiguity. They were bound
together by real or assumed kinship. They had a corporate
existence which they regarded as inhering in their blood and
as expressed in all their daily relations with each other. They
lived together because of these relations ; they were not related
because they lived together.
17. Contract versus Status. — Scarcely less necessary to
modern thought than the idea of territoriality as connected
10 THE PKOBABLE ORIGIN OF GOVERNMENT.
■with the existence of a state, is the idea of contract as deter-
mining the relations of individuals. And yet this idea, too,
must be put away if we would understand primitive society.
In that society men were born into the station and the part
they were to have throughout life, as they still are among the
peoples who preserve their earliest conceptions of social order.
This is known as the law of status. It is not a matter of
choice or of voluntary arrangement in what relations men
shall stand towards each other as individuals. He who is
born a slave, let him remain a slave ; the artisan, an artisan ;
the priest, a priest, — is the command of the law of status.
Excellency cannot avail to raise any man above his parent-
age ; aptitude may operate only within the sphere of each
man's birth-right. No man may lose ' caste ' without losing
respectability also and forfeiting the protection of the law.
Or, to go back to a less developed society, no son, however
gifted, may lawfully break away from thS authority of his
father, however cruel or incapable that father may be ; or make
any alliance which will in the least degree draw him away from
the family alliance and duty into which he was born. There
is no thought of contract. Every man's career is determined
for him before his birth. His blood makes his life. To break
away from one's birth station, under such a system, is to make
breach not only of social, but also of religious duty, and to
bring upon oneself the curses of men and gods. Primitive
society rested, not upon contract, but upon statvis. Status had
to be broken through by some conscious or unconscious revolu-
tion before so much as the idea of contract could arise ; and
when that idea did arise, change and variety were assured.
Change of the existing social order was the last thing of which
the primitive state dreamed ; and those races which allowed the
rule of status to harden about their lives still stand where they
stood a thousand years -ago. " The leaving of men to have their
careers determined by their efficiencies," says Mr. Spencer,
"we may call the principle of change in social organization."
THE PKOBABLE OEIGIN OF GOVEENMBNT. 11
18. Theories concerning the Origin of the State : the
Contract Theory. — Such views of primitive society furnish
us with destructive dissolvents of certain theories once of almost
universal vogue as to the origin of government. The most
famous, and for our present purposes most important, of these
theories is that which ascribes the origin of government to a
' social compact ' among primitive men.
The most notable names connected with this theory as used to ac-
count for the existence of political society are the names of Hooker,
Hobbes, Locke, and Rousseau. It is to be found developed in Hooker's
Ecclesiastical Polity, Hobbes' Leviathan, Locke's Civil Government, and
Rousseau's The Social Contract.
This theory begins always with the assumption that there
exists, outside of and above the laws of men, a Law of Nature.'
Hobbes conceived this Law to include "justice," "equity,"
"modesty," "mercy" ; "in sum, 'doing to others as we would
be done to.' " All its chief commentators considered it the
abstract standard to which human law should conform. Into
this Law primitive men were born. It was binding upon their
individual consciences ; but those consciences were overwhelmed
by individual pride, ambition, desire, and passion, which were
strong enough to abrogate Nature's Law. That Law, besides,
did not bind men together. Its dictates, if obeyed, would indeed
enable them to live tolerably with one another ; but its dictates
were not obeyed ; and, even if they had been, would have fur-
nished no permanent frame of civil government, inasmuch as
it did not sanction magistracies, the setting of some men to be
judges of the duty and conduct of other men, but left each
conscience to command absolutely its possessor. In the lan-
guage of the ' judicious Hooker,' the laws of Nature " do bind
men absolutely, even as they are men, although "they have
never any settled fellowship, never any solemn agreement,
1 Por the natural history of this conception of a Law of Nature, see
Maine, Ancient Law, Chap. III. Also post, sees. 208, 209.
12 THE PROBABLE OillGIN OF GOVERNMENT.
amongst themselves what to do or not to do ; but forasmuch
as we are not by ourselves sufficient to furnish ourselves with
competent store of things needful for such a life as our Nature
doth desire, a life fit for the dignity of man, therefore to sup-
ply these defects and imperfections which are in us living
single and solely by ourselves, we are naturally induced to
seek communion and fellowship with others. This was the
cause of men uniting themselves at first in politic societies." ^
In other words, the belligerent, non-social parts of man's na-
ture were originally too strong for this Law of Nature, and
the ' state of nature,' in which that Law, and only that Law,
offered restraint to the selfish passions, became practically a
state of war, and consequently intolerable. It was brought to
an end in the only way in which such a condition of affairs
could be brought to an end without mutual extermination,
namely, by common consent, by men's " agreeing together mutu-
. ally to enter into one community and make one body politic."
(Locke.) This agreement meant submission to some one com-
mon authority, which should judge between man and man ;
the surrender on the part of each man of all rights antago-
nistic to the rights of others ; -forbearance and co-operation.
Locke confidently affirmed " that all men are naturally in that
state [a state, i.e., of nature], and remain so till, by their own
consents, they make themselves members of some politic so-
ciety." It was only as the result of deliberate choice, in the
presence of the possible alternative of continuing in this state
of nature, that commonwealths, i.e., regularly constituted gov-
ernments, came into being.
19. Traditions of an Original Law-giver. — Ancient tra-
dition had another way of accounting for the origin of law^fe
and institutions. The thought of almost every nation of
antiquity went back to some single law-giver in whose hands
their government had taken its essential and characteristic
1 Ecclesiastical Polity, Book I. , sec. 10.
THE PKOBABLE ORIGIN OF GOVEKNMBNT. 13
form, if not its beginning. There was a Moses in the back-
ground of many a history besides that of the Jews. In the
East there was Menu ; Crete had her Minos ; Athens her
Solon; Sparta her Lycurgus ; Rome her Niima; England licv
Alfred. These names do not indeed in every instance stand
so far back as the beginning of all government ; but they do
carry the mind back in almost every case to the birth of
national systems, and suggest the overshadowing influence of
individual statesmen as the creative power in framing the
greater combinations of politics. They bring the conception
of conscious choice into the history of institutions. They
look upon systems as made, rather than as developed.
20. Theory of the Divine Origin of the State. —Not
altogether unlike these ancient conceptions of law-givers tow-
ering above other men in wisdom and authority, dominating
political construction, and possibly inspired by divine sugges-
tion, is that more modern idea which attributes human govern-
ment to the immediate institution of God himself, — to the
direct mandate of the Creator. This theory has taken either
the definite form of regarding human rulers as the direct vice-
gerents of God, or the vague form of regarding government as
in some way given man as part of his original make-up.
21. The Theories and the Facts. — Modern research into
the early history of mankind has made it possible to recon-
struct, in outline, much of the thought and practice of primi-
tive society, and has thus revealed facts which render it
impossible for us to accept any of these views as adequately
explaining what they pretend to explain. The defects of the
social compact theory are too plain to need more than brief
mention. That theory simply has no historical foundation.
Status was the basis of primitive society : the individual
counted for nothing ; society — the family, the tribe —
counted for everything. Government came, so to say, before
the individual. There was, consequently, no place for con-
tract, and yet this theory makes contract the first fact of social
14 THE PKOBABLB ORIGIN OP GOVEElirMBNT.
life. Such a contract as it imagines could not have stood
unless supported by that reverence for 'law' which is an
altogether modern principle of action. The times in which
government originated knew absolutely nothing of law as we
conceive law. The only bond was kinship, — the common
blood of the community ; the only individuality was the indi-
viduality of the community as a whole. Man was merged in
society. Without kinship there was no duty and no union.
It was not by compounding rights, but by assuming kinship,
that groups widened into states — not by contract, but by
adoption. Ifot deliberate and reasoned respect for law, but
habitual and instinctive respect for authority, held men to-
gether; and authority did not rest upon mutual agreement,
but upon mutual subordination.
22. Of the theories of the origination of government in indi-
vidual law-giving or in divine dictate, it is sufficient to say
that the one exaggerates the part played by human choice, and
the other the part played by man's implanted instincts, in the
formation and shaping of political society.
23. The Truth in the Theories. — Upon each of these
theories, nevertheless, there evidently lies the shadow of a
truth. Although government did not originate in a deliberate
contract, and although no system of law or of social order
was ever made 'out of hand' by any one man, government
was not all a mere spontaneous growth. Deliberate choice has
always played a part in its development. It was not, on the
one hand, given to man ready-made by God, nor was it, on
the other hand, a human contrivance. In its origin it was spon-
taneous, natural, twin-born with man and the family; Aristotle
was simply stating a fact when he said, "Man is by nature a
political animal." But, once having arisen, government was
affected, and profoundly affected, by man's choice ; only that
choice entered, not to originate, but to modify government.
24. Conclusion. — Viewed in the light of "the observed and
recorded experience of mankind," " the ground and origin of
THE PROBABLE OBIGIK OP GOVERNMENT. 15
society is not a compact; that never existed in any known case,
and never was a condition of obligation either in primitive or
developed societies, either between subjects and sovereign, or
between the equal members of a sovereign body. The true
ground is the acceptance of conditions which came into exist-
ence by the sociability inherent in man, and were developed by
man's spontaneous search after convenience. The statement
that while the constitution of man is the work of nature, that
of the state is the work of art, is as misleading as the opposite
statement that governments are not made, but grow. The
truth lies between them, in such propositions as that institu-
tions owe their existence and development to deliberate human
effort, working in accordance with circumstances naturally
fixed both in human character and in the external field of its
activity." ^
Some Repeesbntative Authoiuties.
Maine, Sir H. S., "Ancient Law," and "Early Law and Custom,"
especially Chap. Vn.
Lubbock, Sir Jno., "Prehistoric Times," and "Origin of Civiliza-
tion."
Spencer, H., "Principles of Sociology," Vol. I., Part III.
Hearn, Wm. E., "The Aryan Household."
Fustel de Coulanges, " The Ancient City."
Lyall, Sir A. C, "Asiatic Studies."
With more especial ref ei'ence to the early history of the family than
the above, and opposed to the views of Maine, Spencer, and others
which I have embodied in my text :
Morgan, L. H., " Ancient Society."
McLennan, J. F., " Studies in Ancient History," and " The Patriarchal
Theory '' (edited by Donald McLennan).
1 John Morley, Rousseau, Vol. II., pp. 183-4.
16 THE PROBABLE OEIGIN' OF GOVERNMENT.
Smith, W. Robertson, "Kinship and Marriage in Early Arabia."
Lang, A. Article ' Family ' in the Encyclopsedia Britannica, and
article 'Early History of the Family,' Contemporary/ Rev., Sept.,
1883.
With reference to the contract theory of the origin of government :
Hooker, "Ecclesiastical Polity."
Hobbes, " Leviathan."
Locke, Jno., !' Essays on Civil Government."
Eousseau, J, J., "The Social Contract."
II.
THE PROBABLE EAELY DEVELOPMENT OP
GOVERNMENT.
25. The Beginnings of Government. — Government must
have had substantially the same early history amongst all
progressive races. It must have begun in clearly defined
family discipline. Such discipline would scarcely be possible
among races in which consanguinity was subject to profound
confusion and in which family discipline therefore had no
clear basis of authority on which to rest. In every case, it
would seem, the origination of what we would deem govern-
ment must have awaited the development of some such definite
family as that in which the father was known, and known as
ruler. Whether or not, therefore, the patriarchal family was
the first form of the family, it must have furnished the first
adequate form of government.
26. The Family the Primal Unit. — The family, then, was
the primal unit of political society, and the seed-bed of all
larger growths of government. The individuals that were
drawn together to constitute the earliest communities were
not individual men, as Locke and Locke's co-theorists would
lead us to believe, but individual families, and the organizar
tion of these families, whether singly or in groups, furnished
the ideas in which political society took its root. We have
already seen what the nature of that organization was. The
members of each family were bound together by kinship. The
father's authority bore the single sanction of his being the
18 EAELY DEVELOPMENT OP GOVERNMENT.
fouutain-head of the common blood-relationship. No other
bond was known, or was then conceivable, but this single bond
of kinship. A man out of the circle of kinship was outside
the boundaries of possible friendship, was as of course an
alien and an enemy.
27. Persistence of the Idea of Kinship. — When society
grew, it grew without any change of this idea. Kinship was
still, actually or theoretically, its only amalgam. . The com-
monwealth was conceived of as being only a larger kindred.
When by natural increase a family multiplied its branches
and widened into a gens, and there was no grandfather, great-
grandfather, or other patriarch living to keep it together in
actual domestic oneness, it would still not separate. The ex-
tinct authority of the actual ancestor could be replaced by the
less comprehensive but little less, revered authority of some
selected elder of the 'house,' the oldest living ascendant, or
the most capable. Here would be the materials for a complete
body politic held together by the old fibre of actual kinship.
28. Fictitious Kinship : Adoption. — Organization upon
the basis of a fictitious kinship was hardly less naturally con-
trived in primitive society. There was the ready, and
immemorial, fiction of adoption, which to the thought of that
time seemed scarcely a fiction at all. The adopted man was
no less real a member of the family than was he who was
natural-born. His admittance to the sacred, the exclusive
religious mysteries of the family, at which no stranger was
ever suffered even to be present, and his acceptance of the
family gods as his own gods, was not less efiicacious in making
him one with the household and the kin than if he had opened
his veins to receive their blood. And so, too, houses could
grow by the adoption of families, through the grafting of the
alien branches into this same sacred stock of the esoteric
religion of the kindred. Whether naturally, therefore, or thus
artificially, houses widened into tribes, and tribes into com-
monwealths without loss of that kinship in the absence of
EAELY DEVELOPMENT OF GOVERNMENT. 19
■which, to the thinking of early men, there could be no com-
munion, and therefore no community, at all.
29. Kinship and Religion. — In this development kinship
and religion operated as the two chief formative influences.
Eeligion seems in most instances to have been at first only the
expression of kinship'. The central and most sacred worship
of each group of men, whether family or tribe, was the
worship of ancestors. At the family or communal altar the
worshipper came into the presence of the shades of the great
dead of his family or race. To them he did homage; from
them he craved protection and guidance. The adopted man,
therefore, received into this hallowed communion with the
gods of the family, was accepting its fathers as his own, was
takingupon himself the most solemn duties and acquiring the
most sacred privileges of kinship. So, too, of the famUy
adopted into the gens, or the gens received into the tribe. The
new group accepted the ancestry by accepting the worship of
the adopting house or community.
Eeligion was thus quite inseparably linked with kinship. It
may be said to have been the thought of which kinship was
the embodiment. It was the sign and seal of the common
blood, the expression of its oneness, its sanctity, its obliga-
tions. He who had entered into the bonds of this religion
had, therefore, entered into the heart of kinship and taken of
its life-blood. His blood-relationship was thus rendered no
fiction at all to the thought of that day, but a solemn verity,
to which every religious ceremonial bore impressive witness.
30. The Bonds of Religion and Precedent. — The results
of such a system of life and thought were most momentous.
It is commonplace now to remark upon English regard for
precedent, and upon the interesting development of 'com-
mon' and 'case' law. But not even an Englishman or an
American can easily conceive of any such reverential regard
for precedent as must have resulted from a canonization of
ancestors. We have ourselves in a measure canonized our
20 EAELY DEVELOPMENT Of GOVEEKMENT.
own forefathers of the revolutionary era, worshipping them
around fourth of July altars, to the great benefit both of our
patriotism and of our political morality. But the men of '76,
we are all willing to acknowledge, were at their greatest only
men. The ancestor of the primitive man became, on the con-
trary, a god, and a god of undying power. His spirit lived on
to bless or to curse. His favor had to be propitiated, his
anger appeased. And herein was a terribly effective sanction
for precedent. It was no light matter to depart from the
.practices of these potent ancestors. To do so was to run in
the face of the deities. It was to outrage all religious feeling,
to break away from all the duties of spiritual kinship. Pre-
cedent was under such circumstances imperative. Precedent
of course soon aggregated into custom, — such custom as it is
now scarcely possible to conceive of, — a supreme, uniform,
imperious, infrangible rule of life which brought within its
inexorable commands every detail of daily conduct.
31. The Reign of Custom. — This reign of customary law
was long and decisive. Its tendency was to stiffen social life
into a formula. It left almost no room at all for the play of
individuality. The family was a despotism, society a routine.
There was for each man a rigorous drill of conformity to the
custom of his tribe and house. Superstition strengthened
every cord and knot of the net-work of observance which
bound men to the practices of their fathers and their neigh-
bors. That tyranny of social convention which men of inde-
pendent or erratic impulse nowadays find so irksome — that
'tyranny of one's next door neighbor' against which there are
now and again found men bold enough to rebel — had its ideal
archetype in this rigid uniformity of custom which held
ancient society in hard crystallization.
32. Fixity of System the Rule, Change the Exception.—
Such was the discipline that moulded the infancy of political
society : within the family, the supreme will of the father ;
outside the family, the changeless standards of public opinion.
BAELY DEVELOPMENT OF GOVEENMENT. 21
The tendency, of course, was for custom to become fixed in a
crust too solid ever to be broken through. In the majority of
cases, indeed, this tendency was fulfilled. Many races have
never come out of this tutelage of inexorable custom. Many
others have advanced only so far beyond it as those caste sys-
tems in which the law, of status and the supremacy of imme-
morial custom have worked out their logical result in an
unchanging balance of hereditary classes. The majority of
mankind have remained stationary in one or another of the
earliest stages of political development, their laws now consti-
tuting as it were ancient records out of which the learned may
rewrite the early history of those other races whom primitive
custom did not stagnate, but whose systems both of govern-
ment and of thought still retain many traces (illegible with-
out illumination from the facts of modern savage life) of a
similar infancy. Stagnation has been the rule, progress the
exception. The greater part of the world illustrates in its
laws and institutions what the rest of the world has escaped ;
this rest of the world illustrates what favorable change was
capable of making out of the primitive practices with which
the greater part of the world has remained per force content.
33. Changes of System outrun Changes of Idea. — The
original likeness of the progressive races to those which have
stood still is witnessed by that persistency of idea of which I
have already spoken. Progress has brought nations out of the
primitive practices vastly more rapidly than it has brought
them out of the primitive ideas of political society. Practical
reform has now and again attained a speed that has never been
possible to thought. Instances of this truth so abound in the
daily history of the most progressive nations of the world of
to-day that it ought not to be difficult for us to realize its
validity in the world of the first days of society. Our own
guilds and unions and orders, merely voluntary and conven-
tional organizations as they are, retain in their still vivid sense
of the brotherhood of their members at least a reminiscence of
22 EARLY DEVELOPMENT OF GOVERNMENT.
the ideas of that early time when kinship was the only con-
ceivable basis of association between man and man, when
" each assemblage of men seems to have been conceived as a
Family."^ In England political change has made the great
strides of the last two centuries without making the Crown
any less the central object of the theoretical or lawyerly
conception of the English constitution. Every day witnesses
important extensions and even alterations of the law in our
courts under the semblance of a simple application of old rules
(sees. 201, 1187, 1188) . Circumstances alter principles as well
as cases ; but it is only the cases which are supposed to be
altered. The principles remain, in form, the same. Men still
carry their brides on wedding journeys, although the necessity
for doing so ceased with the practice, once universal, of steal-
ing a bride. ' Good blood ' still continues to work wonders,
though achievement has come to be the only real patent of
nobility in the modern world. In a thousand ways we are
more advanced than we tliink we are.
34. How did Change enter ? — The great question, then, is,
How did change enter at all that great nursery of custom in
which all nations once wore short clothes, and in which so
many nations still occupy themselves with the superstitions
and the small play of childhood? How did it come about
that some men became progressive, while most did not ? This
is a question by no means easy to answer, but there are probar
bilities which may throw some light upon it.
35. Differences of Custom.— In the first place, it is not
probable that all the groups of men in that early time had the
same customs. Custom was doubtless as flexible and malleable
in its infancy as it was inflexible and changeless in its old age.
In proportion as group separated from group in the restless
days of the nomadic life, custom would become differentiated
from custom. Then, after first being the cause, isolation
1 Maine, Early History of Institutions, p. 232.
EAKLY DEVELOPMENT OP GOVERNMENT. 23
■would become the natural result of differences of life and be-
lief. A family or tribe which had taken itself apart and built
up a practice and opinion peculiar to itself would thereby have
made itself irrevocably a stranger to its one-time kinsmen of
other tribes. When its life did touch their life, it would
touch to clash, and not to harmonize or unite. There would
be a Trojan war. The Greeks had themselves come from these
very JSgean coasts of Asia Minor, and these Trojans were
doubtless their forgotten and now alien kinsmen. Greeks,
Komans, Celts, had probably once been a single people; but
how unlike did they become !
36. Antagonism between Customs. — We need not specially
spur our imaginations to realize how repugnant, how naturally
antagonistic, to each other families or tribes or races would be
rendered by differences of custom. " We all know that there
is nothing that human beings (especially when in a low state
of culture) are so little disposed to tolerate as divergencies of
custom," says Mr. Hamerton, who is so sure of the fact that
he does not stop to illustrate it. How ' odd,' if not ' ridicu-
lous,' the ways of life and the forms of belief often seem to
us in a foreign country, — how instinctively we pronounce
them inferior to our own ! The Chinaman manages his rice
much more skilfully with his 'chop-sticks' than we manage
ours with our forks; and yet how 'queer,' how 'absurd' chop-
sticks are ! And so also in the weightier matters of social and
religious practice.
37. Competition of Customs. — To the view of the primi-
tive man all customs, great or small, were matters of religion.
His whole life was an affair of religion. Tor every detail of
conduct he was accountable to his gods and to the religious
sentiment of his own people. To tolerate any practices differ-
ent from those which were sanctioned by the immemorial usage
of the tribe was to tolerate impiety. It was a matter of the
deepest moment, therefore, with each tribal group to keep itself
uncontaminated by alien custom, to stamp such custom out
M EARLY DEVELOPMENT OF GOVERNMENT.
■wherever or whenever it could be discovered. That was a time
of war, and war meant a competition of customs. The con-
queror crushed out the practices of the conquered and 'com-
pelled them into conformity with his own.
38. The Better prevail. — Of course in such a competition
the better custom would prevail over the worse.^ The patri-
archal family, with its strict discipline of the young men of
the tribe, would unquestionably be "the best campaigning
family," — would supply the best internal organization for war.
Hence, probably, the national aspect of the world to-day:
peoples of patriarchal tradition occupying in unquestioned
ascendency the choicest districts of the earth; all others
thrust out into the heats or colds of the less-favored conti-
nents, or crowded into the forgotten corners and valley-closets
of the world. So, too, with the more invigorating and sus-
taining religions. Those tribes which were least intimidated
by petty phantoms of superstition, least hampered by the
chains of empty but imperative religious ceremonial, by the
engrossing observance of times and seasons, having greater
confidence in their gods, would have greater confidence in
themselves, would be freer to win fortune by their own hands,
instead of passively seeking it in the signs of the heavens or
in the aspects of nearer nature ; and so would be the surer
conquerors of the earth. Religion and the family organiza-
tion were for these early groups of kindred men the two
indexes of character. In them was contained inferiority or
superiority. The most serviceable customs won the day.
39. Isolation, Stagnation. — Absolute isolation for any of
these early groups would of course have meant stagnation;
just as surely as contact with other groups roeant war. The
world, accordingly, abounds in stagnated nationalities ; for it
is full of instances of isolation. The great caste nations are
examples. It is, of course, only by a figure of speech that we
^ For the best development of the whole idea of this paragraph and
others in this connection, see Bagehot, Physics and Politics, Chap, II.
EAKLY DEVELOPMENT OF GOVERNMENT. 25
can speak of vast peoples like those of China and India as
isolated, though it is scarcely a figure of speech to say that
they are stagnated. Still in a very real sense even these popu-
lous nations were isolated. We may say, from what we dis-
cern of the movements of the nations from their original seats
in Asia, that the races of China and India were the ' back-water '
from the great streams of migration. Those great streams
turned towards Europe and left these outlying waters to sub-
side at their leisure. In subsiding there was no little commo-
tion amongst them. There were doubtless as many inter-tribal
wars in the early history of China before the amalgamation of
the vast kingdom as there have been in the history of India.
That same competition of custom with custom which took place
elsewhere, also took place there. But the tribes which pressed
into China were probably from the first much of a kind, with
differing but not too widely contrasted customs which made it
possible for them to assume at a now very remote period a
uniformity of religion and of social organization never known
amongst the peoples that had gone to the West ; so that, before
the history that the rest of the world remembers had begun,
China's wall had shut her in to a safe stagnation of monoto-
nous uniformity. The great Indian castes were similarly set
apart in their vast peninsula by the gigantic mountains which
piled themselves between them and the rest of the continent.
The later conquests which China and India suffered at the
hands of Oriental invaders resulted in mere overlordships, which
changed the destination of taxes, but did not touch the forms
of local custom.
40. Movement and Change in the West. — It is easy to
imagine a rapid death-rate, or at least an incessant transforma-
tion, amongst the customs of those races which migrated and
competed in the West. There was not only the contact with
each other which precipitated war and settled the question of
predominance between custom and custom ; there was also the
slow but potent leaven of shifting scene and changing circum-
26 BAELY DEVELOPMENT OF GOVERNMENT.
stance. Tlie movement of the peoples was not the march of
a host. It was only the slow progress of advancing races, its
stages often centuries long, its delays fruitful of new habits
and new aspirations. We have, doubtless, a type of what took
place in those early days in the transformation of the Greeks
after they had come down to the sea from the interior of Asia
Minor. We can dimly see them beginning a new life there on
those fertile coasts. Slowly they acquired familiarity with
their new neighbor, the ocean. They learned its moods.
They imagined new gods as breathing in its mild or storming
in its tempestuous winds. They at length trusted themselves
to its mercy in boats. The handling of boats made them sail-
ors ; and, lured from island to island across that inviting sea,
they reached those later homes of their race with which their
name was to be ever afterwards associated. And they reached
this new country changed men, their hearts strengthened for
bolder adventure, their hands quick with a readier skill, their
minds open to greater enthusiasms and enriched with warmer
imaginings, their whole nature profoundly affected by contact
with Father iEgeus.
41. Migration and Conquest. — And so, to a greater or less
extent, it must have been with other races in their movements
towards their final seats. Not only the changes of circumstance
and the exigencies of new conditions of life, but also the con-
quests necessarily incident to those days of migration, must
have worked great, though slow, alterations in national char-
acter. We know the Latins to have been of the same stock
with the Greeks ; but by the time the Latins have reached
Italy they are already radically different in habit, belief, and
capacity from the Greeks, who have, by other routes, reached
and settled Magna Grsecia. Conquest changes not only the
conquered, but also the conquerors. Insensibly, it may be, but
deeply, they are affected by the character of the subdued or
absorbed races. ISTorman does not merge with Saxon without
getting Saxon blood into his own veins, and Saxon thoughts
EARLY DEVELOPMENT OP GOVERNMENT. 27
into his head ; neither had Saxon overcome Celt without being
himself more or less taken captive by Celtic superstition. And
these are but historical instances of what must have been more
or less characteristic of similar events in 'prehistoric' times.
42. Inter-tribal Imitation. — There must, too, have been
among the less successful or only partially successful races a
powerful tendency towards imitation constantly at work, —
imitation of the institutions of their more successful neighbors
and rivals. Just as we see, in the histories of the Old Testar
ment, frequent instance&. of peoples defeated by Jewish arms
incontinently forsaking their own divinities and humbly com-
mending themselves to the God of Israel, so must many another
race, defeated or foiled in unrecorded wars, have forced them-
selves to learn the customs in order that they might equal the
tactics of rival races.
43. Individual Initiative and Imitation. — And this im-
pulse towards imitation, powerfiil as between group and group,
would of course, in times of movement and conquest, be even
more potent as amongst individual men. Such times would
be rich with opportunity for those who had energy and enter-
prise. Many a great career could be carved out of the events
of days of steady achievement. Men would, as pioneers in a
new country or as leaders in. war, be more or less freed from
the narrow restrictions of hard and fast custom. They could
be unconventional. Their individual gifts could have play.
Each success would not only establish their right* to be them-
selves, but would also raise up after them hosts of imitators.
New types would find acceptance in the national life ; and so a
new leaven would be introduced. Individual initiative would
at last be permitted a voice, even as against immemorial
custom.
44. Institutional Changes : Choice of Rulers. — It is easy
to see how, under the bracing influences of race competition,
such forces of change would operate to initiate and hasten a
progress towards the perfecting of institutions and the final
28 EARLY DEVELOPMENT OF GOVERNMENT.
abolition of slavery to habit. And it is no less plain to see
how such forces of change would affect the constitution of
government. It is evident that, as has been said (sec. 38),
the patriarchal family did furnish the best campaigning mate-
rials, and that those races whose primitive organization was of
this type did rapidly come to possess the " most-competed-for "
parts of the earth. They did come to be the chief, the central
races of history. But race aggregations, through conquest or
adoption, must have worked considerable changes in the politi-
cal bearings of the patriarchal principle. The direct line of
male descent from the reputed common progenitor of the race
could hardly continue indefinitely to be observed in filling the
chieftainship of the race. A distinct element of choice — of
election — must have crept in at a very early period. The in-
dividual initiative of which I have spoken, contributed very
powerfully to effect this change. The oldest male of the
hitherto reigning family was no longer chosen as of course,
but the wisest or the bravest. It was even open to the
national choice to go upon occasion altogether outside this
succession and choose a leader of force and resource from some
other family.
46. Hereditary replaced by Political Magistracy. — Of
course mere growth had much to do with these transfor-
mations. As tribes grew into nations, by all the processes
of natural and artificial increase, all distinctness of mutual
blood-relationship faded away. Direct common lines of de-
scent became hopelessly obscured. Cross-kinships fell into
inextricable confusion. Family government and race govern-
ment became necessarily divorced, — differentiated. The state
continued to be conceived as a Family; but the headship of
this vast and complex family ceased to be natural and became
political. So soon as hereditary title was broken in upon, the
family no longer dominated the state; the state at last
dominated the family. It often fell out that a son, absolutely
subject to his father in the family, was by election made mas-
EARLY DEVELOPMENT OP GOVERNMENT. 29
ter of his father outside the family, in the state. Political
had at least begun to grow away from domestic authority.
46. Summary. — It will be possible to set forth the nature
of these changes more distinctly when discussing Greek and
Roman institutions at length in the next chapter. Enough
has been said here to make plain the approaches to those sys-
tems of government with which we are familiar in the modern
world. We can understand how custom crystallized about the
primitive man ; how in the case of the majority of mankind
it preserved itself against all essential change ; how with the
favored minority of the race it was broken by war, altered by
imperative circumstance, modified by imitation, and infringed
by individual initiative ; how change resulted in progress ; and
how, at last, kinsmen became fellow-citizens.
Additional Authorities on Primitive Society.
Bagehot, Walter, '■'■ Physics and Politics; or, Thoughts on the Applicar
tion of the Principles of Natural Selection and Inheritance to
Political Society."
Spencer, Herbert, " Ceremonial Institutions," and " Political Institu-
tions."
Tylor, E. G., " Early History of Mankind," and " Primitive Culture."
Maine, Sh H. S., " Early History of Institutions," and "Village Com-
munities in the East and West."
III.
THE GOVEENMENTS OE GREECE AND EOME.
o>Ko
47. The Evolution of Government. — At no one of the
various stages of their development may we photograph the
ancient classical governments and say that we have an ade-
quate picture of Greek or Eoman political practice. We can-
not speak of the governments of Greece and Rome instructively
except as evolutions.' Their history is of course never com-
plete at any one period. Moreover, each stage of their develop-
ment illuminates the processes which we have just been dis-
cussing, the processes by which the primitive constructions of
government were modified and modern systems of government
approached. We may study modern governments, as they are ;
but in order to understand modern governments as they are it
is necessary to know ancient and mediaeval governments in all
their successive periods of development.
(1) The Govebnments of Gkeece.
48. The Patriarchal Presidencies : Legislation. — We get
our earliest glimpse of Greek governments from Homer. When
the Iliad and Odyssey were writteti, monarchy was universal
throughout the Greek world. But not such n.onarchy as grew
up in the later times of classical political development with
which we are more familiar. It was monarchy of a kind which
no longer exists. It would be more in keeping with the mod-
ern meaning of words to describe it as a Patriarchal Presidency.
THE GOVERNMENTS OF GREECE AND ROME. 31
The kings of Homer's songs were not supreme rulers who gave
law and singly administered justice to their subjects. They
were chief nobles, ' the first among equals,' presidents of coun-
cils of peers. The early monarchies of Greece were not con-
stituted of single cities, like the later republics, but probably
of groups of communities acknowledging a common govern-
ment. The centre of that government was the council of
Elders (Qerontes), heads of the noble families. That council
was the " king's council " only because it convened at the king's
summons. He called his peers to a feast. To speak modernly,
the dinner-table was the council-board. State affairs were dis-
cussed over the wine and the viands : after an informal manner
which suggests to the reader of to-day Friedrich Wilhelm's
" Tobacco Parliament," where imperial business shaped itself
as it might through the laconic speech of king and councillors
uttered amidst the dense smoke of busy fuming pipes. Here
the purposes and plans of government originated. Prussian
plans, however, were seldom formally announced : Greek plans
were almost always made publicly known. The king summoned
an assembly of the people (assemblies, that, is, of the gentes,
the members of the recognized immemorial kinship) to hear
the decrees of the elders. The presidency of this assembly,
like the presidency of the council, belonged to the king ; or,
rather, the council itself, as it were, presided, under the head-
ship of the king. The elders sat, that is, before the assembled
tribesmen about the person of the king. The king made known
the business to be considered, and the elders, if they chose,
addressed the people concerning it. No vote was taken. The
assembly freely made known its sentiments concerning the
utterances of the noble orators by noisy demonstrations of agree-
ment or disagreement, and on critical occasions its feelings
no doubt counted for something ; but it had no choice but to
acquiesce in the decisions of the council, previously fixed upon
at dinner.
49. Tribal Justice. — Such was ancient Greek legislation.
32 THE GOVERNMENTS OP GKBECE AND HOME.
Judicial proceedings were not radically different. In some in-
stances, doubtless, the king dispensed justice as sole magistrate.
He was generally the richest, as well as officially the first, of
the noblemen of the kingdom, and as such must have adjudged
many differences between his numerous personal retainers at
least, even if he did not often act as sole judge between other
litigants. Hvtt most cases arising between men of different
family groups were heard by the king and his council in the
presence of the people, much as public business was considered,
each councillor being entitled to deliver his opinion in his turn,
and a majority of voices probably controlling.
50. Patriarch and Priest. — I have called this presidency
of the king in state affairs a ' patriarchal ' presidency because
it belonged to him by hereditary right, as chief elder by direct
descent from the first preferred elder of his people. The family
once chosen by the gods to preside in council and command in
war was seldom set aside ; and the usual succession by primo-
geniture was rarely departed from. This president-king, be-
sides, had other prerogatives typical of a patriarchal headship.
He was the high priest of his people, performing all those
sacrifices and leading in all those ceremonials which spoke the
family oneness of the nation. He was representative of the
nation in its relations with the gods. He was also commander-
in-chief in war, here again representing the unity of the people
over whom he presided.
51. Not Lord, but Chief. — But here the kingly prerogar
tives ended. These presidential and representative functions
of the early Greek king contained the sum of his powers.
Aside from his presidency in legislation and in adjudication,
his high priesthood, and his command in war, he had little
power. There was no distinct idea as yet of personal alle-
giance to the monarch on the part of the people at large. He
received gifts from the people and had the usufruct of the pub-
lic domain for his support ; but these were- accorded him rather
as father and typical head of his nation than as master. The
THE GOVEKNMENTS OF GEEECEAND ROME. 33
services rendered him were largely voluntary. He was not
lord, but chief of his people.
62. The Primitive A^/aos. — In one sense the king was not
chief of a people at all. The Homeric S^jnos (demos) was not
a ' people ' in the modern sense of the term. It was not an
association of individuals, but an association of families, of
families which had widened into gentes, but which lived apart
from each other in semi-independent groups, each possibly
clustering about its own village and living its own separate
cantonal life. The king was the head of these confederated
'houses,' and the seat of his authority was that 'city' about
which their confederate life centred.
53. The Antique * City.' — This city was as unlike as pos-
sible to those centres of population and industry which are the
cities of our own time. It was very different even from those
Greek cities of historical times of which Athens may be taken
as a type, and which were the actual homes of the ruling
numbers of the population. The city of Homer's day doubt-
less contained the dwellings of the king and his assistant
priests, but not many besides king and priests, with their
families and attendants, lived in it. It was generally a citadel
upon a hill to which the confederated families living in the
country round about it resorted in times of actual or threat-
ened invasion. It contained the temples of the gods and was
the seat of the common worship. In it was the market-place,
also, in which the trade of the country-side centred. It saw
the festivals, the sacrifices, the councils, the courts, the armed
musterings of the people. But it did not see their daily life.
That was not lived in common, but apart in clans. Each
' house ' was a complete independent organism in itself, with
a very vital corporate existence. It " had its assemblies ; it
passed laws which its members were bound to obey, and which
the city itself respected. " ' These assemblies were presided
1 Coulanges, The Ancient City, p. 137 (Am. ed.).
34 THE GOVERNMENTS OF GREECE AND ROME.
over by an hereditary chief who was priest, judge, and military
commander of his house — its king, a chief among the heads
of its branches. Throughout the gens there was the closest
brotherhood. It had its common family worship, its religious
festivals, its common burying-place. Its members could in-
herit from each other, and were ultimately responsible for
each other's conduct and debts. They could not accuse one
another before any tribunal but that of their own kindred.
They stood together as one family under a complete family
government.
54. Confederate Growth of Family Groups. — The mo-
narchical, city had not originated directly from a confederation
of families. It had been developed through a series of other
combinations, which, in their religious functions at least, con-
tinued to exist after the city had come into being. Gentes
had first of all united, for the celebration of some common
worship, into Phratries or (in Latin term) curies. Phratries
had combined, from like motives, into Tribes. It was by a
coming together of Tribes that the city had been formed.
Each Phratry and Tribe had realized the family idea by the
worship of the same gods, and the canonization of some com-
mon hero as their eponymous ancestor ; and each had elevated
a chief to its presidency and high-priesthood. Each had its
assemblies and its festivals.
56. The * City ' a Conlfederacy- of Gentes. — But though
the city was the next step of confederation after the tribe, it
was not tribes, nor yet phratries, but gentes which were repre-
sented in the council of the king. There was, so to say, a
subsidence of political organization upon tliis older foundation
of the family. In the city the tribe continued to be a unit of
worship, the phratry a unit of worship and of military organi-
zation; but only the gens was a unit of civil organization.
The army was grouped by phratries, but government was con-
stituted by families.
THE GOVEENMBNTS OF GREECE AND ROME. 35
56. " The city was not an assemblage of individuals ; it was a con-
federation of several groups, which were established before it, and
whicli it permitted to remain. We see, in the Athenian orators, that
every Athenian formed a portion of four distinct societies at the same
time ; he was a member of a family, of a phratry, of a tribe, and of a
city. He did not enter at the same time and the same day into all these
four," like an American, who at the moment of his birth belongs at
once to a family, a county, a state, and a nation. " The phratry and
the tribe are not administrative divisions. A man enters at different
times into these four societies, and ascends, so to speak, from one to
the other. First, the child is admitted into the family by the religious
ceremony, which takes place six days after his birth. Some years later
he enters the phratry by a new ceremony. . . . Finally, at the age
of sixteen or eighteen, he is presented for admission into the city.
On that day, in the presence of an altar, and before the smoking flesh
of a victim, he pronounces an oath, by which he binds himself, among
other things, always to respect the religion of the city. From that day
he is initiated into the public worship, and becomes a citizen. If we
observe this young Athenian rising, step by step, from worship to wor-
ship, we have a symbol of the degrees through which human associa-
tion has passed. The course which this young man is constrained to
follow is that which society first followed." i
57. The Elders. — The real inner life of government dwelt,
therefore, not in the authority of the king, but in the power
vested in each member of his Council. As head of a gens,
each Elder exercised those prerogatives of the father-sovereign
about which, as about a support, society had attained all its
earliest growth. As a Council, the Elders were confederated
chiefs, representing each a little family sovereignty. It is
not, perhaps, a too far-fetched fancy to liken them to the
members of our own federal Senate. Just as our own Senators
represent self-governing states, confederated for certain pur-
poses, so did these Elders represent self-governing family
groups joined in the pursuit of certain common objects. Of
course the likeness disappears the moment we look outside
the Council, away from its internal organization. Our Sena-
1 Coulanges, The Ancient Citj/, pp. 169, 170.
36 THE GOVERNMENTS OF GREECE AND ROME.
tors are elected representatives, and have only representative
functions. They have no official voice in the direction of the
affairs of the states which they represent. Those ancient
Greek Elders, on the contrary, were hereditary chiefs, and had
weight in the Council because they were rulers at home in
their several cantons. The language of their day commonly
designated them ' kings.' They were kings : the president
of their Council was 'the' king, their leader in war and in
religious observance.
58. Religion : the Priesthood. — The key to the whole
composition of this early society was its religion. The func-
tions of father, chief, and king; the constitutions of family,
phratry, tribe, and city — all hung upon certain deep-lying
religious conceptions. The father was first of all high-priest
of his house, the chief first of all high-priest of his phratry,
the king first of all high-priest of his city. Their other func-
tions rather flowed from the authority of their priesthood than
were added to it. Eeligion was the one conclusive motive
and sanction of all social order in that early time, as it con-
tinued to be for many centuries afterwards ; and the heads of
religion were of course the rulers of society.
59. It was the leading peculiarity of the religion of that
time that each father, chief, and king represented gods whom
no one else represented. The gods of one family were never
the gods of another family, the gods of one phratry or city,
never those of another phratry or city. Gods were in that day
private, not common, property, and were owned inalienably.
Each high-priest of the series, therefore, had a peculiarly sacred
and distinctive character within the group over whose worship
he presided, and in that character were contained the seeds of
all his other prerogatives. He was chief of the religion of his
group ; and that religion was the supreme rule of its life. He
was, therefore, its king; and his office was hereditary. The
sacred priesthood of the father could be transmitted only by
natural succession. Priests could not be made, unless in the
THE GOVERNMENTS OF GREECE AND ROME. 37
providence of the gods, they were not born. Then human
choice must be resorted to ; but that choice must keep itself
as close to the direct line of the priestly stock as possible. It
must select within the chosen family.
60. Primogeniture. — It is because of the rule of such con-
ceptions of civil magistracy, as an authority resulting from the
priestly functions of the head of each social group, that we
find primogeniture the ruling order of succession alike to elder-
ship, to chieftainship, and to kingship ; and it is because of
this same rule of religious thought in social organization that
we find every magistrate, even those of the later times when
magistrates were elected, exercising some priestly function, as
if to supply a necessary sanction for his nvil powers. The
magistrate was always next to the gods, was always their in-
terpreter and servant.
61. The City's Religion. — In every way the political life
of the city spoke of religion. There was a city hearth in the
prytaneum on which a fire, sacred to the city's gods, was kept
ceaselessly burning ; there were public repasts at which, if not
the whole people, at least representatives daily sat down to
break the sacred cake and pour out the consecrated wine to
the gods : the council-feast to which the king invited the Elders
(sec. 48), though also a social feast, was itself first of all- a
sacred, sacrificial repast over which the king presided by virtue
of his priestly office. There were festivals at stated times in
honor of the several deities of the city ; and the Council (which
at a later day became the Senate) always convened in a temple.
Politics was a religion.
62. Decay of the Antique City. — Such seems to have been
the universal first model of completed political society in the
Greek world. When it comes within our view in the Homeric
songs, however, it is already old and near its end. It was the
complete and singularly logical result of that widening from
family to tribe which had filled the ages of human life which
had gone before it. It was the true offspring of its long an-
38 THE GOVERNMENTS OP GKEECE AND ROME.
cestry : a greater family descended from a long line of families.
But when we catch our first glimpse of it, the end of the pure
family state is at hand. A series of revolutions is about to
change the whole organization of political society.
63. This change, however, did not proceed everywhere with
that universal uniformity which seems to have characterized
previous developments in the Greek world. Similar changes
were effected, indeed, everywhere ; but differing circumstances
gave to change a different speed and a varying form and se-
quence in separated localities. It was not so much a continued
developraent as a differentiation. It will be best, therefore, to
continue our examination of the further modification and ex-
pansion of Greek institutions by studies of the histories of the
particular cities of Greece ; and it is almost unavoidable that
the particular cities chosen for this purpose should be Athens
and Sparta, inasmuch as it is only of these two masterful cities
that we have anything like adequate knowledge.
64. The City absorbs its Constituent Parts. — There is,
however, one uniform process first to be noted amongst all the
governments of historical Greece. City life continued every-
where ; but the government was no longer cantonal. It was
municipal. A ' city ' was no longer merely the confederate
centre of separated family cantons in which the real life of
the people still dwelt. That life had become much more largely
and truly a united life. The city no longer received its vitality
from the family governments round about it ; they, rather, de-
rived their significance from their connection with the city.
The city was now, instead of a mere compound or aggregate, a
whole, of which tribes, phratries, and families were parts. The
confederation had, so to say, swallowed up the confederates.
The city, a child of family government, had subordinated family
government to itself ; had usurped a full supremacy, making
its parents its subjects.
65. Decline of the Elders' Separate Powers We have
not the historical materials for making quite plain the why
THE GOVERNMENTS OP GREECE AND ROME. 39
and wherefore of this notable transformation in political order ;
but we can see dimly some of the causes which must have
brought it about. By coming together under the early city
organization the aforetime sovereign family governments neces-
sarily lost much of their former importance. Confederation
inevitably lessens the individual importance of the confederates.
They have no longer their accustomed separate prominence ;
that has been swallowed up in their aggregate weight. How-
ever small might have been the power of each family group
when it was dissociated from its neighbors, its complete inde-
pendence gave it a dignity, a cohesiveness, an individuality,
and a self-sufB.ciency of which association with others robbed
it. After the independence of the family had been curtailed
by confederation, the strongest motives for preserving family
organization intact would be displaced by wider interests. The
generation which saw the ' city ' formed would of course not
dream that family importance had been in any wise impaired.
The Elders of the first councils would abate not a jot of their
hereditary pride of blood and of authority, but would deem
themselves as great kings as ever. And in those times of reluc-
tantly changing. thought scarcely an element of altered concep-
tion in regard to these matters would enter for generations
together. But, whether sensibly or insensibly, profound modi-
fications bqth of social thought and of social practice would at
length take place. Relegated to a subordinate rank in the
political order and no longer obliged to preserve that constitu-
tion which had been essential to it while it continued itself an
independent government, the gens would by degrees lose its
close integration and compact organic structure. A kingdom
within a kingdom is a difficult thing to keep alive. Its mem-
bers are confused by a service of two masters, and end by really
serving only one, — and that the stronger.
66. Political Disintegration of the Gens. — The family
died, therefore, as a political organization, for lack of suffi-
ciently important functions to keep it interested in itself. It
40 THE GOVERNMENTS OP GREECE AND ROME.
was gradually disintegrated. In religion, indeed, it steadily-
remained one for centuries, formally at least, if not practically ;
but in other things it fell slowly apart. Its branches became
by degrees more and more independent of each other. Its
property was no longer held in common, but was divided with
greater and greater freedom, and with less and less regard for
that law of primogeniture which had formerly made the eldest-
born son of the direct line the sole proprietor, as trustee for
his kinsmen, of the family lands and goods. In the end, this
eldest son got not even the largest share of the property, but
divided it equally with his brothers.
Here, then, was an almost complete dismemberment and
disintegration of the gens as a political unit in the larger gov-
ernment of the city. That larger government had superseded
it in all the great functions of social control. Its private
interests and prerogatives were no longer sufficient to hold it
together. Its members had become citizens, and their citizen-
ship had eclipsed their membership of the family. The only
politics worth competing in was the politics of the city. The
cantons no longer constituted but depended upon the city.
Athens.
67. The City of Solon: Kingship gone. — The first dis-
tinct view we get of Athenian affairs reveals the changes
already described in large part accomplished. We may be
said to get that first distinct view in the time of Solon, to
whom Athens attributed her first great reform code. The
Solonian constitution is by no means so well known as histo-
rians wish that it were ; but several of its main features may
be said to be beyond dispute, and these features speak very
plainly of a society quite unlike that of the prehistoric Greek
' city ' which we have been considering. Homer would hardly
have recognized the city for which Solon legislated.
Solon was put in charge of the city's affairs by being chosen
THE GOVERNMENTS OP GREECE AND ROME. 41
' Arehon/ What was an ' Archon ' ? The ancient ' city ' had
known no such officer. Did he act for the king, or was he of
the Council ? Neither the one thing nor the other. The
ancient kingship had disappeared, the archonship was one of
its fragments. The abolition of the kingship had doubtless
come about through an aristocratic revolution, such as Aris-
totle afterwards noted as altogether a normal movement in
Greek politics. The 'kings' of the Council had grown by-
degrees quite intolerant of the authority of the king, their
patriarchal president. He stood for the growing state ; they,
only for the disintegrating gentes. His hereditary headship
was threatening to overshadow permanently their individual
part in affairs. They therefore determined to control his
office, to make it dependent upon themselves. Codrus, the
last king of Athens, is said to have sacrificed himself in a war
with Peloponnesian foes, because of a prophecy that the
enemies of Athens would be victorious unless the life of her
king were yielded up in the contest, and it is added by the
tradition that the Athenians thereupon abolished hereditary
kingship by way of emphasizing their belief that no one was
worthy to succeed Codrus. Possibly we are not at liberty to
discredit all of the pretty story ; it is such a story as we would
not discredit if we could. But we may feel assured that there
were other potent reasons in the minds of the ruling men of
the city why Codrus should be the last of her kings, and that
they were quite clear in their determination that, if not
Codrus, then some early successor of his should be the last of
the hereditary monarchs of Athens.
68. The Archonship. — They did not, however, transform
the office at once into an elective magistracy. They could not.
Both unreasoning religious belief and calculating policy would
have forbidden any such violent breach in the ancient order
of the family-state. To all outward appearance only the name
of the office was changed. Codrus, who had been Basileus
(king), was succeeded by his son under the title Archon
42 THE GOVERNMENTS OP GKBBCE AND ROME.
(ruler). That was all. And the office of archon was held
by descendants of Codrus in strict hereditary succession for
about three hundred and sixteen years. It is evident, however,
that this change of name in the chief office of the state cov-
ered, perhaps without altogether concealing, many important
changes in the conditions of its tenure. If Codrus had inher-
ited too strong prerogatives, the archons, his successors, exer-
cised those prerogatives in more or less strict subordination to
the noble families represented in the Council. The monarchy
had been made a limited monarchy. The archon was respon-
sible to a watchful House of Lords.
69. Nine Archons. — At length the hereditary archonship
was in its turn done away with. The archon's tenure of office
was limited to ten years, the archon being chosen, doubtless, by
the Council, though still always chosen — so tenacious was the
idea of the hereditary character, the f athership, the kin-headship
of the ruler of the state — from the family of Codrus. But
the hereditary principle was at length in decay ; and the first
assured date in Greek history shows us its end. In the year
683 B.C. the archonship was made annual, its functions were
divided up amongst nine offices, and to these offices all
Eupatrids (all, that is, who were of the old kinship, of the
family-state) were made eligible. The honorary chief of these
nine archons was called Archon Eponymus, because from him
the year took its name in all official records ; the second of
, the nine was called Archon Basileus, because he was the city's
high-priest, and thus successor to the most typical of the old
kingly functions ; the third was Archon Polemarchus, having
received the military command once belonging to royalty ; the
other six were Thesmothetce, judges. Kingship had been ' put
into commission.' It was parcelled out among the members
of what we should call a 'board' of archons. The whole
executive direction of the state was doubtless in the hands of
this board, but their most prominent functions were judicial.
They were all judges. Upon the chief archon devolved the
THE GOVERNMENTS OF GREECE AND ROME. 43
weighty duty of determining oases of family law and inheri-
tance ; the king-archon adjudicated the then numberless cases
which religious law controlled; the arehon polemarch heard
all cases between foreigners; the six Thesmothetee decided
such cases as belonged to the jurisdiction of none of the three
principal archons — all cases not otherwise assigned. There
were, moreover, certain judicial functions which the nine
archons exercised jointly, such as the punishment of banished
persons who had broken their banishment, the oversight of the
balloting for certain minor judgeships, the presidency of cer-
tain meetings of the people, etc.
70. Solon Arehon Eponymus : the Crisis. — Such was the
changed magistracy of Solon's time. Solon was chosen Arehon
Eponymus, but with powers such as no arehon ever regularly
possessed. He was chosen at a crisis, — a crisis which by its
very existence reveals a society radically unlike the society of
kinship described by Homer. There are three contending
parties in the state, — the men of the mountain, the men of the
shore, and the men of the plain. Neither the men of the
mountain nor the men of the shore would have been so much
as counted in the Homeric state. They were not of the im-
memorial kinship at all. They were the tillers of the soil,
holding their lands of the noble families who lived in and
about Athens, and who constituted the third party, of the
plain. They were outsiders to the state. The noble families
were the state ; these men of the mountain and the shore were
their subjects, for the most part their slaves, bearing every
burden, and sharing not a single privilege. Every movement
which they had made towards even a partial independence had
compelled them to borrow capital of their masters and so had
clinched their slavery. The men of the shore, the men, that
is, tilling the generous soil of the lands which stretched across
the southernmost portion of the Attic peninsula to famous
Sunium, were much better off than the men of the mountain,
who had both the exclusiveness of the law and the niggardli-
44 THE GOVEKNMENTS OF GREECE AND ROME.
ness of nature to contend with, in the mountainous districts
to the north ; but both hated the privileges of the Eupatrids,
and were ready to combine in order to wreck them. The one
could not, the oth-er would not, any longer abide content with
a lot which forbade them all independence and aU hope of a
voice in the determination of their own destinies. The men
of the coast would have accepted moderate concessions: the
poor peasants in the mountains clamored for radical meas-
ures ; but both would have something done. The Eupatrids,
with their submissive retainers on the plains about the city
and the port, were in a numerical minority, though doubtless
strongest in resource, and deemed concession unavoidable.
Solon was a man of advanced age and of established reputa-
tion, alike for courage, for honesty, and for wisdom. All
parties turned to him with hope and trust. He was chosen
archon, invested with extraordinary legislative powers, and
bidden make a constitution just to all alike. This was in the
year 594 b.c.
71. The Draconian Code. — Twenty-seven years before a
somewhat similar task had been assigned to Uraco ; but he had
failed through too great conservatism.^f-He had framed a code
which had rather made the old laws public and certain than
rendered them equitable. If anything, the definiteness which
he gave the law had added harshness to it by making it stiffer
and more inexorable than before. It was Solon's part to re-
form the institutions of the state. The time for mere revision
had gone by, and the time for reconstruction come. Draco's
legislation had been followed by the explosion of an attempted
revolution; Solon's must be followed by satisfaction and peace.
72. Solon's Economic Reforms. — And Solon certainly
proceeded with courage and thoroughness ; the results of his
work showed that he proceeded also with wisdom. He insti-
tuted both economic and constitutional reforms, which, though
conservative enough to force no too rude or sudden break with
the past, were decided and timely enough to assure the future
THE 60VEENMENTS OP GEEBCB AND ROME. 45
of the state. We are concerned here with his economic as
well as with his political measures, because the former were
the necessary foundation for the latter. It was necessary to
free the poor before enfranchising them. Accordingly Solon
struck off, first of all, the chains of debt which bound them,
not in property only, but in person as well, to the moneyed
Eupatrids, their landlords and creditors. Their debts were
remitted and their persons freed. A reforging of their chains
was prevented by a law which forbade the pledging of the
debtor's person as security for debt. Besides freeing the
workers of the soil, Solon himself tells us, in a fragment of
his curious narrative and, didactic verses, that he freed also the
land itself by removing certain stone pillars from it. There is
a controversy amongst historians as to the meaning of this
statement, as there is as to so many of the other events to
that remote time. We must either believe that the pillars
removed bore record of mortgages, or — failing to credit so
early a development of a seemingly rather modern system
of mortgaging — we must conclude that these pillars were
boundary stones sacred to those most revered gods, the gods
of boundaries, and thall they marked the inalienable ownership
of the land by the Eupatrids, whose gods these were. To
remove mortgage records would be only temporarily to free
the land from its bondage to the moneyed classes, for new
mortgages might be made ; but to remove the boundary pillars
which marked, with sacred signs hallowed by superstition, the
immemorial proprietorship of the Eupatrid families, would be
to make a division of estates possible, and eventual peasant
proprietorship, when prescription was no longer disproved by
those witnessing pillars, at least a thing to be hoped for. The
one measure would free the land only for a term ; the other
would free it, possibly, ' for good and all.' But either would
free it ; and, whichever may be within Solon's meaning, it is
clear that his. whole scheme of economical reform was intended
to better the condition of the classes hitherto not reckoned of
46 THE GOVERNMENTS OP GREECE AND ROME.
the state at all. Industry was at least put in the way of earn-
ing its just reward. Even men not of the noble blood were to
be given leave to thrive and, mayhap, grow rich.
73. Solon's Political Reforms : the Four Property Classes.
— The next step was to make wealth the patent of political
privilege. And here we come to Solon's political reforms. He
divided the citizens of the state into four classes according to
wealth. Their wealth was classified according to their incomes,
reckoned in measures of grain, or of oil or wine. The first of
these property classes was to consist of those who received
yearly at least five hundred medimni of corn or measures of
oil or wine from their estates. The members of this class,
therefore, were to be called Pentacosiomedimni (five-hundred-
medimni-iTien) . The second class were to be three-hundred-
medimni-men ; the third, one hundred and fifty. The fourth
class embraced all not included in the other three, 'the
masses,' as we should say. The members of the second class
were called also Hippeis, or knights, because upon them
devolved cavalry service in the army; the members of the
third, Zeugitce, because they had property enough to require
the employment of a yoke of draught animals ; the members
of the fourth, Thetes, because they were, for the most part,
laborers for hire.
74. It will be noted that only landed property is reckoned
in this classification. Probably it constituted the mass of prop-
erty in Attica at that time, though there were traders in the
community, and Athens had never had the contempt for com-
merce and the trades which so long prevailed at Sparta and
Eome. Solon himself had bettered his fortunes by merchan-
dising. He had been a merchant before he became a states-
man. It was his knowledge of the world acquired in his travels
as a merchant, indeed, which constituted a large part of his
qualification for the task now assigned him. But personal
property was not an important enough element in the wealth
of Athenians at that day, it would seem, to be accorded politi-
THE GOVERNMENTS OP GREECE AND ROME. 47
cal weight. The Eupatrids were of course the chief landowners.
Theirs was still, consequently, the chief part in the state.
75. Eligibility aad Election to Office. —For eligibility to
the highest public functions was confined to members of the
highest property class, though the franchise was not. Solon
instituted a popular Assembly, in which every citizen, of what-
ever class, had a vote, and to this Assembly was entrusted the
election of all magistrates. To the lesser magistracies any
member of the first three classes might be elected ; to the chief
magistracies, such as the archonships, only members of the
first class who were also of Eupatrid blood could be elevated.
Solon was not breaking with the past. Blood still counted for
much. The old families were still to conduct the affairs of
the state, though now only after popular election.
76. The Assembly and the Senate. — The popular Assembly
was not only an electoral, it was also a legislating body. Cer-
tain subjects were always to be submitted to its vote. But it
was not the only or the highest deliberative assembly. Solon
instituted &p7-o-bouleutic (pre-determining) Senate of Four Hun-
dred, by which all business to be brought before the popular
Assembly was to be first digested and prepared, and without
whose preliminary decree no business at all, aside jjerhaps from
the elections, was to be submitted to that subordiliate body.
The four hundred members of this Senate were to be chosen
(one hundred out of each of the four tribes into which the
people were from of old divided) from the first three of the
property classes. This Senate probably succeeded, in general,
to the political place formerly occupied by the ancient Council
of Elders. It could, in its discretion, dispose of most matters
finally, without consulting the popular Assembly. The Archons
doubtless had presiding seats in it, as they must previously
have had, as successors to the kings, in the ancient Council.
The election of senators, like that of archons and all other
magistrates, took place every year, the Senate's authority being
as brief as it was great. The popular Assembly, on the other
48 THE GOVEENMENTS OF GKEBCE AND EOMB.
hand, was from the nature of the case a perpetual body. Men
of all four of the classes, every one who was reckoned a citizen,
being of its membership, not even variations in the body of
wealth affected its composition. It always included all citi-
zens.
77. The Senate of the Areopagus. — At the top of the state
stood a still higher tribunal, the Senate of the Areopagus. The
origination of this council is sometimes attributed to Solon.
He did not originate it; he only gave it new form and an
altered jurisdiction. He constituted it " a supreme supervisory
authority, whose duty it was at once to watch over the collec-
tive administration, the behavior of the magistrates in office,
the proceedings of the popular Assembly, and, in cases where
it was required, to interpose ; while at the same time it was
bound to deal with the public discipline and the regulation of
conduct in the most general sense of those terms, and in con-
sequence possessed the right of bringing private individuals to
give an account of objectional behavior on their part." ^ Not all
of these functions were new. Possibly no one of them was. It
may be that the only Solonian feature in the powers of the
Areopagitic Senate was their limitation. For there is good
reason to believe that this council which sat on the Areopagus
was the ancient Council of Elders. Solon stripped it of its
legislative functions, its immemorial initiative in state affairs,
and constituted the Senate of Four Hundred, with its briefer
tenure and its more direct responsibility to the people, to re-
ceive them. The ancient Council retained only functions of
oversight and of discipline. The Four Hundred were thereafter
the Senate ; while the body whose greatest prerogatives they
had taken became only the Senate 'of the Areopagus.' The
traditional rules with reference to the composition of the latter
were also set aside : its exclusiveness was invaded by the pro-
vision that its members should be supplied " from those out-
1 Schiiraann, p. 332.
THE GOVERNMfiNTS Off GREECE AND ROME. 49
going archons of each year who had held their office without
blame." ' Membership continued, however, to be for life, as
of old.
78. The Judiciary. — Little formal change was made in the
duties of the archons. They' retained their judicial functions
almost intact. Btit their judgments were made to be subject
to revision by a higher and mcire popular tribunal, the Heliaea.
The Heluea was a body of jurors chosen 'annually — whether
by lot or election is not known — from the whole body of the
people. There were also local justices who administered the
law in minor cases in outlying districts of Attica. The archo-
nal courts thus became for the most part only courts of ' first
instance,' no longer rendering final judgments, but delivering
their decisions subject to appeal to the Helicna. In hearing
criminal cases, moreover, the Helima was often the first and
only tribunal. Its civil jurisdiction was altogether on appeal.
Here was certainly a very much popularized judiciary.
79. The New Principles introduced. — Such was the consti-
tution of Solon. G-reat as were the changes of form which it
introduced, important as were the changes of principle which
it effected, it was throughout wrought in a conservative spirit.
It promised profound alteration, but it did not threaten rapid
alteration ; and it forced no revolution at all. It left the noble
families in power ; but it placed their authority upon a foun-
dation of popular consent, and bounded it on its judicial side
by an appeal to popular jury courts. It introduced wealth as
a standard of political privilege, and so gave potency to a prin-
ciple which would inevitably antagonize and in the end oust
the idea of hereditary right : but for the present it added to
requirements of wealth requirements of blood also. The Eu-
patrids were still to hold the great oiHces, but only those
among them were to be eligible who possessed the further
qualification of abundant incomes. The next step, which he
1 Suhomann, p. 3.32.
50 THE GOVERNMENTS OP GEBECB AND ROME.
did not take, would be to make wealth the only qualification
for power. Before another century passed over the head of
the new constitution we find that change accomplished.
80. Pisistratus and the Solonian Constitution. — In one
sense the constitution of Solon did not succeed ; in a wider
sense, however, it had the highest possible success. It con-
tained the elements which made up the constitution of his city
in the later times of her greatest glory. It pointed out the
way to all subsequent successful reforms. But for the moment
it lived only by the sufferance of its enemies. Solon had, in
the eyes of the Eupatrids, done too much. They saw an end
to their exclusive privileges in accepting the principles of his
legislation. In the eyes of the men of the mountain and the
shore he had done too little. Fomented by interested parties,
no doubt, the old strife broke out afresh, and Solon's own
nephew, Pisistratus, uniting the popular parties in his aid,
seized and finally held dictatorial power. Here was a sad out-
rage to the principles which Solon had striven to establish !
But, in reality, it was probably the success of Pisistratus that
kept the Solonian constitution alive for the peaceful uses of
later times. Amidst the clash of factions it would probably
have been trodden into the ground, to be forgotten, had not
Pisistratus, willing to preserve so -much of its machinery as
suited his own purposes, upheld it by his own despotic power.
Its forms were more popular than those of the constitution it
had been meant to supersede ; he was, professedly, the cham-
pion of the popular cause ; it was politic that he should retain
the most liberal institutions at hand. He therefore affected
only to preside, with certain supreme and extraordinary powers,
over the constitution set up by his uncle. Solon lived to wit-
ness his nephew's unlawful triumph and to utter an intrepid
protest against such mockery of his aims. But Pisistratus
kept his usurped powers to the end of his long life and handed
them on to his sons, preserving, even if in mockery, at least
the hull of the institutions created by Solon ; and when his
■THE GOVERNMENTS OF GEEECE AND KOME. 51
sons, forgetting his prudence and failing to imitate Ms wisdom
and moderation, were driven from tlie throne he had established
for them, enough of the Solonian constitution remained to serve
as a basis and model for lasting reforms.
81. Clisthenes. — The new reformer, who was to complete
the work of Solon, was Clisthenes. He was a pronounced
champion of the rights of the people, and began his career in
Athens by defeating those who, under the leadership of Isago-
ras, attempted, after the expulsion of the Pisistratidae, to re-
store the old-time domination of the Eupatrid families. The
next step was to secure the permanency of his success by es-
tablishing a constitution which should be genuinely a consti-
tution for all the people.
82. The New Demes and the New Tribes. — It was plain
that the first thing to do was to contrast the policy of Solon
by refusing all special privileges to Eupatrids as Eupatrids.
They must take their chances of political preferment in com-
petition with all other citizens. Solon had reserved the chief
ofiices for them and had constituted the Senate of Four Hun-
dred of representatives of those four tribes of immemorial
origin which, being aggregations of the sacred gentes and phra-
tries which were the strongholds of Eupatrid kinship, were
themselves, in a sense, exclusive aristocratic associations.
Clisthenes admitted to office all who belonged to the fy-st three
property classes and altogether ignored the old tribes in mak-
ing up the Senate. The four tribes continued to exist, as re-
ligious, ecclesiastical organizations ; but they ceased to count
for aught in the political structure of the state. They lost all
political significance. Clisthenes first increased the number of
citizens by admitting many, some of whom were manumitted
slaves, hitherto excluded. He then divided the territory of
Attica into one hundred administrative districts which he
called Demes. These demes he combined, by tens, into, ten
tribes ; and these tribes it was which, having appropriated the
name of the greatest units of Eupatrid organization, super-
52 THE GOVERNMENTS OF GEBECE AND EOME.
seded them also in the Senate.' The number of the senators
was raised from four to five hundred, and the Senate was con-
stituted of fifty representatives from each of these new tribes.
Any reputable citizen was' made eligible to a seat in the Senate.
83. The Arrangement of the Demes. — All this would look
like startling innovation ; but Clisthenes' course was not quite
so radical as would at first sight appear. His tribes were new ;
but the demes were most of them old, having only received
from him new functions and a nfew significance. The territory
of Attica had already for a long time been divided into small
districts centring in villages and hamlets and bearing this
name of Demes. Clisthenes only limited their number to one
hundred, probably not very materially altering existing boun-
daries or very often merging small demes into one of proper
size, and made them the constituent units of his new tribes.
One of the most curious and most characteristic features of his
scheme was, that the ten demes which went to make up a tribe
were never ten contiguous demes. Neighboring demes were
separated in political function by being assigned to different
tribes. The demes lying within Athens itself, for instance,
belonged to no less than five of the tribes. Each tribe had its
demes scattered here and there in separated portions of Attica.
The object of this singular arrangement was to break the backs
of the old factions of the plain, the mountain, and the shore
by joining in interest and in political action the demes of the
various sections. Sectional feeling was to be thus weakened
by bringing the sections into constant and intimate co-opera-
tion, and sectional action impeded by depriving the sections of
political cohesiveness.
84. Religion and the Tribal Organization The plan was
quite artificial, though the materials out of .which the new tribes
were made were old and familiar materials ; but it could not
well have been otherwise than artificial. Eeligion and its im-
perative prejudices forbade any dilution of the genuine Attic
gentes, which were the core of the old tribes, by the introduc-
THE GOVERNMENTS OF GEEECE AND ROME. 53
tion of new citizens of no birth at all. The old organizations
could not be popularized without committing something very
like sacrilege ; and since they could not be reformed, the only
thing left to do was to replace them. The only way to do that
was to create entirely new political materials. Hence the new
tribes were formed, and given their own ecclesiastical functions
in imitation of those of the old tribes. There could be no or-
ganization without its special priesthood and religious obser-
vances : the old organizations could not open their sacred mys-
teries to any not of the real or adopted kin. The best thing to
do, therefore, was to put aside the old family unions altogether
and make up a new congeries of associations with their own
worship and their own internal governments, which, if artifi-
cial at first, might be expected in time to acquire a vitality and
a dignity as substantial and as lasting as those of the Eupatrid
dispensation. This, accordingly, was done. The new tribes
adopted eponymous heroes, the statues of these patrons were
set up in the Agora,'where their tribes might gather about them
when assembled for consultation; and politics was asked to
forget the Eupatrids.
85. Expansion of the Popular Jury Courts. — The next
step in the popularization of the constitution was a still
further extension of the jury court system. The number of
Heliasts was increased, and it was provided that they, like the
senators, should be chosen proportionally from the ten new
tribes. Since the new tribes contained many who had never
before been citizens and some who had once been slaves, this
expansion of the popular jury-system must of course have
been of great consequence as a step towards democracy.
86. The Ten Strategoi. — Clisthenes transferred the com-
mand of the military forces of the city from the Archon Pole-
marchus, whose functions Solon had left untouched, to ten
Strategoi (generals), to be annually elected, one out of each of
the new tribes, by the Assembly. Or, rather, these generals
were associated with the War Archon, overshadowing him, if
§4 THE GOVERNMENTS OP GREECE AND ROME.
not in dignity, certainly in power, and destined afterwards to
oust him, and indeed others of the nine archons, from many
other duties of administration.
The relations of the strategoi to one another are illustrated in an in-
teresting way in connection with the battle of Marathon. They took
turns, day by day, in the command when in the field. It was on the day
of Miltiades' command that Maratliovi was fought, though the others
are said to have yielded their commands to him on the days which pre-
ceded the battle.
87. Ostracism. — Clisthenes was determined that no Pisis-
tratus should use the new constitution for his own ends. He
therefore completed his work by adding the law of Ostracism.
This is a law much scorned by commentators of our own mod-
ern times, when democracies are too strong and self-possessed
to fear the wiles of demagogues ; but there can be no question
amongst those who understand the times and the state for
which Clisthenes was legislating, about the wisdom of estab-
lishing such a law in Athens. Its provisions were not harsh.
It enacted that whenever it appeared that some one statesman
was gaining, such an ascendency over the people that he might,
if he chose, use it unlawfully for his own advantage, as
Pisistratus had done, or employ it to raise his rivalry with
some opponent to a dangerous pitch of bitterness, the Senate
might call upon the people to declare their opinion as to
whether any one should be temporarily banished from the
state. When the Senate called for the vote, no names were
sent down to the people. There were no forced candidates for
ostracism. The question was simply, Is there any one in
Athens of whom it would be to the advantage of her peace and
tranquillity to be rid for a season ? Each voter made up his
own ballot. If six thousand ballots contained the name of
the same man, that man must leave Attica and her possessions
for ten years. Six thousand votes were probably more than a
third of the total vote of Athens. Although a minority, there-
fore, could compel the retirement of any public man, it must
THE GOVERNMENTS OF GREECE AND ROME. 55
have required a very strong and well-grounded movement of
public opinion to bring about this ooncei'ted action of six thou-
sand voters against one man. A very evident propriety in ban-
ishing him must have existed before so many people would see
it and declare it. That ostracism was not a weapon easy to
use is shown by the striking infrequency of its use, and by the
steady decline in its employment. It was a vital element of
the constitution at first, but as that constitution gained greater
and greater assurance of permanence and stability, it more and
more decisively cast aside an instrument which, after all, was
an instrument for the weak and not for the strong; and ostra-
cism fell at length into utter disuse. Not, however, before it
had done its appointed work. It had unquestionably given the
new constitution time and assured peace in which to grow. It
had afforded the people an opportunity to acofuire a steady po-
litical habit and an habitual " constitutional morality " such as
they might never have attained to had the , rivalries of party
leaders had no check placed upon them, and had political in-
temperateness had no punishment to fear. It taught them to
restrain their leaders, and so taught them to discipline them-
selves. By guarding themselves against being hastened into
revolution they learned what tended towards revolution. By
defending their constitution against designing men they
learned what that constitution was in its spirit as well as in
its letter. They learned which were the right paths in politics
by taking care not to be seduced into wrong ones. One never
finds out all the meanings of his creed, be that creed politi-
cal or religious, until he has to defend it against attack :
and when one has learned to handle foes within the gates, the
defence of the outer walls has become a matter of assured
success.
88. Success of the Clisthenian Constitution. — The suc-
cess of the reforms of Clisthenes is beyond question. Their
quality was put to an early and severe test — the test of the
fiery days of Persian invasion and of the exaltation of the
56 THE GOVERNMENTS OF GEEECE AND ROME.
years that followed, when Athens wap indisputably the lead,
ing state in all Hellas and formal head of a great alliance
(sees. 129, 130) : and the test only confirmed their strength.
Athens received political life from the hands of Clisthenes,
and her constitution retained substantially the form he had
given it until the days of real independence and of merited
glory had altogether and finally departed from the shores of
Cephisus and Ilissus. We have, therefore, only to trace the
changes of the intervening years to complete our view of this
greatest government of Greece.
89. The Persian Wars and the Extension of Political Priv-
ileges. — The Persian wars wrought important changes in the
economical condition of Athens. The country had more than
once been laid waste by the Persians, and such ruin had re-
sulted to the owners of land that probably very many who had
once had rank -in the first of the property classes had sunk to
the last. Landed estates, 'the only estates hitherto reckoned in
the census of wealth, had been, temporarily at least, rendered
almost barren of income. Personal property gaine'd in trade
had, on the contrary, much increased, and had been in large
part saved from the clutches of the invaders. Athens, in
short, had become a commercial state, and because a commer-
cial state naturally a naval state also. There unquestionably
grew up among her citizens a very considerable and influential
body of merchants possessed of much wealth, and yet by
reason of their lack of real estate, ranking no higher than the
poorest Thetes. We can understand the considerations, there-
fore, which, soon after the battle of Platasae, led Aristides to
propose, and the city to consent, that eligibility to office should
be extended to all classes of the people, irrespective of any ine-
qualities of wealth.
90. The Policy of Pericles. — When Pericles came to the
front of affairs in Athens, therefore, the constitution wore the
features of a complete democracy. The influence of Pericles,
although permanent beyond the example of the politics of
THE GOVERNMENTS OP GREECE AND ROME. 57
most democratic states, rested, not upon usurpation, but upon
his commanding influence with the people; and the whole of
his policy was directed, by intention at least, towards the edu-
cation of the people in the tasks of government and the
standards of conduct which belonged to Athens as the leading
state of Greece not only, but of Hellas as well. It was under
his inspiration that Athens was filled with the splendid monu-
ments of art and architecture which have given a special
distinction to the ' Age of Pericles.' It was at his suggestion
that the people were voted small payments for their attend-
ance at the jury courts and the assemblies, besides a largess to
enable them to attend the exhibitions in the theatre. The
theatre played a large part in Pericles' plans for the education
of the populace : no means were to be neglected which might
serve to quicken the judicial and political activities of the
people, or strengthen Pericles in their favor.
The policy of thus paying the people to perform their duties
and to be amused was, nevertheless, in the end a fatal one.
So long as a Pericles dominated, all went well ; but so soon as
the city lost Pericles and forgot the fashion of statesmanship
which he had set, much began to go ill. The majority of the
citizens soon came to prefer paid service in civil offices to the
necessary service in the field of battle. They were not long
in becoming mere lethargic pensioners of the state.
91. Constitutional Reforms of Ephialtes. — The final steps
in revising the republican constitution of Athens were taken
by Ephialtes. At his suggestion all offices except those of the
strategoi, who had absorbed the most important executive
functions of the state, were filled, not by election as thereto-
fore, but by lot ; 1 and the powers of the Areopagus were
further curtailed. By a law proposed by Ephialtes in b. c.
460 the Areopagus was deprived of its oversight of the consti-
' It is not quite certain whether choice by lot was introduced by Ephial-
tes or earlier by Aristides. See Gilbert, Handbuch der Griechischen Siaal-
salterthiimer, pp. 146, 147, and authorities there cited,
58 THE GOVERNMENTS OF GEEECE AND HOME.
tutional life of the state (sec. 77) and of the private life of its
citizens and its jurisdiction limited to the single matter of
blood-guiltiness. In the stead of the former disciplinary
powers of the Areopagus, a similar duty of supervision was
imposed upon a board of seven Nomophylaces, or guardians of
the law.
The introduction of election by lot was probably rendered
comparatively innocuous by the fact that the functions of the
ordinary magistracies had been greatly curtailed in importance
by the institution of the popular jury courts and the concen.
tration of administrative duties in the hands of the generals.
Any man not lacking in sense might now fill a magistracy
without serious fault.
92. Decline of Athens. — Such was the constitution of
Athens when the calamities came which marked the close of
the Peloponnesian war and the beginning of the final decline
of Athenian power and independence (sees. 131-133). This
time of decline — ending with the victory of Macedonia at
Chseronea in 328 b.c. — witnessed one or two temporary
returns to oligarchy, and many proofs of a sad decline in
political morality on the part of the people. Their pay for
service and their largesses for pleasure were, of course,
increased, constant depredations were made upon the rich, and
the naval and military reputation of the city was given over
into the keeping of mercenaries. But the Clisthenian consti-
tution was retained in substance to the end.
93. The Metoeci. — Our view of Athens will now be com-
plete enough for our present purposes when we shall have
noticed the non-citizen classes, — the slaves and the metasci.
The Athenian democracy illustrated the character of all
ancient democracies in confining the franchise to a small
minority of her population. Besides her citizen population,
which may be placed at ninety thousand, she had a slave
population four times as great (namely, about 365,000), and
a population of resident aliens {metoeci) which was, in pros-
THE GOVEKKMENTS OF GREECE AND BOMB. 59
perous periods, about half as great (45,000). The class of
metosci was composed principally of foreigners, among whom
were Lydians, Phrygians, Syrians, and Phoenicians, as well as
Greeks from other Hellenic cities, who had come to Athens to
take advantage of the exceptional facilities afforded for trade
in consequence of her situation and policy, though many man-
umitted slaves were also reckoned of their number. It was
from the ranks of the metoeci that Clisthenes had recruited the
number of citizens, and in later times great numbers of them
were often naturalized for democratic purposes. But so long
as they remained metceci their disabilities were many. With-
out a special vote of permission they could not acquire prop-
erty in land in Attica. They were obliged, under pain of
a criminal prosecution, followed on conviction by possible
slavery, to choose a patron (Prostates) from among the citi-
zens as an intermediary between them and the state. It was
only through this patron that they could approach the courts
to enforce their rights or in any way deal with the state.
They were mulcted in taxes as if they were citizens, besides
paying a special protection tax and a special fee for market
privileges. They had, moreover, to suffer the mental weight
of that contempt which, though less pronounced at Athens
than elsewhere, all Greeks felt for foreigners. But that their
disabilities were not too heavy, and that their privileges were
of great moment, is abundantly proved by their numbers alike
in times of peace and in seasons of war.
94- The Athenian Slaves. — The Athenian slaves were
either barbarians taken in war or slaves bought in the slave
markets of Delos, Chios, and Byzantium. The vast majority
were bought slaves. They not only served as domestics, but
also constituted the bulk of the agricultural laborers, miners,
artisans, factory hands, overseers, and day-laborers. They
also often carried on retail trade, and were sometimes superin-
tendents of larger undertakings, money-changers, etc. Their
domestic service often included private secretaryships and the
60 THE GOVERNMENTS OF GREECE AND ROME.
like. The state itself owned slaves whom it employed as
armed police, and even as soldiers. " Further, the lower ser-
vants of the public officials — accountants, clerks, criers, bailiffs,
prison-attendants, executioners, and the like, were for the most
part, the latter invariably, public slaves, as also the workmen
in the mint." ' Slaves and metceci supported, the citizens con-
ducted, the state.
Sparta.
95. Fixity of the Spartan Constitution. — The circum-
stances of her history gave to the constitution of Sparta a
character in many respects unique, and secured to it an immu-
nity from change which provoked at once the wonder and the
envy of the rest of Greece. Throughout almost all of that
chief period of Greek history through which I have traced the
development of the constitution of Athens — from the time
of Solon, n&mely, till the decline of Athenian power and
independence — the Spartan constitution retained substan-
tially the very form it had had when Sparta first emerged
into the field of history. All its features are at once ancient
and perfectly preserved.
96. The Spartans a Garrison of Conquerors. — This singu-
lar characteristic of that noted constitution was, as I have
said, the natural result of the peculiar history of the city.
The Spartans had come as conquerors into the valley of the
Eurotas. They were of the number of those Dorians with
whose invasion of Peloponnesus visible Greek history may be
said to begin, and their hold upon their kingdom had been
gained only after many decades — it may be only after sev-
eral centuries — of hard fighting advanced inch by inch.
Their numerical strength was not great, probably at no time
exceeding fifteen thousand ; they lived in the midst of a forci-
bly subjected population, from eight to ten times more numer-
1 Schoniann, 352.
THE GOVERNMENTS OF GEBBCB AND EOME. 61
ous than themselves ; and they had, consequently, to maintain
their supremacy rather as a garrison than as hereditary heads
of a natural body politic such as had grown up in Attica.
97. Slaves and Helots. — There was no such body of slaves
in Sparta as we have noted in Athens. Slaves there were,
indeed, but their number was never considerable ; there being
probably only enough to supply the wealthier families with
domestic servants. The burden of all the other services
that were required in the simple life of the Spartan state fell
upon a body of serfs called Helots. The Helots constituted
the lowest rank of the subject population of Laconia. They
were, doubtless, descendants of the original inhabitants of the
country, and owed their degradation to what, had fortune
favored them, would have been accounted a reason for giving
them all honor, — their desperate resistance to the advance
of the conquering Dorians. They are said by some, indeed,
to have received their name, of Helots, from a town called
Helus which had been the last to yield itself to the conquer-
ors, or the most stubborn in revolt against their dominion
when that dominion was young. Their punishment had con-
sisted in being chained, not to masters, but to the land which
had once been their own. They were slaves of the soil, rather
than of the soil's usurping masters. Though absolutely with-
out freedom, they were not personal property, to be sold or
exchanged in the market like the poor creatures who thronged
the slave-pens of Delos and Byzantium. They could not
change service save as inseparable appendages of the lands
upon which they served. They were, consequently, not at
the mercy of the individual caprice of their masters, but had
themselves something of the inviolability of the propei'ty to
which they were attached. They passed with it, as part of it,
and could not pass otherwise without special -legislative war-
rant. Neither could they be killed or misused by their masters
without public authority, or at least some colorable pretext of
the public safety. And, inasmuch as they were thus a part of
62 THE 60VEENMENTS OF GREECE AND KOME.
the real estate of tlie country, — its motive part, its macMnery
of production, — and hedged about by the same laws that regu-
lated the usufruct of the land, they were allowed to retain, for
the own sustenance, a certain portion of the products raised
by their labor, that, as servants of the land, they might derive
their support from it. In a sense, they belonged to the state ;
for the state controlled, as itself svipreme owner, the owner-
ship of the land to which they were attached. They looked
to the state alone, therefore, for any measure which was to
effect their condition for better or for worse : for new restric-
tions in consequence of their turbulence or threatening discon-
tent, or for emancipation in return for such services as they
were occasionally able to render in war.
98. The Perioeci. — Above the Helots and enjoying a much
larger measure of freedom, though scarcely less subject to the
will of their Spartan lords, were the Perioeci. The PericBci
are as little to be compared with the Athenian metoeci as
Spartan Helots with Athenian slaves. Metoeci were, for the
most part, resident aliens engaged in trade (sec. 93) ; Perioeci
were, so to say, captives of the Spartan state, representatives
of those older possessors of Laconia who had escaped Helotage
by being more submissive than the men of Helus, and who, by
acquiescence in the Dorian mastery, had been admitted to
what might have been called an alliance with the Dorian
invaders, had it not been entered into through sheer compul-
sion and continued by mere coercion. They were the traders
and mechanics of the community ; but they followed these
occupations, which every Spartan despised, with' no such liberty
and consideration as the metic might enjoy at Athens, but by
the sufferance of their overlords. They owned real estate, but
under laws and restrictions not of their own making. They
formed separate communes in some of the best districts of
Laconia, with their own municipal organizations, but their
municipal privileges possibly consisted rather in an opportu- '
nity to determine by election which of the Spartans, sent to
THE GOVERNMENTS OF GREECE AND ROME. 63
live among them as representatives of the sovereign, class,
should rule them in the chief offices of their towns than in the
right to be governed by men of their own class as well as of their
own choosing. They had a certain considerable degree of per-
sonal liberty, and they were suffered to better their pecuniary
position in such ways as they chose ; but they were none the
less a subject population whose status depended wholly upon
the will of the Spartan govermnent. Of that government they
formed no part.
Other inferior classes there seem to have been, occupying
positions intermediate in point of privilege and consideration
between the dependent Helots and Periceci on the one hand,
and the supreme Spartiatas on the other ; but of them we know
little that is satisfactory or significant. Such glimpses as we
get of them add almost nothing to our knowledge of Spartan
life and politics.
99. The Spartiatae : Property Laws and State Guardian-
ship. — The Spartiatae were the only citizens. The Perioeci
outnumbered them three to one, the Helots probably twenty
to one ; but only blood counted for aught in the Spartan state,
and nowhere was a dominant class more successful in main-
taining a rigorously exclusive privilege. Throughout all that
period of Sparta's history which is best known and best worth
knowing, no democratic revolution made any headway against
this active, organized, indomitable band of Spartiatce, who held
the state as an army would hold a fortress. Among them-
selves Spartans were Homoioi, Equals ; and in the earlier days
of their government every means was employed to make and
keep their equality a reality. In nothing was this purpose
more apparent than in the system of land tenure. There was
private property in land among the Spartans ; but the state
was, as I have said, regarded as the original proprietor of the
land, and individual tenure was rather of the nature of a usu-
fruct held of the state and at the state's pleasure than of
a cemplete ownership. The purpose of the early legislation
64 THE GOVERNMENTS OF GREECE AND ROME.
was to make the division of the land amongst the Spartan fami-
lies as equal as possible; and the state frequently resumed
its proprietary rights and reapportioned estates when grave
inequalities had crept in, without a suspicion in any quarter of
confiscation. It was a primary care of the state to keep its
citizens rich ia leisure, in order that they might live entirely
for the service of the state and feel no necessity to engage in
a pursuit of wealth, which would not only withdraw them
from their bounden political duties, but also rob them of social
consideration. It accordingly undertook the patriarchal duty
of administering the wealth of the country as trustee for the
citizens. It not only redistributed estates ; it also compelled
rich heiresses to marry men without patrimony, and grafted
the poor upon good estates by prescribed adoption. It fol-
lowed, of course, from such laws, that adoption was not per-
mitted to swell the numbers of any family without state sanc-
tion being first obtained, that wealthy heiresses were not
allowed to throw themselves away on rich youths, and that
landed estates could be alienated from the family to which the
state had assigned them neither by sale nor by testamentary
bequest. Citizens were both wards and tenants of the state.
Doubtless, however, it was only in the earlier periods of this
constitution that this patriarchal guardianship and proprietor-
ship of the state was freely and effectively exercised for the
purposes intended. It is certain that in later times great
inequalities of condition did spring up among the so-called
Equals ; so much so that they fell at last into two distinct
classes, the Few who were rich, and the Many who were com-
paratively or utterly poor. All Spartiatce were no longer upon
the same political level even, but some were Homoioi and
some Hupomeiones (Inferiors).
100. The Two Kings. — The government which the Spar-
tiatce conducted is at every point in broad contrast to the
government of Athens; though possibly the government of
Athens had not been entirely unlike it in principle, previous
THE GOVEEHMENTS OF GREECE AND ROME. 65
to the contests of the factions and the legislation of Solon
(sec. 70). Fortune had given Sparta two kings. Tradition held
that the Dorian invaders had, upon entering the Peloponnesus,
allotted its various districts to their several Heraclid leaders ;
that Aristodemus, to whom Laconia had been assigned, died
before conquering his kingdom, leaving twin sons, Eurysthenes
and Procles; that the mother of the boys declared herself
ignorant which of the two was born first ; that the Delphic
oracle, when called upon to arbitrate the claims of the
brothers, commanded that they should both be crowned and
given joint and equal authority; and that from these two
brothers had sprung the two royal houses which reigned in
Sparta. Whatever the origin of this double kinship, Sparta
had two kings till she had gone far in that decline which pre-
ceded Eoman conquest. Their functions were not widely dif-
ferent from those which we have seen the Homeric kings
exercising. They "were representatives of the state in its
dealings with the gods, deliberative and judicial heads of the
people in time of peace, and commanders in time of war."^
The limitations by which their prerogatives were surrounded
will appear in what remains to be said of the other institutions
of the state.
101. The Council of Elders. — In deliberation and legisla-
tion they were, still after the manner of the Homeric constitu-
tion, associated with a Qerusia (yepovna), or Council of Elders.
The members of the Gerusia, however, unlike the Elders of
the more ancient Council, were elected by the popular Assem-
bly (sec. 103). They were twenty-eight in number (consti-
tuting, with the kings, a body of thirty) ; each member was
required to be at least sixty years of age ; and all held ofBce
for life. As a court of justice, the Gerusia had jurisdiction
over the kings, over capital offences, and over cases of atimia,
or attainder. As a legislature, its functions were in part sov-
1 Schomann, p, 227..
66 THE GOVERNMENTS OF GEEECE AND KOME.
ereign, in part probouleutic : it acted •''finally upon most state
matters of importance, and prepared by preliminary decree
the few measures which were to be submitted to the vote of
the popular Assembly. It stands in character and functions
half-way between the Athenian Senate of the Areopagus and
the Athenian Senate of Four Hundred (sees. 76, 77).
102. The Assembly. — The Assembly consisted of all citi-
zens (that is, all Spartiatce.) over thirty years of age. The
matters which were referred to its vote were, disputed succes-
sions to the throne, the election of magistrates and Gerontes
(Elders), war and peace, and treaties with foreign states. I
have said only that these matters were referred ' to the vote '
of the Assembly because they were not referred to its con-
sideration. No place was given in the Assembly to real
deliberation; only the kings, the Ephors, and the Gerontes
could either make a motion or take part in debate. Indeed,
debate was a thing hardly known in Sparta, where every man
was taught to despise the talker and to admire the man whom
later times were to dub the 'laconic' man. The utterances
of the magistrates and senators in the Assembly were proba-
bly curt opinions packed into a few scant sentences. And the
voting was as informal as the debating. A division was seldom
resorted to ; a viva voce vote decided.
103. Election of Elders. —Only in the election of Gerontes was a
different and more elaborate procedure observed. Tlien, after the
Assembly had convened, several persons selected for the purpose sta-
tioned themselves in a building near the place of assembling, from
whence they could get no view of the Assembly, but where they could
hear the voices of the assembled people. Upon the completion of this
arrangement, the candidates for the Gerusia passed through the Assem-
bly, in an order determined by a lot whose result was unknown to the
listening committee near by, and the choice of the Assembly was ascer-
tained by the decision of the concealed deputation as to which of the
successive shouts of applause that had greeted the candidates as they
made their appearance had been the most spontaneous and full-throated.
This election by applause was, of course, just an elaborate form of viva
, voce voting.
TUB GOVERNMENTS OF GBEECE AND ROME. 67
104. The Ephors. — The most notable and powerful office
known to the constitution of Sparta was the office of Ephor.
It was an office, there is reason to believe, of great antiquity ;
but development had hurried it very rapidly away from its
early form and character. The five Ephors (or Overseers, for
such is the meaning of the title) were originally mere deputies
of the kings, appointed to assist them in the performance of
their judicial duties, to act as vice-regents in the absence of
their royal principals, to supervise in the name of the kings
the other magistrates of the state, to superintend, under the
same authority, the public discipline, and to summon, by royal
warrant, the Gerusia and the Assembly ; in short, to serve in
all things as the assistants of the kings. But gradually,
through the operation of causes for the most part hidden from
our view, but possibly in part because they sympathized more
with the citizens from whose ranks they were yearly drawn
than with the kings who appointed them, and in part .because
they were chosen by two kings not always harmonious in their
counsels or purposes, and were thus kept away from sympathy
with the royal administration as a whole, the ephors drew
steadily away from the control of the kings, until at length
their power was not only independent of the authority of the
throne, but even superior to it. It was as if the Athenian
king had appointed archons to assist him in various state
functions, only to see them step by step overtop the throne
itself and leave him only the name of king. There is no clear
evidence that the choice of the five ephors passed at any time
aWay from the kings ; but the ephors certainly exchanged
their character of representatives of the kings for that of
representatives of the state and virtual masters of the kings,
— overseers of the chief magistrates as well as of all others.
The kings were obliged every month to take an oath to this
supreme board of five to exercise their prerogatives according
to the laws ; the ephors, on their part, undertaking, on behalf
of the people, that so long as this oath should be observed the
68 THE GOVEKNMENTS OP GREECE AND ROME.
Kings' power should pass unchallenged. Every nine years the
ephors asked of the gods a sign from the heavens as to
whether anything had been done amiss by the kings, and if
the heavens revealed any sinister omen, the conduct of the
kings was, upon the initiative of the ephors, investigated by
the Gerusia. Private individuals, besides, could bring charges
against the kings to the notice of the ephors, and it rested
with them to dismiss the charges (to answer which they could
summon the kings before them), or to push them in the
Gerusia.
105. Of course, if masters of the kings, the ephors were
masters of all others in the state also. They Could interfere,
with full power to investigate and to punish, in every depart-
ment of the administration; the supervision of the public
discipline, and^ consequently of the private life of every in-
dividual, rested with them as overseers of the special officers
of the discipline; they could summon the Gerusia and the
Assembly and lay before them any matters they chose ; they
were the treasurers of the state ; in everything they were the
supreme authority. The limitations of their power lay in the
fact that they were a board of five men and could do nothing
of importance except by a unanimous resolve, and that, their
power lasting but a single year, they would presently become
private citizens again, liable to accusation and punishment by
their successors.
One of the board, like one of the Athenian archons, was Ephor
Eponymus, giving liis name to the civil year.
106. The Administration of Justice. — With reference to
the administration of justice in Sparta we are not able to say
much more than that the law was interpreted and applied by
the kings in cases relating to the family, to inheritances, or to
the redistribution of property by marriages between rich and
poor (the kings being, so to say. Chancellors, and families
wards in Chancery) ; that cases affecting the kings themselves
THE GOVERKMENTS OF GBEECE AND ROME. 69
or involving the highest sort of crimes were heard by the
Gerusia; and that all other cases were determined -by the
ephors or by lesser magistrates. There were no popular jury-
courts.
107. The State Discipline. — But the feature of their con-
stitution which chiefly preserved the supremacy of the Spar-
HatcB over the subject population of Helots and Perioeci, and
made Sparta Sparta in the eyes of the rest of the world, was
the State Discipline. Every Spartan lived the life of a soldier
in garrison. He did not belong to himself, but to the state.
He was taken from his parents at seven years of age, and
from that time until he was sixty lived altogether in public,
under a drill of muscle, appetite, and manners such as not
even a modern professional athlete could well imagine. From
seven to thirty (thirty being the age of majority in Spartan
law) he was schooled to endure the roughest fare, the scantiest
clothing, the poorest lodging, and the completest subordina-
tion to his elders. After thirty he acquired certain political
and social privileges : he was then a citizen, and he could
marry ; but even then he was permitted no essential change
of life. He was expected to keep up his athletic habit of
body, he must still eat at the public messes, could have no
home life, but must see his wife only infrequently for a few
minutes, or by stealth. He must marry, — the state required
that of him, — and must consequently maintain a household.
He must also contribute his share of money and supplies to
the public messes (Syssitia). Only when he had passed his
sixtieth year could he in any measure lead his own life or
follow his own devices.
It was probably failure to comply with the requirements of this dis-
cipline or to contribute the required quotas to the Syssitin, that de-
graded Spartiatce from ' Equals ' to ' Inferiors ' (sec. 99).
This discipline included the women only during their youth ;
girls had to ' take ' gymnastics as the boys did ; but they did
70 THE GOVEENMENTS OF GREECE AND ROME.
not go on into tlie discipline of the men. All education which
we should account education was excluded from the system.
Only music of a rude sort, the use of simple stringed instru-
ments and a taste for the songs of war, softened the constant
training of sense and sinew. The product was a fine soldiery
and noble soldiers' mates, — shapely, sturdy women, and lithe,
laconic men.
108. Principle of Growth in the Spartan Constitution. —
The constitution of Sparta, for all it is so symmetrical, is not to
be looked upon as a creation, aay more than is that of Athens
or of any other Hellenic city ; and the mind must not be mis-
led (by the fact that in describing it we are under the necessity
of taking it at some one moment of complete crystallization)
into supposing that such was exactly its form at every period
of its history. It was, like every other constitution, a slowly
developed organism. It early took a peculiar form, and long
preserved it, because of the peculiar situation of the Spartans,
who were few and had to hold their power against a hostile
subject population greatly superior to them in numbers. They
could not venture to relax for a moment their internal disci-
pline ; and so it happened that throughout the period during
which history is most concerned with Sparta her constitution
remained fixed in this single form. But afterwards it passed
through the same stages of tyranny and' democracy that had
come to Athens so much earlier. The non-citizen classes even-
tually broke their way in large numbers into the constitution,
and the Romans found Sparta not unlike the other cities of
Greece.
109. Lycurgus. — The Spartans themselves, however, as I
have said in a previous chapter (sec. 19), regarded their constitu-
tion as a creation, the creation of one man, Lycurgus (b.c. 820).
To him was ascribed a rearrangement of the three tribes whieh
constituted the state, a division of land between Spartiatm and
Periaeci, the institution of the Oerusia, a provision that there
should be monthly meetings of the Assembly, and, above all.
THE GOVERNMENTS OP GREECE AND ROME. 71
the creation of the celebrated system of state discipline ; and
it is probable that he was very largely instrumental in giving
to the constitution the particular form in which we have seen
it. But it is extremely improbable, if not intrinsically impos-
sible, that he can have done much more in the way of effecting
actual fundamental changes than did Solon or Clisthenes at
Athens. The Spartan constitution had probably made no
leaps or bounds ; Lycurgus, doubtless, only guided its course
at a very critical, because consciously formative, period.
GrKEEK Administration.
110. We are without detailed information with regard to
the methods and machinery of administration in the Greek
cities. The little of universal applicability that we can say
of the conduct of the government in the smaller particulars of
the every-day application and execution of the law, is of a very
general sort, which does not describe exactly the administra-
tion of any one city, but gives in bare outline functions per-
formed, doubtless, by a multiplicity of officers in the larger
cities, but in the smaller cities by only a few ofBcers saddled
with a mu.ltiplicity of duties. Aristotle gives us a list of the
tasks commonly considered proper to administration in Greece,
and it is chiefly upon this list that we must rely for a general
view of the subject.' From it we learn that the governments
of the Greek cities usually undertook the superintendence of
trade and commerce, particularly within the city markets, the
inspection of public buildings, "a police supervision over
houses and streets," and the oversight of fields and forests ;
that they had receivers and treasurers of the public moneys,
ofiB-cers whose duty it was to draw up documents relating to
legal business and judicial decisions, to hear complaints, and
to issue warrants for the institution of legal processes, bailiffs,
' Schomann, p. 138; Aristotle, Politics,
72 THE GOVERNMENTS OP GREECE AND ROME.
jailers, etc. Besides these officials, there were the officers of
the naval and military administration, at whose head stood
such dignitaries as the Atheniaai Archon PolemarcJms or the
later Athenian Straiegoi; the functionaries whose duty it was
to audit the accounts and review the proceedings of those who
handled the revenues of the state ; and the superintendents of
the public worship, — those officers who still in most cases
bore the ancient royal title, long since banished from secular
politics, but retained in the religious hierarchy in memory of
a kingly function too much revered by men, and thought to be
too much esteemed by the gods themselves, to be exercised by
any save those who bore this oldest and most hallowed of titles
(sec. 69).
In states like Sparta, where civil life was a rigorous disci-
pline, there were, of course, special officers to superintend the
training of the young and the conduct of the adult of both
sexes. • Sparta had, too, her public cooks to prepare the coarse
diet of the Syssitin, and her superintendents of the public
messes.
Hellas.
111. Greece not Hellas. —Although typical of much in
larger Hellenic history, the political development oi Athens
and Sparta by no means sums up the political history of the
Greeks. Athens and Sparta stand out conspicuous and regnant
among the classical states of Greece ; but European Greece was
not the only home of the Greek peoples. It was not their
chief home ; it was not always even the pivotal centre of the
world which they had made their own in the islands and the
peninsulas of the Mediterranean. Far and wide outside of Cen- •
tral Greece lay the varied settlements which, together with the
city states of the classical mainland, made up Greater Greece.
The name Hellas, therefore, does not designate any particular
country ; it no more represents a geographical unit than does
the term British Empire. Wherever Greeks established them-
THE GOVBENMBNTS OP GREECE AND ROME. 73
selves in independence, setting up their own civilization and
characteristic forms of government, there was a piece of Hellas ;
wherever there was an Hellenic people there was a portion of
the Hellenic land. The Greeks never formed and maintained
a common political organization, never knew national political
union : ' Hellas,' therefore, has no organic or national signifi-
cance. It means a region, not a nation.
112. Original Migrations of the Greeks. — The Greeks long
consorted, as we have seen (sees. 35, 41), with their cousin
Celts and Latins in the great movement of the Aryan peoples
into Western Europe ; but an eventual separation of these three
branches of the single parent stock resulted in the widest diver-
gences both of fortune and of character among them. The
Celts pressed on into the body of the continent without con-
tact with the sea ; the Latins slowly penetrated by land into
the spacious peninsula of Italy ; but the Greeks tarried in the
mountains of Phrygia, thence to issue forth to their contact
with the ^gean and their association with the sea-faring Phoe-
nicians. First, it would seem, they poured a numerous popu-
lation over the Hellespont into Europe, a population which
was to occupy in time, not only Greece proper and the Pelopon-
nesus, but also all the coasts and islands of the ^gean. At
a later time smaller companies, single tribes, issued forth to the
conquest of special tracts of the inviting coasts of Asia Minor
or followed the earlier emigrants into the peninsula. Thus the
ancestors of the lonians are said to have effected in that ' pre-
historic ' time their settlements upon the Asiatic shores of the
^gean ; and the ancestors of the Dorians to have entered the
mountain country of Northern Greece, whence at a later time
the Dorian conquerors of the Peloponnesus were to sally forth
to perform the first act of authentic Greek history (sec. 96).
113. The Phoenician Influence. — It was the lonians, thus
made neighbors to the great sea, who received for the Greeks
the deep and lasting imprint of the Phoenician influence. The
Phoenicians were then already old in civilization and in com-
74 THE GOVEENMBNTS OF GREECE AND ROME.
mercial enterprise. They had been traders ever since the six-
teenth century before Christ, and were elders among the
nations of their time. It was of course inevitable that the
unformed Greeks should learn from them as from masters.
And they learned much. They probably learned from these
first lords of the Mediterranean not only navigation and ship-
building, but also the use of weights and measures, their alpha-
bet, and much antique taste and knowledge in the fields of art
and science. By the lonians, probably, this eastern culture
was communicated to European Greeks. Finally it became an
integral part of Hellenic thought and habit, hardly to be dis-
tinguished as of foreign origin.
114. Later Migrations of the European Greeks. — The first
settlements of the Greeks in the European peninsula to which
they were to give their name were not their final settlements
there. Later days witnessed many important readjustments.
Thessalians entered the northern portions of the peninsula, to
make it ' Thessaly,' driving the -lEolians already settled there
into new homes further south, in Bceotia; the Dorians made
their great conquering movement southward into Peloponnesus,
displacing there the jEolian Achseans, who, thus ousted, in their
turn expelled an Ionian population from a narrow, sheltered
strip of the Corinthian gulf coast, to which they gave its his-
toric name, Aehaia; and many of the lonians, thus expelled
from their early seats in Peloponnesus, passed northward to
join their kinsmen in Attica. Thus was that distribution of
races effected in Greece which was to. characterize the classical
period of Greek history.
115. Resettlement of the Asiatic Coasts from Greece
But these movements of the races did not stop with the read-
justments thus effected on the peninsula. Attica could not
easily contain the Ionian immigration which came to her, so
to say, from the hands of the Achseans. Many, therefore,
passed on from Attica to found new Ionian settlements on the
central ^Bgean coasts of Asia Minor. Yet earlier, bodies of
THE GOVEKNMENTS OP GREECE AND ROME. 75
Achseans, still under the impulse, perhaps, which they had re-
ceived from the Dorians, had gone from Achaia to occupy the
northwest regions of the same Asiatic coast. Even the Do-
rians passed on into Asia from Peloponnesus, taking posses-
sion of the southwestern coasts of Asia Minor and establishing
themselves in the islands of Crete, Cos, and Rhodes. The Do-
rians, indeed, had become supreme only in the southern and
eastern portions of the Peloponnesus, only in Messenia, Laconia,
and Argolis. The settlements in the southern islands of the
Mge&n archipelago and on the southwestern coasts of Asia
Minor symmetrically completed their geographical position as
a sort of southern fringe to classical Hellas.
It is, doubtless, to this period of the resettlement of Asia Minor by
the European Greeks, thus returning upon the original lines of Greek
movement, that we owe the legend of the Trojan war. Really kinsmen
of the Trojans, the European Greeks went against this power of oldest
Greece as against an alien and a strange people.
116. The Greek Mediterranean. — Nor was even this the
last of movement and new settlement on the part of the rest-
less Greeks. They were yet to add to a Greek ^gean a Greek
Mediterranean. This they effected by means of the notable"
colonization of the eighth and seventh centuries before Christ.
Foremost among the colonizers stood Ionian Miletus, in Asia
Minor, and Ionian Chalcis, in Euboea. Miletus became the
mother of more than eighty colonies, sending companies of her
people to found Naucratis on the Nile delta, Cyzicus and Sinope,
and a score or two of other toWns on the Propontis ; making
settlements further away still, where she did so much of her
trading, on the shores of the Euxine. Chalcis contributed
thriving Greek communities to Sicily, created the ' Chalcidici,'
and founded Ehegium in Italy. Others were scarcely less busy
in colonization. Spartans created the notable city of Tarentum,
in Southern Italy ; Achgeans built upon the same coast the rival
cities of Sybaris and Croton ; Corinthians established Corcyra
76 THE GOVEENMENTS OP GBBECE AND ROME.
off the coast of Epims, and lusty Syracuse in Sicily. The
Ionian Phocseans ventured still further west and built that
Massalia which was to become French Marseilles. Massalia,
in her turn, sent colonists to the eastern coasts of Spain ; and
these were kept back only by the power of Carthage, probably,
from spreading wider still Greek settlement and dominion in
the west. In brief, it was a distinguishing characteristic of
the whole process by which the Mediterranean was at this time
so largely Hellenized that towns begat towns in prolific gener-
ation. Each colony was sure to become itself a mother city.
The process was of two centuries' duration, extending from about
750 B.C. to about 550 b.c. But so rapidly did it move, so much
faster did the colonies develop in all respects than the mother
cities of the central Greek lands, that in the first century after
the beginning of the Olympiad reckoning (776-676 B.C.) the
" centre of gravity of the Hellenic world " had already shifted
from Greece proper to the lusty colonial states. In Cicero's
phrase, an Hellenic hem was woven about the barbarian lands
of the Mediterranean. From far eastern Naucratis, on the Nile,
to far western Massalia, in Gaul, throughout almost all the
chief islands of the sea, skirting the shores of Propontis and
Euxine, as well as on every Mediterranean coast not dominated
by Phoenicians, thronged busy Hellenic colonies, impressing
everywhere upon the life of that early time their characteristic
touch of energy, of ordered government, of bold and penetrating
thought and courageous adventure, and everywhere keeping
themselves separate, in proud distinctness, from the barbarian
peoples round about them.
117.- Race Distribution. — The distribution thus effected of the va-
rious branches of the Greek race is not without its historical interest.
The ^gean is circled, east, north, west, and south, by Ionian settlements,
only Thessaly and tlie iEolian colonies on the northwestern coast of
Asia Minor breaking their continuity from Eubcea round by the Chalci-
dici and Thrace, down the eastern coast of the iEgean, through the
islands of Samos, Icaria, Naxos, Paros, Tenos, and Andres, to Euboea
THE GOVBKNMENTS OF GREECE AND ROME. 77
again. South of this Ionian circle is the Dorian semicircle, which runs
through Crete, Carpathus, and Rhodes to the islands and coasts of
Southwestern Asia Minor. Italy is occupied, for the most part, by
^olian settlers, though a Dorian city stands at one end, an Ionian city
at the other, of the line of ^olian colonies there. Sicily is shared by
Dorians and lonians.
Everywhere, however close they may live to each other, these several
tribes retain their distinctness, conscious of kinship and using substan-
tially the same speech, but persisting in noticeable differences of char-
acter and rivalries of aim,
118. The Greek Colonial System. — There was little or
no political unity even among cities of the same division of
the race. N"o common system of government bound the towns
of any coast together ; everywhere, on the contrary, they stood
aloof from each other, organically separate and self-directive.
Greek colonization was radically different from the coloniza-
tion which the modern world has seen, and even from that
which the Eoman world saw. A mother city kept no hold
upon her colonies whatever, except a very vague hold of relig-
ious sentiment which even very slight strains of adverse cir-
cumstance often sufficed to destroy. Colonies went out to
become cities, in the full antique sense of that term, com-
pletely independent, self-governing communities, namely.
The mother city sent out each colonizing company that left
her as if she were sending out a part of herself. The emi-
grants took with them fire kindled at the public hearth {pry-
taneum), wherewith to furnish their own altars with the sacred
flame kept alive from of old in the religious rites of their
kinsmen ; the mother city supplied them with a leader whom
the colonists recognized as their founder ; the approval of the
Delphic oracle was often sought by the emigrants, and they
generally awaited, too, the consent of the city's gods. If, more-
over, in after times, a colony contemplated sending out from
its own midst another colony, it commonly sought a leader and
founder at the hands of its own mother city. Many ties of
sentiment and tradition bound it to the community from which
78 THE GOVBENMENTS OF GREECE AND ROME.
it had sprung. But none the less did it become, immediately
upon its birth, a sovereignly separate state, no less its own
mistress in all things than the city from which it had come
out. The Mediterranean was fringed, not by a few Grecian
states, aggregates of jEolian, Dorian, or Ionian settlements,
but by scores of separate city communities as independent, for
the most part, and often as proud, as Athens, — not unfre-
quently as powerful also as she.
119. Colonial Constitutions. — ■ It was natural that each
colony should retain in its political arrangements the main
features of the constitution of its mother city ; and in the
earlier periods of colonization the Greek world may be said
not to have known any political organization but the aristo-
cratic, in which the elders of the older kinship dominated with
assured, almost with unquestioned, authority. The earliest
periods of colonization, it is true, were the periods of mon-
archy; but of monarchy already in' decay. The aristocratic
organization was, accordingly, at first, almost everywhere either
produced or reproduced in the colonies. But it was destined
from the nature of the case to undergo in these newer com-
munities much more rapid changes than overtook it in the
states of the older Hellenic lands. Among colonists settling
in regions as yet untouched by their own civilization there
necessarily obtained an equality of condition, and presently an
absence of clear traditional authority, which made democracy
grow as if it were a natural product of the soil, and of the
new atmospheric conditions. Accordingly democracy was de-
veloped in the outlying parts very much sooner than in the
central lands of Hellas. Athens waited till the end of the
sixth century b.c. to see it in the reforms of Clisthenes (sees.
81-87) ; while many of the newer states had witnessed its
introduction quite a century earlier.
120. Although they outran the mother cities of Central
Greece, however, in their changes of constitution, the colonial
cities generally went through just the same phases and stages
THE GOVERNMENTS OF GKBECB AND ROME. 79
of change that were afterwards to characterize the' revolu-
tions and reforms of Athens which we have already exam-
ined. Democracy was generally approached through Timoc-
racy, through arrangements, that is, such as Solon introduced
in Athens, by which political privilege was graded according
to wealth (sees. 73, 74). Often, too, changes of this nature
were accompanied in the colonies, as in Rome (XII Tables)
and in many of the central Greek communities, by a codifica-
tion and publication of the law. Commonly, besides, democ-
racies gave place to tyrannies, which were often, like that of
Pisistratus in Athens (sec. 80), erected as a bulwark against
aristocratic reaction. Either some man of the people pushed
himself forward, by fair means or by foul, and checked aristo-
cratic domination by reducing all alike to submission to his
own power ; or it was a member of the aristocratic class who
made use of a favoring opportunity to destroy aristocracy by
a concentration of authority in himself. In either case the
tyranny answered a useful purpose. It generally compacted
and facilitated resistance to outside aggressions upon the inde-
pendence of the city ; it usually advanced,by the maintenance
of steadied civil order, the material interests of the community ;
it not infrequently bridged safely over the gulf which separated
aristocratic privilege from popular sovereignty, preparing the
levels of status upon which alone democracy could be firmly
built.
121. Law of Constitutional Modification in Hellas. — We have,
thus, the same forces of constitutional change everywhere operative in
the Greek vrorld ; everywhere substantially the same changes take place
in substantially the same order. Monarchy in all cases gives place
to aristocracy; aristocracy very often shades off into timocracy; all
exclusive privileges in the long run give way before the forces of de-
mocracy ; but democracy is seldom secured its final triumph without the
intervention of the tyrant, the man who rules without the warrant of
the law. In some of the greater Hellenic cities the period of tyranny
' is the period of highest power and prosperity, and democracy comes
afterwards only to mark decline and loss of separate independence.
80 THE GOVBKNMBNTS OF GREECE AND ROME.
ManyPeloponnesian communities cling as long almost as Sparta herself
to their aristocratic constitutions : in them class privilege dies exceed-
ing hard. There is by no means a perfect uniformity in Hellas either
in the speed or in the character of political change ; but everywhere,
unless outside circumstance commands otherwise, the same tendencies,
the same leaven of plebeian discontent, the same ferment of personal
ambition, are operative to work out within each little, self-centred city
state, similar modifications of organization and authority.
122. Union and Nationality among the Greeks. — Despite
the separateness of Greek city life and its jealous negation of all
political power save only that of the citizens of each commu-
nity acting independently and for themselves, there was a dis-
tinct consciousness in the minds of all Greeks alike of a com-
' mon Hellenic blood, common traditions, a common religion and
civilization. A sense of nationality which, though vague, was
nevertheless persistent and on occasion decisive of great issues,
pervaded the Hellenic cities of the ancient Mediterranean
world and gave to the history of the Greeks some features
of homogeneity and concert. A common Hellenic character
everywhere distinguished Greek communities from all others.
But their inbred political habit and their wide geographical
extension effectually barred, sooner or later, every movement
towards national governmental union.
123. Religious Community: the Delphic Amphictyony.
— In religion more than in anything else the Greeks made
show of union and gave evidence of a spirit of nationality.
In many quarters of Hellas cities lying round about some
famous shrine of Zeus, Apollo, Poseidon, or other national
deity, came together into an Amphictyony, or League of Neigh-
bors, for the purpose of worthily maintaining and enriching the
worship of the divinity and of defending his shrines against
polhition or dishonor. The most famous and influential of
these associations was that which gathered about the shrine
of Demeter Amphictyonis at Thermopylae and the temple of
Apollo at Delphi. It included, at one time or another, almost
THE 60VERNMEXTS OF GREECE AND EOME. 81
all the tribes, small as well as great, of Central Greece, and in
its later development admitted to membership Dorian states
also of Peloponnesus. Its history runs back beyond the be-
ginnings of authentic tradition ; but it is probable that it had
at one time considerable political influence. Its primary pur-
pose was to superintend the common worship of Apollo, to
guard the oracle at Delphi in its sacred independence, to main-
tain against invasion the territory round about the shrine
which was consecrated to the uses of religion. It had regular
assemblies composed of delegates from the several states in
the league, a permanent official organization, fixed rules of pro-
cedure, an ancient prestige.
At the semi-annual meetings of the league, held spring and autumn
both at Thermopylas and at Delphi, vast concourses of Greeks swarmed
from all parts of the central states of Hellas to take part in the festi-
vals held in honor of the god, and to get gain out of the opportunities
for trade thereby afforded.
But the equal voice accorded to large and small tribes alike
in the votes of the Amphictyonic Council speedily robbed its
conclusions of binding force in even the international politics
of the states concerned. The powerful members of the Am-
phictyony naturally would not heed the dictation of its insig-
nificant members. Eules there were by which each state in
the league was bound under oath not to destroy any Amphic-
tyonic town, not to turn away from it at any time its running
waters, to join heartily in'every duty which looked to the pro-
tection of the Delphic temple, and in other respects to observe,
at least within the limits of the league, humane standards of
conduct both in war and in peace and faithful standards of co-
operation in all matters touching the worship of the divinity
in whose name the association was formed. There were germs
in the constitution of the Delphic Amphictyony on the one
hand of national unity, and on the other of international com-
itv and morality. But these germs were never developed.
82 THE GOVBRXMEXTS OP GREECR AND EOME.
The disintegrating forces of. Greek politics were too strong to
be stayed by the forces of religion.
The Amphictyonic bond was never, perhaps, a close one. During the
central, most celebrated period of Hellenic history the influence of the
league utterly disappears from politics; and, when in later times it
again emerges, it is only to plunge Greece into " sacred wars " which
afford Macedonia her opportunity for the destruction of Greek indepen-
dence, and in the conduct of which almost every humane and religious
purpose of the Ainphictyony is flagrantly neglected.
124. The Delphic Oracle: its Influence. — None the less, the
oracle at Delphi, wliose shrine the Amphictyony had been organized
to protect and honor, exercised an abiding influence upon Greek life
throughout the length and breadth of Hellas. Its shrine has been
called " the common hearth of Hellas," the centre towards which the
faith and reverence of the great Greek family turned as towards the
home of their religion, the symbol of their oneness. The Komans —
even the Romans of the time of the Empire — consulted the oracle, so
great was its fame and authority; and in the Greek world almost every
considerable undertaking awaited its sanction. Its responses were gen-
erally, in cases of difficulty or of controversy between two powerful
states, given with great wisdom and circumspection. Those who acted
as the mouth-pieces of the god acquired a facility and felicity in the
utterance of double, as well as of sage, meanings which saved the rep-
utation of the oracle in all oases by virtue of a possible twofold inter-
pretation of its response. Though the influence of the oracle waned,
like all other influences of the older religion, in the later periods of
Hellenic history, its power was very slow indeed to disappear altogether.
Its formative authority must be put prominently forward in any esti-
mate, however slight, of the nationalizing forces operative in the history
of the Greeks.
125. Political Aggregation : Achaean Supremacy. — Such
political cohesion as the cities of Hellas here and there had
was given them, not by community of religious feeling, but by
the compelling power of some dominating ruler or strong, ag-
gressive city aristocracy. The story of the Trojan war sup-
plies us with a type of the only sort of empire that Greek
politics were ever to produce : the supremacy of one city over
many others. Agamemnon, king of Mycenae, was leader of
THE 00'\'ERKMl5NTS OF GREECE AND ROME. 83
the Greeks against Troy because Mycenae was the leading state
of Greece. Mycense, lying inland in the northwestern portion
of the great peninsula plain of Argolis, and Tiryns, placed
just at the head of the Argolic Gulf, were the seats of the
dominant forces of Greek politics in that antique time. Built,
doubtless, by immigrants direct from Phrygia, they neverthe-
less figure in the Homeric songs as the regnant cities among
the Achaeans of the Peloponnesus. So controlling is the
part played by Achaeans in the Trojan expedition that Homer
again and again uses ' Achaean ' as synonymous with ' Greek.'
Tribes from every quarter of the central Greek lands recog-
nized the king of Mycenae as their natural leader : for Mycenae
dominated Sparta, Argos, Corinth, and every other Peloponne-
sian community, and these Achaean communities of Pelopon-
nesus were the prevalent powers of Greece.
126. Cretan Fovrei. — Of a like pattern was the supremacy said to
have been established in Crete by the mythical king and law-giver,
Minos. At some time in that lieroic period to whose events no definite
dates can be assigned, Minos, ruler of Cnossus in Crete, was thought
by the Greeks, not only to have brought within his power many of the
other Hellenic cities of the island, but also to have constructed some-
thing like an empire out of the numerous island states of the southern
iEgean, establishing a naval force which swept the sea of pirates, and
giving to the cities under his sway a system of laws which was a proto-
type of the later and more famous laws of Sparta.
/
127. The Supremacy of Argos. — Later, Argos gained a like
temporary ascendency in the Peloponnesus. Under Phidon, a
lineal successor of the Heraclidae, and therefore a rightful
representative of Dorian supremacy, a man of imperative ini-
tiative and commanding ability, Argos dominated the cities of
Argolis, and even led for a time the whole of the Peloponne-
sus. Phidon used his power to substitute Argos for Elis in the
presidency, for a single occasion, of the Olympian games.
128. Games and Festivals : the Hellenic Spirit. — To pre-
side at Olympia was to preside, for the nonce, over all Hellas :
84 THE GOVfiRHMBlTTS OP GREECTi! Al^TD ROME.
for nowhere did the pan-Helleiiic spirit speak with so plain and
so impressive a voice as at Olympia. There every four years
Greeks gathered from all quarters of the Hellenic world to
hold games in honor of Zeus, their national deity. With
equal frequency the Greek world sent its crowds of spectators,
its picked athletes, its poets, historians, and musicians to the
great Pythian festivals, in honor of Apollo, at Delphi. Every
third year the Ionian Poseidon was celebrated with almost
equal splendor in the Isthmian games, held under Corinth's
presidency. Zeus had his famous games and rites every third
year at Nemea also, in Argolis. But no festivals had quite the
celebrity and iniluence enjoyed by those which every fifth year
witnessed at Olympia, in Elis. The Greeks reckoned time by
' Olympiads,' by the four-year periods, that is, which elapsed
between festival and festival at Olympia. To win a prize in
the Olympian games was to win immortality. Thither poets
went to publish their poems to all who would listen. Embas-
sies came from every Greek city of consequence, on the main-
land of Greece at any rate, to take solemn part in the ceremo-
nies by which the religious motives of the gathering were pro-
claimed. Those who were not Greeks could be present as
spectators ; but no one who could not prove himseK of pure
Hellenic blood and free from all taint of sacrilegioiis crime
could take part in any contest. The period of the games was
made a period of peace, of truce : war stood still while the
Greeks thus gave token of their common national spirit, of
their race unity in religion and in standards of achievement.
It is scarcely possible to exaggerate the influence, both polit-
ical and moral, of these festivals. The persistency and enthu-
siasm with which they were celebrated throughout fully a thou-
sand years gives impressive evidence of their significance in
Greek national history.
Still, although they spoke a national spirit, they did not se-
cure political unity. Nothing but strength, nothing but arms
or self-interest, furnished means sufficient for even those tern-
THE GOVERNMENTS OF GREECE AND ROME. 85
porary, ephemeral unions of Greek cities -which once and again
seemed for a moment to be bringing sections at least of the
Hellenic world into possession of better, because more national,
political methods.
129. The Delian Confederacy. — The inost celebrated, and
in its early days most promising, of the combinations by means
of which a certain degree of Hellenic union was secured was
the Delian Confederacy. In resisting the Persian invasions of
B.C. 490 and 480 the cities of European Grreece had looked to
Sparta as their leader. But the two campaigns resulted in
bringing Athens forward as the most effectual representative
of Greek independence ; and the turn which the contest with
the Persians took so soon as Marathon, Salamis, and Plataea
had thrust the invaders out of Greece, made Athens the only
possible leader. Immediately after these victories the Hellenic
states of the iEgean joined the states of the mainland in fol-
lowing up the military advantages already gained and in driv-
ing the Persians back from Asiatic as well as from European
Hellas ; and in this movement, as in the earlier defence of the
peninsula, Sparta led. But Sparta soon found that such lead-
ership threatened to result in the breeding of generals whose
personal power would be full of peril to her aristocratic con-
stitution. She was, besides, not fitted, either by position or by
political constitution, to play the part of a naval state : and
yet it must be a naval state that should lead the Mgea,n and
Asiatic communities in their contest with the common enemy.
Sparta, therefore, withdrew, and Athens became her natural
successor in the hegemony.
The result was the re-formation of the league ; or, rather,
the formation of a new league. This league was the Delian,
formed about b.c. 475. It embraced most of the Ionian states
of the archipelago and of the Asiatic coast. Delos was chosen
as the seat of its treasury and the meeting-place of its assem-
blies, not only because of its convenient central location, but
also because it possessed one of the most ancient and revered
86 THE GOVERNMENTS OF GREECE AND ROME.
shrines of Apollo and could therefore furnish for the league
that religious background -which was indispensable to Greek
thought in the construction of confederacies. About the shrine
in Delos the confederates gathered as an Amphictyony. Or-
ganization was effected under the wise and eminently conserv-
ative guidance of Aristides : and that organization promised
to be effectual. The league had a treasury iilled by stated
contributions from all those members of the organization who
could not themselves furnish men and vessels to the confed-
erate fleet ; that treasury was administered by permanent offi-
cials (Hellenotamke) trained for their functions in Athens ; its
assembly met statedly ; it maintained a great fleet constantly
upon the seas : in all respects it was the most compact, most
energetic, most promising political combination that Hellas
had yet seen.
130. Athenian Empire. — But the confederate features of
this combination speedily disappeared. Prom the first Athens
had had, not the presidency only, but also the control, of the
league. Her citizens administered its treasury ; she commanded
the confederate fleet ; both in material power and in political
capacity she immeasurably excelled all the other confederates.
Many of the confederate states, too, played into her hands.
They preferred to pay money into the treasury rather than be
at the trouble of supplying men and ships — and Athens made
no objection to the change. Presently she transferred the funds
to her own coffers, and did not scruple to use them to pay for the
magnificent buildings and the matchless works of art with which,
Pericles being master of her policy, she adorned herself. In
every way, indeed, the money of the confederacy was made to
simplify Athenian finance. When members of the league tried
to withdraw from it, they found themselves coerced by Athens
into remaining, being obliged either to pay a heavy tribute for
their recalcitrancy or to submit to be ruled direct from Athens.
The later days of the league saw Athenian officers of oversight
established in many of the towns once equal members with
THE GOVERNMENTS OP GREECE AND ROJtE. 87
Athens in the confederacy, and in some Athenian garrisons.
When necessary or expedient, Athens strengthened her control
by new and separate treaties with the stronger towns under
her hegemony. The Delian Confederacy had become an Athe-
nian Empire.
It was the resources wrung from this empire that rendered the finances
of Athens so easy of management in the time of Pericles ; and it was
the success of the finances, probably, which gained for his policy of
making money payments to the people (sec. 90) the tolerance of the
richer classes of the citizens, and prevented the fatal consequences of
that policy from making themselves at once manifest.
131. The Peloponnesian War; Oligarchies vs. Democra-
cies.— This empire had hardly been secured when Spartan
jealousy brought about its downfall. The Peloponnesian war
was fought nominally because Athens took Corcyra's part
against Corinth, Corcyra's parent city, but really because the
power of Athens had become too great to be longer brooked by
the Peloponnesian states. Most of the more powerful states
of the Peloponnesus, besides, had oligarchic or aristocratic
constitutions, and Athens was the representative and embodi-
ment of democracy. That Peloponnesus, with Sparta at its
head, should strike at Athenian supremacy was inevitable.
The result of the war was to make Sparta supreme. But
she used her supremacy to humiliate, not to unite, Greece.
She put garrisons and military governors {liarmosts) in every
city convicted or suspected of disaffection towards her. It
was impossible that .^gean Hellas should long be held together
by the hateful methods of her drastic tyranny. Accordingly,
Sparta steadily lost her ascendency.
Athens, on the other hand, gradually recovered much of the
ground she had lost ; gathered about herself a new and more
extensive league, including not only many of her old allies, but
also Dorian and Euboean commonwealths not a few, and even,
for a time, Macedonian and Thessalian princes ; conducted her-
88 THE GOVERNMENTS OF GREECE AND ROME.
self with an unwonted moderation, dictated by sad experiences ;
and had the satisfaction of seeing Peloponnesian fleets again
and again driven from the ^gean. Sparta was forced to be
content to be the chief among oligarchies and to leave the
principal r61e in G-reece to democrats.
132. Meantime Thebes was brought to a sudden and short-lived su-
premacy by the genius of Epaminondas, utterly defeating the Spartans
at Leuctra (b.c. 371) not only, but also making forcible and radical
readjustments in the politics of the Peloponnesus.
133. Macedon. — ^But nothing that any Greek city conld do
proved effectual in uniting the Greeks : confederacies and hege-
monies alike were ephemeral. It remained for Macedon and
Eome to do for them what they could not do for themselves.
The Macedonians were cousins to the G-reeks, having much
Hellenic blood in their veins, — though just how much we can-
not say. They were quite near enough of kin to understand
Greek character and politics thoroughly, and to make their
assiimption to lead Greece seem not altogether unnatural.
Philip of Macedon knew his object perfectly, easily divined
the means of attaining it, and advanced towards it with con-
summate craft, energy, and success. First, he conquered the
outlying Greek cities nearest to his hand ; next he intervened
in a " sacred war " — a war among the Amphictyons concerning
Delphi — by wlaich Greece was torn, and won a place in the
Amphictyony itself, as a Greek power ; and then, turning to
the completion of his designs, he crushed Athens (Chseronea,
338), reduced the power of Sparta, and, establishing himself
in the presidency of the Amphictyony, brought the states of
European Greece together into a nominal league which was in
reality a Macedonian empire. Central Greece was at last com-
pacted for a national undertaking, — the Hellenization of the
East.
134. The Hellenization of the East. — That Hellenization
followed the conquests of Alexander the Great. Alexander
THE GOVERNMENTS OF GREECE AND ROME. 89
moved against Persia as the leader and representative, because
the master, of the European. Greeks. His armies were Greek,
in large part pure Greek, and the regions which he conquered
were regions opened thereby to the Greeks. Alexander him-
self did not live long enough to do much more for the perma-
nent alteration of eastern civilization than clear away obstacles
to the spread and predominance of western arts and ideas, and
create the highways of political organization upon which Greek
influences were to advance into Syria and Egypt. The great
changes which were to make the East Hellenic took place
under his successors, the Diadochi, amidst the wars by which
tliey sought to establish upon firm foundations their series
of independent Graeco-barbarian kingdoms. The process was
easiest, of course, in Asia Minor, and most nearly resulted
there in a veritable Hellenization ; but even in Syria and Egypt
it made notable strides, leaving Greek cities like Antioch and
Alexandria to attest its vigor, and subduing to Greek influences
■ much important Mediterranean coast country.
136. The East was by no means, however, made Greek in
any such sense as that in which the ^gean coasts of Asia
Minor had so long been Greek. The Greeks, though they
became exceedingly numerous and easily dominant in the new
kingdoms, did not anywhere, probably, constitute a majority
of the population. Nor were they Greeks, for the most part,
who would have been permitted to contend in the games at
Olympia. Macedon's supremacy and eastern conquests had
produced a new Greek race, with deep infusions of Macedonian
and barbaric elements both in its blood and in its manners.
It was on that very account the better adapted to establish a
new civiliization, which knew little of the old Greek liberty or
variety, — an orientalized Greek civilization. It was not stiffly
retentive of exclusive characteristics, like the pure Hellenic ;
it was receptive of outside influences, open to compromise, sub-
missive to rulers.
136. The Macedonian kingdoms anialgamated the East and
90 THE GOVERNMENTS OF GKEBCE AND BOMB.
gave it that individuality -whicli, after Roman dominion had
spread to it, was to enable it still to occupy a place apart in the
Koman system, and was to cause it ultimately to emerge from
that system a distinct, separate, self-sufficing whole, the East-
ern Empire (sees. 186, 187).
When Constantine transferred the capital from Rome to Byzantium,
he of course shifted the centre of gravity from the Latin-Teutonic to
the Greek side of the Empire. In the time of Justinian Greelc was the
prevailing language and the chief imperial officials were Greeks.
137. The older Greek cities of the jEgean coast of Asia
Minor had been prepared by their earlier history to fall easily
into a system like that established by Macedon. Denying
themselves the strength that lies in union, they had singly
succumbed, first to semi-barbarian Lydia, and afterwards to
wholly barbarian Persia. It was no new thing with them, as
it was with Athens and Thebes and Sparta, to become material
in the hands of a conqueror, constituent parts of an empire.
138. The Achaean League. — The period of Macedonian
supremacy, period though it was of the final decline of Greek
liberty, nevertheless witnessed one of- the most brilliant
attempts at national action on the part of the Greeks. The
Achaeans, who ever since that heroic age of the Trojan expe-
dition when they had been leaders of all Greece (sec. 125) had
stood in tlie background of Hellenic history, working out their
own quiet developments in comparative peace and prosperity
ill secluded Achaia, now again, in the closing age of Greek his-
tory, stepped forward to a new leadership and initiative. The
cities of Achaia had from time immemorial acted together
under some form of political association ; but their union did
not become significant in the history of Greek politics until
the year b.c. 280. In that and the previous year several
Achtean towns took heart to cast out their Macedonian mas-
ters, and, having liberated themselves, drew together for
mtitual assistance, making a common cause of their liberty.
THE GOVEENMENTS OP GREECE AND EOME. 91
The spirit of other towns kindled at the example, and the
movement spread. Presently all the Achaean towns had be-
come free, and the league sprang into importance. Sicyon,
which was not an Achsean town, threw in her lot with it and
gave it, in the person of her own gallant Aratus, a leader who
was speedily to make it famous and powerful. Under his
leadership it became instrumental in delivering Corinth an.d
other neighbors from their tyrants. Year by year saw fresh
accessions to its membership till it included Megara, Troezen,
Epidaurus, Megalopolis, and even Argos. For half a century
it served as an admirable organ for the national spirit of the
Greeks ; for a full century it retained no small degree of credit ;
but finally, of course, it was drawn, like all else, into the vor-
tex of Roman conquest. It may be said to have been the last
word of Greek politics.
139. And in its constitution it spoke a rather notable word
for the politician. That constitution brought the world within
sight, perhaps, of a workable confederate arrangement. The
league acted through an assembly which met twice every year
and to which was entrusted, not only the election of all con-
federate officials, but also the supreme direction of every affair
which affected the foreign relations of any city in the league,
even though it were an affair not of general but only of local
interest. The business of the assembly was prepared by a
Council (/SovXi;, boule) which was probably permanent. Its
officers were, at first two Generals (strategoi), afterwards one
general and a chief of cavalry known as Hipparchus, as well
as certain subordinate general officers; a Public Secretary
(ypafi.[i.aT£v?, grammatetis) ; and a permanent executive com-
mittee' of ten known as Demiuirji. The board of executive
officers, it is believed, presided over the sessions of the
Assembly.
Here, certainly, was a better framework than the Greeks
had ever known before for concerted national action. Its
chief defects lay in the composition and procedure of the
92 THE GOVEENMENTS OP GREECE AND ROME.
Assembly. That- body was composed, in theory, of every
freeman of the cities of the league who had reached the age
of thirty years. In fact, of course, it consisted of the whole
body of the freemen of the town where it met (usually iEgium,
or, in later days, Corinth) and of such citizens of the other
towns as had the leisure or the means to attend. The ancient
world knew nothing of the device of representation which has
solved so many problems of political organization for the
Teuton. And the votes in the Assembly were taken by towns,
not decided by the major voice of the freemen present. The
few chance attendants from some distant city within the league
spoke authoritatively for their fellow-townsmen : the smallest
delegation had an equal vote with the largest ; and yet there
was no fixed plan which would make the vote of one delegation
as representative as that of another.
140. The .ffitolian League. — The same period saw another
league sijring into rivalry with Macedonia on the one hand and
with the Achaean towns on the other, whose constitution bears
so close a resemblance to that of the Achaean confederation as
to suggest the prevalence in Greece of common conceptions,
or at least of common habits, of political association. The
jEtolian League, like the Achaean, had its general assembly of
freemen; the business of that assembly was prepared by a
committee whose functions resemble those of the Achaean
Council ; the chief executive ofl&cer of the league was a
Strategus; his associate in command was dubbed Hipparchus ;
and a Public Secretary {grammateus) served the league in its
formal transactions.
141. But these likenesses ought not to be too much insisted
upon. We know less of the actual confederate life of the
^tolian League than of that of the Achaean, and what we do
know reveals certain important differences between the two
associations. The ^tolian League was not a confederation of
cities, but a confederation of tribes. Nor was the leadership
which the .^tolians acc[uired through their league like the
THE GOVERNMENTS OF GREECE AND ROME. 93
leadership which fell to the Aehtean towns. The jEtolians
inhabited a country backed by impenetrable mountain fast-
nesses to which they could retire, to the defeat of all outside
coercion. Their aggressive and lawless natures led them to
make of their neighborhood to the sea an opportunity for wide
and successful piracy. Their power and their energetic initia-
tive created for them a sort of empire : at one time all of
Southern Epirus, Western Acarnania, Thessaly, Locris, Phocis,
and Boeotia were included in the league, and it even had allies
in Asia Minor and on the Propontis. It " assumed entire con-
trol of the Delphic oracle and of the Amphictyonic assembly."
Its leadership was a purely military leadership, presenting
salient points of contrast to the association by means of which
the Achsean Confederates sought to secure themselves in the
enjoyment of their liberties.
Every freeman of thirty years of age was entitled to membership of
tlie Assembly of the League. That assembly met, not twice, but once
a year, in the autumn, at Thermum, and was attended, of course, only
by those who could afford to attend : that is, by the dominant few.
The Assembly did not select the Sirategus of the League, but a list of
nominees for the office — from which a Strategus was picked out by lot.
The Strategus, not a board of magistrates as in Acliaia, presided over
the meetings of the Confederate Assembly ; and to him were entrusted,
besides his military, certain general civil and representative functions.
The JEtolian, like the Achaean League, was eventually, of course,
swept into the Roman vortex.
142. Rome and the 'Western Greeks. — Western Hellas, after
having been at some points touched by Carthage, had been absorbed
by Rome, of course, before the imperial city had sent her armies to in-
tervene in the factional fights of Greece proper. The cities of Magna
Graecia Rome acquired when she completed her conquest of the Italian
peninsula, b.c. 272. Sicily, with its Greek and Carthaginian settlements,
slie acquired in B.C. 241, and organized as a province in B.C. 227. The
other western homes of the Greeks she made her own along with Spain
and the coasts of Gaul.
143. After Roman Conquest. ^- Eome neither undid the
work of the Macedonian princes in Asia Minor and Syria, nor
94 THE GOVERNMENTS OP GREECE AND ROME.
thoroughly Romanized there the systems of government. The
vitality and self-direction of the semi-Greek municipalities of
the East in large measure weathered Eoman rule, as did also
the Greek speech and partially Hellenized life of Asia, Syria,
and Egypt. The compound of oriental, Greek, and Roman
methods in government -which was effected by the later empe-
rors, when Greek Byzantium had become the imperial capital,
Constantinople, may be best discussed in direct connection with
Roman political development (sees. 181-187).
The Greek settlements of Sicily, Italy, Gaul, and Spain were
much more completely swallowed and assimilated by Roman
organization.
v'
(II.) The Government of Rome.
144. The Ancient Roman Kingdom. — At no period before
that of the Einpire was the government of Rome radically
unlike the governments of Greece ; in their earliest stages the
resemblance between Grecian and Roman governments was a
resemblance of details as well as of general pattern. Homer's
account of the patriarchal presidencies of Greece may serve
as a sufficiently accurate picture of the primitive Roman mon-
archy. Kingship, it is true, seems to have been much less
strictly hereditary in Rome than in Greece : the Roman kings
were not only of several families, but even, tradition says, of
different nationalities. The functions of the Roman kings,
howe^'er, and the government over which they presided, would
have seemed most natural and regular to a contemporary Greek
observer. The king was high-priest of the, nation, its general,
and its judge. He was associated with' a council, — a Senate,
— composed of heads of families ; for the Roman state, like
the Greek, was a confederation of gentes, curies, and tribes ;
and the decisions of king and council were heard by a general
assembly (comitia) of the freemen of the curies. There is
nothing in all this to call for new comment ; we have seen it
THE GOVERNMENTS OP GEBECE AND ROME. 95
all in Greece (sees. 48-57), — except the method of succession
to the throne. Upon the death of a king, a council of all the
Fathers of the gentes chose an interrea;, who was to hold office
for one day ; the interrex named a successor, the successor,
taking counsel with the Fathers, named a king ; and the Gomi-
tia confirmed the choice.
145. Leading Peculiarity of Roman Constitutional Devel-
opment. — This primitive constitution completed its resem-
blance to those of Greece, by beginning very early to fall to
pieces. But the way Rome took to alter her institutions was
in some respects peculiarly Roman. The Romans never looked
revolution straight in the face and acknowledged it to be revo-
lution. They pared their constitution down, or grafted upon
it, so that no change was sudden, but all alteration apparently
mere normal growth, induced by thoughtful husbandry, and
they could fancy that the original trunk was still standing,
full of its first sap. No one ^ was ever given leave to reform
the constitution like a Solon or a Clisthenes. Reforms, how-
ever, were planted in the seed at various times which we can
distinguish now very clearly as beginnings qf sluggish changes
which were to be entirely accomplished only in the fulness of
time.
146. Reforms of Servius. — Thus a change such as Solon
brought about in Athens was prepared in Rome by the mili-
tary and civil policy of Servius Tullius, one of the latest and
greatest kings of the ancient city. The Roman Senate in its
youth resembled in one piarticular the English House of Lords
as it was long ago (sec. 669) : it consisted of such leaders
of the nation as were summoned by the king, and Servius
stretched his prerogative by summoning to it the heads of cer-
tain plebeian families of consideration. Here was a notable
breach made in patrician privilege ; but made under the forms
of the constitution and destined to bear fruit but slowly.
More significant was the organization which Servius, still act-
ing within constitutional warrant, this time as commander-in-
96 THE GOVEENMEKTS OF GKBECB AND EOMB.
chief, gave to the army. For the purposes of military adminis-
tration he divided the people into five property classes, to each
of which -were assigned military duties, proportioned to the
means available to it for self -equipment for the field; and the
host thus made up and classified he formed into an Assembly
of Centuries (Comitia Centuriata). This assembly was simply
the army in council. In it each of the hundreds (centuries)
into which the army was divided had one vote. All matters
of foreign policy in which the army as such might naturally
be most interested to have a voice were submitted to this Army
Council. Such prerogatives given to the new property classes
contained promise of grave constitutional changes. The cen-
turiate assembly outlasted the necessarily temporary army
organization for whose sake it had been devised, came to be
simply a body representing wealth instead of birth, and gradu-
ally absorbed an electoral and legislative power such as had
never been dreamed of in the plans of Servius. Of this we
shall see something later (sees. 154-166).
147. The Centuries. — The classification of the people effected by
Servius was based upon a census of property which reminds of the polit-
ical reforms of Solon in Athens (sec. 73). Like Clisthenes, however,
Servius added a new division into tribes (sec. 82), and his property
classes were not four but five in number. Every one who was subject
to military service, and who owned not less than two jugera (a little
more than an acre) of land, was to contribute to-the defence of the
state under the new classification : and the new classes were to be dis-
posed into four tribes. The first class, consisting of those worth "100,000
asses ($2000), was to contribute eighty centuries of footmen and eigh-
teen centuries of horsemen to the army ; the second, third, and fourth
classes, representing respectively individual properties worth 75,000,
50,000, and 25,000 asses, were each to supply twenty centuries of in-
fantry; and the fifth class, representing a census of 11,000 asses, was
to furnish thirty. One-half of the centuries of footmen supplied by
each class consisted of seniors, men from forty-five to sixty ; while the
other centuries were made up of men of from seventeen to forty-five.
In the Comitia Cenluriuta the voting was done by centuries, the vote of
each century being decided upon by a majority vote within the century.
THE GOVERNMENTS OF GREECE AND ROME. 97
Evidently the result of the arrangement taken as a whole was to give
preponderance in the conclusions of the Comitia to wealth and age.
There were added to these centuries of the classes one century
drawn from those who were shown by the census to have less than
11,000 asses; and four centuries of musicians and workmen drawn from
the masses not reckoned in tlie census at all. Tlie total number of cen-
turies was, therefore, one hundred and ninety-three.
148. Beginnings of the Republic. — The line of Eoman
kings came to an end, and the Republic was inaugurated at
almost the very moment when Clisthenes was effecting his
popular reforms in the institutions of Athens. But it ought
to be kept clearly in mind that a republic was inaugurated in
Rome in 509 b.c, not in an Athenian or modern, but only in
a Roman, sense. As I have said, the Romans never made
revolutions out of hand; they only grew them, from very
slowly germinating seed. The change made in 509 was scarcely
■greater than was the change effected in Athens some two cen-
turies earlier by substituting annual archons for life archons.
Two Consuls, to be chosen annually by the Comitia Centuriata,
were substituted for the kings; who had grown insolent in the
person of Tarquin ; and a newly created high-priest, dubbed
Eex Sacrorum, received the religious prerogatives of supplanted
royalty— that was all. The regal functions quietly passed to
the joint exercise of the consuls, and the right of electing to
the chief magistracy passed away from those who had elected the
kings. In all other respects the constitution kept close to the
lines of its original forms ; only the Senate receiving increase
of power.
149. The Senate. — The Roman Senate is singular among
bodies of its own kind in having had no clearly defined prov-
ince. From the time when consuls were first chosen till the
end of the second Punic war (b.c. 509-201) it was virtually,
so far as the conception of policy went, the government of
Rome. Its counsels determined the whole action of the state.
But not by any very tangible legal right. It remained till the
98 THE GOVERNMENTS OP GREECE AND ROME.
last what it liad been from the first, — only a consultative body
whose advice any magistrate might ask, bvit whose advice no
magistrate was bound to take unless he chose. It was asso-
ciated with the consuls as it had been with the kings, — to
give them such counsel as they should call upon it to give.
Its powers were, strictly speaking, only the residuum of powers
not delegated by law or fixed custom to any magistrate or body
created since the days when all legislative functions had be-
longed to the Senate as of course, as the only council in exist-
ence. Until the comparatively late times when the Senate had
been corrupted by the temptations incident to the administra-
tion of a vast empire, and had proved itself as incaiDable as
any other advisory debating club of managing foreign con-
quests, it had many distinct advantages over any other authority
that might have felt inclined to compete with it. Magistrates
held their offices only for one year, and were generally drawn
from the classes strongest in the Senate ; the various assem-
blies of the people (sees. 154, 155) had no permanent organi-
zation, and met only occasionally, when the proper magistrate
saw fit to summon them ; the Senate alone had continuous life
and effective readiness for action. With its life-membership
it was immortal ; containing the first statesmen, lawyers, and
soldiers of the state, it had a knowledge of affairs and tradi-
tions of authority, of achievement, and of sustained and con-
certed purpose such as magistrates who held their offices but
for a twelvemonth, and meetings of the people which came to-
gether but for a day, could not possibly have. It was compact,
practised, clear of aim, resolved, confident. The vagueness of
its functions was, therefore, an advantage rather than a draw-
back to it. It undertook every task that others seemed dis-
posed to neglect ; it stretched out its hand and appropriated
every function that was lying idle. If its right to any par-
ticular function was seriously challenged, it could quietly dis-
claim it, — to take it up again when the challenger had passed
on. The consuls and other magistrates could ignore its deter-
THE GOVERNMENTS OP GREECE AND ROME. 99
minations at will and follow their own independent purposes
or the wishes of the popular assemblies. The Senate was only
their servant, to speak when bidden. But the Senate's advice
was commonly indispensable ; nowhere else were such coherent
views or such informed pu.rposes to be found, nowhere else so
much experience, wealth, influence. It was too serviceable to
be decisively quarrelled with : and in all seasons of quiet in
home affairs it accordingly had its own way with undisturbed
regularity.
150. Composition of the Senate. — The number of senators was,
throughout most of Roman history, limited to three Imndred. Their
tenure was for life, provided they' were not deprived of their rank by the
censor. In the regal period they were chosen by the king, his summons
constituting them members (sec. 146) ; and when consuls succeeded to
the kingly functions, they, like the kings, filled vacancies in the Senate.
A law of about n.c. 351, however, gave the right to a seat in the Senate
to every one who had been consul, praetor, or curule-sedile ; and vacan-
cies over and above the number which such ex-officials sufficed to fill,
were thereafter filled by appointment of the censor.
151. Roman Conquests and their Constitutional Effects. —
While the Senate, however, was thus profiting by knowing its
own mind and by having functions too indefinite to be cur-
tailed, the conquests of the Eoman armies, which the Senate
at first did so much to advance by supplying both wise plans
and effective leaders, were sweeping together an empire whose
government was to prove an impossible task even for the Sen-
ate, — for any magistrate or assembly, indeed, known to the
constitution of the city-republic. Rome was denied the exclu-
sively municipal life for which her forms of government fitted
her and which was permitted to Athens, Sparta, and the other
cities snugly ensconced in their little valley nests among the
mountains of Greece. She had no pent-up Attica in which to
live a separate life. There were rival towns all about her on
the plains of Latium and beyond the Tiber in Etruria. When
they had been brought under her supremacy, she had but
100 THE GOVERNMENTS OP GREECE AND ROME.
gained new hostile neighbors, to whom her territory was eqiially
open. She seemed compelled for the sake of her own peace to
conquer all of Italy. Italy subdued, she found herself sepa.
rated by only a narrow strait from Sicily. Drawn into that
tempting island by policy and ambition, she came face to face
with the power of Carthage. In subduing Carthage she was
led to occupy Spain. She had been caught in a tremendous
drift of compelling fortune. Not until she had circled the
Mediterranean with her conquests, and had sent her armies
deep into the three continents that touch its international
waters, did she pause in the momentous undertaking of bring-
ing the whole world to the feet ©f a single- city. And her con-
stitutional life itself felt every stroke of these conquests. This
constant stress of war was of the deepest consequence to her
politics, — especially in enabling the plebeians to break into
the pale of political privilege much earlier than they might
otherwise have done so.
152. The Plebeians. — Strangely enough, it is not easy to
say just who the plebeians were. Some historians believe that
they were a non-citizen class such as we have seen in the
metceci at Athens (sec. 93) ; others have satisfied themselves that
they were at least sub-citizens, members even of the exclusive
curies which contained the original Eoman gentes, but that some-
how they were not themselves within the patrician gentes, and,
consequently, not of the classes which were eligible for ofB.ce.
Possibly neither view is either quite right or quite wrong.
Whether or not it be true that Rome, because seated in a dis-
trict which was neither fertile nor healthful enough to have
been chosen for any other purpose, was at first an asylum for
the outlawed and desperate characters of Italy, it is reason-
ably certain that her popvilation had from the beginning a very
miscellaneous, heterogeneous composition. Possibly the gentes
which claimed to be the only gentes that had fathers {patres, in
other words, long and honorable descent), and consequently
the only patricians, were themselves of rather artificial make-
THE GOVEKNMENTS OP GREECE AM) ROJTK.' ^01/
up; and it is quite conceivable that those who ealifte.latfiii*lito
the Roman circle, although not less naturally but only more
recently formed into families of the orthodox pattern, were-
relegated to a rank of . inferior dignity in the state, even if not
excluded from a place in the curies alongside of the patricians.
But there were also many, doubtless, who had come to Rome
as aliens, content at first to live there as outsiders for the sake
of certain advantages of trade to be had only on the banks of
the Tiber, and who had in time given birth to a non-citizen
class, which had forgotten its alien extraction and had become
identified with the city, but which had made no advance be-
yond the threshold of the state. Probably these, too, were
jylebeians. Doiibtless the same name included also those who,
whether sub-citizens or non-citizens, had attached themselves to
noble patrons in the half-servile capacity of clients.
153. Secession of the Plebeians (b.c. 494). — Whoever the
plebeians may have been, they were indispensable to Rome in
her struggle for supremacy. They came year by year into a
greater military importance, constituting more and more exclu-
sively the rank and file of the Roman armies : and they em-
ployed their usefulness to the state as a lever by which to raise
themselves to complete political equality with the senatorial
families. Their first decisive step demonstrated their strength,
— to themselves, possibly, as well as to the patricians. In the
midst of war, and with their arms in their hands, they seceded
from the city and threatened to establish a separate govern-
ment of their own. Their grievance was, that they were at
the mercy of the patrician magistrates : they had not as yet
any greater demands Upon which to insist seriously than pro-
tection against magisterial tyranny.
164. The Tribunes. — Thej were heeded, of course. A seed
of revolution was sown, as usual, without any one's seeing the
promise of innovation it contained. Tribunes of the people
were appointed : at first two, afterwards five, in the last days
ten. They were officers chosen from the ranks of the plebeians
102 THE GOVERNMENTS OF GREECE AND ROME.
and invested witli the right to suspend the judgment of any
magistrate upon a plebeian by peremptory veto. The persons
of the tribunes were made inviolable by a compact (the lex sa-
crata) between patricians and plebeians which denounced a
curse upon any one who should interfere with them in the dis-
charge of their functions. The concession seemed a small one,
— Bspecially in view of the fact that the tribunes, though ple-
beians, were (till b.c. 471) elected, not by their own order, but
by the Comitia Curiata, the exclusive assembly of the patri-
cian curies. But the creation of the tribu.nate did, neverthe-
less, transform the constitution. The tribunes did not content
themselves with restraining the tyranny of the magistrates ;
they constituted themselves the political leaders of the plebs;
they called plebeian meetings (concilia plebis) which they
harangued, and which they prompted to take concerted action
for the enforcement of plebeian rights. It was of no avail that
the patricians violently broke in upon and dispersed these
meetings and handled the tribunes roughly. Plebeian agitation
extorted a law (the IciKan, b.c. 493) which visited with the
extreme penalty of death any interruption of a tribune while
addressing the people.
156. Progress of Plebeian Predominance. — In b.c. 471 the
election of tribunes was transferred by law to a newly consti-
tuted plebeian assembly of tribes, which was known as the
Goncilium tributum plebis. Step by step the resolutions of the
strictly popular assemblies grew in importance. Ultimately a
Comitia Tributa, an assembly in which all the people, whether
patricians or plebeians, participated, became the chief legisla-
tive body of the state; the initiative of the tribunes in its
counsels grew into a right of initiative in the proceedings of
the Senate, their authority to check magistrates, into powers of
independent judicial action. The Comitia Curiata still survived
and exercised a small residuum of function, — for the Romans
never willingly abolished a superseded institution ; the Comitia
Centuriata continued to elect and legislate on a reduced scale ;
THE GOVERNMENTS OE GREECE AND ROME. 103
and the Senate still got its administrative suggestions heeded
when it could, as of old j hut the Comitiu Tributa had virtually
absorbed the sovereignty. It was the assembly of the whole
people ; the others were weakened houses of lords.
166. The Plebeians and the Magistracies. —The plebeians
were not satisfied, however, with a growth of legislative power
and the intervention of the tribunes between themselves and
the magistrates. They were not slow to use their waxing po-
litical strength to open the magistracies to their order. With
a true instinct for strategy, tliey attacked first the consulship
itself ; they would gain all by gaining that. But the fight was
a long and stubborn one about this stronghold ; the consulship
was the key to the constitution, and the patricians contrived
to delay the complete triumph of the plebeians in their attack
upon it for a century and a half. The method of resistance
which they adopted was a^ once astute, bold, and successful.
As the plebeians approached complete possession of the coveted
office, the patricians steadily curtailed its importance by par-
ing away its prerogatives and giving them to officers newly
created for the purpose and kept carefully within the patrician
ranks. At the beginning of the contest, when it first became
evident that the plebeian right to high office must be recog-
nized, the plebeians were offered coiasular powers in the field
under the title of 'military tribunes.' The tribu.nician veto
had not hitherto been able to protect plebeians outside the
city, and the powers which the consuls exercised despoti-
cally in the field were those of which the plebeians were most
jealous. Still the gift of a share in these extraordinary powers
under a new title did not satisfy the commons. They must be
admitted to the consulship itself, with its dignities and its
powers both in the field and at home. The law was, therefore,
made to concede that a plebeian might be one of the consuls ;
but patrician influence and . intrigue of course took care that
none should be, for the choice was made by the Comitia Cen-
turiata ; and, for fear some plebeian might somehow creep in,
104 THE GOVERNMENTS OF GEEECE AND ROME.
the office of Qucestor was created, and the consular privilege
of acting as treasurer of the state was given into the hands
of two patrician quaestors. The plebeians of course saw that
they had suffered a virtual defeat, and pushed on. It was pres-
ently enacted that one of the consuls must be a plebeian ; and
the law was carried into effect. A subsequent law threw both
consulships open to the commons. But both times the j)atri-
ciaus answered by cutting off a piece of the consular power and
keeping that piece still safely in their own possession. First,
Censors were appointed to exercise the important prerogative,
hitherto appertaining to the consular office, of taking the census
and revising the roll of the Senate ; and then Prmtors were
created and vested with the judicial functions which the con-
suls had inherited from the kings. Both these offices were
denied to plebeian candidates.
' Praetor ' was the original title of the officers afterwards called
consuls. It was now revived for another office.
The hierarchy of office was growing, and the patricians were
maintaining in large part their exclusive hold upon power ;
but the most that the privileged classes were gaining was delay.
Eventually the door to every office, even to the sacred priest-
hoods and to the augural college, swung open to the plebs, and
the old-time hateful inequality between patricians and plebeians
was swept utterly away.
157. Breakdown of the Republic. — But the struggle be-
tween the orders was scarcely over before the approaching
decline of the Eepublic had begun to become manifest. Rome
had been attempting the impossible task of administering a
vast empire by means of a city constitution, and her whole po-
litical system was breaking down under the strain. As province
after province had come under her dominion, she had invented
no new system whereby to give them good government and at
the same time preserve for herself secure control. The Eomans
never invented anything new ; they simply adapted old forms
THE GOVERNMENTS OP GREECE AND ROME. 105
and institutions as best they might to new needs and circuiu-
stances. They had, therefore, merely stretched the tentacles
of their city constitution out over the world, and that consti-
tution showed yearly clearer and clearer signs of being about
to be torn asunder by the strain.
158. Provincial Administration. — The consuls and praetors
of the city government were continued, as pro-consuls and
pro-prsetors, and sent out to govern provinces. But, once away
from the supervision of the tribunes and the criticism of
assemblies and Senate, they were absolutely irresponsible :
save only that they were liable to trial for malfeasance in
offtce, after the expiration of their terms of service, by jury-
courts at Rome, which were of course out of sympathy with
provincials and notoriously ojjen to be bribed. In the city
itself consul and prsetor were theoretically independent of the
conclusions of Senate or people ; out of the city, commissioned
as pro-consuls or pro-praetors, they were actually independent.
They were city officers far away from home and from all city
oversight, among subjects instead of among fellow-citizens.
In Rome justice was administered by the magistrate, always
subject to appeal in all cases which were not in the first in-
stance heard in jury-courts, and well-known law governed all
decisions. But in his province the pro-magistrate was a final
judge restrained by no law but his own edict, issued on enter-
ing upon his provincial command, and by so much of the rules
observed by his predecessor as he had chosen to adopt in that
edict. And so throughout provincial administration. There
being no way of collecting taxes in the province by means
of any stretched municipal instrumentality, the taxes were
farmed out to publicans. There being no way known to
Roman municipal method of bringing local government in the
provinces into any sort of systematic co-operation with the
general administration, towns and districts were often suffered
to retain their own local organization, but subject to the con-
stant harassment of Roman interference. Force cured the
106 THE GOVERNMENTS OF GREECE AND ROME.
want of system ; arrogant domination served instead of ade-
quate machinery ; a genius for intrigue and for open subjuga-
tion took the place of wise legislation. The world was made
use of rather than administered.
159. Causes of Failure. — This attempt to make a city
constitution serve for the government of a whole empire failed,
therefore, for - the double reason that it was impossible to
provide masters for the magistrates who had gone out nomi-
nally as servants of the city without giving the provincials a
share in the government, and impossible to give the provincials
part in a system which knew nothing of representative assem-
blies, and consequently nothing of citizenship save in the shape
of privileges which could be exercised only in Kome itself.
The provinces could not be invited to Rome to vote and sit in
the assemblies and the jury-courts. And it was not citizenship
in Eome that the provincials wanted, but Roman citizenship
in the provinces, if such a thing could be invented, with power
to curb magistrates and condemn publicans on the spot.
160. Establishment of the Empire. — The only remedy
possible to the ancient world was to overthrow the city consti-
tution and bring Rome to the same level with the provinces
by giving her and them a common master who could unify
administration and oversee it with an equal interest in the
prosperity of all parts of a consolidated domain. That is what
Csesar attempted, and what the overthrow of the Republic and
the establishment of the Empire accomplished. Under the
consuls and the Senate the provinces had been administered
as Rome's property, as the estate of the Roman people ; under
the emperors, who combined in their single persons consular
and pro-consular, prsetoriau and pro-prtetorian, tribunician and
qusestorian powers, the provinces very soon came to be admin-
istered as integral parts of Eome. The Senate still stood, and
many provincial officers were still formally elected by the
people of the city ; but the city became, scarcely less than the
provinces, bound to perfect obedience to the emperor ; provin-
THE GOVERNMENTS OF GREECE AND ROME. 107
cial officers, and even city officers, were recognized as only his
deputies ; the Empire was unified and provincials brought up
to an equality with their former masters by a servitude com-
mon to all. Caracalla's act of universal enfranchisement,
whatever its immediate purpose ( a.u. 212), was a logical
outcome of the imperial system. All were citizens where all
were subjects.
Evolutions of Government under the Empibe.
161. Genesis of the Empire. — It is not possible to under-
stand either the processes or the significanite of the establish-
ment of the Empire, without first understanding also the dis-
cipline of disorder and revolution by which Rome was prepared
for the change from republican to imperial forms of gov-
ernment. The Empire was not suddenly erected. The slow
and stubborn habit of the Eoman, degenerate though he
had become by reason of the dissipations of conquest and the
growth of military spirit, would not have brooked any sudden
change. That habit yielded only to influences of almost one
hundred and fifty years standing ; the changes which trans-
muted the Eepublic into the Empire began with the agrarian
legislation of Tiberius Gracchus, b.c. 133, and can hardly
be said to have been completed until the death of Augustus,
A.D. 14;
162. Tiberius Gracchus to Augustus. — The first stages of
the change which was to produce the Empire had, indeed, pro-
ceded the time of the Gracchan legislation. The strength of
the Eepublic had lain in the body of free, well-to-do citizens,
in a race of free peasants as well as of patriotic patricians, in
a yeomanry of small farmers rather than iu a nobility of great
land-holders. But the growth of the Eoman dominion had
radically altered all the conditions of Eome's economic life.
She had not only spent the lives of her yeomen in foreign
wars, but had also allowed them to be displaced at home by
108 THE GOVERNMENTS OF GREECE AND ROME.
the accumulation of vast estates in the hands of the rich and
by the introduction of slave labor. The small farm was swal-
lowed up in the great estates about it ; the free laborer disap-
peared in the presence of the cheap slaves poured in upon
Italy as the human spoils 'of foreign conquest. Presently the
cheap and abundant grain of the provinces, too, rendered agri-
culture unprofitable in Italy, and even farming on a vast scale
by means of slave labor ceased: the great estates were con-
verted into pastures for the rearing of flocks and herds. The
pressure of these changes upon the peasant classes was some-
what relieved from time to time by the establishment of colo-
nies in various parts of Italy upon lands acquired by the state
by conquest ; but such relief was only temporary. When Car-
thage was finally overthrown and the greater strains of war
removed from Kome, the economic ruin of the home state be-
came painfully evident, the necessity for reform painfully press-
ing. The poor who were also free had no means of subsist-
ence : all the lands once owned by the state were in the hands
of the rich, and with the rich rested all the substance of power,
for they filled the Senate, and there made their riches tell upon
public policy. The indispensable economic foundations' of
republicanism had crumbled utterly away.
163. It was this state of affairs that Tiberius Gracchus
essayed to remedy, by reviving the laws (the Licinian.of b.c.
366) in violation of which the rich senatorial families had
absorbed the public lands. By enactments which h*e proposed
as Tribune in 133 b.c, the public lands illegally occupied
were reclaimed for distribution by a retroactive enforcement
of the old limitations as to the amount of public land which
each person should be allowed to hold, and, although the sena-
torial party accomplished the murder of Tiberius and the
temporary defeat of his party, his measures were in large part
put into operation, in deference to the clamors and demands
of the people. Ten years later Tiberius' younger brother,
Gajus Gracchus, received the tribunate and vigorously renewed
THE' GOVERNMENTS OF GREECE AND ROME. 109
the same policy. He forced to enactment laws providing for
the sale of grain at low prices to the people, for the establish-
ment of colonies outside of Italy in the provinces, for the
admission of certain classes of the citizens outside the Senate
to a participation in the judicial functions then being monopo-
lized by the senatorial- oligarchs, and for a new method of
bestowing provincial commands. But once more the oligarchy
crushed its enemies and regained its de facto ascendency in
the state.
164. It was the rule of the oligarchy which produced Marius
and Sulla and the cruel civil wars between the respective par-
ties of these rival leaders. Both parties alike threw, now and
again, a sop to the commons, but neither seriously undertook
any reform of the evils which were sapping the state of every
element of republicanism. The Italian allies went into revolt,
and forced their way into the privileges of the franchise ; but
intrigue effected their real defeat in the struggle for substan-
tial power, and their success did not touch the economic con-
dition of Italy. Sulla was able to carry reactionary legislation
which turned the constitutioil back in some respects as far as
the times of Servius, and established upon a basis of definite
law the control of the oligarchy. The extreme j)oliey of the
oligarchs produced reaction ; but reaction did not strengthen
the people ; it only developed factions : the time of healthful
reaction had passed, and the period of destroying civil war had
come. Civil war opened the doors to Csesar and the several
triumvirates, and finally Eome saw her first emperor in Octa-
vius. The stages of the transformation are perfectly plain :
there had been (1) the decay of the free peasantry and the
transfer of economic power from the many to the few ; (2) the
consolidation of -oligarchic power in the Senate ; (3) reactions
and factional wars ; (4) the interference of Cassar, fresh from
great successes in Gaul and backed by a devoted army ; (5)
the formal investiture of a single' man with controlling author-
ity in the state. Disorder and civil war had become chronic
110 THE GOVBENMBNTS OF GEBECE AND ROME.
in the degenerate state, and had been cured in the only feasi-
ble way.
165. Transmutation of Republican into Imperial Institu-
tions under Augustus. — But even in the final stage of the
great change all appearance of radical alteration in time-
honored institutions was studiously and circumspectly avoided.
The imperial oifice was not created out of hand, but was slowly
pieced together out of republican materials ; and the process
of its creation was presided over by Octavius, the best possi-
ble man for the fvmction, a man who was at once a consum-
mate actor and a consummate statesman. Of course there was
and could be no concealment of the fact that predominance in
the state' had been given to one man; but the traditions of the
republic furnished abundant sanction for the temporary in-
vestiture of one man with supreme authority : the dictatorship
had been a quite normal office in the days of the Republic's
best vigor. What it was possible and prudent to conceal was,
that one man had become permanent master and that republi-
can institutions had been finally overthrown. .Even the time-
honored forms of the dictatorship, therefore, were avoided :
the dictatorship was an office raised above the laws and ren-
dered conspicuous in its supremacy, and had, moreover, been
rendered hateful by Sulla. All that was desired was accom-
plished by the use of regular republican forms. The frame-
work of the old constitution was left standing ; but new forces
were made to work within it.
166. In the year 43 B.C. Octavius had formed with Antonins
and Lepidus the second triumvirate and had received along
with these colleagues, by decree of the people, supreme au-
thority in that capacity for a period of five years ; at the end
of those five years (b.c. 38) the powers of the triumvirate
were renewed for anotlier term of the same length. This
second period of the triumvirate witnessed tlie steady advance
of Octavius in power and iniluenoe at the expense of his col-
leagues. His own powers survived the expiration of the five
THE GOVEENMENTS OF 6BBECE AND ROME. Ill
years (b.c. 33). In b.c. 31, exercising the military iniijerium
conferred upon him in 32, he met and defeated Antonius at
Actium, pretending to meet him, not as a rival, but as a leader
of the revolted East ; and after Actium he was supreme. But
he still made no open show of any power outside the laws.
The years 28 and 29 b.c. saw him consul, with his close friend
Agrippa as colleague. V>y virtue of the censorial powers
originally belonging to the consular of8.ce, and now specially
conferred upon him, he effected a thorough reformation of the
Senate, raising the property qualification of its members, in-
troducing into it fresh material from the provinces, purging it
of unworthy members, and otherwise preparing it as an instru-
ment for the accomplishment of his further purposes^ In M.r.
28 he formally resigned the irregular powers which he had re-
tained since 33 by virtue of his membership of the triumvirate,
declaring the steps whicjh he had meantime taken as triumvir
illegal, and pretended to be about to retire, from the active direc-
tion of affairs. Then it was that the process began which was
to put the substance of an empire into the forms of the republic.
167. In the year 27 b.c. he suffered himself to be persuaded
by the senators to retain the military command for the sake of
maintaining order and authority in the less settled provinces,
and over these provinces he assumed a very absolute control,
appointing for the administration of their affairs permanent
governors who acted as his lieutenants, and himself keeping
immediate command of the forces quartered in them. The
other provinces, however, remained ' senatorial,' their affairs
directed by the Senate's decrees, their pro-consuls or pro-
praetors appointed by the Senate, as of old. Avoiding the older
titles, which might excite jealousy, Octavius consented to be
called by the new title, sufftciently vague in its suggestions, of
'Augustus.' Presently, in 2.'] u.c and the years immediately
following, he was successively invested with tribunician, with
pro-consular, and with consular powers, accepting these powers
for life. In 19 n.c. he was formally entrusted with supervision
112 THE GOVERNMENTS OF GKEECE AND EOME.
of the laws, and in 12 b.c. he became Pontifex Maximus. His
powers were at length complete. But his assumption of these
powers did not mean that the old republican offices had been
set aside. He was not consul, he simply had consular powers ;
he was not tribune, but only the possessor of tribunician
powers. Consuls, tribunes, and all other officers continued to
be elected by the usual assemblies as always before, though, in
the case of the consuls, with shortened terms, — the emperor
was in form only associated with them. Above all, the Senate
still stood, the centre of administration, the nominal source of
law, - Augustus ' sitting and voting in it like any other senator,
distinguished from the rest neither in position nor in dress,
demeaning himself like a man among his equals. In reality,
however, he was of cotirse dictator of e^-ery step of importance,
the recognized censor upon whose will the conipijsition of the
Senate depended, the patron to whoso fa-\'or senators looked
for the employment which gave them lumor nr serured them
fortune. Long life brought Augustus into the possession of
an undisputed supremacy of power, in the exercise of which
he WHS hampered not at all by tlie lepublican forms under
which he forced himself to aet. He even found it safe at
length to surround himself with a private cabinet of advisers
to whom was entrusted the first and real determination of all
measures whether of administration or of legislation. The
transmutation of republican into imperial institutions had"
been successfully effected; subsequent emperors could be open
and even wanton in their exercise of authority.
168. No nation not radically deficient in a sense of humor could have
loolied upon this masquerade with perfect gravity, as the Romans did.
One constantly expects in reading of it to learn of its having been sud-
denly broken up by a burst o-f laughter.
Of course it must be remembered how welcome the order secured by
the new regime must have been after so long a period of civil strife and
anarchy ; and that the men of courage and initiative who would have
organized resistance or spoken open exposure of the designs of Augus-
tus had perished in the wars and proscriptions of previous revolutions.
THE GOVERNMENTS OP GREECE AXD ROME. 113
The state wanted rest and order and lacked leaders who would have
resisted the purchase of order or rest at too great a cost to liberty.
Octavius had, moreover, since Actium, been at the head of about
two score veteran legions, "conscious of their strength, and of the
weakness of the constitution, habituated, during twenty years of civil
war, to every act of blood and violence, and passionately devoted to
the house of Cajsar." ^ It might have been dangerous to laugh at the
farce.
169. The Completed Imperial Power. — The emperor, thus
created as it were a multiple magistrate and supreme leader in
all affairs of state, though nominally clothed with many dis-
tinct powers, in reality occupied an office of jaerfect unity of
character. He was the state personified. No function either
of legislative initiative or of magisterial supervision and direc-
tion was foreign to his prerogatives : he never spoke but with
aitthority ; he never wished but with power to execute. The
magistrates put into the old offices by popular choice were
completely dwarfed in their routine of piece-meal functions by
the high-statured perfection of his power, rounded at all points
and entire. Such minor powers as were needed to complete
the symmetry of his of&ce were readily granted by the pliant
Senate. A citizen in dress, life, and bearing, he was in reality
a monarch such as the world had not before seen.
170. The New La-w-making. — The only open breach with
old republican method was effected in the matter of legislation.
Even the "forms of popular legislation ceased to be observed ;
the popular assemblies were left no function but that of elec-
tion ; the senate became, in form at least, the single and su-
preme law-making authority of the state. The senate was,
indeed, the creature of the emperor, senators -being made or
unmade at his pleasure ; but it had an ancient dignity behind
which the power of the sovereign took convenient shelter
against suspicion of open revolution. Its supreme decrees, as
Gibbon says, were at once dictated and obeyed. " Henceforth
1 Gibbon, Chap, III. (Vol. I., p. 36, of Harper's edition, 1840).
114 THE 60VEENMENTS OF GREECE AND ROME.
the emperor is virtually the sole source of law, for all the
authorities quoted in the courts are einbodiments of his will.
As magistrate he issues edicts in accordance with the old usage
in connection with the higher offices which he held, as did the
praetors of the earlier days. When sitting judicially he gave
decrees; he sent mandates to his own officials, and rescripts
were consulted by them. He named the authorized jurists
whose responses had weight in the nice points of law. Above
all he guided the decisions of the Senate whose Senatns con-
sulta took the place of the forms of the republican legisla-
tion." '
Tlie elective prerogatives of the popular assemblies survived only
the first imperial reign. During the reign of Tiberius the right to elect
officers followed the legislative power, passing from the assemblies to
the Senate.
Singularly enough the diminished offices still open to election were
much sought after as honors. Though filled for the most part with
candidates named by the emperor, they solaced the civic ambitions of
many a patrician.
171. Judicial Powers of the Senate. — What principally
contributed to maintain the dignity and importance of the
senate in the early days of the Empire was its function as
a court of justice. In the performance of this function it
was still vouchsafed much independence. Some belated tra-
ditions of that ancient eloquence which the Senate of the
Eepublic had known and delighted in, but which could live
only in the atmosphere of real liberty, still made themselves
felt in the debate of the great cases pleaded in the patrician
chamber.
172. Growth of New Offices. — As the imperial office grew
and the constitution accommodated itself to that growth, a new
official organization sprang up round about it. Prsefects {pra-
fecti) there had been in the earlier days, deputies commissioned
1 The Early Empire (Epochs of Ancient History series), by W. W.
Capes, p. 181.
THK GOVERNMENTS OP GBEECE AND liOMlO. 115
to perform some special magisterial function ; but now there
came into existence a permanent oiRce of Prasf ect of tlie City, and
the incumbent of the office was nothing less than the Emperor's
vice-regent in his absence. Praetorian cohorts were organized,
under their own Prefect, as the Emperor's special body-guard.
The city, too, was given a standing force of imperial police.
Procurators (proctors), official stewards of the Emperor's privy
purse both at home and in the provinces, at first well regulated
subordinates, came presently into very sinister prominence.
And the Privy Council of the monarch moi-e and more absorbed
directive authority, preparing the decrees which were to go
forth in the name of the Senate.
173. The Provinces. — But it was the provinces that gave to
the Empire a life and a new organization all its own. If the lie-
public ha,d proved a failure in Rome because of economic decay,
and the too great strains of empire, how much greater had its
failure been for the provinces ! No one had so much reason
to welcome' the establishment of the imperial government as
had the provincials ; and none so well realized that there was
cause for rejoicing in the event. The officials who had ruled
the provinces in the name of the Republic had misgoverned,
fleeced, ruined them at pleasure, and without responsibility;
for the city democracy was a multitudinous monarch without
capability for vigilance. But with a single and permanent
master at the seat of government the situation was very
different. His financial interests were identified with the
prosperity of the provinces not only, but also with the pecuni-
ary honesty and administrative fidelity of the imperial officers
throughout the Empire ; with him it was success to keep his
subordinates in discipline, failure to lose his grip upon them.
That province esteemed itself fortunate, therefore, which
passed from senatorial control and became an imperial prov-
ince, directly under the sovereign's eye (sec. 167) ; but even
in the senatorial provinces the emperor's will worked for
order, subordination, discipline, for regular, rigid control.
116 THE GOVERNMENTS OF GREECE AND ROME.
Under the emperors, moreover, the Senate gained a new
interest in the provinces, for its membership became largely-
provincial. The notables of the provinces, men of prominent
station, either for wealth or for political service, in the prov-
inces, gained admission to the Senate. There were at last
cliampions of the provinces within the government, as well as
imperial officials everywhere acting as the eye of the Emperor
to search out maladministration, and as his mouth-pieces to
speak his guiding will in all things.
174. The Empire overshadows Rome. — In another and
even more notable respect, also, the provinces were a decisive
make-weight in the scale of government after the establish-
ment of the Empire. The first five emperors (Augustus to
Nero) figured as of the Julian line, the line of Caesar, and
under them the Empire was first of all Eoman, — was Eome's ;
but for their successors, Rome, though the capital, was no
longer the embodiment of the Empire. The levelling of Rome
with the provinces began, indeed, with Augustus,; both the
personal and the municipal privileges hitherto confined for
the most part to the capital city and its people were more and
more widely and liberally extended to the towns and inhabi-
tants of the provinces. G-radually the provinces loomed up
for what they were, by far the greatest and most important
part of the Empire, and the emperors began habitually to see
their dominion as a whole. Under the successors of the Julian
emperors this process was much accelerated. Presently Trajan,
a Roman citizen born, not in Italy, but in Spain, ascended the
throne. Hadrian also came from a family long settled in
Spain ; so, too, did Marcus Aurelius. Under such men the just
balance of the Empire was established ; the spell was broken ;
the emperors ruled from Rome, but not for Rome : the Empire
had dwarfed the city.
175. Nationality of the Later Emperors. — The later emperors,
introduced during the regime of military revolution, were some of them
not even of Roman blood. Elagahalus was a sun-priest from Syria j
THE GOVERNMENTS OF GREECE AND RO^IE. 117
Maximin was a Tliracian peasant ; Diocletian, with whom the period of
military revolution may be said to have closed, and who was the reorgan-
izer of the Empire, was born of a humble Dalmatian family. Hence-
forth Latin blood was to tell for little or nothing. Tlie centre of
gravity had shifted away from Rome. After the second century even
the Latin language fell into decay, and Greek became the language of
universal acceptance and of elegant use.
176. The Army. — The elevation of the provinces to their
proper status within the Empire meant, however, most unhap-
pily, the elevation of the provincial armies to political promi-
nence. Very early in the history of Eome's conquests her
armies had come to be made up largely of provincial levies,
and as the Empire grew, the armies by which it was at once
extended and held together, became less and less Roman in
blood, though they remained always Roman in discipline, and
long remained Roman in spirit. G-auls, G-ermans, Scythians,
men from almost every barbarian people with which Eome had
come in contact, pressed or were forced into the Roman ser-
vice. And by the time the last days of the Republic had come,
the government trembled in the presence of the vast armies
which it had created. Augustus studiously cultivated the
indispensable good-will of his legions. It was the praetorian
guard that chose Claudius to be Emperor. Very early the
principle was accepted that the Emperor was elected " by the
authority of the Senate, a7id the consent of the soldiers." Galba,
Otho, and Vitellius were the creatures of the military mob in
Rome. Even the great Flavian emperors came to the throne
upon the nomination and support of their legions. And then,
when the best days of the Empire were past, there came that
dreary period of a hundred years, and more than a score of
emperors, which was made so hideous by the ceaseless contests
of the provincial armies, as to which should be permitted to
put its favorite into the seat of the Csesars.
177. Changes in the System of Government. — It was in
part the violence of this disease of the body politic that sug-
118 THE r.OA'EENMENTS OP GREECE AND KOMB.
gested to the stronger einperors those changes of government
which made the Empire of Constantine so different from the
Empire, of Angustiis, and which exhibited the operation of
forces which were to bring the government very near 'to mod-
ern patterns of absohite monarchical rule. But before military
revolutions had compelled radical alterations of structure in •
the government, the slow developments of the earlier periods
of the Empire had created a civil service quite unlike that
which liad served the purposes of the Kepublic. Noble Eomans
had time out of ndnd been assisted in the administration of
their extensive private estates and their large domestic estab-
lishmeiits by a numerous staff of educated slaves ; and it was
such a domestic and private machinery which the first em-
perors employed to assist them in public affairs. One domestic
served as treasurer, another as secretary, a third as clerk of
petitions, a fourth as chamberlain. It required many a decade
of slow change to reveal to the eye of the free Eoman that any
honor lay in this close personal service of a sovereign master.
The free Eoman of the days of the Eepublic had served the
state with alacrity and pride, but ^\'ould have esteemed the
service of any individual degrading : domestic association with
and dependence upon a leader, even upon a military leader, had
never seemed to him, as it did seem to the free Teuton (sees.
22G-228), compatible with honor ; much less could it seem to
him a source of distinction. But the ministerial offices cluster-
ing about the thrpne and by degrees associated with great in-
fluence and power at last came to attract all ambitions. From
the first, too, patricians had stood close about the person of the
Emperor as his privy councillors. These councillors became
the central figures of the monarch's court : they were his
' companions ' (his comites, the word from which we get the
modern title count). The later day when all service of the
Emperor had become honorable to free men saw the name of
comites transferred to the chief permanent functionaries of the
imperial service.
THE GOVERNMENTS OF GREECE AND ROME. 119
The domestic ministerial service of tlie early Empire was of course
the same in germ as that organization of stewards, chamberlains, but-
lers, and the rest to be found in tlie courts of mediajval Europe, out of
which our modern ministries and cabinets have been evolved. It was
to come very near to its modern development, as we shall see, under
Constantine (sec. 184).
17.S. Of course, as the imperial system grew, offices multi-
plied in the provinces also. Prcjvineial governors had at first
little more than functions of presidency and superintendence.
Local autonomy was by the wiser emperors for a long time
very liberally encouraged. The towns of the provinces were
left to their own governments, and local customs were suffered
to retain their potency. But steadily the imperial system grew,
by interference, sometimes volunteered, sometimes invited.
The usual itching activity took possession of the all-powerful
bureaucracy which centralized government created and fostered.
Provincial governors were before very long surrounded by a
nitmerous staff of ministers ;, a great judicial system sprang up
about them, presided over often by distinguished jurists : Eonian
law penetrated, with Roman jurisdiction and interference, into
almost every affair both of public and of private concern. Cen-
tralization was not long in breeding its necessary, its legitimate,
hierarchy. The final fruit of the development was a civil ser-
vice, an official caste, constituted and directed from the capital
and regulated by a semi-military discipline.
179. Constitutional Measures of Diocletian. — The period
of revolution and transition, the period which witnessed the
mutinous ascendency of the half-barbaric soldiery of the prov-
inces, lasted from the year 180 to the year 284. In the latter
year Diocletian ascended the throne, and presently exhibited
in the changes which he introduced the constitutional altera-
tions made necessary by that hundred years of fiery trial. All
the old foundations of the constitution had disappeared : there
was no longer any distinction between Romans and barbarians
within the Empire : the Empire, indeed, was more barbarian
120 THE GOVERNMENTS OP GEEECB AND ROME.
than Eoman : the mixed provincial armies had broken down
all walls of x:)artition between nationalities. With the acces-
sion of Diocletian the Empire emerges in its new character of
a pure military despotism. The Senate and' all the old repub-
lican offices have disappeared, except as shows and shadows,
contributing to the pageantry, but not to the machinery of the
government. The government assumes a new vigor, but dis-
penses with every old-time sanction. The imperial rule, freed
from old forms, has become a matter of discipline and organi-
zation merely.
180. The measures of Diocletian were exjjerimental, but
they furnished a foundation for what came afterwards from
the hand of Constantine. Diocletian sought to secure order
and imperial authority by dividing the command of the Em-
pire under chiefs practically independent of each other and of
him, though acting nominally under his headshij). He asso-
ciated Maximian with himself as co-regent, co-Augustus, with
a separate court at Mediolanum (jMilan), thence to rule Italy
and Africa. His own court he set up at Nicomedia in Bithy-
nia, and he retained for himself the government of the East,
as well as the general overlordship as chief or senior '■ Augus-
tus.' The frontier provinces of Gaul, Britain, and Spain he
entrusted to the government of a ' Caesar/ for whom Augusta
Trevirorum (Trier) in G-aul served as a capital; the control
and defence of Illyricum to another ' Caesar,' who held court
at Sirmium. The two 'Caesars' served as assistants, and
posed as presumptive successors, of the two ' Augusti,' ruling
the more difficult provinces, as younger and more active instru-
ments of government. Each Augustus and each Caesar exer-
cised supreme military and civil authority in his own division
of the Empire, though each formally acknowledged Diocletian
head over all.
This system marks the abandonment of Rome as a capital and the
recognition of a certain natural division between the eastern and the
western halves of the Empire.
THE GOVERNMENTS OP GEEECE AND ROME. 121
181. Reforms of Constantine. — This division of authority,
of course, brought about, after the retirement of Diocletian, a
struggle for supremacy between many rivals : that struggle
issued, fortunately, in the undisputed ascendency of Constan-
tine, a man able to reorganize the Empire. The first purpose
of the new Emperor, indeed, was to recast the system alto-
gether. He meant to divide administrative authority upon a
very different plan, which should give him, not rivals, btit ser-
vants. His first care was to separate civil from uiilitary com-
mand, and by thus splitting power control it. There was
henceforth to be no all-inclusive jurisdiction save his own.
Eor the purposes of civil administration he kept the fourfold
division of the territory of the Empire suggested by the ar-
rangements of Diocletian, placing over each ' prefecture ' (for
such was the name given to each of the four divisions) a Prse-
torian Prsefect empowered to act as supreme judge, as well as
supreme financial and administrative agent of the Emperor, in
his special domain, as the superintendent of provincial gov-
ernors, and as final adjudicator of all matters of dispute : as
full vice-regent, in short, in civil affairs.
Under the arrangemeuts of Diocletian eaoli Augustus and each
Csesar liad had a pr^torian prsefect associated with him as his lieuten-
ant, — as successors under much altered circumstances to the title of
the old-time prsetorian praefect of Rome. Under Constantine there
were the four prsefects, but no Augusti or Caesars placed over them, no
master but Constantine himself, and possessing functions utterly dis-
similar from those of the older praetorian prefect in that they were not
at all military, but altogether civil.
The prjetorian guards were finally abolished under Constantine. Tor
them the play was over.
182. The four preefectures Constantine divided into thirteen
' dioceses ' over which were placed vicars or vioe-prsefects ; and
these dioceses were in their turn divided into one hundred and
sixteen provinces governed, a few by pro-consuls, a somewhat
larger number by ' correctors,' many by ' consulars,' but most
by 'presidents,'
122 THE GOVERNMENTS OF GEEBCE AND ROME.
" All the civil magistrates," says Gibbon, " were drawn from the pro-
fession of the law." Every candidate for place had first to receive five
years' training in the law. After that he was ready for the ofiicial
climb : employment in successive ranks of the service might bring him
at last to the government of a diocese or even a prsefecture.
183. Such was the civil hierarchy. Military commaud was
vested in four Masters-General superintending thirty-five sub-
ordinate commanders in the provinces.
These subordinate commanders bore various titles; they were all
without distinction dukes {duces, leaders) ; but some of them had
attained to the superior dignity of counts (comites).
184. The Household Offices. — Constantine emphasized the
break with the old order of things by permanently establish-
ing his capital at Byzantium, which thereupon received the
name of Constantinople, a name whose Greek form still fur-
ther points the significance of the shifting of the centre of the
Empire. Kome herself had, so to say, become a province, and
the administration was in the Greek East. The court at Con-
stantinople, moreover, took on the oriental magnificence, treated
itself with all the seriousness in points of ceremony, with all
the pomp and consideration that marked the daily life of an
Eastern despotism. The household ofl&ces, created in germ in
the early days of the Empire (sec. 177), had now expanded
into a great hierarchy, centring in seven notable ofiices of state,
and counting its scores and hundreds of officials of the minor
sort. There was, (1) the Great Chamherlain ; (2) the Master of
Offices, whom later days would probably have called justiciar,
a magistrate set over all the immediate servants of the crown ;
(3) an imperial chancellor under the name, now entirely
stripped of its old republican significance, of Qumstor (sec.
166) ; (4). a Treasurer-General, superintendent of some twenty-
nine receivers of revenue in the provinces, overseer also of
foreign trade and certain manufactures ; (6) a treasurer called
Count of the Privy Revenue of the monarch ; (6 and 7) two
Counts of the Domestics, new praetorian prsefects, commanding,
THE GOVERNMENTS OF GREECE AND ROME. 123
the one the cavalry, the other the infantry, of the domestic
troops, officers who in later times would probably have been
known as constable and master of the horse.
185. We have .thus almost complete in the system of government
perfected by Constantine that machinery of household officers, mili-
tary counts, and provincial lieutenants which was to serve as a model
throughout the Middle Ages wherever empire should arise and need
organization. The 'companions' (comites) of the Teutonic leaders held
a much more honorable position than did the domestic servants of the
Roman Emperor, and their dignity they transmitted to the household
officers of the Teutonic kingdoms ; but the organization effected by
Constantine anticipated that system of government which has given us
our provincial governors and our administrative cabinets.
186. The Eastern and Western Empires; Greek and
Teuton. — The conquests within the Empire effected by the
Teutonic peoples in the fifth century and the centuries imme-
diately following cut away the West from the dominions of
the Emperor at Constantinople. The division between East
and West, which Diocletian had recognized in his administra-
tive arrangements, at length became a permanent division, not
merely an administrative, but a radical political separation,
and the world for a while saw two empires instead of one :
a Byzantine or Greek empire with its capital at Constan-
tinople, and a Western empire with its capital at Eome or
Ravenna. When Italy fell again nominally to the Eastern
Empire, in 476, she did not carry the rest of Western Europe
with her. The West had fallen apart under the hands of the
Germans, and was not to know even nominal unity again until
the Holy Roman Empire should arise under Charles the Great
(sec. 364). Meantime, however, the Eastern Empire retained
in large part its integrity and vigor, as well as its adminis-
trative organization also. It was not to be totally overthrown
until 1453.
187. Religious Separation and Antagonism. — The political
separation thus brought about between the Eastern Empire and the
124 THE GOVERNMENTS OP GEEECE AND EOME.
peoples of the West was emphasized and emhittered by religious differ-
ences. Christianity had been adopted by Constantine, and had prac-
tically continued to be the religion of the Eastern Empire without inter-
ruption ; but the Christian doctrine of the East was hot the same as
the Christian doctrine of the West ; the ecclesiastical party centring in
the episcopate at Rome violently antagonized the doctrines received at
Constantinople. The world therefore saw two churches arise, with two
magnates, the Pope at Rome and the Patriarch at Constantinople, the
one virtually supreme because in the West where he was overshadowed
by no imperial throne, the other dominated by a throne and therefore
partially subordinate. This religious difference, accompanying as it
did differences of language and tradition also, the more effectually pre-
vented political unity and even political intercourse between the East
and the West, and thus assisted in setting Western Europe apart to a
political development of her own.
General Summary.
188. The City the Centre of Ancient Politics. — We are
now in a positio}i to understand how the full-grown Greek and
Eoman governments, which are so perfectly intelligible to our
modern understandings, were developed from those ancient
family states in which we saw government begin, and of which
both Greek and Roman institutions bore such clear traces, but
which it is so difiicult for us now to imagine as realities. It
is plain, in the first place, how that municipal spirit was gen-
erated which was so indestructible a force in ancient politics.
The ancient city was not merely a centre of population and in-
dustry, like the cities of the present day; if merchants and
manufacturers filled its markets, that was merely an incident
of the living of many people in close proximity ; and the exist-
ence of the city was quite independent of the facilities it
offered for the establishment of a mart. Life about a common
local centre in compact social organization was a necessity
to a patriarchal confederacy of families, pliratries, and tribes.
And until Roman empire had trodden out local independence,
compacted provinces, and so fused the materials and marked
the boundaries for nationalities ; until those nationalities had
THE GOVERNMENTS OF GREECE AND ROME. 125
been purged by the feudal system, kneaded into coherent
masses by the great absolute monarchies of the Middle and
Modern Ages, vivified by Kenaissance and Reformation, and
finally taught the national methods of the modern popular rep-
resentative state, the city, the municipality, — the compact, co-
operative, free population of a small locality, — continued to
breathe the only political life of which the world could boast.
Politics, — the affairs of the ttoAis (jaolis), the city, — divorced
from municipal government was a word of death until nations
learned that combination of individual participation in local
affairs and representative participation in national affairs which
we now call self-government. The free cities of the Middle
Ages are the links through which have been transmitted to us
the liberties of Greece and Rome.
189. The Approaches to Modern Politics : Crfeation of the
Patriarchal Presidency. — Rome's city government, as I have
shown, fell under the too tremendous weight of empire : the
Greek cities went down under the destructive stress of un-
intermitted war among themselves and irresistible onset from
Macedonia and Rome ; but before they yielded to imperialism,
they had come at many points very near to modern political
practice. And the stages by which the approach was made
are comparatively plain. It is probable, to begin with, that
the governments depicted in Homer were not the first but the
second form of the primitive city constitution. The king had
doubtless first of all been absolute patriarchal chief of the
confederated tribes, and the king's council to be seen in Homer
may be taken to represent the success of an aristocratic revo-
lution whose object it had been to put the heads of the ancient
families upon a footing of equality with the king. He had
thus become merely their patriarchal president.
190. Citizenship begins to be Dissociated from Kinship. —
But this aristocracy contained the seeds of certain revolution.
As dissociated chieftains the Elders had maintained at least a
distinct family authority, and so preserved the integrity of each
126 THE GOVEENMBNTS OP GKBECE AND EOMB.
separate family organization ; but as associated councillors they
in a measure merged their individuality, at least their soli-
darity ; the law of primogeniture began to be weakened, and
a drift was started towards that personal individuality, as con-
tradistiaguished from corporate, family individuality, which
distinguishes modern from very ancient polities. Men began
to have immediate connection with the state, no longer touch-
ing it only through their family chief. Citizenship began to
dissociate itself from kinship.
191. Influence of a Non-Citizen Class. — And by the time
individual citizenship had thiis emerged, a population alien to
the ancient kin and unknown to the politics of the ancient city
was at the gates of the constitution demanding admittance. A
non-citizen class, alien or native in origin, plehs, clients, metics
or periaeci, assisted to riches by enterprise in trade or by in-
dustry in the mechanic arts, or else sprung into importance as
the mainstay of standing armies, demanded and gained a voice
in the affairs of states which they had wearied of serving and
had determined to rule.
192. Discussion determines Institutions . — And they brought
with them the most powerful instrument of change that poli-
tics has ever known. The moment any one was admitted to
political privileges because he demanded it, and not because en-
titled to it by blood, it was evident that the immemorial rule
of citizenship had been finally overset and that thereafter dis-
cussion, a weighing of reasons and expediencies, was to be the
only means of determining the forms of constitutions. Discus-
sion is the greatest of all reformers. It rationalizes everything
it touches. It robs principles of all false sanctity and throws
them back upon their reasonableness. If they have no reason-
ableness, it ruthlessly crushes them out of existence and sets
up its own conclusions in their stead. It was this great' re-
former that the plehs had brought in with them. It was to
be thereafter matter for discussion who should be admitted to
the franchise.
THE GOVEENMENTS OF GREECE AND ROME. 127
193. Politics separated from Religion. — The results,
though oftentimes slow in coining, were momentous. Laws
and institutions took on changed modes of life in this new
atmosphere of discussion. The outcome was, in brief, that
Politics took precedence of Religion. Law had been the cliild
of Religion : it now became its colleague. It based its com-
mands, not on immemorial customs, but on the common will.
The principles of government received the same life. Votes
superseded auguries and the consultation of oracles. Religion
could not be argued ; politics must be. Their provinces must,
therefore, be distinguished. Government must be the ward
of discussion : religion might stay with the unchanging gods.
194. Growth of Legislation. — Nor was this the only con-
sequence to law. Once open to being made by resolution of
assemblies, it rapidly grew both in mass and in complexity.
It became a multiform thing fitted to cover all the social needs
of a growing and various society ; and a flexible thing apt to
be adjusted to changing circumstances. Evidently the legis-
lation of modern times was not now far off or difficult of ap-
proach, should circumstances favor.
1951 Empire. — Finally, the conquests of the Greeks under
Alexander suggested, and Rome in her conquering might sup-
plied, what had not been dreamed of in early Aryan politics,
namely, wide empire, vast and yet centralized systems of ad-
ministration. The first framework was put together for the
organization of widespread peoples under a single government.
Ancient politics were shading rapidly off into modern.
Repkbsentativb Authorities.
On Greek Institutions :
GUbert, Gustav, "Handbuch der Griechischeii Staatsalterthumer."
Leipzig, 188L
ScTiSmann, G. F., " The Antiquities of Greece : The State." Trans-
lated by E. G. Hardy and J. S. Mann. London, 1880.
128 THE 60VBKNMBNTS OF GEEBCB AND BOMB.
Coulanges, P. de, " The Ancient City." Translated by Willard Small.
Boston, 1882.
Kuhii, E., " Ueber die Entstehung der Stadte der Alten. Komenver-
fassung und Synoikismos." Leipzig.
Bluntsclili, J. C, " Allegenieine Statslehre." Book I., Chaps. III. and
VI. Stuttgart, 1875. There is an American translation of this
work.
Smith, " Dictionary of Grecian and Roman Antiquities." 1858.
! Cox, Rev. Sir Geo. W., " Lives of Greek Statesmen." (Harper's.)
Chaps, on Solon and Kleisthenes.
On points of Greek History :
Groie, Geo., " History of Greece." Very full for the cities of Hellas
outside the classical mainland.
Curtius, Ernst, " History of Greece. '
Droysen, 3. G., " Gesohichte des liellenismus." For the Macedonian
period. 2d ed., 1877-78.
Curteis, A. M., " Rise of the Macedonian Empire." (Series of Epochs
of Ancient History.^
On Roman Institutions :
Marquardt and Mommsen, " Handbuch der Romischen Alterthiimer."
6 vols. 1871.
Mommsen, T., " Romisches Staatsrecht."
Coulanges, F. de, " The Ancient City."
Bluntsclili, J. C, " Allgemeine Statslehre." Book I., Chap. III.
Arnold, W. T., "Roman Provincial Administration, to the Accession
of Constantine the Great." London, 1879.
Smith, " Dictionary of Grecian and Roman Antiquities." 1858.
On points of Roman History :
Niehuhr, "Lectures on the History of Rome."
/Ane, " History of Rome." 3 vols. 1871.
Arnold, T., " History of Rome," to the second Punic War. 1846-49.
Mommsen, T., " History of Rome " and " Provinces of the Empire."
Capes, " The Early Empire." (Series of Epochs of Ancient History.)
Merivale, " History of the Romans under the Empire."
Gibbon, " Decline and Fall of the Roman Empire."
IV.
EOMAN DOMINION AND ROMAN LAW.
196. Currency of Roman Law. — Eoman law has entered
into all modern systems of jurisprudence as the major element
in their structure not only, but also as a chief source of their
principles and practice, having achieved perpetual dominancy
over all legal conception and perpetual presidency over all legal
development by reason alike of its singular perfection and its
world-wide currency; and it was Roman empire which gave
to that law both its quality and its universality. The charac-
ter of Eoman law and the course and organization of Roman
conquest are, therefore, topics which must be kept in mind
together.
197. Character of Early Roman Law. — Until Rome had
gone quite far in her career of conquest Roman law was, per-
haps, not more noteworthy than Greek law or early Germanic
custom. In the early history of the city her law was only a
body of ceremonial and semi-religious rules governing the rela-
tions of the privileged patrician gentes to each other and to the
public magistrates. The proper procedure for the settlement
of disputes between citizens was a sacerdotal secret, from all
knowledge of which the comm^onalty was entirely shut out.
Solemn arbitration under complex symbolical forms was almost
the whole of legal practice, outside the private adjudications
of law by family authorities. If any provision existed for
securing the rights of a non-patrician, he could know what
that provision was only by putting his case to the test of a
130 ROMAN DOMINION AND EOMAN LAW.
trial : and he knew that even when that case had been brought
to a successful issue, no precedent had been established ; it was
still a secret with the privileged classes what the general rules
of the law might be.
198. Plebeian Discontent with the Law : the XII Tables.
— In the breaking up of this selfish and narrow system, as in
the modification of political practice, the imperative discontent
of the plebeians was the chief force. They early demanded
admission to the knowledge of the law as well as to the exer-
cise of the magisterial power. The first step upon which they
insisted was the codification and publication of existing law.
Accordingly, in 461 and 450 B.C., the now celebrated XII
Tables were prepared and made public by two successive spe-
cial commissions of ten, the Decemvirs. The first decemvirate
commission consisted altogether of patricians, and is said to
have prepared the first ten ' tables ' of the law. The second
included three plebeians and added two more tables to the code.
Probably this was the first time that the legal practices of the
city had been reduced to anything like systematic statement ;
and in being stated they must have been to a certain extent
modified. Written exposition was a thing almost entirely
foreign to the habit of that primitive age ; both because of
the limitations imposed by mental habit, therefore, and of the
difficulties created by the unwilling materials with which they
had to write, the sentences of the law engraved upon the
copper tablets set up in the Forum must have been brief and
compact. By being thus condensed the law must, moreover,
have lost some of its original flexibility and have become the
more rigid for being made the more certain. (Compare
seo. 71.)
The forms of legal actions were still held back : these the
XII Tables did not contain ; and it was, after all, upon a
knowledge of the forms of action that the patrician monopoly
of justice chiefly depended. It required a new and energetic
plebeian agitation to make public the valuable secrets of pro-
ROMAN DOMINION AND KOMAN LAAV. 131
cedure, — secrets necessarily so weighty in an age when law
was married to religion, and when religion was so largely a
thing of forms and ceremonies. Finally, however, the new
agitation also was successful, and the plebeians came, so to
say, into complete possession of the law.
199. The Growth of the Law : Interpretation. — But there
was advantage in certainty as to the content of the law. The
law was now a thing known of all, at least, and not a private
and peculiar cult : and the XII Tables became the corner-stone
of the whole structure of Eoman jurisprudence. All legal in-
terpretation began with the XII Tables ; all subsequent inter-
pretative development proceeded from them out. For the chief
principle of growth in Eoman law was interpretation, adjust-
ment, rather than legislation : the application of old principles
to new cases, not the formulation of new principles.
200. The Praetors : the Praetor Urbanus. — This princi-
ple of growth becomes most evident in the legal history of
Eome after the creation of the Prsetorships and the investiture
of the Praetors with the judicial functions formerly exercised
by consuls or king. There was a City Prsetor {Praetor urbanus)
and a Praetor of the Foreigners {Fi-cetor pe7-egrinus ^) . The
City Praetor was the magistrate to whom citizens resorted for
the settlement of conflicting claims. He did not himself settle
the matter between them, but he laid the legal basis for its
settlement. Having heard their statement of their case, he
sent it for decision to some private citizen whom he nominated
judex, or arbitrator, for the occasion, accompanying his refer-
ence of the case with instructions to the arbitrator in which
he not only set forth the question at issue, but also formulated
the law to which the decision must conform. Very many cases
were referred thus each to a single judex; in many instances,
again, they were sent to a number of judices who constituted a
sort of board or jury to look into the merits of the controversy.
1 " Prmtor qui jus dicit inter peregrinos."
132 ROMAN DOMINION AND ROMAN LAW.
Always, however, Prsetor and judices stood towards each other
in much the same relation that the judge and jury of our own
system hold towards one another : except that the Praetor and
judices did not sit together and hear cases at the same time.
They acted separately and at different times. But the Preetor
interpreted the law, and the judices passed upon the facts.
201. The Law and the Praetor's Application of it. — The
law which the Prsetor had to expound and apply in the formulcB
or briefs which he sent down to the judices, as at once their
warrant and their instructions, was not a law constantly ad-
vanced and adjusted by legislation. It was, for the most part,
only the XII Tables, a small body of Senatus-consulta, or
senatorial decrees, and a few legal prtaciples introduced by
popular agitation during the long struggle of the plebeians for
political privilege. Of formal law-making such as we are now-
adays accustomed to look for there was almost none to help
him. He himself, therefore, became to all intents and pur-
poses a legislator. The growth of the city, and the constant
changes of circumstance and occasion for the use of his law
functions which must have attended its growth, of course gave
rise to cases without number which the simple, laconic laws of
the early time could not possibly have contemplated. To these,
however, the Praetor had to apply, with what ingenuity or
origination he possessed, such general rules and conceptions as
he could discover in the ancient codes : and of course so great
a development of interpretation insensibly gave birth to new
principles. The Praetor, consciously or unconsciously, became
a source of law.
202. The Praetor's Edict. — Nor were his interpretative
adjustments of the law confined to the 'formulas' concern-
ing individual cases which he sent to the judices. At the be-
ginning of his year of office he published an Edict in which
he formally accepted the principles acted on by his prede-
cessors, and announced such new rules of adjudication as he
intended to adopt during his year of authority. These new
KOMAN DOMINION AND ROMAN LAW". 133
rules -were always, in form at least, rules of procedure. The
Prsetor announced, for example, tliat he wtjuld, hereafter, regard
property held by certain methods,, hitherto considered irregular
or invalid, as if they were held according to due and immemo-
rial form, and would consider the title acquired by means of
them as valid. He did not assume to make such titles valid :
that would be to change the law. But he could promise in
adjudicating cases, to treat them as if they were valid, and so
practically cure their defects. In a word, he could not create
rights, in theory at least ; but he could create and withhold
remedies. It was thus that through successive edicts the law
attained an immense growth. And such growth was, of course,
of the most normal and natural character. By such slow, con-
servative, practical, day to day adjustments of practice the law
was made easily to fit the varying and diversified need% of a
growing and progressive people.
203. The Praetor Peregrinus. — The functions of the Prae-
tor of the Foreigners were similar to those of the City Praetor,
but much less limited by the prescriptions of old law. He ad-
ministered justice between resident foreigners in Rome itself,
between Roman citizens and foreigners, and between citizens
of different cities within the Roman dominion. Roman law,
— the jus civile, the law administered and developed by the
PrcBtor urbanus — was only for Romans. Its origins and fun-
damental conceptions marked it as based upon tribal customs
and upon religious sanctions, which could only apply to those
who shared the Roman tradition and worship. It could not
apply even as between a Roman and an alien. The Latin
and Italian towns which Rome brought under her dominion
were, therefore, suffered to retain their own law and judicial
practices for their own residents, so far at least as their reten-
tion offered no contradiction to Rome's policy or authority;
but the law of one town was of course inapplicable to the citi-
zens of any other, and therefore could not be used in cases
between citizens of different towns. In all such cases, when
134 ROMAN DOMINION AND EOMAN LAW.
Eoman law coiild not be appealed to, the Prmtor peregrinus
was called upon to declare what principles should be observed.
204. The Jus Gentium. — -The first incumbents of this deli-
cate and dif&eult office, of Praetor peregrinus, were doubtless
arbitrary enough in their judgments, deciding according to
any rough general criteria of righ^ or wrong, or any partial
analogies to similar cases under Roman law that happened
to suggest themselves. But they seem, nevertheless, to have
had a sincere purpose to be just, and at length the Roman
habit of being systematic enabled them to hit upon certain
useful, and as it turned out, momentous, general principles.
They of course had every opportunity for a close observation
and wide comparison of the legal practices and principles ob-
taining among the subject nations- among whom their duties
lay, and they presently discovered certain substantial corre-
spondences of conception among these on many points fre-
quently to be decided. With their practical turn for system,
they availed themselves of these common conceptions of jus-
tice as the basis of their adjudications. They sought more and
more to find in each case some common standing-ground for
the litigants in some legal doctrine acknowledged among the
people of both. As these general principles of universal accept-
ance multiplied, and began to take systematic form under the
cumulative practice of successive Praetors, the resultant body
of law came to be known among the Romans as the jus gen-
tium, the law of the nations, — the law, i.e., common to the
nations among whose members Roman magistrates . had to
administer justice.
205. The Jus Gentium not International Law. — This body
of law had, of course, nothing in common with what we now
call the Law of Nations, that is. International Law. Inter-
national law relates to the dealings of nation with nation, and
is in largest part public law — the law of state, of political,
action (sees. 1216, 1217). The jus gentium, on the other
hand, was only a body of private and commercial law, chiefly
ROMAN DOMIKION AND ROMAN LAW. 135
the latter. It had nothing to do with state action, but con-
cerned itself exclusively with the relations of individuals to
each other among the races subject to Rome. Eome decided
political policy, her Foreign Praetor decided only private rights.
206. Influence of the Jus Gentium upon the Jus Civile.
— But of course the jus gentium attained an influence of great
importance, even over the development of Roman law itseK.
Its principles, partaking of no local features or special ideas
produced by the peculiar history or circumstances of some one
people, but made up of apparently universal judgments as to
right and wrong, justice and injustice, seemed to be entitled
to be considered statements of absolute, abstract equity. As
they became perfected by application and studious adaptations
to the needs of a various administration of justice, it became
more and more evident that the Jus civile, the exclusive law
under which the Roman lived, was arbitrary and illiberal, by
comparison. The 'PTSBtov peregrinua began to set lessons for the
Praetor urbanus. The jus civile began to borrow from the jus
gentium ; and as time advanced, it more and more approximated
to it, until it had been completely liberalized by its example.
207. Administration of Justice in the Provinces. — The
authority of the Foreign Prgetor did not extend beyond Italy,
beyond the city's immediate dependencies. In the 'Prov-
inces ' proper the governors exercised the functions of Prsetor
peregrinus. The towns of the provinces, like the towns of
Italy, were left with their own municipal organization and
their own systems of judicature. But between the citizens of
different districts of a province there were cases constantly
arising, of course, which had to be brought before the gov-
ernor as judge. Whether as pro-consul, therefore, or as pro-
prsetor, or under whatever title, the governor was invested with
praetorial functions, as well as with military command and civil
supremacy. It was with principles of judicial administration
that the governor's edict, issued on entering upon office, was
largely concerned. Here was another and still larger field for
136 EOMAN DOMINION AND ROMAN LAW.
the growth of the jus gentium, — an almost unlimited source
of suggestion to Roman lawyers.
208. The Law of Nature. — As Rome's conquest grew and
her law expanded she did not fail to breed great philosophical
lawyers who saw the full significance and importance of the jus
gentium and consciously borrowed from it liberal ways of in-
terpretation. And they were assisted at just the right moment
by the philosophy of the Greek Stoics. The philosophy of
the Stoics was in the ascendency in Greece when Eome first
placed her own mind under the influence of her subtile sub-
jects in Attica and the Peloponnesus : and that philosophy was
of just the sort to commend itself to the Roman. Its doctrines
of virtue and courage and devotion seemed made for his prac-
tical acceptance : its exaltation of reason was quite native to his
mental habit. But its contribution to the thought of the
Roman lawyer was its most noteworthy product in Eome.
The Stoics, like most of the previous schools of philosophers
in Greece, sought to reduce the operations of., nature both in
human thought and in the physical universe to some simple
formula, some one principle of force or action, which they could
recognize as the Law of Nature. They sought to square human
thought with such abstract standards of reason as might seem
to represent the methods or inspirations of Universal Reason,
the Reason inherent, indwelling in Nature. In the mind of
the Roman lawyer this conception of a Law of Nature connected
itself with the general principles of the jus gentium, and served
greatly to illuminate them. Probably, it seemed, these con-
ceptions of justice which the Foreign Praetors had found com-
mon to the thought of all the peoples with whom they had come
into contact were manifestations of a natural, universal law of
reason, a Law of Nature superior to all systems contrived by
men, implanted as a principle of life in all hearts.
209. The jus gentium thus received a peculiar sanction and
took on a dignity and importance such as it had never had so
long as it was merely a body of empirical generalizations. Its
ROMAJSr DOMINION AND ROMAN LAW. 137
supremacy was now assured. The jus civile more and more
yielded to its influences, and more and more rapidly the two
systems of law tended to become but one.
210. Roman Citizenship and the Law. — This tendency
was aided by the gradual disappearance of all the most vital
distinctions between the citizen of Eome herself and citizens
of her subject cities and provinces. Step by step the citizens
first of the Latin towns, then those of the Italian cities, then
the citizens of favored outlying districts of the Empire, were
admitted, first to a partial and finally to a complete partici-
pation in Eoman citizenship. And of course with Eoman
citizenship went Eoman law. In this way the jus civile and the
jus gentium advanced to meet each other. Under the emperors
this drift of affairs was still further strengthened and quick-
ened till Caracalla's bestowal of citizenship upon all the in-
habitants of the Eoman world was reached as a logical result.
211. The Jurists. — As Eoman law grew to these world-
wide proportions and became more and more informed by the
spirit of an elevating philosophy and the liberal principles
of an abstract equity, it of course acquired a great attrac-
tion for scholarly men and had more and more the benefit
of studious cultivation by the best minds of the city. The
Eoman advocate was not the trained and specially instructed
man that the modern lawyer is expected to be. For some time
after the law began to be systematically studied there were no
law schools where systematic instruction could be obtained ;
there were no lawyers' offices in which the novice could serve,
and discover from day to day the ins and outs of practice.
The advocate was scarcely more than an arguer of the facts
before the judices : he did not lay much stress upon his own
view of the law, or often pretend to a profound acquaintance
with its principles. But there did by degrees come into ex-
istence a class of learned jurists, a sort of literary lawyers,
who devoted themselves, not to advocacy before the jury-courts,
but to the private study of the law in its developments from the
138 ROMAN DOMINION AND KOMAN LAW.
XII Tables through the interpretations of the prsetorial edicts
and the suggestions of the jics gentium. They set themselves to
search out and elucidate the general philosophical principles
lying at the roots of the law, to explore its reasons and sys-
tematize its deductions. These jurisprudents were of course
not slow to draw about themselves a certain clientage. Though
entirely distinct as a class from- the 'orators,' or barristers,
who assisted clients in the courts, they established in time a
sort of ' office practice,' as we should call it. Cases were stated
to them and their opinions asked as to the proper judgments
of the law. They attracted pupils, too, with whom they dis-
cussed hypothetical eases of the greatest possible scope and
variety.
212. Influence of the Jurists. — In the hands of these
private jurists the law of course received an immense theo-
retical development. And this very much to its advantage.
For Roman thinking, like Roman practice, was always emi-
nently conservative. The jurists took no unwarrantable lib-
erties with the law. They simply married its practice to its
philosophy, no one forbidding the banns. They most happily
effected the transfusion of the generous blood of the jus gentium
into the otherwise somewhat barren system of the jus civile.
They were chief instruments in giving to Roman law its ex-
pansiveness and universality. For of course their judgments
were quickly heard of in the courts. They often gave written
as well as oral opinions, and these were always hearkened to
with great respect. Their published discussions of fictitious
causes came to have more and more direct influence upon the
result of those which actually arose in litigation. Advocates
and litigants alike turned to them for authoritative views of
the law to be observed. And a legal literature of the greatest
permanent interest and importance eventually sprang into ex-
istence. The jurists collected and edited the written soui'ces
of the law, such as the Edicts of the Praetors, and set them in
the fuller and fuller light of an advancing scientific criticism.
ROMAN DOMINION AND EOMAN LAW. 139
Their commentaries became of scarcely less importance than
the Edicts themselves, containing, as they did, the reasoned
intent of Table and Edict.
213. The Jurisconsults under the Empire. — This scien-
tiiic cultivation of the law by scholarly students began before
the end of the Republic, was far advanced, indeed, at the time
the Empire was established. The beginnings of the scientific
law literature of which I have spoken date as far back as 100
B.C.
The dates 100 B.C. and 250 a.d. are generally taken as marking the
beginning and end of the important literary production on the part of
the jurists. The most distinguished names connected with this litera-
ture are those of Papinian, Ulpian, Gains, and Julius Paulus.
It was under the emperors, however, that the greater part
of this peculiar literary and interpretative development at the
hands of the jurists took place. For under the imperial system
the jurists were given an exceptional position of oflS.cial con-
nection with the administration of the law such as no other
similar class of lawyers has ever possessed under any other
polity. Certain of the more distinguished of them were ofB.-
cially granted the jus respondendi which custom had already
in effect bestowed upon them, — the right, that is, to give
authoritative opinions which should be binding upon juries.
Even under the Republic the opinions of the jurisconsults had
been authoritative in fact ; what the 'imperial commission did
was to render them authoritative in law. Of course if advo-
cates or litigants who were on opposite sides in any case could
produce opposite or differing opinions from these formally
commissioned jurisconsults, it devolved upon the judices to
choose between them ; but they were hardly at liberty to take
neither view and strike out an independent judgment of their
own, and when the jurisconsults agreed, the judices were of
course bound to decide in accordance with their opinion.
Certain writers — 'text writers,' as we call them — on our
own law have, by virtue of perspicacity and learning, acquired
140 ROMAN DOMINION AND EOMAN LAW.
an influence in our courts not much inferior to that of the
Roman jurisconsvilts, but no Blackstone or Story has ever been
commissioned by the state to be authoritative.
Under the Empire the jurisconsults acctuired more tlian the right of
response ; they became actively engaged in the administration of law,
exercising judicial functions and applying to actual adjudication the
tests which they had in the republican period applied only in the form
of unofficial opinions.
In the time of Augustus we find two law schools in Rome, and later
times saw many others established in important provincial cities.
214. Imperial Legislation. — The influence of the juriscon-
sults extended beyond the administration to the creation of
law. Legislation under tlie early emperors, from Augustus to
Hadrian, retained something of its old form. During the
reign of Augustus the popular assemblies were still given leave
to pass upon the laws which the emperor, as tribune, sub-
mitted to them ; and during a great part of the imperial period
the Senate was formally consulted concerning most of the
matters of law and administration over which it had once had
exclusive jurisdiction (sees. 165-170). But neither Senate
nor people were independent. The former was at the mercy
of the emperor's power as censor ; the latter were at the dis-
posal of his powers as tribune. Law, consequently, came to
emanate more and more undisguisedly from the emperor's
single will, — from his edicts as magistrate and from his in-
structions and decisions as head of the judicial administration.
And, happily for Roman law, the emperors made trusted
counsellors of the leading jurisconsults and suffered them-
selves to be guided by them in their more important law-
creations and judgments. Probably most edicts and imperial
decisions were prepared, if not conceived, by competent law-
yers. Imperial legislation, therefore, in the most critical
period of its early development, was under the guidance of the
most enlightened and skilful jurists of the time, and so was
kept to the logical lines of its normal and philosophical growth.
KOMAN DOMINION AND EOMAN LAW. 141
The jurisconsults may be said to have presided over all phases
of its development at the important period when that develop-
ment was conscious and deliberate.
215. The Codification of the Law. — The last important
step in the preparation of Roman law for modern uses was its
codification by the later emperors. Several emperors under-
took to reduce the mass of edicts, Senatus-consulta, rescripts,
etc., which had accumulated during the imperial period to a
single code. The most important efforts of this sort were
those made by Theodosius (379-395 a.d. ) and Justinian
(529-534 A.D.). The Tlieodosian Code is important because
it influenced the legislation of the first Teutonic masters
within the Empire ; the Justinian, because it was by far the
most complete and scientific of the codes, and because it has
been the basis of subsequent studies and adaptations of Roman
legal practice the world over. The republican legislation
and the prsetorial edicts of the period of the Republic had
received final formulation and fusion at the hands of the
jurists by the time the fourth century was reached ; all that
remained for the emperors to do was to digest the writings of
the jurists and codify the later imperial constitutions. The
Theodosian Code went but a very little way in the digesting
of the writings of the great law writers ; the Justinian Code,
however, which was prepared under the direction of the great
lawyer, Trebonian, was wonderfully successful in all branches
of the difficult and delicate task of codification. It consists,
as we have it, of four distinct parts : 1. The Pandects or
Digest of the scientific law literature ; 2. The Codex or Sum-
mary of imperial legislation; 3. The Institutions, a general
review or text-book founded upon the Digest and Code, an
introductory restatement, in short, of the law; and 4. The
Novels, or new imperial legislation issued after the codification
to fill out the gaps and cure the inconsistencies discovered in
the course of the work of codifying and manifest in its pub-
lished results.
142 EOMAN DOMINION AND ROMAN LAW.
The whole constituted that body of laws which was to be
known to the times succeeding the twelfth century as the
Corpus Juris Civilis, or Body of the Civil Law. All law was
now civil law, the law of Rome ; there was no longer any neces-
sary distinction between jus civile and jus gentium.
216. The Corpus Juris Civilis became at once the law of
the Eastern Empire, and for a time the law of Italy also. It
did not dominate the legal developments of the West outside
of Italy, however, until the Middle Ages, for Justinian had his
capital at Constantinople and never controlled any important
part of what had been the western half of the old Empire,
except Italy, and even Italy he united only temporarily and
precariously to his eastern dominions. His Code entered
Europe to possess it through the mediation of the universities
and ecclesiastics pf the Middle Ages (sec. 258).
217. The Completed Roman Law : its Municipal Life. —
The body of law thus completed by sagacious practical adap-
tions, careful philosophical analysis and development, and final
codification has furnished Europe, not with her political sys-
tems, but with her principles of private right. The Corpus
Juris has been for later times a priceless mine of private law
(sees. 258-267). The political fruits of Eoman law — for it
has had such — • are seen in municipal organization. Though
Kome suffered the towns in her provinces to retain their own
plans of government, she of course kept an eye upon the man-
agement of their affairs, and her influence and interest were
ever present to modify all forms and practices which did not
square with her own methods. She besides dotted not only
Italy, birt the banks of the Ehine and other strategically
important portions of her dominions with colonies of her own
citizens, who either built fortress towns where there had before
been no centred settlement at all, or sat themselves down in
sorne existing native village. In both cases they of course
iinported Roman methods of city government. Everywhere,
therefore, native towns were neighbors to Roman municipal
KOMAN DOMIKION AND ROMAN LAW. 143
practice, and took yearly more color of Eoman political habit
from contact with it. By the time of the Teutonic invasions
Western and Southern Europe abounded in municipalities of
the strict Roman pattern.
218. Diffusion and Influence of Roman Private Law. —
But private law was the great gift of the imperial codes.
With the widening of the citizen right, the private law of
Rome had spread to every province of the Empire. As it
spread, it had been generalized to meet all the varied needs
and circumstances of infinitely various populations, to fit all
the trade and property relations of the vast Roman world,
until it had become, as nearly as might be, of universal use
and acceptability. It made wide and scientific provision for
the establishment, recognition, and enforcement of individual
rights and contract duties. It was incomparably more many-
sided and adequate than anything the barbarian who disturbed
for a time its supremacy could invent for himself: and it
proved to have anticipated almost every legal need he was to
feel in all but the last stages of his civil development. It was
to be to him an exhaustless mine of suggestion at least, if not
a definite store of ready-made law.
219. Roman LegaUDominion in the Fifth Century. — The
invading hosts who came from across the Rhine in the filth
century of our era found Eoman law and institutions every-
where in possession of the lands they conquered. Everywhere
there were towns of the Eoman pattern, and populations more
or less completely under the dominion of Roman legal concep-
tions and practices. Their dealings with these institutions,
the action and reaction upon one another of Roman law and
Teutonic habit, constitute in no small part the history of gov-
ernment in the Middle Ages.
220. Influence of Mosaic Institutions. — It would be a mistake,
however, to ascribe to Roman legal conceptions an undivided sway over
the development of law and institutions during the Middle Ages. The
Teuton came under the influence, not of Rome only, but also of Chris-
144 ROMAN DOMINION AND ROMAN LAW.
tianity; and through the Church there entered into Europe a potent
leaven of Judaic thought. The laws of Moses as well as the laws of
Rome contributed suggestion and impulse to the men and institutions
which were to prepare the modern world ; and if we could but have the
eyes to see the subtle elements of thought which constitute the gross
substance of our present habit, both as regards the sphere of private
life, and as regards the action of the state, we should easily discover
how very much besides religion we owe to the Jew.
Kbprbsbntativb Authobitibs.
For the texts of Roman law, see
Corpus Juris Cioilis, edited by Kriiger, Mommsen, and the bros. Krie-
gelli. '6 vols. Berlin and Leip.sic, 1872-1875.
Bruns, C. J., Pontes Juris Ronuini Anliqiii. Tubingen, 1872. Fifth
(improved) edition by Mommsen. Freiburg, 1887.
Huschke, Jurisprudenlia Antejustiniana. Leipsic, 1879.
For commentary and exposition, see
Holland, T. E. (editor), " Institutes of Justinian."
Paste (translator), Gaii " Institutionitm Juris Civilis."
Hadleij, Jas., "Introduction to Roman Law."* N. Y., 1880.
Morey, W. C, "Outlines of Roman Law," and authorities there cited.
N. Y., 1885. An excellent manual of which I have made nmch use.
Muirhead, Jas., " Historical Introduotiou to the Private Law of Rome."
Edinburgh, 1886.
Amos, Sheldon, " History and Principles of the Civil Law of Rome."
Mackeldy, F., " Lehrbuch der lustitutionen des heutigen Romische
Rechts." Giessen, 18M. Translations, ST. Y., 1845 ; Phila., 1883.
Ihering, R. v., " Geist des rbmischen Rechts." Of this work there is
a French translation.
For special expositions of the historical development of Roman
Law, see
Phillimore, Jno. (i., " Introduction to the Study and History of Roman
Law." London, 1848.
EOMAN DOAnXTOiSr AND KOMAN LAW. 145
Rivier, Alphonse, "Introduction histoiique au droit Romain." Brus-
sels, 1881.
Clark, E. C, "Early Roman Law. Regal Period." London, 1872.
Mommken, Theodor, " History of Rome," passim, and " Romische
Staatsrecht." 2 vols.
Puchta, " Kursus der Institutionen," 1841 ; ninth edition by Kriiger,
'2 vols., 1881.
Waltei; " Geschichte des Romischen Rechts." 2 vols., 3 eds. 1840-
1860.
Savigny, F. K. v., " Geschichte des Romischen Rechts in Mittelalter."
Heidelberg, 1815-1831. French translation, 1839. English trans-
lation of Vol. L, Edinburgh, 1829.
Meyer, J. D., "Esprit, Origine, et Progres des Institutiones Judiciaire
des Principaux Pays de I'Europe." Paris, 1823.
For comparisons of Roman law with several modern systems, see
Mackenzie, Lord, " Studies in Roman Law, with Comparative Views
of the Laws of France, England, and Scotland." Third edition,
1870.
Reeves, Jno., " History of the English Law, from the Time of the
Romans to the End of the Reign of I'^lizabeth. With an Intro-
ductory Dissertation on the Nature and Use of Legal History, the
Rise and Progress of Our Laws, and the Influence of the Roman
Law on the Formation of Our Own," by W. A. Finlason. Lon-
don, 1869.
Williams, Jas., " The Institutes of Justinian illustrated by English
Law." London, 1883.
Scrutton, T. E., "Influence of the Roman Law on the Law of Eng-
land." Camb. Univ. Press, 1885.
Schmidt, " Der prinzipielle Unterschied zwischen der Romischen und
Germanischen Rechte." 1853.
HaJin, "Die materielle Uebereinstimmung der Romischen und Ger-
manischen Rechtsprinzipien." 1856.
Concerning the general institutional significance of Roman law,
see
Seeley, J. R., "Roman Imperialism."
Bryce, Jas., " The Holy Roman Empire."
146 ROMAN DOMINION AND ROMAN LAW.
Maine, Sir H. S., " Ancient Law," " Early Law and Custom," and
" Early Histoi'y of Institutions."
Austin, Jno., "Lectures on Jurisprudence, or the Philosophy of Posi-
tive Law." 2 vols. London, 1873.
On special points reference may always be pi'ofitably made to
Smith, Dr. W., "Dictionary of Grpek and Roman Antiquities."
TEUTONIC POLITY AND GOVERNMENT DURING
THE MIDDLE AGES.
221. Contact of the Teutonic Tribes with Rome. — The
Teutonic tribes which, in the fifth and following centuries,
threw themselves into the Western Roman Empire to possess
it were not all of them strangers to the polity which they
overset. The Romans had often invaded Germany, and, al-
" though as often thrust out, had established a supremacy over
the-minds at least, if not over the liberties, of the Germans.
Those tribes which had lived nearest the Rhine and the
Danube, moreover, had long been in more or less constant con-
tact with the masters of the Mediterranean and the western
world, and had, of course, been deeply affected by the example
of Roman civilization. Teutons had, besides, entered and, so
to say, espoused the Roman world in great numbers, in search
of individual adventure or advantage, long before the advent
of the barbarians as armed and emigrant hosts. Rome had
drawn some of her finest legions from these great races which
she could not subdue. Her armies were in the later days of
the Empire full of stalwart, fair-haired Germans.
222. Primitive Teutonic Institutions. — When Franks and
Goths and Burgundians moved as militant races to the sup-
planting of Roman dominion, they, nevertheless, took with
them into Western Europe, torn as it was by Roman dissensions
and sapped by Roman decay, a fresh, unspoiled individuality
of their own. They had their own original contribution to
ma.kp, to the historv of institutions. Hitherto they had lived
148 TEUTONIC POLITY AND GOVERNMENT
under a system of government combining with singular com-
pleteness, though in somewhat crude forms, tribal unity and
individual, or at least family, independence. Amongst them,
as amongst other Aryan peoples, kinship constituted the basis
of association and primal sanction of authority ; and the
family was the unit of government. Kinsmen, fellow-tribes-
men, were grouped in villages, and each village maintained
without question its privileges of self-government, legislating
upon its common affairs and administering its common prop-
erty in village-meeting. Its lands were the property, not of
individuals, but of the community ; but they were allotted in
separate parcels to the freemen of the community, upon would-
be equitable principles, to be cultivated for private, not for
communal, profit. Chiefs there were who exercised magis-
terial powers, but these chiefs were elected in village-meeting.
They did not determine the weightier questions of custom, in
the administration of justice : that was the province of the
village-meeting itself; and such judicial authority as they
did exercise was shared by ' assessors ' chosen from the whole
body of their free fellow-villagers.
223. Free, Unfree, and Noble.— Not all their fellow-
villagers were free. There were some who were excluded
from political privilege and who held their lands only as serfs
of the free men of the community ; and there were others
who were lower still in rank, who were simple slaves. There
were, again, on the other hand, some who were more than free,
who, for one reason or another, had risen to a recognized
nobility of station, to a position of esteem and to an estate
of wealth above those of the rest of the community. But
nobility did not carry with it exceptional political privilege :
it only assured a consideration which put its possessor in the
way of winning the greater preferments of office in the gift
of the village-meeting. The power of the noble depended
upon the franchises of his community rather than upon any
virtue in his own blood.
DTTRING THE MIDDLE AGES. 149
224. Inter-communal Government. — It was not often that
a village stood apart in entire dissociation from all similar
tribal or family centres; but when it did, the powers of its
moot (meeting) extended beyond the choice of magistrates,
the management of the communal property, and the adminis-
tration of communal justice. It also declared war and ap-
pointed leaders of the communal 'host.' Commonly, how-
ever, these greater matters of war and of ' foreign relations '
were determined by assemblies representing more than one
village. Communities sent out offshoots which remained con-
nected with them by federal bonds ; or independent communi-
ties drew together into leagues ; and it was the grand folk-moot
of the confederated communities which summoned the ' host '
and elected leaders, — which even chose the chiefs who were
to preside over the administration of the several villages.
225. Military Leadership : the Comitatus. — The leaders
selected to head the 'host' were generally men of tried
powers who could inspire confidence and kindle emulation in
their followers ; and such men, though chosen to official leader-
ship always only for a single campaign, never even in times of
peace ceased to be, potentially at least, the heads of military
enterprise and daring adventure. Kot uncommonly they would
break the monotony of peace and dull inactivity by gathering
about them a band of volunteers and setting forth, spite of the
peace enjoyed by their tribe, to make fighting or find plunder
somewhere for their own sakes. About men of this stamp
there gathered generally all the young blades of the tribe who
thirsted for excitement or adventure, or who aspired to gain
proficiency in arms. These became the military household,
the comitatus, of their chosen chieftain, his permanent, insep-
arable retinue, bound to him by the closest ties of personal
allegiance, sitting always at his table, and at once defending his
person and emulating his prowess in battle; a band who looked
to him for their sustenance, their military equipment, and their
rewards for valor, but who rendered him in return a gallant
150 TEUTONIC POLITY AND GOVERNMENT
service ■wliioh added mucli to Lis social consideration and gave
liim rank among the most powerful of liis fellow-tribesmen.
226. Contrasts between the Teutonic System and the
Roman. — These features of tribal confederation and personal
supremacy, though su.ggestive at many points of the primitive
Eoman state, were in strong contrast with the- Roman polity
as it existed at the time of the invasions. They were not only
more primitive and so indicative of a very mu.ch less advanced
stage of civilization, but they also contained certain principles
which were in radicil contradiction to some of the conceptions
most fundamental to Eoman state life.
227. Roman Allegiance to the State. — The central con-
trast between the two systems may be roughly summed up in
the statement that the Teutonic was essentially, personal, the
Eoman essentially impersonal. Neither the Roman soldier nor
the Eoman citizen knew anything of the personal allegiance
which was the chief amalgam of primitive German polities.
His subordination was to the state, and that -subordination was
so complete that, as I have previously said, he was practically
merged in the state, possessing no rights but those of a child
of the body politic. His obligation to obey the magistrate in
the city or his commander in the field lasted only so long as
the magistrate's or commander's commission lasted. Alle-
giance had no connection with the magistrate or the commander
as a person : magistrate and commander claimed allegiance only
as representatives of the state, its temporary embodiment. To
them, as the state, the citizen or soldier owed the yielding of
everything, even of life itself: for as against the state the
Eoman had no private rights. While he held office, therefore,
magistrate or commander was omnipotent ; his official conduct
could be called in qiiestion only after his term of ofiice was at
an end and he had ceased to be the state's self. Of course
much decay had come into the heart of such principles ere
the Empire was forced to break before the barbarian ; but they
never ceased to be central to Eoman political conception.
DURINfi THB MIDDLK AGES. 151
228. Teutonic Personal Allegiance. — With the Teutons,
on the contrary, political association manifested an irresistible
tendency to'wards jnst the opposite principles. When they
came to their final triumph over the Empire they came ranked
and associated upon grounds of personal allegiance. In their
old life in Germany, as we have seen (sec. 225), their relations
to their commanders did not cease at the close' of a war sanc-
tioned by the community, though the commission of their lead-
ers did expire then. Many — and those the bravest and best
— remained members of their leader's comitatus, bound to him
by no public command or sanction at all, but only by his per-
sonal supremacy over them. They even made themselves mem-
bers of his household, depended upon the bounties of his favor,
and constituted themselves a personal following of their chosen
leader such as no Roman but a fawning client would have
deigned to belong to." It was a polity of individualism which
presented many striking points of surprise to Roman observers.
Individuals had under such a system a freedom of origination
and a separateness of unofficial personal weight which to the
Eoman were altogether singular and in large part repugnant.
229. Temporary Coexistence of the Two Systems. — For
the first two or three centuries of the Teutonic dominion over
the Romanized populations of their new territories Teutonic
and Eoman institutions lived side by side, each set persistent
for its own people. The Germans did not try to eradicate
either the old population or the old laws of the Empire. They
simply carried into the midst of the Empire their own customs,
which they kept for themselves, without thrusting them upon
their new subjects. They appropriated to their own uses large
tracts of its lands, either casting out those who already occu-
pied them or reducing the occupiers to a servile condition ; but
leaving much of the land untouched, to be occupied as before.
Of course Teutonic customs, being the customs of the dominant
race, more and more affected the older Roman rights, even if
only insensibly ; and Roman principles of right, belonging as
152 TEUTONIC POLITY AND GOVERNMENT
they did to a mucli superior and much more highly developed
civilization, -which the Teuton had already long reverenced,
must have had quite as great a modifying effect upon the
Teutonic customs, which now, so to say, lay alongside of them.
The Eoman polity had entered into the whole habit of the pro-
vincials and still retained, despite the disorders of the later
days of the Empire, not a little of its old vigor and potency.
It had strongly affected the imaginations of the Germans when
they had touched only its geographical borders, and it did not
fail in a certain measure to dominate them even now, when it
was at their feet. They made no attempt to stamp it out.
They, on the contrary, tolerated, respected, imitated it.
230. Relative Influence of the Two Systems. — So far as
any general description of this mixture of Roman and Teutonic
influences may be ventured, it may be said that the Teutonic
had their greatest weight on the side of political organization,
the Koman on the side of the development of private rights.
The Teutons, of course, tried to reproduce in their new settle-
ments the communal life peculiar to their own native institu-
tions ; they endeavored to organize their own power, according
to the immemorial fashion of their own politics, on the basis
of a freehold tenure of the land and local self-administration, —
a free division of the spoils on the ground of individual equality
among the freemen of the tribes. They had stamped out the
Eoman state in the invaded territory ; Roman public law they
had of course displaced, destroyed. It was Roman conceptions
as to private relations that gradually modified their Teutonic
system. That system rested, as regarded its political features
hardly less than at all other points, upon the relations of
individual to individual, and as the example of the Roman
practices, still preserved by the conquered populations about
them, modified these relations of individual to individual, great
changes were by consequence inevitably wrought in political
organization as well. Such changes were, however, not in the
direction of a reproduction of Roman political method, but in
DURING THE MIDDLE AGES. 153
the direction of the creation of that singular public polity which
we designate as medioevul.
231. Roman Influence upon Private Law. — The Roman
influence exerted itself most directly and most powerfully, then,
through the medium of Roman Private Law. That law had
developed too perfect and complete a system of private rights
to fail of acceptance at the hands of the new organizers. The
Teutonic leaders were, moreover, prepared to admire and heed
Roman civil arrangements. Accordingly the sixth century has
scarcely opened before we find Alaric II., king of the West
Goths (506 A.U.), and Sigismund, king of the Burgundians
(517 A.D.), compiling, from the code of Theodosius and the
writings of Gains and Paulus, compends of Roman law for
the use of their Roman subjects. Even in the north of Gaul,
in the districts which had been somewhat remote from the
Roman influence, the Franks were constrained, while rejecting
Roman law for themselves, to suffer it to retain its validity for
their Gallic subjects. The result was the rise in Northern
Gaul of a curious and anomalous system of 'personal law.'
There was one law for the Gaul, another for the Frank. Eveu
as between Frank and Frank there was a difference of law.
The Salian Frank was not judged by the same rules as those
which botiud the Ripuarian Frank, but for each there was a
law of his own. Sometimes, in a suit, it was the plaintiff,
sometimes the defendant, who established a right under his
personal law. Even Charles the Great did not stamp out these
confusing practices, though he. sought to give Roman law anew
to his empire through a fresh issue of the code of Alaric.
232. Roman Towns. — It was in the towns that the law of
Rome had its strongholds. There it had a centred and lively
influence : and there it was long undisturbed by the conquerors.
It took the Teuton a long time to learn how to live in a town,
within limiting walls and amidst crowded houses. His native
habit called him to a freer life : the pent-up town was too rigid,
too conventional, too narrow a sphere for his restless energies.
154 TEUTONIC POLITY AND GOVBENMBNT
He at first contented himself, therefore, with the mere formal
submission of the towns : it was -long before he entered them
to stay and to take part in their life. Meanwhile not only
Eoman private law, but also Roman municipal traditions, were
preparing the cities for the power and independence which
they were to claim and enjoy during the Middle Ages. They
were to prove Rome's most vital fragments. They nursed her
law and reproduced her politics. Not Italy only, but the
Rhone and Rhine countries as well, were dotted over with
these abiding-places of the old influences which had once domi-
nated the world : and from them those influences were eventu-
ally to issue forth again to fresh triumphs.
233. The Fusion of the Two Systems. — Gradually there
was brought about that fusion of German customs with Roman
law and conception which, after a long intermediate fermen-
tation, was to produce the conditions of modern political life.
During the Middle Ages government gradually worked its way
out from the individualism inherent in the habits of the Ger-
manic races back into an absolutism not unlike that of the
Roman Empire. Tlie intermediate stage was Feudalism.
234. Effects of Movements of Conquest upon Teutonic
Institutions. — Feudalism was preceded, however, by modifi-
cations in the Teutonic system which were not the result of
their contact with Romanized peoples, but the direct effects
of conquest.
235. (1) The New Kingship. — The migratory conquests
of the Teutons greatly emphasized for a time the principle of
individualism,- — ^the principle of personal allegiance. They
advanced to their new seats not as separate marauding bands,
but as emigrant nations. It was a movement of races, not of
armies merely. All the freemen of the tribes came, bringing
with them their families, their household goods, and their
slaves, as having come to stay. But they could not preserve,
when on such an errand, the organization of times of settlement
and peace. They were forced to elevate the commander of the
DURING THE JVUDDLE AGES. 155
host to a new kingship. As confederated tribes in their old
seats they had often chosen kings, who typified in their ofBcial
dignity and sanctity the unity of tribal organization, who pre-
sided over the national councils, and who by reason of their
preferred position enjoyed a somewhat greater state than their
noble associates in the tribes. But these early kings, like the
Greek kings of the Homeric songs, were scarcely more than
patriarchal presidents, 'first among peers.' The later kings,
in G-aul, in England, and in Spain, — the kings of the emigrar
tion, — on the other hand, ruled as well as reigned. They had
first of all been the leaders who commanded the invading hosts,
and who had met and routed the Eoman forces who would have
withstood the stalwart immigrants ; and so long as conquests
remained incomplete, they continued in command to complete
them. Conquest being achieved, their authority was still nec-
essary to keep their people together in dominant organization.
It was only the' logical and inevitable result that was reached,
therefore, when they became possessed of sovereign powers of
a sort such as German politics had never known before.
But, great as was the almost immediate transformation of
commanders into kings, they were not yet kings such as later
times were to see in France, after feudalism should have
worked its perfect work.
236. (2) The Modified Land Tenure. —The invading peo-
ples doubtless at first took possession of the conquered terri-
tory by a tenure not radically different from that by which
they had held their older home fields, except as it was modi-
fied by the fact that the. conquered lands were already occu-
pied by a native population, whom it was not their policy
altogether to dispossess, and whose presence even as serfs
would necessarily affect the system of the new masters. Those
who were suffered to retain their holdings only exchanged a
Roman overlordship for a German ; but they constituted a new
class of citizens in the German polity, and, of course, touched
with Eoman influences Teutonic customs of tenure.
156 TBXJTONIC POLITY AND GOVERNMENT
237. It was the circumstances of conquest, however, which
were the chief causes of modification. The conquered terri-
tory was naturally disposed of, in large part at least, by the
leaders of conquest in accordance with military and strategic
requirements. Such leaders, too, always get the lion's share
of property won, as these lands had been, by arms ; and, by
their gifts, their chief followers also are made specially rich in
the new lands. Thus a new bond of personal connection is
created, and conditions pregnant with profound social changes
are established. It was by means of such gifts and their in-
fluence that the leaders of conquest raised up about them pro-
prietors all but as powerful as themselves, and so both cheated
themselves of full kingship, and robbed society of all chance
of harmonious unity. Power fell apart into fragments, —
into a vast number of petty lordships, and the Feudal System
was born.
238. The Feudal System. — Feudalism is the name given
to that stage of growth through which Teutonic institutions
passed while accommodating themselves to new rootage in
Roman territory and to the new conditions created by race
migrations and conquests. It was, in its highest development,
a system of parcelled lordship and divided authority, based
not upon general political law, but upon property in land.
The two chief constituent forces of this new system were
' commendation ' and the '' benefice.' A ' benefice ' was a landed
estate held upon conditions of service to some superior, the real
or feigned giver of the estate. ' Commendation ' was a cere-
mony by which a similar obligation of personal fealty towards
a superior was created, whether land was held by his gift or not.
The result of both was to create a series of personal depend-
encies : a connected series of greater and lesser landowners,
the less dependent on the greater, and all at least nominally de-
pendent on a king, the centre and titular head of the hierarchy.
239. Local Differences in Feudal Development. — There
was, of course, not exactly the same method of development
DURING THE MIDDLE AGES. 157
everywhere. In England, under the Saxons, and afterwards
under their cousin Danes, the new polity was held together
jjrimarily and principally by that old cement of personal alle-
giance, the relations of leader and comitatus (sees. 225, 228) ;
in France, and elsewhere on the continent, it was generated
more directly by territorial connections independent of leader-
ship and following. In the one case men owned land and pos-
sessed power because of their personal relations with the king ;
in the other, they stood in special personal relations to the king
because they owned land of which circumstances had made him
titular overlord. Speaking generally, so as to include both
France and England, it may be said that the benefice was of
two kinds. The English benefices were most often estates
granted by the king to his personal following, to his comites,
or to his less independent adherents, on condition that they
should hold themselves ever ready to render him full aid andr
service, and ever continue to adhere to him with special fidel-
ity. The French benefices were more generally estates origi-
nally allodial (that is, held under no one, but by an independent
title), which had been surrendered to the king, or to some other
lord of the .new hierarchy, to be received back again as his gift,
for the sake of the mutual obligations of faith and support thus
established. Of course it is not to be understood that bene-
fices were exclusively of the one kind in England, and exclu-
sively of the other kind in France. In France such estates
were very often direct gifts from the king or another superior ;
and in England they were as often surrendered freeholds not
rewarding gifts. But each country had its predominant type
of the benefice. Its common mark everywhere was that it was
a landed estate ; not an office or any other gift, but land held
upon conditions of fealty to a superior.
240. Commendation, on the other hand, had no necessary
connection with land. Its predominant feature was a personal
relationship which was rather that of master and man than
that of landlord and tenant. It seems to have been made
158 TEUTONIC POLITY AND GOVERNMENT
necessary by the creation of benefices. As great properties
grew up about them, as they became encompassed by the great
network of connected estates woven out of the principle of
the benefice, small landholders found it necessary to avoid
collision with the growing power of their princely neighbors
by throwing themselves into the arms of that power, by
hastening to conform and make of their own holdings benefices
held of the lord of the greatest contiguous manor, and as
society fell thus into regular gradations of personal allegiance
based upon property, the free man who was without property
and the native of the conquered territory who found himself
suffered to have liberty but not to hold land by any such ten-
ure as would enable him to become a ' heneflciary,' were both
left without a place in the new social order. Owing no defi-
nite service to the powerful persons about them, they could
claim no protection from them. They could be oppressed
without remedy. They were driven, therefore, to 'commend'
themselves to some lord who could afford them security —
such security at least as the times permitted — in return for
fealty. This was 'commendation.' It had, as I have said,"
no necessary connection with the land, though the small owner
as well as the landless person probably became his lord's
'man' rather by commendation than by benefice. It became
a universally recognized maxim of law that 'every man must
have his lord.' Whether through benefice or through com-
mendation, he must fall into definite place in the minutely
assorted and classified society of feudalism.
241. Political Disintegration. — The state was thus disin-
tegrated. It no longer acted as a whole, but in semi-inde-
pendent parts. There was no longer any central authority
which acted directly upon all individuals alike throughout a
common territory. The king controlled directly, as he had
the power, only the greater lords, who were in feudal theory
his immediate- vassals ; other men, lower down in the series,
could be reached from above only through their immediate
DURING THE MIDDLE AGES. 159
masters. Authority filtered down to the lower grades of
society through the higher. It was a system, not of general
obedience to a common law, but of personal obedience and
subordination founded upon land-ownership.
242. Such, then, was the Feudal System. The king had no
immediate subjects except the greater barons and the vassals
on his own baronial estates, and the greater barons were obedi-
ent subjects only when he had armed power sufiicient to com-
pel them to obey. Their vassals served the king only when
they themselves did, and because they did, arming themselves
for the king, as they would arm themselves against him, only
as their lords commanded. In brief, every baron was himself
practically king of those holding under him. It was his decree
that sent them into the field ; it was his power that defended
^;hem against other lords who would have oppressed or plun--
dered them ; and it was in his courts that justice was admin-
istered between them. His strength and favor were their
shield and title. Law indeed grew up in the shape of custom ;
but the customs of one barony differed from those of another.
Except in so far as the priest and the lawyer revived, in their
advice to the magnates who consulted them, the principles of
the Roman law, still alive to the studies even of that time, no
uniformity of practice prepared a unified system of law for
the realm. It was an arrangement of governments within
governments, a loosely confederated group of inharmonious
petty kingdoms.
243. The Feudal Conception of Sovereignty. — The most
notable feature of feudalism is that in its system sovereignty
has become identified with ownership. The rights exercised
by the barons were in many cases nothing less than sovereign.
Not only did they decide property titles by the custom of
their baronies and private rights by laws determined in their
own courts, they often also coined money, they constantly
levied tolls upon commerce, and they habitually made war
when they pleased upon rival neighbors. They gathered about
160 TEUTONIC POLITY AND GOVBENMBNT
them, too, as the king did about himself, an immediate fol-
lowing of knights, whom they endowed with lands as, so to
say, barons of these lesser kingdoms, the greater baronies.
They commanded this retinue and exercised these sovereign,
powers, moreover, because of their relations as owners to the
lands and tenantry of their domains. Sovereignty, in this
petty parcelled kind, had become a private hereditary posses-
sion, an item in family 'assets. Whoever should be able to
accumulate these territorial lordships into one really great
kingship would be owner, and, as owner, sovereign of the
realm (sec. 253).
244. Feudalism and the Towns. — The towns, meantime,
stood out with not a little success against feudalization. Many
a town was, indeed, dominated by the threatening pile of some
baronial castle, built over against it on the strategic vantage-
ground of hill-summit or river peninsula ; and all were con-
strained sooner or later to yield at least nominal overlordship
to some feudal superior. But in the most important and
powerful burgs enough of the old municipal organization and
independence was preserved to transmit to the times which
witnessed the downfall of feudalism at least a vivid memory of
the antique communal life in which society had found its iirst,
and up to that time its best, vigor. They kept alive if it were
only a tradition, yet a fecundating tradition, of that true con-
ception of political authority which made of it, not a piece of
private property to be bartered or sold, but the organized, the
uttered will of a community.
246. The Guilds. — Still, within the cities there early
sprang up a semi-feu.dal organization of society altogether
their own. The importance of a town rested, of course, not
upon the ownership of lands, though many towns did own not
a little land, but upon wealth gained by trade and industry.
The internal social organization of the towns, therefore, tended
more and more to turn upon the relations of labor. The famous
guild system sprang into existence. Every handicraftsman,
DtTRING THE MIDDLE AGES. 161
every trader, — like every landowner and every freeman in the
society outside the towns, — had to find his place in a sharply
differentiated social classification. Each occupation was con-
trolled by its guild ; and that guild was a close corporation,
admitting to membership only whom it chose. No one could
enter save through the stringently guarded avenues of a limited
and prescribed apprenticeship ; and once in, the apprentice
was bound by the rules of the order. City government became
representative of the authority of associated guilds. No one
was a citizen who was not within one of the privileged asso-
ciations. It is a reminiscence of this old order of things that
the building about which the city government of London, as of
many other antique towns, still centres is known as the ' Guild-
hall.' Even the militia of the towns were trainbands from
the several guilds. The town, also, had created its ' estates,'
its orders, as the country had done. This was its feudal system.
246. The City Leagues. — The greater trading towns near
the Baltic and along the Ehine took advantage, during the
thirteenth century, of the opportunities for independent action
afforded them by the piecemeal condition of authority under the
feudal system to draw together into leagues, the better to pursue
their own objects ; and for a very long time these leagues exer-
cised the powers of great states, making war and peace, levy-
ing custom, concluding treaties and alliances. Their primary
object was to cure those disorders of the times which made the
roads unsafe and so interfered with their trade. The greatest
of these leagues were the Hansa, more commonly known in
English writings as the Hanseatic {Hansa means trade-guild),
and the Rhenish. The former centred about the great cities
of Lflbeck and Hamburg, and at One time included ninety of
the towns lying between the Baltic and the Elbe. The latter
had Worms and Mainz as its leaders, and at one time or another
had connections with seventy towns, some of which stood as
far away from the Rhine as Bremen and Nuremberg, though
the arteries of trade which it was meant to protect and keep
162 TEUTONIC POLITY AND GOVERNMENT
open lay chiefly along the Ehine valley. Many great princes
were constrained to connect themselves with these leagues in
the heyday of their power. ' But trade alliances afforded too
many occasions for jealous discords, and the growth of vast
territorial monarchies too dangerous rivalries for the cities ;
and their leagues were eventually broken up.
247. Unifying Influences. — Two unifying influences oper-
ated more or less potently during the Middle Ages to counter-
act the disintegrating tendencies of the feudal system. These
were the Roman Catholic Church and the Holy Boman Empire.
Both the Church and the Empire may be said to have been
shadows of imperial Eome. They were, by intention at least,
the temporal and spiritual halves of the old empire of the
Caesars.
248. (1) The Roman Catholic Church had, historically, a
real connection with the veritable dominion of Eome. Before
the Empire had been shattered by the onset of Teutons and
Turks, Christianity had become its recognized official religion.
The Pope in Eome represented one of the great primacies
which had early grown up within the imperial Church : and
this Church of the West, sundered from the Church of the East
by then irreconcilable differences of doctrine, showed an in-
stinct for conquest which seemed a direct heritage from the
great pagan Eome of the olden time. She mastered the new
masters, the Teutons, and everywhere insinuated herself into
the new political system which developed under their hand.
Not only had every castle its chaplain, every city and country-
side its priest, but the greater ecclesiastics themselves became
feudal lords, masters of baronies, members alike of the civil
and the religious hierarchies ; and even monasteries owned
vast estates which were parcelled out upon a feudal tenure.
249. But, for all it was so interwoven with the feudal sys-
tem, the Church retained its internal unity. The Pope's power
did not fall apart as did the king's. The priest acknowledged
in all things his allegiance to a universal kingdom, the spiritual
DURING THE MIDDLE AGES. 163
kingdom of the Church of Eoiae. That Church recognized no
boundaries, whether of baronies or of states, as limits to her
own spiritual sovereignty. That extended, as she claimed,
over all kings of whatsoever grade, over all men of whatsoever
rank or estate. The silent, unarmed forces of her influence,
therefore, stood always on the side of an ideal unity. And
they certainly retarded disintegration. Her lesson was brother-
hood and a common subjection; and that lesson, though often
neglected, was never utterly lost sight of or forgotten. She
kept alive, moreover, in her canon law, much of the civil law
of Kome : her laws at any rate were not diverse, but always
the same ; they reached the .people and the conceptions of the
time through the administration not only of her ecclesiastical
courts, but also, indirectly, no doubt through the judgments of
the baronial courts of the baron-bishops : and whatever tended
to unify law tended to unify politics. The ecclesiastical power
was always on the side of any good Catholic who proved him-
self capable of creating larger wholes of political authority,
larger areas of civil unity. By precept and by example the
Church was imperial.
250. (2) The Holy Roman Empire. — Under the direct
descendants of Chlodwig, the once vast dominions of the
Franks fell asunder in several pieces ; but Charles the Great
(768-814) reunited and even extended them. He brought
together under his sword the territory now included in Ger-
many, Switzerland, Hungary, Italy (all save the southernmost
part), Trance, and Belgium. And neither any Teuton nor any
successor of Teutons in Western Europe ever gathered wide
territories under his sway without dreaming of restoring the
Roman Empire and himself ascending the throne of the Csesars.
From Charles the Great to Napoleon the spell of the Eoman
example has bound the imagination of every European con-'
queror. Charles had this ambition clearly in his view, and
circumstances peculiarly favored its realization. At the same
time that he reached the height of his power, Rome reached
164 TETTTOmC POLITY AND GOVERNMEITT
the acme of her discontent with what she considered the here-
sies of the Eastern See, and the political disorders at Constan-
tinople gave the Eoman pontiff pretext for casting finally loose
from all Eastern connections. The Empress Irene deposed her
son and usurped his throne ; the Italians declared that no
woman could succeed to the titles of the Caesars ; and the Pope,
arrogating to himself the prerogatires of king-maker, crowned
Charles the Great emperor of the Holy Eoman Empire, —
' Holy ' because created by the authority of mother Church.
251. Here was a real ' Western Empire ' ; the first had been
only an administrative .half of the once undivided dominions
.of the emperors. Charles gave to his empire real vitality
while he lived ; he, moreover, did what he could to hasten civil
unity by promulgating anew the Visigothic version of the
Roman law (sec. 231) ; and, although his empire broke up
upon his death, an almost uninterrupted line of emperors, of
one great feudal house or another, carried the titles of Eome
through the Middle Ages to modern times, now and again
backing them with real power and always preserving for Ger-
many a shadow at least of unity in a time of real disintegrar
tion. Believing themselves, besides, in the early times at any •
rate, the lineal and legitimate successors of the Caesars, there
was special reason why every emperor should continue to
build, so far as he had the opportunity, as Charles the Great
had begun to build, on the law of Rome as a foundation, never
designedly, as Charles the Bald declared, enacting anything
repugnant to it. All who from time to time drew to the side
of the imperial power in the conflicts of disordered ages also
naturally affected the language and principles of the same sys-
tem. The Empire was, therefore, not only sometimes a silent
witness and sometimes a great power for unification, but also
Ulways a steady influence on the side of a system of law more
advanced and unifying than that of feudalism.
252. Centralizing Forces : the Carolingians. — The rise of
the family of Charles the Great into power illustrates the
DTTEING THE MIDDLE AGES. 165
character of the chief, indeed the only potent, centralizing
forces of the feudal time. Those forces lay in the ambition
of great barons. Under the descendants of Chlodwig (the
Merowingians) the territory of the Franks tended more and
more to become permanehtly divided into two distinct parts.
There were often, it is true, more parts than two : for it was
the Frankish custom to divide even a royal inheritance between
all the sons of a deceased j)ossessor. But, as it fell out in the
long run, the most permanent division was that between Neus-
tria (the western half) and Austrasia (the eastern). In both
of these kingdoms the Merowingian rulers soon degenerated
into mere shadows of their imperative, dominant ancestors ;
and they were presently displaced by a powerful family of
Austrasia, the family of Charles Martel. Charles Martel was
Mayor of the Palace under the Austrasian branch of the royal
family. The office of Mayor of the Palace, though an office in
the king's household, was, it would seem, filled rather by dic-
tation of the powerful lords of the kingdom than by a free
royal choice. It was filled, consequently, at any rate in the
times of which I am now speaking, by the leader of the great
territorial chiefs, by the leader, that is, of the king's rivals in
power. It had indeed become an hereditary of&ce held by the
greatest of the baronial families. Charles Martel was a soldier
of genius : he handed his office on to his son and his grandson :
they were men abler than he. His son, Pepin, with the sanc-
tion of the Pope, whom he had greatly served, became king of
the Franks, in name as well as in reality, to the final ousting
of the old line of 'do-nothing' monarchs; and his grandson
was Charles the Great.
263» The Capets : Concentration of Feudal Power. — In the
tenth century a similar change was wrought in France. The
descendants of Charles Martel (Carolingians) had in their turn
lost vigor and become unfit for power. They were displaced,
therefore, in the western half of their dominions (in Neustria)*
by a family of warriors whom they had endowed first with the
166 TEUTONIC POLITY AND GOVERNMENT
county of Paris, and afterwards with the duchy of France, as
at once a reward for their services in withstanding the incur-
sions of the Northmen and a stake in the threatened territory.
The duchy of France was only a comparatively small district
about Paris ; but the vigor and capacity of ■ the Capets, its
dukes, speedily made it one of the most important feudal prop-
erties in the whole of the great territory to which it was even-
tually to give its name. They became the chiefs of the baronial
party, and when discontent with the Carling kings culminated,
it was they who became first ' kings of the barons,' and finally
kings of France. Refusing to degenerate, as the Merowingian
and Carolingian princes had degenerated, they continued to de-
velop, generation after generation, a kingdom destined one day
to rank with the greatest of Europe ; and that by a process
planned as if meant to illustrate how best the feudal system
might be used for its own destruction. By every means — by
war, by marriage, by contract, by stratagem, by fraud — they
drew all the greater feudal sovereignties into their "own posses-
sion, until at length, their duchy of France and the kingdom
of France were indeed identical; until, having absorbed all
scattered authorities, they had made sovereignty, once possessed
privately in sundered pieces, once more a whole, — but a whole
which, by the strict logic of feudalism, was their private estate ;
until they almost literally possessed the land, and Louis XIV.
could say with little exaggeration, -L'itat c'est moi.' They
had gathered the fragments of the feudal system into a single
hand, and had made the state itself a feudal possession, a family
estate.
254. The Piecing together of Austria and Prussia. — Later
still the same process was repeated in Prussia and in Austria.
By conquest, inheritance, forfeiture, marriage, contract, fraud,
powerful feudal families pieced together those great kingdoms,
to become in after times the bases of national organization.
In neither Prussia nor Austria did the process go so far as in
France, though Austria, under the great house of Habsburg,
DXJEING THE MIDDLE AGES. 167
became possessor of the imperial throne of the Holy Eoman
Empire, and Prussia, under the equally great house of Hohen-
zoUern, has become the central and dominant state of a new
German Empire, which, through the healthful processes of
modern national life, if not through the happily obsolete forces
of absolutism, may yet be as truly compact and unified a king-
dom as any the world has seen.
Roman Law in Modern Legal Systems.
255. Erom the fifth to the twelfth centuries Eoman law
inhered in the confused civil methods of the times for the most
part as a mere unsystematized miscellany of rules applicable
to the descendants of the Eoman provincials and observed
largely within the' towns. As the old distinctions between
Eoman and Teuton faded away, however, in the gradual mixture
of the populations, these rules entered more and more into the
general mass of common custom. This process was in great
part unconscious ; there was no scientific selection in the devel-
opment.
256. The Barbaric Codes. — It was not from mere tradition,
however, — not simply from Eoman law transmuted into unre-
corded provincial custom, — that the knowledge of these cen-
turies concerning the civil law of the Empire was derived, but
from the Theodosian legislation and the writings of the jurists
as they appeared in the Code of Alaric II. (sec. 231), which is
known to quotation as the Breviary {hrevarium Alaricianum).
The West Goths themselves had not long remained contented
with that compend of the law. In the seventh century there
had been prepared in Spain a new Lex Visigothorum which
contained a summary, not of Eoman rules only, but of Gothic
custom as well, and which, superseding the earlier compilation
of Alaric, formed the basis for later codifications of Spanish law.
But the south of France, which had once owned the domin-
ion of the Visigoth, retained the Code of Alaric ; it was trans-
168 TEUTONIC POLITY AND GOVERNMENT
mitted thence to the north of France, to be handed on to G-er-
many and England ; and for all of these countries it continued
to be the chief, if not the only source of Roman law until the
eleventh or twelfth century. Charles the Great, as I have said,
republished it, accepting it as the recognized manual of Roman
legal principle. Even Italy had had the continuity of her
legal tradition broken by barbarian invasion, — especially by
the inroad of the raw Lombards, — and had had to keep the
fragments together as best she might amidst just such a con-
fusion of ' personal ' laws as prevailed elsewhere in the once
Roman world (sec. 231).
257. Custom and Written Law in France. — It was at this
time that the north and south of France came to be distin-
guished as respectively the ' country of custom ' {pays de cou-
tume) and the ' country of written law ' {pays de droit icrif).
In the south, which had been thoroughly Romanized for centu-
ries, there was the written law of Rome ; in the north, which
had never been so thoroughly Romanized, and which was now
quite thoroughly Germanized, there reigned in unrestrained
confusion the Teutonic customs of the barbarian masters.
This division corresponded closely with the division between the
langue d'oc and the langue d'oil. The districts of tlie langue d'oil (of the
Frankized Latin) were the country of custom ; the districts of the langue
d'oc, the country of written law.
258. The Study of the Roman Law. —But in the twelfth
century the law of Rome fell upon the good fortune of being
systematically studied once more by competent scholars, and
once more cultivated by scientiiic lawyers. And not the Code
of Alaric, but the vastly more perfect Corpus Juris Givilis, as
the twelfth century called it, Justinian's (or, rather, Trebo-
nian's) great compilation, which Germanized Europe had
hitherto used scarcely at all,^ was the basis of the revived
1 The Digest and the Codex were in some measure made use of by the
canonists throughout the Dark Ages.
DtrRIN& THE MIDDLE AGES. 169
study. The new cultivation of the law began, naturally and
properly enough, in Italy. The University of Bologna rose
into prominence and became famous as the chief seat of the
study of the Eoman code. Pisa and other Italian schools then
took up the new pursuit. Presently the interest had spread
to Prance and to Spain, going in France first to Montpellier
and Paris, afterwards to Bourges, Orleans, and Toulouse, the
old capital of the West Goths j and in Spain creating (a.d.
1254) the notable University of Salamanca. From Spain and
France, Holland caught the fashion, giving to Europe in the
seventeenth century the illustrious jurist Hugo Grotius, who
created out of the great principles of equity discoverable in
Roman Law the elevated and influential science of Interna-
tional Law (sec. 1216). In England, too, the same studies
began to be affected almost immediately after the rise of the
school of Bologna, and are said to have been regularly pursued
there down to the sixteenth century.
259. Entrance of Roman Law into the Legal Systems of
Europe. — Of cou.rse this widespread interest in the study of
Roman law was not all speculative. The study and the prac-
tice of the law acted and reacted on one another. Its rules
were more and more consciously and skilfully fitted into the
growing law of the kingdoms which were emerging from the
feudal system because it was being adequately mastered and
systematized at the universities ; and it was being mastered
and systematized at the universities because it was being more
and more called for in the actual administration of justice.
Its use and its cultivation went hand in hand.
260. In France Louis IX. (1226-1270) ordered the Roman
law to be translated into French, and, by the judicial reforms
which he instituted (sec. 296) illustrated the history that law
was to have in the kingdom of the Capets. Roman law came
into use in France with much the same pace with which the
Capets advanced to complete power, and triumphed with the
perfecting of the centralization which they effected. Louis
170 TEUTONIC POLITY AND GOVEKNMENT
IX. established the right of the crown to hear appeals from
the feudal courts in all cases ; he sent royal judges on circuit
to hear complaints of infringed rights ; and at Paris he erected
the famous Parliament of Paris as the supreme tribunal of the
realm. The feudal lords of France were the nominal members
of this court, but trained jurists (legistes), appointed as experts
to assist them, became in practice its real members. Schooled
in the Eoman law, they admitted its principles into all their
decisions ; and they gave to the king from the same source the
maxim which declared the will of the prince to be law. As
the king's jurisdiction grew, the principles of Roman jurispru-
dence gained wider and wider acceptance and supremacy.
261. And presently the Eoman law came, so to say, from
out the nation to meet the royal system. Very early in Berri,
Bourbonnais, and Auvergne, the central districts of France, the
law of Eome had been adopted as the common law of the land,
to be appealed to in the absence of proof of any special custom
or enactment. Subsequently it, came to be considered as in
some sort the supplementary common law of all France, for,
though never established as such in the north of France, it
was even there appealed to in doubtful cases as ' written reason.'
The Code Napolion, the last great codification of French law,
has been described as in great part a republication of the laws
of Justinian as those laws have been modified and fitted to new
circumstances by the processes of French history. The state-
ment ought, however, to be taken with an important qualifica-
tion. A very great deal of Germanic law found permanent
place among accepted legal principles in France, though Eoman
law contributed the chief formative forces, the forces of fusion
and system.
262. Local Custom in France. — It is important to observe,
however, that the unifying, harmonizing influences exercised
by the growing royal jurisdiction were, for a long time at any
rate, influences which affected procedure rather than the in-
ternal, essential elements of legal principle. The differentiar
DXJRING THE MIDDLE AGES. 171
tion between district and district which had taken place in the
process of -f eudalization had been of the sharpest, most decided
character. When the Capets first assumed the titles of king-
ship there were as great duchies as France. The work of
extending and consolidating the kingdom consumed several
centuries ; and, meanwhile, each petty sovereignty was develop-
ing its own law apart. Much of the territory which afterwards
became part of France was, during the same period, moreover,
in foreign hands, held by England or Burgundy. The king-
dom as finally consolidated, therefore, presented a very great
variety of deeply rooted and persistent local laws and customs.
Normandy had one set of customs, Berri a very different set,
Anjou a third, Brittany a fourth ; and so throughout the once
piecemeal country.
263. Unifying Influence of the Royal Prerogative The
influence of the royal jurisdiction upon this heterogeneous
mass of differing' laws was, as I have said, at first rather to
unify, and systematize the procedure of the local courts which
administered local law in semi-independence than to effect
changes in the customs themselves. Since appeals to the
king's justice were possible in all cases, the formal method
of appeal tended to become the same everywhere; and the
methods of the king's courts in dealing with appealed cases of
course more and more tended to set the fashion of procedure
throughout the loose system, though the royal judges continued
to decide appealed cases according to the law of the district
from which they were brought up.
264. By degrees, however, new ideas and principles, as well
as new modes of procedure and appeal, were infused into local
justice. The law and the legal practice of each district alike
more and more distinctly and consciously approximated to the
models of organization and to the standards of decision obtain-
ing in the king's courts. The territorial tribunals accepted
the services of lawyers trained in Roman principles and in-
clined towards regal precedents ; and the local law officers of
172 TEUTONIC POLITY AND GOVERNMENT
the crown were of course everywhere ready to effect whatever
was within reach of their functions or example in the way of
bringing local custom around to the rules of universal accejjt-
ance to be found in Eoman law and regal decision. Indepen-
dently, too, of the influence of the crown the Eoman law was
entering the local courts, becoming common law in Auvergne
and Bourbonnais, as we have seen, before it became the com-
mon law of France.
265. Through the Parliament of Paris (sees. 293, 298) the
Eoman law had, so to say, a double door of entrance. The
jurisdiction of that court was both spiritual and temporal : so
that both the Code of Justinian and the canons of the Church
contributed their versions of Eoman judicial practice and trar
dition to its findings.
266. In Germany, as in France, the influence of the Eoman
law has attended the progress of the forces of unification.
The Eomans had never established their power beyond the
Ehine. There, after the movements of the Teutonic tribes in
the fifth and following centuries, as before, Germanic custom
had almost undisputed mastery. The feudal system, moreover,
left its work in more complete crystallization in Germany than
elsewhere : for Germany emerged from the Middle Ages what
she still is in great part, namely, a mere congeries of petty
states. Still the Holy Eoman Empire, however shadowy it
became at times, had been created in Germany with the dis-
tinct idea of a title derived directly from Eome ; and through-
out all the changes of German history the imperial influence
has sheltered and fostered Eoman law. The imperial courts,
the imperial lawyers, the imperial party in general, were
always administrators or advocates of its principles. When
the house of Habsburg came to possess the Empire, as when
other powerful emperors had reigned (sees. 370, 374 et seq.),
there was no small potency in these influences. More and
more pervasive became the great irresistible system of law;
everywhere, without displacing, it instructed, supplemented,
DUBING THE MIDDLE AGES. 173
moulded Germanic custom, until now its presence in both na-
tional and local law has made it the basis of all legal study in
Germany, and the Corpus Juris is a ' subsidiary authority ' in
almost all courts. To a certain extent Roman law was suffered
even to displace Germanic custom. Very early the courts,
while accepting Roman legal rules as prima facie conclusive of
the rights of a suitor, imposed upon those who alleged estab-
lished local usage in opposition to it the necessity of furnish-
ing conclusive proof of the existence and acceptance of such
usage as law. Roman law, in brief, they accepted, so to say,
on its own authority, Germanic custom only on the authority
of indubitable testimony. The German universities now fur-
nish the world with Roman lawyers greater than those which
once came forth from Bologna and Paris and Leyden.
267. In England the Roman law has had a more obscure
but hardly a less interesting history. The Romans governed
Britain four hundred years, bending the province to the pur-
poses of their administration with their usual thoroughness.
We know that Papinian, the greatest of Rome's jurists, him-
self administered the law in Britain, and we have every rear
son to believe that its promulgation there was thorough, its
rootage full four hundred years deep. It can hardly be that
the Saxons wholly eradicated it. We know that many Roman
municipalities on the island survived all conquests : and we
know that the priests of the Church of Rome early took back
to Englished Britain conceptions steeped in Roman juris-
prudence. Bede testifies that the Saxon laws were codified
under the auspices of the clergy and that Roman codifica-
tion was the model. We have seen that Roman law was
studied in England almost as early as in mediaeval Italy her-
self, the study being continued without serious break for more
than three centuries (sec. 258) ; and the works of the ear-
liest English legal text-writers, such as Bracton, Glanvil,
and the author of the Fleta, abound in tokens of a close
familiarity with the laws of the imperial codes, are full of
174 TEUTONIC POLITY AND GOVEENMENT
their very phraseology indeed. The laws of Henry I. are
said by competent legal scholars to consist, to the extent of
fully one-half their content, of precepts borrowed from Rome.
Through the ecclesiastical courts, which down to the middle
of the present century administered upon all estates in Eng-
land, and upon all trusts ; through the Court of Chancery,
whence has issued the system of English equity, and which
was presided over in its formative period by the great eccle-
siastics who were the first Chancellors, afterwards by lawyers,
such as Lord Mansfield, deeply versed in the civil law of
Rome and apt to draw suggestion and even concrete rule
from it; and through the Admiralty Courts, always controlled
by the rules of the Civil Law, England has drawn so copi-
ously from Koman sources, in supplement of her own indig-
enous Germanic customs, that only that portion of her law
which relates to the holding of real property has escaped
being very deeply marked by the same influences that have
moulded all the law of the rest of Europe.
Ebpkbsentative Authokities.
Church, R. W., " The Beginnings of the Middle Ages." (Series of
Epochs of Modern History.)
Emerton, E., " Introduction to the Study of the Middle Ages."
Boston, 1889.
Hallam, H., " View of the State of Europe during the Middle Ages,"
especially Chapter II., which contains what is possibly the best
brief account in English of the Feudal System.
Guizot, F., " Lectures on the Histoi'y of Civilization in France and in
Europe."
Stephen, Sir James, " Lectures on the History of France," especially
lectures I.-V., inclusive.
Duruy, Victor, " Histoire du Moyen Age, depuis la chute de I'Empire
d'Occident jusqu'au milieu du XV Sieole." 1 vol. Paris. 8th
ed., 1875.
DUEING THE MIDDLE AGES. 175
Sheppard, J. G., " The Fall of Kome and the Rise of the New Nation-
alities." 1 vol. London and New York, 1861.
Heeren, A. H. L., " Manual of the History of the Political System of
Europe and Its Colonies." Oxford, 1834.
Freeman, E. A., " Historical Essays." Series I.
Curteis, A. M., " History of the Roman Empire from the Death of
Theodosius the Great to the Coronation of Charles the Great,
305-800." 1875.
Gibbon, E., •• Decline and Fall of the Roman Empii'e." Smith's ed.
New York, 1880.
Milman, H. H., " History of Latin Christianity." 8 vols. New York.
Jiryce, " The Holy Roman Empire."
Bluntschli, J. C, " Allgemeine Statslehre." Book I., Chapters IV., VI.
Stuttgart, 1875. There is an American translation of this woi-k.
Concerning the introduction of Roman law into modern European
legal systems, see authorities at end of Chapter IV., ante.
VI.
THE GfOVEENMENT OF FEAJSTCE.
o»:o
268. The Growth of the French Monarchy.— The full
political significance of the history of France can be appreci-
ated only by those who keep in mind the chief phenomena
of the widening monarchy, the successive steps by which the
Dukes of France, the capable Capets, extended their power
and the name of their duchy over the whole of the great terri-
tory which was to be inherited by Louis XIV. The course of
French history is from complex to simple. In the days of
Hugh Capet 'France' was the name of only a single duchy
centring in Paris, one of a great number of feudal lordships,
equally great, equally vigorous, equally wedded to indepen-
dence. The duchy's advantage lay in the fact that her dukes
had been chosen for leadership and that they were capable
of leadership, rather than in the possession of preponderant
strength or superior resources. To the west of her lay the
solid mass of Normandy ; to the north lay the territories of
the Counts of Flanders and Vermandois, and to the east the
territory of the Count of Champagne; the great duchies of
Burgundy and Acquitaine lay to the south, beyond them the
lands of Toulouse ; alongside of Normandy, Anjou and Brit-
tany, stretched their independent length to the west. And
these were only the greater feudal sovereignties : within and
about them lay other districts not a few with masters ready to
assert privileges without number in contradiction of all central
rule. The early history of France is the history of a duchy
THE GOVERNMENT OP FRANCE. 177
striving to become a kingdom. 'France' holds a good stra-
tegic position, and fortune has made her dukes titular kings
over their feudal neighbors, but still she is in reality only one
among many duchies.
269. By slow and steady steps, however, a work of unifica-
tion is wrought out by the Capets. In every direction they
stretch out from their central duchy of France their hand of
power and of intrigue and draw the pieces of feudalized Neus-
tria together into a compact mass. The work is thoroughly
done, moreover, at almost every stage : out of populations as
heterogeneous as any in Europe they construct a nation than
which none is more homogeneous : out of feudal lordships as
strong, as numerous, as heady, and as stiffly separate as any
other equal territory could show, they construct a single king-
dom more centralized and compacted than any other in Europe.
Th« processes of these singular achievements ^ive to the his-
tory of the French monarchy its distinctive political signifi-
cance: the means which the Capets devised for solidifying,
and, after its solidification, for enlarging and effectuating their
power, furnish some of the most suggestive illustrative mate-
rial anywhere to be found for the general history of govern-
ment.
270. Perfection of the Feudal System in France. — The
feudal system worked its most perfect work in France. The
opportunities of feudalism there were great. Neustria, the
western, Gallic half of the great Frankish kingdom, was early
separated from Austrasia, the eastern, Germanic half (sees.
252, 253), and its separateness proved the cause of its disinte-
gration. Burgundy, Brittany, and Acquitaine sprang to the
possession of unchecked independent power round about it ;
the Normans thrust their huge wedge of territory into it;
battle after battle between those who contended for the pos-
session of the pieces of the great empire which Charles the
Great had swept together first decimated and finally quite
annihilated the sturdy class of Frankish freemen whose liber-
178 THE GOVERNMENT OF FEANCE.
ties liad stood in the way of local feudal absolutism ; privilege
grew in the hands of feudal lords while prerogative declined
in the hands of those who sought to be kings; those who
possessed privilege built for themselves impregnable castles
behind whose walls they could securely retain it : — and feu-
dalism had its heyday in France.
271. It is reckoned that in Hugh Capet's day the "free and noble
population " of the country out of which modern France was to be made
numbered "about a million of souls, living on and taking their names
from about seventy thousand separate fiefs or properties : of these fiefs
about three thousand carried titles with them. Of these again, no less
than a hundred, — some reckon as many as a hundred and fifty, — were
sovereign states, greater or smaller, whose lords could coin money, levy
taxes, make laws, administer their own justice." ' Of these one hundred,
however, only some eight or ten were really powerful states.
272. Materials of the Monarchy. — Such were the materials
out of which tSe Capets had to build up their monarchy. It
was their task to undo the work of feudalism. But these were
not the only materials that they had to handle in the difficult
undertaking. There were other privileges besides those of
the feudal barons which it was necessary to destroy or subor-
dinate before they could see their power compact and undis-
puted.
273. Local Self -Government. — Notwithstanding the fact
that in most districts of the divided territory the power that
ruled him was brought close to every man's door in the person
of his feudal lord and master, there were many corners of the
system which sheltered vigorous local self-government. The
period of the greatest vitality of the feudal system was, in-
deed, the only period of effectual local self-government that
France has ever known. The eventual supremacy of the
crown, which snatched their power from the barons, also
destroyed local self-government, which the barons had in many
cases suffered to grow ; and neither the Revolution nor any of
1 G. W. Kltohin, History of France, Vol. I., p. 186.
THE GOVRRNMENT OP FRANCE. 179
the governments which have succeeded the Revolution has yet
restored it to complete life. Local liberties were taking form
and acquiring vigor during the very period in which the mo-
narchical power was making its way towards supremacy ; and
it was by these local liberties that the kings found themselves
faced when their initial struggle with feudalism was over. It
was their final task to destroy them by perfecting centralized
administrative organization.
274. Rural Communes. — While feudalism was in its crea-
tive period, while the forces were at work, that is, which were
shaping the relations of classes and of authorities to each
other, it was not uncommon for feudal lords to grant charters
to the rural communes lying within their demesnes. In and
after the twelfth century these charters became very numerous.
They permitted a separate organic structure to the communes,
regulated the admission of persons to communal privileges,
laid down rules for the administration of property in the com-
mune, set forth feudal rights and duties, prescribed the cor-
vdes, etc. " Everywhere a general assembly of the inhabitants
directly regulated affairs," delegating executive functions to
communal officers, who acted separately, each in the function
with which he was specially charged. These officers con-
voked the general assembly of the people for every new
decision that it became necessary to take with reference to
communal affairs. The jirincipal affairs within the jurisdic-
tion of the assembly were, " the administration of communal
property, which in that period was very important, police, and
the collection of the taxes both royal and local." ^
275. In the administration of justice, also, the Middle Ages
witnessed in France not a few features of popular privilege.
The peasant as well as the nobleman had the right to be tried
by his peers, — by persons of his own origin and station. In
the courts of the feudal barons the vassals were present to act
1 H. de Berron, Institutions Municipales et Provinciales Comparies, p. 3.
180 THE GOVERNMENT OE ERANCE.
as judges, much as the freemeii -were present in the English
county courts (sees. 655, 761).
276. Liberties of Towns: the Roman Municipalities.—
The privileges of self-direction granted to the rural communes,
however, were privileges granted, so to say, inside vassalage :
the members of the communes were not freed from their con-
stant feudal duties. Many towns, on the contrary, acquired
and maintained a substantial independence. When the earliest
Prankish kings failed in their efforts to establish a power in
Gaul as strong and as whole as the Eoman power had been,
and the Frankish dominion fell apart into fragments whose
only connection was a nominal subordination to a central
throne, there were others besides the great landowners to avail
themselves of the opportunity to set up independent sovereign
powers of their own. The Franks, as we have seen, had found
many Eoman cities in Gaul, and, not at first taking kindly
to town life, had simply conquered them and then let them be
(sec. 232). In these, consequently, the old Eoman organiza-
tion had endured, freed from Eoman dictation. The Franks
who entered them later took character from them almost as
much as they gave character to them. Germanic principles of
moot-government and individual freedom entered, to a certain
extent, like a new life-blood into the Eoman forms, and com-
pact, spirited, aggressive, disciplined communities were formed
which were quick to lay hold of large privileges of self-rule,
and even to assume semi-baronial control of the lands lying
about them, in the days when independent powers were to
be had for the seizing. The organization which Eoman influ-
ences had bequeathed to these towns was oligarchical, aristo-
cratic : the governing power rested with close corporations,
with councils (curice) which were co-optative, filling their
own vacancies. But forces presently appeared in them which
worked effectually for democracy. The Christian Church, as
well as the barbarian Teuton, took possession of Gaul: the
greater towns became the seats of bishops ; and the bishops
THE GOVERNMENT OE PEANCE. 181
threw their weight on the side of the commons against both
the counts outside the towns and the oligarchs inside. Only
so could the magnates of the Church establish themselves in
real power. In most cases the ecclesiastics and their restless
allies, the commons, won in the contest for supremacy, and
democracy was established.
The Italian towns, with their ' consuls ' and their other imitations
of the old Roman republican constitution, are perhaps the best examples
of this renaissance of democracy.
277. The Non-Roman Municipalities. — These Eoman
towns were of course to be found for the most part only in the
south and along the Ehine. North of the Loire, as the Franks
took gradually to city life, there sprang up other towns, of Ger-
manic origin and character ; and these were not slow to agitate
for grants of special privileges from their baronial masters.
In very large numbers they obtained charters, — charters, how-
ever, which were to give them a connection with the feudal
system about them which the towns of the south, antedating
feudalism, did not for some time possess. They were given
substantial privileges of self-government, but they were not
severed from baronial control. They conducted their affairs,
on the contrary, under charters in which the relative (cus-
tomary) rights of both seigneur and bourgeois were definitely
ascertained, by which seigneurial authority as well as burgher
privilege was fully recognized, and under which, moreover,
the authority of the seigneur was actually exercised through
the instrumentality of a Privot, the lord's servant and repre-
sentative in city affairs.
This, the most secure form of municipal self-government,
because the form which was most naturally integrated with
the political system about it,— a form, also, which very
naturally connected itself, mediately, with the supreme seig-
neurial authority of the king, — became in course of time the
prevalent, indeed the almost universal, type in Prance. The
182 TIlE GOVERNMENT OF FRANCE.
' pr^votal ' town is the normal town down to the end of the
fifteenth century.
278. Not all of this development, of course, was accom-
plished peacefully or by the complaisance of the barons. Many
cities were driven to defend their privileges against the baron-
age by force of arms ; some, unable to stand out unaided
against feudal aggressions, were preserved from discomfiture
only by succor from the king, whose interest it served to use
the power of the townsmen to check the insolent might of
the feudal lords ; others, again, were repeatedly constrained
to buy in hard cash from neighbor barons a grudging toler-
ance for their modest immunities. The kings profited very
shrewdly by the liberties of the towns, drawing the towns-
people very closely about themselves in the struggles of royal
prerogative against baronial privilege. As supreme lords in
France, they assumed to make special grants of municipal
citizenship : they made frequent gifts of bourgeoisie to disaf-
fected vassals of the barons, — gifts so frequently made, indeed,
that there grew up a special class of royal townsmen, a special
bourgeoisie du roi.
279. The Towns and the Crusades. — Not the least important
element in the growth of separate town privileges was the influence of
the crusades upon the power of the nobility. When the full fervor of
crusading was upon France, her feudal nobility were ready to give up
anything at home if by giving it up they might be enabled to go to the
holy wars, to the prosecution of which Mother Church was so warmly
urging them. Their great need was money; money the towns had;
and for money they bought privileges from departing crusaders. Very
often, too, their one-time lords never returned from Palestine — never
came back to resume the powers so hastily and eagerly bartered away
before their departure. When they did return they returned impover-
ished, and in no condition of fortune to compete with those who had
husbanded their resources at home. On every hand opportunities were
made for the perpetuation of town privileges.
280. Municipal Privileges. — The privileges extorted or
bought by the sturdy townspeople were, to speak in general
THE GOVERNMENT OF FRANCE. 183
terms, the right to make all the laws which concerned only
themselves, ■ the right to administer their own justice, the
right to raise their taxes (as well those demanded by king or
baron as those which they imposed upon themselves for their
own purposes) in their own way, and the right to discipline
themselves with police of their own appointing. Such villages
as contrived to obtain separate privileges could of course
obtain none so extensive as these. They often had to seek
justice before baronial rather than before their own tribunals,
they could by no means always choose their own way of paying
unjust charges, they had often to submit to rough discipline
at the hands of prince's retainers, oftentimes the most they
could secure for themselves was a right of self-direction in
petty matters which interested only themselves.
The administrative functions exercised by tiie towns have been
thus summed up: the administration of communal property, the main-
tenance of streets and roads, the construction of public edifices, the
support and direction of schools, and the assessment and collection of
all taxes.i
The Parliament of Paris (sees. 293-296) refused to recognize exemp-
tions from municipal charges claimed in certain cases by the noblesse.
281. Forms of Town Government. — The forms of self-
government in the towns varied infinitely in detail, according
to place and circumstance, but the general outline was almost
everywhere the same. Often there were two assemblies which
took part in the direction of municipal affairs, an Assembly of
Notables and a General Assembly of citizens. These two
bodies did not stand to each other in the relation of two
houses of a single legislature; they were separate not only, but
had also distinct functions. The popular body elected the
magistrates ; the select body advised the magistrates ; the one
was a legislative, the other an executive, council. More com-
monly, however, there was but one assembly, the general
* Ferron, p. 8.
184 THE GOVEKNMEITT OF PBANCE.
assembly of citizens, which elected the magistrates, exercised
a critical supervision over them, and passed upon all important
municipal affairs. The magistracy generally consisted of a
mayor and aldermen who acted jointly as the executive of
the city (its corps de ville), the mayor in most cases being only
the president, never the ' chief executive,' of the corporation,
and mayor and aldermen alike being equal in rank and in
responsibility in exercising their corporate functions.
282. Decay or Destruction of Municipal Self-Government.
— Prom this democratic model there were, of course, in
almost all cases, frequent departures, quite after the manner
formulated by Aristotle (sec. 1164). Oligarchy and tyranny
both crept in, time and again; nowhere did local liberties
permanently preserve their first vigor ; everywhere real self-
government sooner or later succumbed to adverse circum-
stance, crushed in very many cases by the overwhelming
weight of the royal power. Generally such changes were
wrought rather by stress of disaster from without than because
of degeneracy within : and in very few cases indeed did local
liberty die before the community which had sought to main-
tain it had given proof of a capital capacity for self-govern-
ment. The independence of the cities died hard and has left
glorious memories behind it.
283. Pays d'Etats. — Earlier times had seen self-govern-
ment in the provinces also. Every province, probably, had
■ had its own ' Estates,' its own triple assembly, that is, of
nobles, clergy, and burghers, which met to discuss and in large
part, no doubt, to direct provincial affairs. The provinces
with estates (pays diktats) represent one sort of self-govern-
ment, the towns and communes quite another sort. The
provinces of old France, thirty-six in number, represented sep-
arate feudal entities, much as the English counties did (sec.
665). The towns, on the other hand, in the central and
northern portions of Erance at least, represented nothing but
grants of privilege, were communities which had been given a
THR GOVERNMENT OF PRANCE. 185
special and exceptional place in the feudal order. The assem-
blies of the provinces, accordingly, -were not primary or demo-
cratic like those of the towns, but were made up iy ' estates,' —
models for the States-General which appeared in 1302 (sees.
288-289).
The provincial Estates were probably in their origin nothing else
than normal feudal councils, made up, as they were, of representatives
of all who possessed corporate or individual privileges, whose judg-
ments and advice feudal dukes and counts found it redound to their
greater peace and welfare to hear and heed.
In several of the provinces, as, notably, in Languedoc and
Brittany, these provincial Estates continued to meet and to
exercise considerable functions down to the time of the Revo-
lution. Such provinces came to be distinguished from the
others as pays d'itats (provinces having Estates), and it is
largely from the privileges of their assemblies that we argue
the general nature of the powers possessed by those which
had passed out of existence before history could catch a
glimpse of them. We see the Estates of the pays d'itats
clearly only after the royal power has bound together all the
provinces alike in a stringent system of centralization ; they
sit only at the king's call ; their resolutions must be taken in
the presence of the king's provincial officers and must await
the regal sanction ; they live by the royal favor and must in
all things yield to the royal will. Nevertheless their privi-
leges are still so substantial as to make the pays d'itats the
envy of all the rest of France. They bought of the crown
the advantage of themselves collecting the taxes demanded by
the central government ; they retained to the last the right to
tax themselves for the expenses of local administration and to
undertake and carry through entirely without supervision the
extensive improvements in roads and watercourses to which
the local patriotism bred by local self-government inclined
them. Restricted as their sphere was, they moved freely
within it, and gave to their provinces a vitality and a pros-
186 THE GOVERNMENT OF FBANCE.
perity such as the rest of France, administered, as it wau,
exclusively from Paris, speedily and utterly lost.
284. Functions of the Provincial Estates in Finance. — The
Estates apportioned the taxes among the various sub-diyislons, or dis-
tricts, of the province. In these districts there were assemblies, nomi-
nated by and subordinate to the provincial Estates, which apportioned
the taxes in their turn among the parishes. The parochial oflScers,
last of all, apportioned the taxes among individual taxpayers.
The king in the earlier days was represented in the Estates by a
commissioner ; but the authority of the chief royal agent in the prov-
ince was one of supervision merely, not one of command.
285. Territorial Development of the Monarchy. — The
process of the organic development of the monarchy began, of
course, with territorial expansion and consolidation. For eight
centuries that expansion and consolidation went steadily on ;
but its successful completion was assured before the extinction
of the first, the direct, line of Capets in 1328. Before that
date Philip Augustus had wrung Normandy from England and
had added Vermandois, Auvergne, Touraine, Anjou, Maine,
and Poitou to the dominions of his crown, and his successors
had so well carried forward the work of expansion that before
the Valois branch came into the succession only Flanders,
Burgundy, and Brittany broke the solidity of the French
power in the north, and only Aquitaine, still England's fief,
cut France off from her wide territories in the southeast. It
had been the mission of the direct line of the Capets to lay
broadly and irremovably the foundations of French unity and
nationality, and they had accomplished that mission. They
gave to their monarchy the momentum which was afterwards
to carry it into full supremacy over Brittany, Aquitaine, and
Burgundy, over the Rhone valley, and over the lands which
separated her from the Rhine.
286. The Crusades and the Monarchy. — The monarchy, even
more than the towns (sec. 279), profited by the effects of the crusades
on the feudal nobility. So great was the loss of life among the nobles,
THE GOVERNMENT OP PKANCB. 187
so great was their loss of fortune, that they fell an easy prey to the
encroaching monarchy. During the first crusades the French kings
stayed at home and reaped the advantages which the nobles lost ; during
the last crusades, the kings were strong enough themselves to leave
home and indulge in holy warfare in the East, without too great appre-
hension as to what might happen to the royal power in their absence.
287. Institutional Growth. — Of course along with terri-
torial expansion there went institutional growth : and this
growth involved in large part the destruction of local liberties.
The amalgamation of France into a single, veritable kingdom
was vastly more fatal to local self-government thUn the
anarchy and confusion of feudal times had been. The cities
could cope with neighbor lords ; and during the period of con-
test between king and barons they could count oftentimes upon
assistance from the king : his interests, like theirs, lay in the
direction of checking baronial power. But when the feudal
lords were no longer to be feared, the towns in their turn felt
the jealousy of the king ; and against his overwhelming power,
when once it was established, they dared not raise their hands.
The ancient provinces, too, had in the earlier days found ways
of bringing local lords into their Estates, in which the right of
the burghers to have a voice in the government was recognized
(sec. 283). But they could no more resist the centralization
determined upon by a king triumphant over all feudal rivals
than the towns could. In the end, as we have seen, the pro-
vincial assemblies, where they managed to exist at all in the
face of the growing power of the Crown, were, like all other
independent authorities of the later time, sadly curtailed in
privilege, and at the last almost entirely lost heart and life.
288. The States-General. — At one time, indeed, it seemed
as if the nation, in being drawn close about the throne, was to
be given a life of its own in a national parliament. Philip the
Fair (1285-1314), bent upon making good his authority against
the interference of the Pope in certain matters, bethought
himself of calling representatives of the nation to his sup-
188 THE GOVERNMENT OP PEANCE.
port. . The kings of France had already, of course, often taken
the advice upon public affairs of the baronage or of the clergy,
each of which orders had a corporate existence and organiza-
tion of its own, and therefore possessed means of influential
advising : but Philip called in the burghers of the towns also
and constituted (1302) that States-General: {Etats-Q&n&raux)
in which for the first time in French history that ' third es-
tate ' of the Commons appears which in later times was to thrust
both clergy and nobles out of power and itself rule supreme as
' the people.'
289. ■ Character of the States-General. — The first States-
General, summoned by Philip the Fair, reminds one not a little
of the parliament called together in England in 1295 by Ed-
ward I. (sees. 667, 669) : apparently France was about to have
a parliament such as England's became, a representative body,
speaking, and at the end of every important contest bringing
to pass, the will of the nation. But for France this first
promise was not fulfilled. During three centuries, the four-
teenth, fifteenth, and sixteenth (1302-1614), it was the pleas-
ure of the French monarch to keep alive, at first by frequent,
and later by occasional summons, this assemblage of the three
Estates. This was the period during which feudal privileges
were giving way before the royal prerogative, and it was often
convenient to have the formal sanction of the Estates at the
back of acts of sovereignty on the part of the Crown. But
after the full establishment of the regal power the countenance
of the Estates was no longer needed, and was no longer asked.
The States-General never, moreover, even in the period of their
greatest activity, became a legislative authority. For one
thing, they had not the organization proper, not to say neces-
sary, for the exercise of power. The three Estates, the Nobil-
ity, the Clergy, and the Commons {Tiers Mat), deliberated
apart from each other as separate bodies ; and each submitted
its own list of grievances and suggestions to the king. They
. acted often in harmony, but never in union ; their only com-
THE GOVERNMENT OP PEANOB. 189
mon meeting was the first of each session, when they all three
assembled in the same hall to hear a formal opening speech
from the throne. They never acquired the right to be con-
sulted with reference to that cardinal affair of politics, taxa-
tion ; they never gained the right to sit independently of royal
summons. They were encouraged to submit what suggestions
they chose to the government concerning the administration of
the kingdom ; and, as a matter of fact, their counsels were
often heeded by the king. But they never got beyond advising :
never won the right to expect that their advice would be taken.
Their sessions did, however, so long as they continued, contrib-
ute to keep alive a serviceable form of self-government which
at least held the nation within sight of substantial liberties ;
and which, above all, secured national recognition for that 'third
estate,' the people, whose sturdiest members, the burghers of
the towns, were real representatives of local political life.
290. Administrative Development. — Of course along with
the territorial expansion of the monarchy by annexation, ab-
sorption, and conquest there went also great administrative
developments. As the monarchy grew, the instrumentalities
of government grew along with it : possession and control
advanced hand in hand.
291. Growth of the Central Administration. — In the ear-
lier periods of the Capetian rule a Feudal Court and certain
household officers constituted a sufficient machinery for the
central administration. There was a Chancellor, who was the
king's private secretary and keeper of both the public and the
private records of the court ; a Chamberlain, who was superin-
tendent of the household ; a Seneschal, who presided in the king's
name and stead in the Feudal Court, and who represented the
king in the direct administration of justice ; a Great Butler,
who was manager of the royal property and revenues ;,and a
Constable, who was commander of the forces. The Feudal
Court, composed of the chief feudatories of the Crown, exer-
cised the functions of a tribunal of justice in suits between
190 THE GOVERNMENT OP FKANCB.
tenants in capite, besides the functions of a taxing body and
of an administrative council (sees. 177, 184, 186).
292. The Council of State. — So long as ' France' was only
a duchy and the real territory of the Crown no wider than the
immediate domain of the Capetian dukes, the weight of admin-
istration fell upon the officers of the household, and the Feudal
Court was of no continuous importance. But as France grew,
the household officers declined and the Feudal Court advanced'
in power and importance. As the functions of the Court in-
creased and the Court became a directing Council, the Council,
of course, more and more tended to fall apart into committees,'
into distinct sections, having each its own particular part of
the duties once common to the whole body to perform. The
earlier Councils exercised withou.t distinction functions polit-
ical, judicial, and financial, and their differentiation, though
hurried forward by monarchs like Louis IX., was not given
definite completeness until 1302 (the year of the first States-
G-eneral) when, by an ordinance of Philip the Fair, their polit-
ical functions were assigned to the body which was to retain
the name Council of State, their judicial functions to a body
which was to bear the ancient name of parliament (and which
we know as the Parliament of Paris), their financial functions to
a Chamber of Accounts. Alongside of the Chamber of Accounts
there sprang up a Chamber of Subsidies which concerned itself
with taxation. Into these bodies, whose activity increased
from year to year, the old officials of the household were
speedily absorbed, the Great Butler, for instance, becoming
merely the president of the Chamber of Accounts.
293. The Parliament of Paris. — The judicial section of tlie
Council of State consisted at first, of course, like the other sections,
like the whole Council indeed, of great feudatories of the Crown, as
well as of administrative experts gradually introduced. More and more,
however, this chief tribunal tended to become exclusively a body of
technical officials, of trained jurists and experienced lawyers, the law
ofScers and advisers of the Crown.
THE GOVERNMENT OP PRANCE. 191
294. Departments of Administration The Chamber of
Accounts and the Parliament of Paris presently became hard
crystals, separate and persistent entities in the public organi-
zation; but differentiation within the Council of State con-
tinued. The Council fell into departments. By an ordinance
of 1644 (issued under the direction of Mazarin during the in-
fancy of Louis XIV.) six departments of administration were
created : (1) A Cabinet for the consideration of political ques-
tions, (2) a diplomatic and military section, (3) a judicial sec-
tion meant to serve as a court of conflicts, determining disputes
between other departments, (4) an extraordinary cassation, or
supreme judicial, department, to stand at the head of the ordi-
nary courts of justice, (5) an exchequer section, and (6) a depart-
ment of correspondence, or, in modern phrase, of the interior.
295. The Ministerial System. — The departmental organi-
zation of the Council of State represented, however, only a
new ministerial system including (1) a Chancellor, who acted
as president of the judicial committees of the Council (except
the cassation department, in which he sat as an ordinary mem-
ber),^ and who was chief of the system by means of which,
through a Procureur-Oineral and his substitutes throughout
the kingdom, public prosecution was conducted and the cen-
tral administration represented in the local and provincial
courts ; (2) a Comptroller-General of the Finances, who was
in effect Minister of the Interior ; (3) a Minister of the Eoyal
Household, who was dispenser of those most potent things,
patronage and penalties, and who was virtually minister of
religion ; (4) a Minister of War ; (5) a Secretary of State for
Foreign Affairs ; and (6) a Secretary of State for Marine and
the Colonies (sec. 323).
296. Growth of Centralized Local Administration : Louis
IX. — The expansion of the central organs of administration
1 See sec. 737 for the now very similar position of the English Chancel-
lor. See the same section on the English Chancellor's position as in some
sort minister of justice.
192 THE GOVERNMENT OP FRANCE.
meant, of course, tliat the royal government was entering more
and more extensively into the management of affairs in the prov-
inces, that local administration was being centralized. This ex-
tension of centralized local administration may be said to have
begun in earnest under Louis IX. Louis IX. did more than any of
his predecessors to strengthen the grip of the monarchy upon its
dominions by means of direct instrumentalities of government.
I He was a man able to see justice and to do it, to fear G-od and
j^et not the Church, to conquer men not less by uprightness of
character than by force of will and of arms ; and his character
established the monarchy in its power. By combined strength
and even-handedness he bore down all baronial opposition;
the barons subjected to his will, he sent royal commissioners
throughout the realm to discover where things were going
amiss and where men needed that the king should interfere ;
he established the right of appeal to his own courts, even from
the courts of the barons, thus making the Parliament of Paris
(sec. 293) the centre of the judicial system of the country ;
he forced limitations of power upon the feudal courts ; he for-
bade and in part prevented judicial combats and private war-
fare. He drew the administration of .the law in France
together into a centralized system by means of royal Baillis
and Privdts, whom he subordinated to the Parliament of Paris.
297. Steps of Centralization. — It is not, of course, to be under-
stood that Louis' work was to any considerable extent a work of crea-
tion: it was not, but rather a work of adaptation, expansion, systemati-
zation. The system which he perfected had been slowly growing under
his predecessors. The bailti was, in the Middle Ages, a very common
ofScer, representing king or seigneur, as the case might be, administer-
ing justice in his name, commanding his men-at-arms, managing the
finances, caring, indeed, for every detail of administration. At first,
it is said, "all of judicial, financial, and military administration was in
his hands." It was an old system of royal baillis, set over districts
known as badliages (bailiwicks), that Louis IX. extended and regulated,
keeping an eye to it, however, the while, that the baillis sliould be made
to feel their dependence upon the Crown so constantly that they should
THE GOVERNMENT OF FRANCE. 193
per force remain officials and not dream of following the example of
dukes and counts, and becoming independent feudal lords on their own
account.
Subsequent developments effected a natural differentiation and
specialization in the office of bailli. There came to be, on the one
hand, bailiffs of the robe {baillis du robe) charged with the administra-
tion of justice, and, on the other hand, bailiffs of the sword (baillis
d'ipie) charged with the administration of military affairs, as well as
more and more numerous lieutenants to the various baillis. The resi-
dent baillis and pr^vdts (a virtually equivalent title), acting under gen-
eral commission to see that the king's authority was recognized and
obeyed, the king's taxes collected, etc., gradually absorbed almost all
administrative power. There appeared also, in the course of these
developments, Treasurers-General and Receivers of Domains, and Cap-
tains-General in each of the bailliages.
The old office of Seneschal (sec. 291) became merged in that of
Chief Bailli and Pr^oSt of Paris.
298. Personal Government : Louis XIV. — Such measures of
course tended to subordinate all local magnates to the king. By the
policy of Louis XIV. this tendency was completed : the whole of the
nobility of France were, so to say, merged in the person and court of
the king. Louis took care to have it understood that no man wlio
remained upon his estate, who did not dance constant attendance upon
his majesty, the king, at his court, to add to its brilliancy and servility,
might expect anything but disfavor and loss. He made of the great
landed nobility a court nobility, turning men from interest in their
tenants and their estates to- interest in court intrigue alone. He drew
all men of rank and ambition to himself, merged them in himself, and
left nothing between the monarchy and the masses whereby the ter-
rible impact of the great revolution which was to come might be
broken.
299. The Completed Centralization : the Intendant. —
Finally came the completed centralization which followed the
days of Richelieu, whose central iigure was the Intendant, a
direct appointee and agent of the king and absolute ruler in
every province; and whose lesser figures were the sub-delegates
of the Intendant, rulers in every district and commune. The
rule of these agents of the crown almost totally extinguished
the separate privileges of the elected magistrates of the towns
194 THE GOVEENMBNT OF FRANCE.
and of the other units of local government. In many places, it
is true, the people were suffered still to elect their magistrates
as before ; but the usurping activities of the Intendant and his
subordinates speedily left elected magistrates with nothing to
do. In other cases election ceased; the crown sold the local
offices as life estates to any one who would buy for cash.
300. The Province was a military, not a civil, administrative dis-
trict. The Provinces were grouped into Generalities, of wliich there were
in all thirty-two, and it was over a Generality tliat each Intendant ruled.
Ecclesiastical administration was served by still another distinct division
into Dioceses.
801. The Office of Intendant is said to have originated in that of
Master of Accounts. Masters of Accounts rode circuit through the
provinces, on semi-judicial errands connected with the revenue; ajid
in later times their functions fell to an officer called the Intendant.
The Intendants were thus properly subordinates of the Comptroller-
General of the Finances; but the Comptroller-General became in effect
minister of the interior, charged with the oversight of almost all affairs
of internal administration, and the Intendants became general rulers
over the Generalities.
There had first emerged, in Richelieu's time, Intendants of Justice
and Police (sometimes also of Finance), who had " acted in all those
affairs, civil and criminal, which the king wished to take away from
the ordinary judges." The functions of the full-fledged Intendant of
.later times are thus summed up by Guizot: they were "magistrates
whom the king sent into different parts of the kingdom to look to all
that concerned the administration of justice, of police, and of the
finances ; to maintain good order and to execute such commissions as
the king or his council laid upon them."
From the moment when the system of Intendants was fixed upon
the country, says Ferron (p. 14), " the provincial Estates assembled
only upon the order of the king; the duration of their sessions was
fixed at forty days. All their important deliberations, the whole of
their receipts and expenditures, were subject to approval by decree of
the council of the king."
302. Judicial Centralization. — The local tribunals of jus-
tice in like manner had their business gradually stolen from
them. The principle of appeal established by Louis IX. at
THE GOVERNMENT OF FRANCE. 195
length worked its perfect work. Every case in which any
interest cared for from Paris (and what interest was not?)
was either actually or by pretence involved was ' evoked ' to
special courts set up by royal commission. No detail was too
insignificant to come within the usurpations of the king's
government.
303. The Royal Council and the Comptroller-General. —
The Royal Council at Paris regulated, by 'orders in council,'
every interest, great or small, in the whole kingdom. The
Comptroller-General, acting through the Intendants and their
sub-delegates, and through the royal tribunals, managed France.
Everybody's affairs were submitted to him, and through him
to the Royal Council; and everybody received suggestions
from Paris touching his affairs. No labor of supervision was
too overwhelming for the central government to undertake.
Interference in local affairs, made progressively more and
more systematic, more and more minute and inquisitive, re-
sulted, of course, in the complete strangulation of local gov-
ernment. All vitality ran to the veins of the central organism,
and^ except for the lingering and treasured privileges of the
pays d'4tats, and for here and there a persistent form of town
life, France lay in the pigeon-holes of a bureau. Tabla rasa
had been made of the historical elements of local government.
304. The Spirit of the Administration. — This busy supervision
of local and individual interests vpas always paternal In intent; and the
intentions of the central power were never more benevolent than just
when the Revolution was beginning to draw on apace. "The royal
government was generally willing in the latter half of the eighteenth
century to redress a given case of abuse, but it never felt itself strong
enough, or had leisure enough, to deal with the general source from
which the particular grievance sprang." *
305. The Revolution. — This whole fabric of government
went to pieces in the storm of the Revolution. But the revo-
1 Mr. John Morley's Miscellanies, Vol. II. (last Macmillan edition),
essay on " Turgot," p. 138.
196 THE GOVERNMENT OE PRANCE.
lutionists, when their stupendous work of destruction had been
accomplished, were under the same necessity to govern that
had rested upon the monarch whom they had dethroned and
executed; and they very soon proved themselves unable to
improve much on the old patterns of government. In denial
of the indefeasible sovereignty of the king, they proclaimed,
with huzzahs, the absolute sovereignty of the people ; but As-
sembly and Convention could do no more than arrogate all
power to themselves, as the people's representatives, and seek
to reign in the king's stead through the king's old instrumen-
talities. They gave voice to a new conception, but they could
not devise a new frame of administration. The result was
confusion. Committees, the Terror, — and Napoleon.
306. Administrative Work of the Revolution. — The Rev-
olution removed all the foundations of French politics, but
scarcely any of the foundations of French administration.
The Constituent Assembly enacted in 1791 that there should
be six ministries, namely, of Justice, the Interior, Finance,
War, Marine, and Foreign Affairs. In 1794 the ministries
were abolished and twelve executive commissions substituted
which were to act under the direction of the now execrated
Committee of Public Safety. With the Directory, however,
(1795), the ministries came again into existence.
.307. The Reconstruction by Napoleon. — The interests of
the royal administration had of course centred in the general
government, rather than in its local parts, — in patronage, in
the aggregate national power and prosperity, in finance. The
true interests of republican government, on the other hand, cen-
tre in thorough local development : republican work, properly
done, ought to tend to broaden and diversify administrative
work by diversifying political life and quickening self -directive
administrative agencies. But this the leaders of the Revo-
lution neither saw nor could do ; and Napoleon, whom they
created, of course made no effort to serve republican develop-
ment.
THE GOVERNMENT OP FRANCE. 197
308. Napoleon simply reorganized despotism. In doing so,
however, he did scarcely more than carry into effect the prin-
cipal purposes of the Constituent Assembly. The legislation
of that Assembly had sought, not to shatter centralization, but
to simplify and systematize it ; and it was this purpose that
Napoleon carried out. For the Convention and Assembly, as
representatives of the nation's sovereignty, he substituted him-
self; and then he proceeded to give to centralization a per-
fected machinery. The Convention and Assembly had en-
deavored to direct affairs through Committees, Commissions,
Councils, Directories, — through executive boards, in a word.'
For such instrumentalities Napoleon substituted single officers
as depositaries of the several distinct functions of adminis-
tration ; though he was content to associate with these offtcers
advisory councils, whose advice they might ask, but might take
only on their own individual responsibility. " ' To give advice
is the province of several, to administer, that of individuals,'
says the maxim which he engraved on the pediment of the ad-
ministrative arrangements of France," ^ to remain there to the
present day. The Constituent Assembly, willing to obliterate
the old Provinces of France, with their meuLories of feudal privi-
lege, and the Generalities, with their ancient savor of absolu-
tism, had redivided the country, as symmetrically as possible,
into eighty-nine Departments ; and it was upon this territorial
framework that Napoleon superimposed a machinery of Pre-
fects and sub-prefects, modelled, with simplifications and im-
provements of method, upon the system of Intendants and
delegates of the old rigime. This he accomplished in that
celebrated "Constitution of the Year VIII" which still lies
almost undisturbed' at the foundation of French administration.
The Eevolution had resulted in imparting to centralization
what it never had before ; namely, assured order and effective
system.
1 Marquardsen's Handbuch, Lebon's monograph on Prance, p. 78.
198 THE GOVEEKMENT OE FRANCE.
Since the war between France and Germany in 1870-1, the Depart-
ments of Trance have numbered only eighty-six, the- loss of Alsace
and Lorraine having subtracted three Departments.
\309. Advances towards Liberal Institutions. — Neverthe-
less, the Eevolution had asserted a new principle of rule, and ■
every change of government which has taken place in Erance
since the Eevolution has pushed her, however violently,
towards genuine representative institutions and real republi-
canism. Louis XVIII., though he persisted in holding to the
divine right of kings and in retaining for himself and his
ministers an exclusive right of initiative in legislation, as-
sented to the establishment of a parliament of two houses and
conceded to it ministerial responsibility. Louis Philippe aban-
doned the delusion of the 'divine right,' acknowledged the
sovereignty of the people, and shared with the chambers the
right of initiative in legislation. With Napoleon III. came reac-
tion and a return to a system like that of the first. Napoleon ;
but even Napoleon III. had consented to return to the practice
of ministerial responsibility before the war with Germany
swept him from his throne and gave birth to the present
Eepublic.
310. The Third Republic. — The Third Eepublic was pro-
claimed in Paris by Gambetta on the 4th September, 1870.
Its government was at first provisional, the war with Germany
being still in progress. On the 8th February, 1871, a national
assembly was chosen, by universal suffrage, to fix upon terms
of peace with Germany : and it was as agent of this assembly
that M. Thiers concluded the treaty which saved Belfort and
was soon to rid French territory of German troops.
311. The Framing of the Constitution. — But the assembly
deliberately outlived its commission as peace-concluder, and
continued to direct the affairs of the country till February,
1876, ending by assuming the functions of a constituent as-
sembly and framing a permanent constitution. The present
constitution was, therefore, adopted by this assembly on the
THE GOVERNMENT OP FRANCE. 199
25th February, 1876. It went into operation one year later,
in February, 1876. It gave to the government of the country
substantially the organization which had been improvised by
the assembly which framed it while the negotiations with Ger-
many were in progress and while the terrible uprising of the
Commune in Paris was being suppressed. As the assembly
had governed while bringing order out of the chaos of the war-
time, so, that same assembly concluded, should the country
continue to be governed after the adjournment of its self-con-
stituted rulers. The assembly had governed, at first through
a President of the Republic elected by itself, who met the as-
sembly at its sessions as a responsible minister, and held office
by their continued favor. Later it directed affairs through a
cabinet of responsible ministers appointed by a President elected
as before, by the assembly, but with no right to take part in
the deliberations of the assembly, except through the ministers,
and given a definite term of seven years. This latter practice
they embodied in the new constitution which they at last reluc-
tantly adopted.
The persistence of the assembly in liolding on to a governing power
not contemplated in the commission it had received from the country as
peace-maker only, and its reluctance in giving to the country a regular
government which should supersede this unwarranted provisional sys-
tem of its own, are easily explained by the composition of the assembly.
Singularly enough, considering the posture of affairs at the time of the
elections (1871), a majority of the members of the assembly was com-
posed of partisans of a monarchical form of government. Had there not
been disunion among them, the monarchists could easily have- outvoted
the republican members. But the monarchical majority was made up
of three irreconcilable factions : Legitimists, who favored the restoration
of the elder Bourbon line, Orl€anists, who wanted the younger line
(the Orleans branch) brought back to the throne, and Bonapartists,
who wished to see the Empire re-established. These factions were able
to agree upon nothing but this, that it would be dangerous to leave
the making of a constitution to another assembly which might have a
republican majority. They clung to power, therefore, in hopes of being
able to agree upon some sort of a monarchy. But the agreement never
200 THE GOVEENMENT OF FRANCE.
came, and they had at last to frame a constitution as conservative as
tliey dared make in face of a country unmistakably determined upon
republicanism. But they invested Marshal MacMahon with the presi-
dential power for a term of seven years, and provided that there should
be no president elected under the new constitution until his term had
expired. MacMahon was at once a patriotic soldier and a partisan of
monarchy. It was hoped that he might be able to keep the chief ex-
ecutive place of the nation warm for some sovereign to be afterwards
agreed upon, and enthroned by coup d'e'tat. These calculations, how-
ever, miscarried. Before his term was out (January, 1879) MacMahon
was forced by the Chambers to resign, a President was elected under
the new order of things, and all the plans of the monarchical parties
were again at sixes and sevens.
312. Character of the Constitution. — The provisions of
the Constitution are comparatively few and simple. It lays
down certain main lines of organization, and leaves the rest
■ to be done by ordinary statute. In practice, even the prece-
dents of previous constitutions have been suffered to have a
part in supplementing it. So much of former constitutional
law as is not incompatible with the laws of the new republic
is considered to be still in force. There has thus been no
absolute break ■ with the past, but only a new construction on
its foundations.
313. The Sovereignty of the Chambers. — It is noteworthy
that the Constitiition itself differs from an ordinary statute
only in having its amendment surrounded by certain differ-
ences of legislative procedure. It was framed and promul-
gated by a legislature, — the provisional national assembly
already spoken of (sec. 310), — and went into force without
being submitted to a vote of the people ; and it can be changed
or altogether abrogated by the Legislature which it called into
existence, if only the two Houses of that Legislature act in the
matter jointly, as a National Assembly, and not separately as
ordinary legislative chambers. The Legislature is, besides,
the only body competent to pass upon the constitutionality or
unconstitutionality of legislation, — the only authoritative in-
THE GOVEENMENT OF PEANCB. 201
terpreter of the Constitution. France, like England, vests in
her parliament a complete sovereignty of discretion as to its
own acts.
The principal difference between the two cases is, that the English
Parliament may exercise all its powers in the same, way, by ordinary
procedure, while the French Chambers are put under certain limitations
of procedure in the exercise of their sovereignty as it affects funda-
mental law (sec. 318).
314, The Senate. — This sovereign parliament consists of
two Houses, a Senate and a Chamber of Deputies. The Con-
stitution says nothing as to the composition of either of these
bodies ; in the case of the Senate, it is silent even as to the
manner of its election ; so far as its provisions are concerned,
the Senate might be constituted by executive appointment, or
by lot. By statute, however, the Senate has been made to
consist of three hundred members chosen by 'electoral col-
leges ' specially constituted for the purpose in the several De-
partmentSj'and the term of senatorship has been fixed at nine
years. Forty years has been declared the minimum age for
senators. The electoral college for the choice of senators is
composed in each Department of the deputies from the Depart-
ment, the members of the ' General Coimcil ' of the Department
(sec. 341), and the members of the Councils of its several Ar-
rondissements (sec. 347), together with certain delegates chosen
by the Communes from the membership of the communal or
municipal Councils (sec. 361). One-third of the membership
of the Senate is renewed every three years.
Just as one-third of the Senate of the United States is renewed every
two years. Most European constitutions have adopted some such
method of partial renewal of certain representative bodies at intervals
shorter than the term of membership.
Until 1884 seventy-five of the senators were chosen, by the Senate
itself, for life. By virtue of a constitutional change effected in 1884,
all vacancies occurring in these life-memberships are now filled by elec-
tion in the Departments, as other seats are, and for the usual term of
202 THE GOVBENMENT OF PRANCE.
nine years. This process will in time, of course, do away with all life-
membership.
Legislation determines from time to time how many senators shall
be elected by each Department. According to the present distribution
thirty, or one-tenth of the whole number, are returned by the city of
Paris, which itself constitutes a Department.
316. The Chamber of Deputies. — Of the choice of mem-
bers of the Chamber of Deputies, the Constitution says no
more than that they shall be elected by universal suffrage.
Statute law has organized the Chamber on the basis of one
deputy to every seventy thousand inhabitants. Deputies
must be at least twenty-five years of age, and their term,
unless the Chamber be sooner dissolved, is four years. The
Department is the basis of representation in the Chamber as in
the Senate. To each Department is assigned a certain number
of deputies, according to its population ; every Department, how-
ever, whatever its population, being entitled to at least three
representatives in the Chamber. The deputies are elected not
' at large ' for the whole Department, that is, on a general ticket,
but by districts, as members of our federal House of Repre-
sentatives are chosen in the States (sec. 1066). The Arrondisse-
ments serve as ' congressional districts,' as we should call them,
— and this method of voting is accordingly known in France
as scruUn d'arrondissement.
In 1885 the system of voting for deputies in each Department on a
general ticket, as we vote for presidential electors in the States, was
introduced, being called scrutin de liste. It was adopted at the sugges-
tion of Gambetta, who thought that a system of general tickets would
give his party a freer sweep of popular majorities. But in 1889 scrutin
d'arrondissement, which had been in use before 1885, was re-established,
because scrutin de liste had given too free a sweep to the popular
majorities of General Boulanger.
The principal colonies, too, are entitled to representation in
the Chamber. Algiers sends five deputies ; Cochin-China, Gua-
deloupe, Guyana, India, Martinique, Edunion, and Senegal each
send one. All counted, there are five hundred and eiglity-four
THE GOVERNMENT OP FRANCE. 203
deputies. Elections to the Chamber do not take place at reg-
ular intervals and on fixed dates named by statute, but must
be ordered by decree from the President of the Eepublic in each
case. The law directs, however, that the President must order
an election within sixty days, or in case of a dissolution, within
two months after the expiration of a term of the Chamber ;
and that the new Chamber must come together within the ten
dajrs following the election. At least twenty days must separ
rate decree and day of election.
316. In Case' of Usurpation. — In case the Chambers should be
illegally dissolved or hindered from assembling, the General Councils
of the Departments are to convene without delay in their respective
places of meeting and take the necessary steps for preserving order and
quiet. Each Council is to choose two delegates to join delegates from
the other Councils in assembling at the place -whither the members of
the legal government and the regular representatives of the people who
have escaped the tyranny have betaken themselves. The extraordinary
assembly thus brought together is authorized to constitute itself for
business when half the Departments shall be represented ; and it may
take any steps that may be necessary to maintain order, administer
affairs, and establish the independence of the regular Chambers. It is
dissolved, Tpso/acfo, so soon as the regular Chambers can come together
somewhere within the state. If that be not possible, it is to order a
general election, within one month after its own assembling.
317. The National Assembly : its Functions. — The Senatb
and Chamber of Deputies meet together' in joint session as a
National Assembly for two purposes : the revision of the Con-
stitution and the election of the President of the Eepublic.
The Houses meet for the performance of their ordinary legis-
lative functions in Paris ; as a National Assembly they meet
in Versailles, apart from the exciting influences of the great
capital, which has led so many assemblies captive. Whether
met for the election of the President or for the revision of the
Constitution, the National Assembly must do the single thing
which it has convened to do and then at once adjourn. For
the election of the President there are clearly determined times :
204 THE GOVEENMENT OF PKANGE.
whenever the oifice of President falls vacant, whether by the
death or resignation of the President or by the expiration of
his term.
318. Revision of the Constitution. — A revision of the
Constitution may take place whenever the two Houses are
agreed that revision is necessary. It has, thus far, been cus-
tomary for the Houses to consider separately beforehand not
only the propriety of a revision, but also the particular points,
at which revision is necessary and the lines on which it should
proceed; and to know each other's minds on these important
heads before agreeing to a National Assembly. Alike for the
election of a President and for the adoption of constitutional
amendments an absolute majority vote suffices.
It might easily hijppen, therefore, that the majority in one of the
Houses would be outvoted on joint ballot in National Assembly. If
sueh were likely to be the case, that majority could hardly be expected
to consent readily to a joint session. Prance has, not two, but many
. national parties, and it is not always possible to effect the same com-
bination of factions in support of a ministry in both the Houses. Cases
must frequently arise in which a joint vote of the two Houses upon a
particular measure would carry with it defeat to the policy preferred in
one of them.
The National Assembly is the most completely sovereign
body known to the Constitution, there being but one thing it
cannot do under existing law : it cannot sit as long as it pleases.
Its sessions must not exceed in length the duration of an ordi-
nary legislative session (five months).
The officers of the Senate act as officers of the National Assembly.
They consist of a President, four Vice-Presidents, six Secretaries, and
four QuEBstors, elected for one year. The Chamber of Deputies has
the same offices, with the addition of two more secretaryships.
319. The President of the Republic. — The president, elected
by the joint ballot of the Chambers, is titular head of the Ex-
ecutive of France. His term of office is seven years. He has
the power of appointing and removing all officers of the public
THE GOVERNMENT OF FRANCE. 205
service. He has no veto on legislation, but he is authorized to
demand a reconsideration of any measure by the Houses ; he
can adjourn the Chambers at any time (though not more than
twice during the same session) for any period not exceeding
one month ; he can close a regular session of the Houses at his
discretion after it has continued five months, and an extra ses-
sion when he pleases ; and he can, with the consent of the
Senate, dissolve the Chamber of Deputies, even before the
expiration of five months. A dissolution of the Chamber of
Deputies puts an end also of course to the sessions, though
not to the life, of the Senate, inasmuch as it cannot act with-
out the Chamber. In the event of a dissolution, as has been
said, the President must order a new election to be held within
two months thereafter, and the Houses must convene within
ten days after the election.
The only limitation put by the constitution upon the choice of the
National Assembly in electing a President of the Republic is, that no
one shall be chosen President who is a member of any family which has
occupied the throne of France.
320. The President's power of dissolving the Chamber might, on
occasion, be used to bar even the proceedings of the National Assembly.
■ The consent of the Senate having been obtained, the President could
dissolve the Chamber while the National Assembly was in session, and
so deprive that body of two-thirds of its members, leaving it without
that ' absolute majority,' lacking which it can take no authoritative
action. Such a course would, however, be clearly revolutionary, —
more revolutionary than any action of the Assembly that it might be
used to prevent, — and \yould, though perhaps technically defensible,
have no real sanction of law.
321. Influence oi President and Senate — The President and
Senate, it will be seen, are giv* a really very great power of control
over the Chamber of Deputies. It is within the choice of the President
to moderate the excesses of the Chamber by returning bills to it for
reconsideration, or by adjourning it during a period of too great excite-
ment ; and it is within the choice of the President and Senate acting
together to appeal from its decisions to the constituencies by a disso-
lution. The Senate, moreover, has been given so many members of
206 THE GOVERNMENT OP PEANCE.
real weight of character and distinction of career that it would seem to
have heen in a position to act in restraint of the Chamber with firmness
and success. But the later presidents (Grevy and Carnot) have been
men of so little force and the Senate has played so timid a part in
affairs that this position of advantage has been altogether sacrificed ;
and the unbridled license of the Chamber now (April, 1889) constitutes
one of the chief menaces to the success and even a menace to the
existence of the Republic.
T^
322. The Cabinet and the Council of Ministers. — A Cabi-
net of ministers constitutes a link between the President and
the Chambers : and the political functions of this Cabinet are
amongst the central features of government in France. It is
to be carefully distinguished from the Council of ministers;
both the Cabinet and the Council consist of the same persons ;
but the Cabinet is a political body exclusively, while the
Council has only administrative functions. The distinction
illustrates pointedly the double capacity of the ministers.
323. The Ministries. — There are now eleven ministers : the Minis-
ter of Justice, filling the office filled before the Revolution by the Chan-
cellor (sec. 295) ; the Minister of Finance, who has taken the place of
the Comptroller-General of ante-revolutionary days (sees. 295, 300,
303) ; the Minister of War, who acts as head of the administrative de-
partment created in the time of Mazarin (1644) ; the Minister of Marine
and the Colonies (1644) ; the Minister of Foreign Affairs (1644, see sec.
294) ; the Minister of the Interior, an office created by the Constituent
Assembly in 1791 (sec. 306), by a consolidation of the pre-revolutionary
offices of Comptroller-General and Minister of the Royal Household, ex-
cept so far as the functions of the Comptroller-General were financial
and bestowed upon the Minister of Finance (sec. 295) ; the Minister of
Public Instruction (1848), Beligion (1848), and the Fine Arts; the Minis-
ter of Public Works; the Minister of Agriculture (an office created in
1812, but afterwards abolished, to be'revived in 1828-30) ; the Minister
of Trade and Industry ; and the Minister of Posts and Telegraphs. These
last two offices were created in 1848 by subtraction from the department
of the Interior.
324. The Cabinet. — As a Cabinet, the ministers represent
the administration in the Chambers. They are commonly chosen
THE 60VEENMBNT OP FRANCE. 207
from amongst the members of the Houses ; but, whether mem-
bers or not, they have, as ministers, the right to attend all ses-
sions of the Chambers and to take a specially privileged part in
debate. The same right extends also to the Under-secretaries
of Finance, of the Interior, of the Colonies, and of Fine Arts,
who are, consequently, usually members of the Chambers.
A minister may speak at any time in tiie Cliambers; not even the
cloture (previous question) can exclude iiim.
In 1888 the Minister of War was without a seat in the Chamber.
326. The Council of Ministers. — As an administrative
Council the ministers are, in official rank at least, subordinate
to the President, who is the Chief Executive. The Council
sits in his presence, though not under his presidency, but
under that of a special ' President of the Council ' chosen by
the ministers from amongst their own number. Its duty is
to exercise a general oversight of the adniiiiistration of the
laws, with a view to giving unity of direction to affairs of
state. In case of the death, resignation, or incajiacitation of
the President of the Republic, the Council is to act in his
stead until the National Assembly can meet and elect his suc-
cessor. Its members are ex officio members of the Council of
State, the highest judicia;l tribunal of the Republic for the
determination of administrative cases (sec. 353).
326. Relation of the Ministers to the President. — The
Council of Ministers is a body recognized by law, the Cabinet
is not : it is only the ministers in consultation concerning
matters affecting their political responsibility : it is, aside from
such meetings for consultation, only a name representing their
union in responsibility. But the two names, Council and Cabi-
net, furnish convenient means for making plain the various
relations of the ministers to the President. As a Council they
are, in a sense, his creation ; as a Cabinet they are, in a sense,
his masters. The Executive Departments, or Ministries, over
which they preside are the creation, not of the Constitution or
of statutes, but of the President's decree. No decree of the
208 THE GOVBENMENT OP PEANCE. „
President's is valid, however, unless countersigned by the min-
ister whose department is affected. Any such decree must,
too, almost necessarily affect the budget, and must in that way
come within the control of the ministers and the Chambers.
The ministers are the President's appointees ; but he must ap-
point ministers who are in agreement with the majority in the
Chambers, and they are, responsible to the Chambers alone for
their conduct in ofB.ce. The President is the head of the
administration ; but his salary is dependent upon the annual
budget which the Minister of Finance presents to the Cham-
bers : and the items of the budget are matter of agreement
between the ministers and the Chambers.
All these ' buts ' are, of course, so many fingers pointing to
the power of the Cabinet over the President. The ministers
are not his representatives, but representatives of the Houses.
In this capacity they control not the policy only, but also the
patronage of the government. Naturally the President's ap-
pointments, needing, as they do, the countersignature of a
minister, are in general the appointments of the ministers ;
and their appointments are too often bestowed according to
" their interest in the Chambers, — are too often used, in short,
to be cast as bait for votes.
The patronage of office, indeed, threatens to become even more of a
menace to good government in France than it lias been to good govern-
ment in our own country under the federal system of appointment.
The number of offices in the gift of the ministers in France is vastly
greater than the number within the gift of the President of the United
States ; and the ministers' need to please the Chambers by favors of
any and all kinds is of course incomparably greater than our President's
need to please Congress, since they are dependent upon the good-will
of the Chambers for their tenure of office.
327. Ministerial Responsibility. — The responsibility of
the ministers to the Chambers is not of law, but of custom,
as in England. Their tenure of office is dependent upon
the favor of the Houses simplv because no Dolicv of theirs
THE GOVERNMENT OP EEANCE. 209
could succeed without legislative approval and support. They
resign when defeated because they will not carry out measures
of which they disapprove. In theory their responsibility . is
to both Houses; but, as a matter of fact, it is only to the
Chamber of Deputies. The votes of the Senate alone seldom
make or unmake Cabinets ; that is the prerogative of the pop-
ular Chamber, which is more directly representative of the
nation.
328. Questions and Interpellations. — The ministers may
be held closely to their responsibility at every turn of their
policy by means of various simple and effective forms of in-
quiry on the part of the Chambers. First of all is the direct
question. Any member of either House may, after due notice
given to the minister concerned, ask any question of the proper
minister as to affairs of state ; and an answer is demanded,
by custom at least, to every question which can be answered
publicly without detriment to the public interest. Next to
the direct question, which is a matter between the individual
questioner and the minister questioned, comes that broader
form of challenging the policy of the Cabinet, known as the
'Interpellation.' The simple questioner must first get the
consent of the minister to hear his question ; an interpellation,
on the contrary, can be brought on without awaiting the ac-
quiescence of the minister. It is a special and formal challenge
of the policy of the Cabinet on some point of importance, and
is commonly the occasion of a general debate. It is made a
special ' order of the day,' and usually results in a vote expres-
sive of confidence or want of confidence in the ministers, as the
case may be. It is the question exalted into a subject of formal
discussion : it is the weightiest form of interrogating ministers :
it makes them and all that they have done the objects of set
attack and defence. A third and still more formal method
of bringing administrative acts under the scrutiny of the
Chambers consists in the appointment of a Committee of
Investigation.
210 THE GOVERNMENT OF FRANCE.
329. Although their acts are thus constantly and thoroughly
scrutinized, the ministers are, nevertheless, the leaders of the
Chambers. They represent, for however short a time, the ma-
jority, and all measures which they propose are accorded a
position of advantage in the business of the houses (sec. 333) . .
330. The Course of Legislation. — All propositions alike,
whether made by ministers or by private members, have to go to
a special committee foi? consideration before reaching a debate
and vote by the whole House ; but the propositions of private
members must pass another test before they reach even a special
committee. They must. go first to the 'Monthly Committee on
Parliamentary Initiative,' and it is only after hearing the re-
port of that Committee upon bills submitted to it that the House
determines whether particular measures shall be taken into
further consideration and advanced to the special-committee
stage. A vote of emergency taken upon the introduction of
a measure can, however, rescue a ministerial bill from all com-
mittee handling, and a private member's bill from the delays
of the Initiative Committee.
331. The Committees. — The committee organization of the
Houses is worthy of special remark. Every month during the
session, the members of the Chamber of Deputies are divided
by lot into eleven, those of the Senate .into, nine. Bureaux.
These Bureaux select four 'monthly committees,' one on
'Leave,' one on 'Petitions,' one on 'Parliamentary Initiative,'
and ohe on 'Local Interests.' The Bureaux select, moreover,
all the special committees to which bills are referred, except
when the House chooses itself to elect a committee ; and they
themselves cons.ider matters referred to them.
332. The Budget Committee. —AH financial matters are
considered by special standing committees chosen for one year;
in the Chamber of Deputies by a Budget Committee composed
of thirty-three members, and in the Senate by a Finance Com-
mittee composed of eighteen members ; and these Committees)
like other standing committees, arrogate to themselves some-
THE GOVERNMENT OF FRANCE. 211
thing like absolute domination of the financial policy of the
government, with the result of robbing financial legislation of
order and consistency, and of sadly obscuring the responsibility
of the ministers. Other committees simply consider and report
upon ministerial measures ; the Budget Committee undertakes
often radically to revise, sometimes altogether to transform,
ministerial proposals, originating when it was meant only to
control.'
333. Government by the Chambers. —Ministerial responsibility
has rapidly degenerated in France, during the past few years, into gov-
ernment by the Chambers, or, worse still, government by the Chamber of
Deputies. Ministerial responsibility is compatible with ministerial lead-
ership ; and under a ministry which is really given leave to direct the
course of public policy, the Chambers judging and controlling but not
directing, that policy may have dignity, consistency, and strength.
But in France the ministers have, more and more as the years of the
Republic have multiplied, been made to substitute for originative leader-
ship submissive obedience, complete servility to the wishes, and even to
the whims, of the Chamber of Deputies. The extraordinary functions
which have been arbitrarily assumed by the Budget Committee simply
mirror the whole political situation in France. The Chamber has
undertaken to govern, with or without the leadership of ministers. So
capricious, so wilful has it been in its rejection of every minister who
would not at once willingly serve its moods, so impatient indeed witli all
ministerial leadership, that almost every public man of experience and
ability in France has now been in one way or another discredited by its
action ; and France is staggering under that most burdensome, that most
intolerable of all forms of government, government btj mass meeting, — by
an inorganic popular assembly. It is this state of affairs which has
called forth so loud a demand for a revision of the Constitution, and
which has at the same time apparently created an opportunity for
another return to some sort of dictatorship.
334. Departmental Organization. — Each minister is as-
sisted in the administration of his Department by a ' Cabinet,'
which must not be confounded with the Cabinet of ministers.
The Cabinet of each Department is composed of such heads
1 See the Bevue des Deux Mondes for Nov. 1st, 1886, p. 226 et seq.
212 THE GOVBEKMBNT OP PEANCB.
of tlie branches of the departmental service as the minister
chooses to bring into special relations of confidence with him-
self. It stands towards the Department in a position somewhat
similar to that which the Council of Ministers occupies towards
the. whole service of the government (sec. 325). It mediates
between the several bureaux of the Department, distributes
the matters laid before the Department among them, gives
confidential advice to the minister, prepares all departmental
matters which are to be brought before the Chambers, and
serves generally as the unifying and directing organ of the
Department.
335. Departmental Functions. — The possession of such
a ' Cabinet ' constitutes the one feature which all the Depart-
ments have in common: each Department having, of course,
an organization adapted to the performance of its own peculiar
duties. The main duties of most of the Departments are suffi-
ciently indicated by their names. The Ministry of Justice con-
trols the administration of civil, criminal, and commercial law;
in other words, is set over the judicial system of the country.
Not over the whole of it, however. The strict differentiation
of functions insisted upon in Erance assigns to the Minis-
try of War, the Ministry of Marine, and the Ministry of the
Interior respectively, the administration of military, marine,
and administrative law. The Ministry of Foreign Affairs con-
trols the relations of Trance with foreign countries. The
Ministry of the hiterior undertakes all duties not assigned
to any other executive Department. That oi' Finance collects,
handles, disburses, and accounts for the revenues of the state.
That of War directs all military affairs. That of Marine and
the Oolonies has, added to the duty of managing the navy, the
duty of acting for the colonics as all departments in one.
The Ministry of Public Instruction, Religion, and the Fine Arts,
organizes and oversees education, from the primary schools up
to the University, mediates between church and state, buys
•works of art for the state, directs the piiblic art-schools,
THE GOVERNMENT OF PRANCE. 213
museums, and art-exhibitions, subsidizes the theatres, exer-
cises a censorship over the drama, superintends conservatories
and schools of music and -oratory, and supervises the state
manufactories of Sevres ware and tapestry. The Ministnj of
Public Works is entrusted with the management of the public
highways, including the railways, and of the state mines, with
the inspection of shipping and the care of seaports and light-
houses, and with the direction of the schools of engineering
and architecture. The Ministry of Agriculture is charged with
the care of the forests, the proper irrigation of the country,
oversight and assistance in the breeding of live-stock, sanitary
regulations with reference to cattle diseases, and the adminis-
tration of the various aids given by law to agriculture. The
Ministry of Trade and Industry undertakes to provide for the
interior commerce of the country the facilities afforded by
special courts of law, bourses and chambers of commerce, duly
commissioned middle-men and factors, life-insurance companies,'
savings banks, and accident funds, official examination and war-
ranty of certain classes of manufactured goods, the policing of
markets, and the granting of patents and trade-marks ; for the
foreign commerce of the country, it regulates duties and im-
posts, offers premiums for shipbuilding and seamanship, and
collects statistics. A special ' Bureau for Industrial Societies '
was added to this Department in 1886. The Ministry of Posts
and Telegraphs sees to the carrying and delivery of the mails,
and to the telegraphic service of the country.
The duties of most of these ministries illustrate the range
of function assumed by the government in France (sees. 1234,
1235) more conspicuously than they illustrate the form and.
spirit of her political institutions. A mirror of the political life
of Trance is to be found in the organization of the Ministry of
the Interior, which is more largely concerned than any other
Department with the multifarious details of local government.
214 the goveenment of pkance.
Local Goveenment.
336. France still preserves the administrative divisions
created by the Constituent Assembly in December, 1789. In-
stead of the old system of ecclesiastical dioceses, military prov-
inces, and administrative 'generalities' (sec. 300) with their
complexities and varieties of political regulation and local
privilege, there is a system, above all things simple and sym-
metrical, of Departments divided into Arrondissements, Arron-
dissements divided into Cantons, and Cantons divided into
Communes. Much the most significant of these divisions is
the Department : whether for military, judicial, educational, or
political administration, it is the important, the persistent unit
of organization ; arrondissement, canton, and commune are only
divisions of the Department, — not fractions of France, but
only fractions of her Departments. The canton, indeed, is
little more than an election district ; and the arrondissement is
only a fifth wheel in the administration of the Department.
The symmetry of local government is perfect throughout.
Everywhere the central government superintends the local
elective bodies ; and everywhere those bodies enjoy the same
privileges and are hedged in by the same limitations of power.
337. The several parts of the system of local government
in France will thus be seen to rest, not upon any historical
groundwork, constituting each a vital whole, possessing tradi-
tions of local self-government from an older time of freedom,
but upon a bureaucratic groundwork of system. If, therefore,
France is now approaching confirmed democracy and complete
self-government, as there is good reason to believe she is, at
least where her politics are working their effects beyond the
circle of Parisian influences, she is building, not upon a basis
of old habit, fixed firmly in the stiff soil of wont and preju-
dice, but upon a basis of new habit widely separated from old
wont, depending upon the shifting soil of new developments
of character, new aptitudes, new purposes. Her new ways
THE GOVERNMENT OP FRANCE. 215
run across, not with, the grain of her historical nature. Her
self-government is a-making instead of resting upon something
already made.
338. The Department : the Prefect. — The central figure
of French administration is the Prefect, the legal successor of
the Intendant. He is the agent of tlie central government in
the Department. He is the recruiting officer of that district,
its treasurer, its superintendent of schools,^ its chief executive
officer in all undertakings of importance, and the appointer of
most of its subordinate officials. He fills a double capacity : he
is the agent and appointee of the central government, and at
the same time the agent of the local legislative authorities. He
is at once member and overseer of the General Council of his
Department ; and he is necessarily its agent, inasmuch as he
commands, as representative of the authorities in Paris, all
the instrumentalities through which its purposes must be
effected. A minister can veto any act of a Prefect, — for he
is the representative of any minister who needs his executive
aid in the Department, — but no minister can override him
and act by his own direct authority. Until he is dismissed
the minister must act through him.
The Prefect may take part in the proceedings of the General Council
of the Department at any time except when his accounts are being
considered.
339. Such is the legal position of the Prefect. His actual
position is somewhat different. The politics of the Eepublic,
one of whose tendencies has been to contribute by degrees to
local self-government, is making the Prefect more and more
the mere executive agent of the General Council of his Depart-
ment, and has already made his office a party prize. He is
appointed by the Minister of the Interior and is in law first
of all and chiefly the representative of the Interior. But the
other ministers also, as has been said, act through him in many
1 He appoints and disciplines the teachers.
216 THE GOVERNMENT OF PRANCE.
things. The result is that his office is often emptied and filled
again upon a change of ministry. He no doubt, too, frequently
owes his appointment to the favorable influence of the depu-
ties and senators from his department with the Minister of
the Interior (sec. 326 n.). He is, consequently, not the auto-
crat he was under Napoleon. He is, rather, the trimmer to
local opinion too often found under popular governments.
340. The Spoils System in France. — French administration in
all its branches, indeed, and in all grades of its service, from the lowest
to the highest, has suffered profound corruption through the introduc-
tion of the fatal idea that public office may and should be used as a
reward for party services. Ministries have adopted, all too readily,
the damning practice of distributing offices among their party followers
as pay for party activity, and even among the friends and constituents
of deputies, in exchange for support in the Chamber. And of course,
when short of gifts to bestow, they empty as many offices as possible of
opponents or luke-warm friends in order to have them to give away.
This policy is doubly fatal to good government in France because of
the very frequent changes of ministry at present characteristic of her
politics.
341. The General Council of the Department. — The legis-
lative body of the Department is the General Council, which
is made up of representatives chosen, .one from each canton,
by universal suffrage. Except during a session of the Cham-
bers, the President of the Republic may at any time dissolve
the General Council of a Department for cause. The election
of representatives to the General Coiincil, like the election of
deputies, does not take place upon days set by statute, but on
days set by decree of the President. Councillors are elected
for a term of six years, one-half of the membership of the
Council being renewed every three years. In order that mem-
bers of the General Council may be in fact representatives of
at least a respectable number of the voters of the cantons, the
law provides that no one shall be elected on a first ballot
unless voted for on that ballot by an absolute majority in a
poll of at least one-fourth of the registered voters. Attention
THE GOVEKNMBNT OF FKANCE. 217
having been called to the election by the failure of a first
ballot, a plurality will suffice to elect on a second. In case of
a tie, the older candidate is to be declared elected.
The membership of the Council varies in the several Departments,
according to the number of cantons, from seventeen to sixty-two.
The General Council is judge of the validity of elections to its own
membership; but it is not the final judge. An appeal lies from its
decisions to the Council of State. A seat may be contested on the
initiative either of a member of the Council, the Prefect, or a constitu-
ent of the member whose rights are in question.
342. There are two regular sessions of the General Council
each year. The duration of both is limited by law : for the
first to fifteen days, for the second to one month. Extra ses-
sions of eight days will be called by the President of the
Republic at the written request of two-thirds of the members.
If the Council in any case outsit its legal term, it may be dis-
solved by the Prefect; if it overstep its jurisdiction in any
matter, its acts are annulled by a decree of the President. The
President has also a veto on all of its decisions. Members
are liable to penalties for non-attendance or neglect of duty.
They are, however, on the other hand, paid nothing for their
services.
343. At the first regular session of the year the Council
considers general business ; at the second and longer session
it discusses the budget of the department, presented by the
Prefect, and audits the accounts of the year. At either session
it may require from the Prefect or any other chief of the
departmental service full oral or, if it choose, written replies
to all questions it may have to ask with reference to the
administration.
344. The supervisory and regulative powers of the General
Council are of considerable importance ; but its originating
powers are of the most restricted kind. It has the right to
appropriate certain moneys for the expenses of local government,
but it has not the right to tax for 'any purpose. The amount
218 THE GOVERNMENT OP EBANCE.
and tile source of the money it is to use are determined by the
Chambers in Paris. Even such narrowed acts of appropriation
as it can pass have to be confirmed by presidential decree. Its
chief functions are directory, not originative. It sees to the
renting and maintenance of the buildings needed for its own
use, for the use of the Prefect and his subordinates, for the
use of the public schools, and for the use of the local courts;
it regulates the pay of the police (gendarmerie) of the Depart-
ment ; provides for the cost of printing the election lists ;
supervises the administration of the roads, railroads, and pub-
lic works of the Department; oversees the management of luna-
tic asylums and the relief of the poor. Most important of
all, it apportions among the several arrondissements the direct
taxes annually voted by the Chambers.
345. The Departmental Commission. — During the inter-
vals between its sessions, the General Council is represented
in local administration by a committee of its own members
called the Departmental Commission, which it elects to coun-
sel and oversee the Prefect. So long as this Commission keeps
within its recognized prerogatives, it is treated as a committee
of the General Council, and appeals lie from it to that body ;
but, let it push beyond its prerogatives, and it becomes respon-
sible, not to the General Council whose committee it is, but
to the central administration, through appeal to the Council of
State. It is thus at once representative of the General Council
and amenable to the Council of State.
346. Central Control. —The most noticeable feature of this
system is the tutelage in which local bodies and .the individual
citizen himself are kept. Fines compel the members of the
General Council to do their work, and then every step of that
work is liable to be revised by the central administration.
Irregularities in the election of a member are brought to the
attention of the General Council by the Prefect, as well as by
its own members or by petition from the constituency affected.
If the Council oversteps the limits of its powers, it is checked
THE GOVERNMENT OF FRANCE. 219
by decree, and not by such a challenging of its acts in the
courts by the persons affected as, in English or American prac-
tice, strengthens liberty by making the individual alert to
assert the law on his own behalf instead of trusting inertly
to the government to keep all things in order. Even expres-
sion of opinion on the part of the General Council is restricted.
It may express its views on any matter affecting local or
general interests, ' if only it never express -a wish which has a
political character.'
347. The Arrondissement is the electoral district for the
Chamber of Deputies, the members of the Chamber of Depu-
ties being elected, as we have seen, not 'at large,' for the
whole Department, but by Arrondissements, — not by scrwtin
de liste, that is, but by scrutin d' arrondissement (sec. 315).
It is also an important administrative division which serves as'
a judicial district and as the province of a sub-prefect and an
arrondissemental Council. The sub-prefect is the mere agent
of his chief, the Prefect, and has only a few, hardly more than
clerical, duties; the Council of the Arrondissement {conseil
d' arrondissement), elected from the cantons, like the General
Council of the Department, has no more important function
than that of subdividing among the communes the quota of
taxes charged to the Arrondissement by the General Council.
For the rest, it merely gives advice to administrative of&cers
appointed by the ministers in Paris.
348. The Canton is the electoral district from which mem-
bers are chosen to the General Council and the Council of the
Arrondissement; it marks the jurisdiction of the Justice of
the Peace : it is a muster district for the army, and it serves
as a territorial unit of organization for registration and for the
departmental care of roads, but it has no administrative organi-
zation of its own. It is a mere region of convenient size for
electoral and like purposes.
349. The Commune is the smallest of the administrative
divisions of France, and, unlike the arrondissement and canton,
220 THE GOVERNMENT OF PEANCB.
is as vital an organism as the Department. All towns are
communes ; but there is, of course, a much larger number of
rural than of town communes.^
The general rule of French administration is centralization,
the direct representation of the central authority, through
appointed officers, in every grade of local government, and the
ultimate dependence of all bodies and officers upon the minis-
ters in Paris. In one particular this rule is departed from in
the Commune. The chief executive officer of the Commune,
the mayor, is elected, not appointed. He is chosen by the
Municipal Council from among its own members, and is given
one or more assistants elected in the same way.
Down to 1874 the mayors of the more populous communes were ap-
pointed by the authorities in Paris, the mayors of the smaller com-
munes hy the Prefects. Between 1831 and 1852 the choice of the
appointing power was confined to the members of the Municipal Coun-
cils ; but between 1852 and 1874 the choice might be made outside those
bodies. From 1874 to 1882 the smaller Communes elected their mayors,
indirectly as now. Since 1882 all mayors have been elected.
350. The Communal Magistracy. — The mayor and his
assistants do not constitute an executive board : the mayor's
assistants are not his colleagues. He is head of the communal
government : they have their duties assigned to them by him.
The mayor is responsible, not to the Council which elects him,
but to the central administration and its departmental repre-
sentative, the Prefect. Once .elected, he becomes the direct
representative of the Minister of the Interior. If he will not
do the things which the laws demand of him in this capacity,
the Prefect may delegate some one else to do them, or even do
them himself instead. For cause, both the mayor and his
assistants may be suspended, by the Prefect for one month, by
the Minister of the Interior for three months, and all their
acts are liable to be set aside either by Prefect or Minister.
They may even be removed by the Executive.
1 The total number of communes in France is 36,105.
THE GOVERNMENT OP PRANCE. 221
In case of a removal it is the duty of the Municipal Council to fill
the vacancies, and to fill them with other men ; for removal renders the
mayor or his assistants ineligible for one year.
One of the duties of the mayor is to appoint the police force and
other subordinate officers of the Commune ; but in Communes of over
forty thousand inhabitants the mayor's composition of the police force
must be ratified by decree, and in other communes all his appointments
must be confirmed by the Prefect.
351. The Municipal Council. — There is in every Commune
a Municipal Council (of from ten to thirty-six members, ac-
cording to the size of the commune) which has, besides its
privilege of electing the mayor and his assistants, pretty
much the same place in the government of the Commune that
the General Council has in the government of the Department.
Its decisions, however, have not the same force that attaches
to decisions of the General Council. The latter are valid
unless vetoed ; the former are not valid until confirmed ; they
must, for a certain term at least, await ratification. Unlike
the General Council, the Municipal Council is liable to be sus-
pended for one month by the Prefect ; like the General Coun-
cil, it may be dissolved by decree of the President passed in
the Council of Ministers. It holds four regular sessions each
year, one of which it "devotes to the consideration of the muni-
cipal budget, which is presented by the mayor. Its financial
session may continue six weeks ; none of its other sessions may
last more than fourteen days. The mayor acts as its presi-
dent, except when his own accounts are under consideration.
Neither the Municipal Council nor the Council of the Arfondissement
is judge of the validity of the elections of its members. Contested
election cases are heard by the Prefectural Council (sec. 354).
Until 1831 the Municipal Council was chosen by the Prefect from a
list of qualified persons made up in the Commune. Between 1831 and
1848 its members were elected by a restricted suffrage. Since 1848 they
have been elected by universal suffrage.
In case of a dissolution of the Municipal Council, its place may be
taken, for the oversight of current necessary matters, by a delegation
of from three to seven members appointed by the President of the
222 THE GOVERNMENT OP FRANCE.
Republic to act till another election can be had. This delegation can-
not, however, take upon itself more than the merely directory powers
of the Council.
362. Oversight of the Commune. — The Communej though
in many of its relations a subdivision of the Department,
is not subject to the oversight of the General Council. This
seems, of course, an anomaly, when looked at from the point
of view of those who are accustomed to a system of local gov-
ernments within local governments ; and unquestionably the
life of local government in Trance would be greatly quickened
by giving to the organs of local government a large independ-
ence, and at the same time bringing them into relations of
close interdependence to each other. But politics has " stolen
into the General Council, although the legislators of 1871 took
care to shut the door against it, and the view is common in
France, whether rightly or wrongly, that the central adminis-
tration is less partisan in the oversight of the Communes than
the General Council would be." '
363. Administrative Courts: the Council of State. — So
thorough is the differentiation of functions in France that
actions at law arising out of the conduct of administration are
instituted, not in the regular law courts connected with the Min-
istry of Justice, but in special administrative courts connected
with the Ministry of the Interior (sec. 335). The highest of
these courts is the Council of State, which is composed of the
jninisters, and of various high administrative officers of the
permanent service. It is the court of last resort on adminis-
trative questions. It is also charged with the duty of giving
advice to the Chaanbers or to the government on all questions
affecting administration that may be referred to it.
354. The Prefectural Council.— Below the Council of State
are the Prefectural Council, a Court of Eevision, a Superior
Council of Public Instruction, and a Court of Audit. These
1 Lebon (Marquardsen) , pp. 106, 107.
THE GOVERNMENT OF PEANCE. 22S
are not subordinate to each other : each is directly subordinate
to the Council of State. The Prefectural Council is, of course,
the most important of them. It has, amongst other weighty-
functions, that of determining the validity of elections to the
Council of the Arrondissement and to the Municipal Council.
For the rest, it has jurisdiction over all administrative ques-
tions, and over all conflicts between administrative authority
and private rights. Its processes of trial and adjudication
are briefer and less expensive than those of the ordinary law
courts. In almost all cases an appeal lies to the Council of
State.
The Prefect is the legal representative of the government in cases
brought before the Prefectural Council ; but that court is not at all
under his dominance. It is composed of permanent judges, one of
whom, at least, is usually of long administrative experience.
Bach minister is himself a judge of first instance in cases whose con-
sideration is not otherwise provided for, an appeal always lying from
him, of course, to the Council of State. Prefects and mayors are, in
like manner, judges of first instance in certain small cases.
The Administration of Justice.
355. Ordinary Courts of Justice. — The supreme court of
France is the Cassation (Cessation) Court which sits at Paris.
Next below it in rank are twenty-six Courts of Appeal, the juris-
diction of each of which extends over several Departments.
These hear cases brought up from the courts of first instance
which sit in the capital towns of the arrondissements. These
last consider cases from the Justices of the Peace, who hold
court for the adjudication of small cases in the cantons. By
decree of the President, passed in the Council of Ministers,
the Senate may be constituted a special court for the consid-
, eration of questions seeming to involve the safety of the state ;
and such questions may be removed by the same authority
from the ordinary courts.
The appointment of all judges rests with the President, or,
224 THE GOVERNMENT OP FKANCE.
rather, with the Minister of Justice ; and the tenure of the judi-
cial of&ee, except in the case of Justices of the Peace, is during
good behavior. In the case of Justices of the Peace, the Pres-
ident has power to remove.
356. Jury Courts. — In France, the ordinary civil courts are
without juries ; the judges decide all questions of fact as well
as all questions of law. There are, however, special jury courts
{cows d'assises) constituted four times a year in each Depart-
ment for the trial of all crimes, and of political and press of-
fences; and in these the jury is sole judge of the guilt or
innocence of the accused; the judges determine the pun-
ishment.
The jury courts sit under the presidency of a member of the Court
of Appeal within whose jurisdiction the Department lies in which the
court is convened, and with him are associated two ' assessors.' The
state is represented in each case by the state-attorney of one of his
deputies. A jury of twelve is made up from lists prepared by commis-
sioners of the cantons and arrondissements. These lists include the
names of all Frenchmen within the Department who are thirty years of
age, able to read and write, in enjoyment of all civil rights, and not
disqualified or excused by law. Thirty-six jurors and four substitutes
are taken from these lists for each quarterly session of the court ; and
for each case twelve of this number are drawn by lot, the state and the
accused both having the right of peremptory challenge of the jurors
drawn till but twelve names remain in the urn.
367. Tribunal of Conflicts. ^ Between the two sets of
courts, the administrative and the ordinary, there stands a
Tribunal of Conflicts, whose province it is to determine to
which jurisdiction, the administrative or the ordinary, any
case belongs whose proper destination, or forum, is in dispute.
This Tribunal consists of the Privy Seal as president, of three
State Councillors chosen by their colleagues, and of three
members of the Cassation Court selected, in like manner, by
their fellow-judges.
THE GOVEKNMBNT OF PKANOE. 225
Some Eepresentative Authorities.
Lebon, Andr^, "Das Staatsrecht der franzosischen Republik" (in
Marquardsen's " Handbuch des oeffentlichen Reohts der Gegen-
wart "). Freiburg in B., 1886.
Aucoc, "Conferences sur I'administration et le droit adininistratif."
3 vols. Paris, 1882.
Block, " Dictionnaire de I'administration fran9aise," Paris, 1887, and
subsequent annual suppleinents.
Ducrocj, " Cour de droit administratif." 2 vols. Paris, 1881.
Perron, H. de, "Institutions municipales et provinciales compar^es."
Paris, 1884.
Demomftynes, "Les Constitutions Europeennes." 2 vols. Paris, 1883.
Vol. II., p. 1 et seg.
Cheruel, "Dictionnaire historique des Institutions, Moeurs, et Cou-
turnes de la France." 6 ed., 2 vols. . Paris, 1884.
Stephen, Sir Jas., " Lectures on the History of France." 2 vols., 3 ed.
London, 1857.
VII.
THE GOVERNMENTS OF GEEMANY
358. The Feudalization of Germany was in some points
strongly contrasted with the feudalization of France. There
was in Germany, of course, no Romanized subject population
such as existed in Gaul, and whose habits entered there, like a
leaven, into the polity of their conquerors. Beyond the Rhine
all were of one general kin, all bred in the same general cus-
toms. What was new. there was the great Frankish kingship
of MercsSringian and Carolingian, — the new size and potency
of the regal power bred amidst the readjustments of conquer-
ing migration by the dpminant Franks. For the rest, there
was at first the old grouping about elective or hereditary
princes, the old tribal individualities of custom, the old organi-
zation into separate, semi-independent, self-governing communi-
ties. Feudalism came, not so much through fresh gifts of land
and novel growths of privilege based upon such fresh gifts,
not so much through ' benefice ' and ' commendation,' that is,
the new adjustments of personal allegiance elsewhere (sees.
238-240), as through the official organization of the Frankish
monarchy.
359. Official System of the Frankish Monarchy: the
Graf en. — In order to exercise their kingly powers the more
effectually, the Frankish monarchs adopted the natural plan,
for which there was Roman precedent, of d,elegating their
functions to officers commissioned to act as their representar
tives in various districts of their extensive domains. There
THE GOVERNMENTS OF GERMANY. 227
does not seem to have been any symmetrical division of the
territory into districts to fit the official system. Here and
there throughout the kingdom there were counts (Qrafen), the
king's vicegerents in the exercise of the financial, judicial, and
military prerogatives of overlordship ; but the limits of their
jurisdiction were not always sharply defined. There were, for
one thing, many exemptions from their authority within the
general districts allotted them. There were the dignity and
pretensions of provincial princes to be respected;, more im-
portant still, there were the claims of the great landowners to
a special jurisdiction and independent lordship of their own to
be regarded. As a matter of policy such claims were gener-
ally allowed. The demesnes of the greater landowners were
cut out from the administrative territory of the Oraf and given
separate political functions. Barons such as we have seen in
France, — local autocrats with law courts and a petty sover-
eignty of their own, — were thus freely created. The king
apparently could not deny them the 'immunities' they de-
manded.
360. The Magistracy of Office and the Magistracy of Pro-
prietorship. — There thus grew up, side by side, as it were, a
double magistracy — a magistracy of ofiB.ce and a magistracy of
proprietorship. The Ch-af ruled by virtue of his office ; the
baron by virtue of his landed possessions : there were lords by
privilege (Immunitdtsherren), and lords by commission. Of
course as time went on the two sets of magnates drew nearer
and nearer to the possession of a common character through
an interchange of qualities. The office of Ch-af tended more
and more to become hereditary and to connect itself with the
ownership of large estates. Heredity of title and prerogative
was the almost irresistible fashion of the age: the men of
greatest individual consequence, besides, — the men who were
fit because of their individual weight to be delegated to exer-
cise the royal authority, — were commonly the men of large
properties. Either there went, therefore, along with the graf-
228 THE GOVERNMENTS OF GERMANY.
ship, gifts of land, or else men already sufi&ciently endowed
with lands were given the office : and as the office connected
itself with proprietorship it took from proprietorship its in-
variable quality of heredity. This was the double process:
Grafs became hereditary territorial lords ; and hereditary terri-
torial lords acquired either the grafship itself or powers quite
as great.
361. Hereditary Chiefs. — Add" to this hierarchy the more
ancient princes of the tribes, and the tale of greater lords is
complete. These princes were, by traditional title at least,
rulers of the once self-governing communities which Frankish
ascendency had in the days of conquest united under a com-
mon authority. In many cases, no doubt, they retained a vital
local sway. They were intermediate, in the new political order,
between the king and the barons.
362. Full Development of Territorial Sovereignty. — By
the thirteenth century German feudalization was complete.
Princes (dukes), Grafs, and barons, had all alike become lords
within their own territories (Landesheri-en) . Bishops and
abbots, too, as in France, had entered the competition for
power and become themselves grafs and barons. That terri-
torial sovereignty, that private ownership of political author-
ity which is the distinguishing mark of feudalism, and which
we have seen so fully developed in France, is present in as full
development here in Germany also. But the elements of the
development are very different in the two countries. In
France we have seen the appointment of royal delegates come
after the perfecting of feudalism and lead, through the gradual
concentration of judicial and other authority in the king's
hands, to the undermining and final overthrow of baronial
sovereignty (sees. 296, 302). In Germany, on the contrary,
the royal representatives, appointed while feudalism was
taking shape, themselves entered and strengthened the baron-
age, quitting their dependent functions as officials for the in-
dependent functions of territorial lords. In France, in other
THE GOVERNMENTS OP GERMANY. 229
words, the appointment of judicial representatives of the
Crown was. an instrument in the hands of Louis IX. and his
successors for the destruction of feudal privilege ; feudalism
was dissolved through office. In Germany, on the other hand,
feudal privilege, instead of being eradicated, was created by
the very same process ; feudalism was fostered by office.
363. The Markgraf . — One office especially fostered feudal
independence in Germany. Outside the hierarchy I have de-
scribed, and standing in special relations with the king, was
the Markgraf, — the graf of the Mark or border, set to defend
the kingdom against inroads by hostile peoples. He was of
course chosen chiefly because of his capacity in war, and was
of the most imperative, masterful soldier breed of the times.
To him, too, were necessarily vouchsafed from the first ex-
traordinary powers. He was made virtual dictator in the
unsettled, ill-ordered border district which he was appointed
to hold against foreign attack; and he was freely given all
the territory he could conquer and bring under the nominal
authority of the king. It was thus that the Mark Branden-
burg stretched out to the northeast to the inclusion of Prussia
and other broad territory wrested from the once threatening
Wends (sees. 382-393), and that the Ostmark established by
Charles the Great as a barrier against the Hungarian increased
till it became the great state of Austria (sees. 374-381). The
authority of the kings over these masters of the border was
necessarily very ineffectual. The Markgraf was not long in
becoming virtually a ruler in his own right, little disturbed by
the nominal suzerainty of a distant monarch, and possessed by
fast hereditary right of the titles and powers which would one
day make of him a veritable king.
364. The Empire. — Charles the Great set for his succes-
sors the example of a wide rule and a Roman title. He left
none of his own race able to sustain a r61e as great as that
which he had played ; but, so soon as his direct line had run
out, Saxon princes were found eager and able to revive the
230 THE GOVERNMENTS OF GERMANY.
great tradition and rehabilitate the Empire. The Carolingians
kept alive the title of Emperor as a title of precedence to be
borne by the elder line of descendants from the great Charles ;
but they divided his territories among them, generation after
generation, in the old disintegrating Frankish way, and so
cheated whomsoever of their number was called Emperor of
any real Empire. It was thus that France and other territo-
ries became separated from the German portion of the Frank-
lands, and set apart to work out histories of their own (sees.
262, 253, 270).
365. The Saxon Emperors : Otto the Great. — The great
figure among the Saxon emperors, who succeeded the Carolin-
gians, was Otto (936-973). Upon the extinction of the line
of Charles, the nobles of the Empire had claimed the right to
select their ruler, — a right which they long continued to exer-
cise, and which they often abused by the deliberate choice of
weak princes who would be unable to make the imperial author-
ity too intrusive, to the upsetting of baronial pretensions ; but
which they seem at first to have exercised with some wisdom.
Certainly the Saxon and Salian houses, which were selected
to rule during the two centuries following the death of the last
Carolingian, raised the imperial power to the height of its dig-
nity and consequence. Had there been others like the great-
est emperors of these Houses to succeed them, Germany, like
France, might have won unity and realized nationality at the
dawn, instead of at the noon, of the modern time.
366. The Saxon Otto, deservedly named ' the Great,' devoted
the thirty odd years of his vigorous reign to the repression of
the great duchies (Franconia, Bavaria, Swabia, Lotharingia)
which, along with his own duchy of Saxony, had, in the days
of the disintegration and decay of the Carolingian power,
assumed a heady independence quite incompatible with real
unity; to the defence of the Empire from the fierce and
repeated attacks of the Hungarians, whom no energy less than
his could have repelled ; and to the rehabilitation of the Ger-
THE GOVERNMENTS OF GERMANY. 231
man po-wer in Italy. In 962, after victories won in the Pope's
behalf in Italy, he renewed in Rome the imperial oifice, to
which, the dukes within his kingdom and the Hungarians
without being the witnesses, he was able to give a vitality and
ascendency scarcely inferior to those of its first estate under
Charles the Great. His weakness, like that of all his succes-
sors, lay in a foolish striving after a power more extensive
than he could possibly hold together, so long as the royal
authority in Germany was not undisputed. Endeavoring to
keep their hold upon Italy, Otto and his successors failed to
make good, once and for- all, their hold upon Germany. They
fell between two stools. It was impossible for them to hold
together in a common subjection both stubborn town-republics
in Italy and refractory feudatories in Germany. Still Otto
could make some show of success even in such a task; aud
even the less able successors of his own House handed on to
the Salian princes who came after them a power not altogether
squandered.
367. The Salian Emperors: Henry III. — The Salian
House in its turn produced Henry III. (1039-1056) under
whom the imperial authority reached its greatest height.
Henry was for a time himself duke at once of three of the
four great German duchies, Pranconia, Swabia, and Bavaria,
while the ducal throne of Lotharingia long remained vacant.
That process of absorption by the Crown of all the greater
feudal titles which was to consolidate France seemed to have
set in also in Germany. But German royalty lacked the
hereditary principle and the sustained capacity of a family
of Capets.
368. The Hohenstaufen : Frederic Barbarossa. — The line
of Salian emperors dwindled rapidly away after Henry III., and
in 1138 there was brought to the imperial throne that family
of Hohenstaufen which was to complete, through Frederic Bar-
barossa, the greatest of their line, the folly of Italian warfare.
The reign of Frederic was one long, variable, and eventually
282 THE GOVERNMENTS OE GERMANY.
fruitless struggle witli the republican cities of Lombardy.
While the emperor spent all his resources in the south, Ger-
many prepared to go to pieces so soon as his strong hand
should be removed. Frederic was a man of heroic mould,
equal to the greatest tasks of ruling, and so long as he lived,
the imperial government was measurably potent and respected.
But only such a one as he could wield the whip in such a way
as to effect a steady discipline of the great feudatories. Even
while he reigned, the forces of disintegration gathered head.
Free cities sprang up which were afterwards to be not a little
independent and masterful ; the Bavarian Ostmark was erected
into that duchy of Austria which was one day to grow into
the mistress of Germany ; and the Bohemian duke (Vladislav)
received that royal crown which was to lift Bohemia into
the front rank among the German states of the disintegrate
Empire.
369. The Interregnum and the Electors. — Almost imme-
diately after the death of the last of the Hohenstaufen emperors
(1254) came an interregnum, — a period of " fist-law " {Faust-
recht), as the Germans themselves called it, — which was event-
ually to bring forth a new constitution for the Empire. Just
after the expiration of the Garolingian line, as I have said,
the German princes had claimed and exercised the right to elect
the Emperor upon each occasion of the falling vacant of the
office (sec. 365). Of course the tendency of the time, which
was for privileges to fall into the possession of the strongest,
to remain with them through hereditary right so long as they
continued strong, led to the gradual limitation of the electoral
power to a few only of the leading spirits among the greater
ecclesiastical and temporal feudatories. The Interregnum was
brought about by a factional fight among these electors. One
party elected and crowned at Aachen (the titular capital of
the Empire since Charles's time) Eichard of Cornwall, a son
of John of England; but another party among the princes
elected Alphonso of Castile, a great-grandson of Frederic Bar-
THE GOVERNMENTS OF GERMANY. 233
barossa, refused to recognize Eichard as Emperor, and plunged
the country into a dreary civil war of seventeen years (1256-
1273), during which there really was no imperial govern-
ment at all. For Alphonso did not come to claim the half
crown thus equivocally offered him, Eichard made no head-
way towards real emperorship, and anarchy worked its full
confusion. The barons of the torn kingdom assiduously set
about making themselves more independent than ever ; some
of them openly devoted themselves to robbery and made a
trade of lawlessness ; the towns drew together for a govern-
ment of their own which would enable them to dispense with
emperors ; ^ every element of disintegration acquired its full
potency; and the Empire seemed finally to have gone to
pieces.
370. The First Habsburg Emperor. — At length, in 1273,
the electors agreed upon Eudolf, Count of Habsburg, as Em-
peror. Habsburg was a petty feudal estate in Switzerland :
but the electors seem to have selected its count for the very
reason that he was not powerful. For more than seventy
years they made it their settled policy to have none but weak
princes on the throne, in order that no too great centralization
of power might cheat them of their own unlawful independence.
They even degraded the imperial oflEice by shamelessly selling
it to the richest of rival candidates : they did not so much as
keep faith with purchasers of the dignity, but sold it some-
times to more than one aspirant at once. Eudolf, however,
proved strong enough to lay the foundations for the future
supremacy of his House. His chief rival for the imperial
crown had been Ottocar, king of Bohemia, the most powerful
prince of the Empire, and Ottocar's disappointment and resent-
ment at not receiving the coveted honor were so great that he
refused to acknowledge Eudolf as his suzerain. Eudolf, con-
sequently, immediately undertook to compel his submission,
1 This was the period of the formation of the Hanseatic and Rhenish
leagues mentioned sec. 246.
2S4 THE GOVEKNMENTS OF GERMANY.
and so complete was his success in a battle on the Marclifeld
(1278) that he wrung from Bohemia, besides other territories,
that duchy of Austria upon which the Habsburgers were to
erect much of their future greatness. Rudolf's election to the
throne had at any rate given to the house of Habsburg its
initial opportunity. Eudolf's son, Albert of Austria, also won
the crown, and Frederic of Austria soon after figured as rival
to Lewis of Bavaria, for the imperial title; but Habsburg's
time was not yet : Bohemian princes were to interpose a long
line of emperors before Austria should finally realize her am-
bition.
371. The Golden Bull. — From 1347 to 1437 there were,
with one interruption, emperors of the Luxemburg-Bohemian
line ; and the first of these, Charles IV. (1347-1378), is espe-
cially notable as having been instrumental in the promulgation
of that Golden Bull which was to continue to be the fundar
mental law of the Empire for four hundred and fifty years
(1356-1806). This celebrated law was issued by Charles, with
the concurrence of an imperial Diet, consisting of princes and
representatives of the free cities, in 1366. It determined who
should be the electors of the Emperor and how they should
exercise their electoral functions. It was once and for all
settled that the electors should be the following seven : the
Archbishop of Mainz, the Archbishop of Trier, the Archbishop
of Cologne, the king of Bohemia, the Count Palatine of the
Ehine, the Duke of Saxon Wittenberg, and the Markgraf of
Brandenburg. To each elector there attached a great imperial
ofiice : the three archbishops were respectively arch-chancel-
lors of Germany, Italy, and Burgundy ; the king of Bohemia
was cupbearer ; the Count Palatine, seneschal ; the Saxon duke,
marshal ; and the Brandenburger, chamberlain. It seems to
have been the theory that it was these ofiices which conferred
upon their possessors their prerogative as electors ; but of
course the fact was quite other : the oflB.ce had been tacked on
to the prerogative.
THE GOVERNMENTS OF GERMANY. 235
Had the final choice of electors been made in the earliest days of the
Empire, it would doubtless have been otherwise bestowed. It would
have been natural in any case that the archbishops of Mainz, Trier,
and Cologne should be preferred, for they had long been the greatest
spiritual magnates of the Empire ; but at an earlier date the four tem-
poral votes would have gone to the great duchies of Franconia, Saxony,
Swabia, and Bavaria. As it was, in 1356 none of these duchies any
longer existed whole. Two of tliem, Pranconia and Swabia, had become
entirely extinct : the place of Franconia as a principality had' been taken
by the Palatinate of the Rhine, that of Swabia by Brandenburg. The
Count Palatine and the Markgraf of Brandenburg accordingly received
electoral votes. Saxony had been divided between the houses of Saxon-
Wittenberg and Saxon-Lauenburg, of whom the Golden Bull preferred
the former. The Duke of Bavaria was of the same house as the Count
Palatine, and two votes were not to be given to one family. Bohemia
was new, but too powerful to be excluded.
The Bull lays down "a variety of rules for the conduct of imperial
elections. Frankfort is fixed as the place of election ; the Archbishop
of Mentz (Mainz) named the convener gf the electoral college ; to Bo-
hemia is given the first, to the Count Palatine the second place among
the secular electors. A majority of votes was in all cases to be decisive." i
There had long been seven electors ; the Golden Bull only decided
the claims of rival parts of houses, confirmed Bohemia in its vote, and
fixed the procedure.
372. Imperial Cities. — One of the most important develop-
ments of the thirteenth century in Germany, — the period of
the Interregnum and of the extremest feebleness and subordina-
tion of the imperial power, — was the rise of the free imperial
cities. The cities of the Empire had, as feudalism developed,
fallen into its order in two classes. Some of them held their
privileges of the Emperor himself, were his immediate vassals ;
others were subordinated to some feudal lord and were subjects
of the Empire only through him. The position of those imme-
diately dependent upon the Emperor was much more advanta-
geous than the position of those who had lesser and nearer
masters. The imperial supervision was apt to be much less ex-
acting than the overlordship of princes who, having less wide
1 Bryce, Holy Roman Empire, 8th ed., p. 231.
236 THE GOVBKNMBNTS OF GERMANY.
iuterests to care for than those which, busied the Emperor, eoiald
render their power greater by concentration. They were always
near at hand and jealous of any movement of independence on
the part of the towns within their domain ; the Emperor, on
the other hand, was often far away and never by possibility so
watchful. He was represented always by some deputy ; but
the presence of this officer did not greatly curtail municipal
self-government. In the thirteenth century even this degree
of control was gotten rid of at the suit of some of the cities.
They were allowed to become ' free ' imperial cities, bound to
the Emperor only by sworn allegiance, not by any bonds of ac-
tual government. The next step in the acknowledgment of
their independence and importance was their admission to rep-
resentation in the Diet of the Empire — and such recognition
was not long delayed. The r61e of these great free cities in
imperial affairs became one of the most important of the many
independent r61es played on the confused stage of that troubled
time. Lubeck, Hamburg, and Bremen retain to this day a cer-
tain privilege of position as free cities in the German Empire
(sees. 402, 406).
373. The Stviss Confederation. — Almost at the very time that
the Habsburgs first won the imperial crown and acquired the duchy
of Austria, some of their Swiss dependencies broke away from them,
and established an independence never since permanently broken.
Schwyz, Uri, and Unterwalden, the sturdy little mountain communities
grouped about the southern end of quiet Lucerne, with whose struggle
for freedom the glorious story of the Swiss Confederation begins, con-
tained some part of the estates of the Counts of Habsburg, whose
hereditary domains touched the other end of Lucerne, and stretched
wide to the north about the further shore of Lake Geneva, and south-
ward again on the West. The region of the Alps contained the nota-
ble imperial cities of Zurich, Berne, Basle, and Schaffhauseu ; and
Schwyz, Uri, a.nd Unterwalden claimed to be immediate vassals of the
Emperor, as these cities were. The Counts of Habsburg, in despite of
this claim, sought to reduce them to submission to themselves. The
result was a long struggle in which the three little cantons, at first
joined only by their neighbor canton, Lucerne, but afterwards by Zii-
THE GOVERNMENTS OF GERMANY. 237
rich, Glarus, Zug, and Berne, were eventually completely victorious.
By the formation of this famous league of free cantons and cities, at
first known as the "Old League of High Germany," but ultimately as
Switzerland (the land of Schwyz), there emerged from the German
Eapire one of the most interesting states known to tiistory. It may
be said to have been the offspring of the disintegrating forces of the
Empire, — a living proof of its incoherence. In the next chapter we
shall consider its political development with the special attention which
it merits.
374. Austria and the Empire. — Having acquired the duchy
of Austria, the House of Habsburg was no longer dependent
upon its fortunes in the Alps ; a forest canton more or less
could make no controlling difference in their political career.
In 1438 the Dukes of Austria, who had meantime added to their
possessions Carinthia and Tyrol, ascended the imperial throne,
to hand its titles on to their descendants in a direct succession
broken by only two interruptions of a single reign each, till
what remained of the Empire should be destroyed by Napoleon
in 1806. That process which had taken place both in England
and in France and which might have taken place at the same
early time in Germany, had not Carolingians, Saxons, and
Salians all alike so soon failed of male heirs, and had not the
Roman Church planned to keep alive through imperial elections
her influence in the Empire which she had created and named
'Holy,' now at last became operative in the country of the seven
electors. The imperial crown became hereditary. The electors
continued with singular perseverance to go through the forms
of election ; but, though they twice chose outside the House of
Austria,' they usually confirmed the choice of nature by elect-
ing each time the natural heir of the Habsburger just dead.
375. Maximilian I. — During the first century of its unin-
terrupted rule the House produced a man worthy, as men go,
to found a dynasty. Maximilian I. (1493-1519) was, on the
whole, a very able prince ; more important still, he was the
1 In 1742 they elected Charles "VII. of Bavaria, and in 1745 Francis I.
of Lorraine (sec. 380) .
238 THE GOVERNMENTS OP GBEMANY.
most powerful prince' of his line. The power of a German
emperor depended not on his authority as Emperor, but upon
what he was besides being Emperor. Maximilian possessed all
the estates once divided among various branches of his family,
and was therefore the most sovereign duke Austria had" yet
known ; he had, besides, married Mary, the daughter and heir
of Charles the Bold, and had thus come into possession of
many of the great estates which had made the House of Bur-
gundy a formidable rival of the most powerful kings. It was
with such power behind him that he became Emperor. With
him, it has been said, the Holy Eoman Empire changes its
character and becomes exclusively German. The Holy Eoman
Empire was elective and was dominated in large measure by
ecclesiastical influences ; the German Empire of the Habs-
burgers is hereditary and strictly political. The Holy Eoman
Empire was essentially a creation of the Middle Ages, was a
device for holding together diverse feudal elements under the
outward appearance of a whole ; the German Empire is a mod-
ern organization intended to secure the dominance of a single
great state. It emerges as the light of the Eenaissance begins
to spread over Europe, as America is discovered, and all medi-
aeval bonds are broken. Men did not perceive this at the time,
but such was nevertheless the case.^
376. Maximilian's Reforms. — The reforms which Maxi-
milian was able to accomplish in the administration of the Em-
pire were not great, but they at least bore promise of a much-
to-be-desired consolidation of the imperial power. Even the
Emperor's powerful feudal subjects were willing to aid in the
work of unification. A diet at Worms in 1495 proclaimed a
perpetual public peace and established an Imperial Chamber
(Beichskammergericht) which was intended to give to the Em-
pire a unified and authoritative administration of justice ; and
another Diet, later in the reign (1512), divided the Empire, for
1 See Bryce, pp. 312 et seq.
THE GOVERNMENTS OF GERMANY. 239
the better keeping of the peace, into ten administrative dis-
tricts, which were to serve as a territorial framework for the
exercise of the imperial authority. Each district (or " circle,"
as it was called) had its own judicial council, a sort of local
imperial chamber, which, like its prototype, the central Coun-
cil, was empowered to settle all disputes which threatened the
public peace. The system was one which promised centraliza-
tion, but did not give it. There was still, as it turned out, little
vitality, little reality in the connection between central and
local authorities. The Empire's parts administered themselves
rather than were administered.
The ten circles comprised no less than two hundred and forty sepa-
rate ' estates ' of the Empire, although Bohemia, Prussia, and Switzer-
land were left out as already practically independent. This astonishing
number, which still excluded the lesser feudatories like the imperial
knights, conveys some idea of the piece-meal political condition of the
Empire.
377. Although these reforms did not result in any very satis-
factory system or in any permanent energizing of the central
imperial power throughout the Einpire, yet they were typical
of a hopeful tendency towards German national unity. Max-
imilian was able to establish a permanent army (it was the era
when gunpowder was driving the old feudal levies out of exist-
ence and necessitating the drill of standing forces), to intro-
duce a system of imperial police, and to organize a public letter
post. The functions of the Imperial Chamber, too, gradually
passed into the hands of a smaller court more immediately
under the control of the Emperor. The House of Habsburg
was at any rate secure in its ascendency.
378. The Habsburg Marriages. — From the reign of Max-
imilian I. to the Napoleonic wars at the opening of the pres-
ent century the history of Germany as an Empire is hardly
more than the political history of Austria. The most striking
feature of the period is the wonderful growth of Habsburg
power by means of a most extraordinary series of fortunate
240 THE GOVERNMENTS OF GBKMANY.
marriages, which made contemporaries say that what Mars
gave to others Venus gave to the House of Austria. Maxi-
imilian I., as we have seen, married Mary of Burgundy and so
added to Austria the territories of that great House. The son
of this marriage, Philip the Tair, Archduke of Austria, married
Joanna, the heiress of Arragon and Castile, and so brought into
the world that greatest figure of the house of Habsburg,
Charles V., master of Spain and her American possessions, of
the Netherlands, and of Austria, with all that depended upon
these, the dreaded rival of every independent power in Europe
(1519-1556). It was this Charles who, bidding for the polit-
ical co-operation of the Papacy against Prancis I. of Prance,
threw his weight against Luther in the great Diet at Worms
and so inaugurated the momentous contests of the Reformation
which were to issue in the terrible Thirty Years' War. After
his abdication the vast double domains of the House were sep-
arated. Charles's son Philip received Spain and the Nether-
lands, his brother Ferdinand Austria and the imperial succes-
sion : there being thus established a Spanish and an Austrian
branch of the Habsburg line which were henceforth to have
separate histories.
379. The Thirty Years' War (1618-1648), which began as
a religious war with the revolt against the Empire of the Prot-
estants of Bohemia, degenerated in its last stages into a gen-
eral European war of aggrandizement, and ended with a general
redistribution of border territory amongst Sweden, France,
Brandenburg, and Austria, which emphasized the internal an-
tagonisms of the German States, but which left the House of
Habsburg in much the same position as of old. Austria re-
mained still head of the Empire, though the imperial ' estates '
were left free to act for themselves in all matters which did
not immediately affect imperial interests, — were given, i.e.,
what was called " territorial superiority " (LandesJioheit) — and
a permanent Diet was presently (1663) constituted at Eegens-
burg, in whose hands a more definite imperial constitution began
THE GOVERNMENTS OF GERMANY. 241
to be developed. Perhaps the most important result of the
peace (of Westphalia) was the acknowledgment of the inde-
pendence of Switzerland and the Republic of the United Neth-
erlands.
380. Until 1806. — The eighteenth century is marked for
Germany (1) by the War of the Spanish Succession which re-
' suited (Peace of Utrecht) in the failure of the claim of the
Austrian Habsburgers to the throne of Spain and in the rec-
ognition of Prussia (Brandenburg) as a kingdom (sec. 392);
(2) by the War of the Austrian Succession, which arose out of
the failure of the male line of the House of Austria ^ (the posses-
sions of the House falling to Maria Theresa), which practically
ended with the election of Francis of Lorraine, the husband of
the Austrian heiress, to the imperial throne, securing to Habs-
burg-Lorraine the Habsburg succession, and which resulted in
the loss by Austria of Silesia to Frederic the Great of Prussia
(Peace of Aix-la-Chapelle, 1748) ; (3) by the Silesian wars,
the last of which was called the Seven Years' War (1756-
1763), which arose out of the reopening of the contest between
Austria and Prussia for the possession of Silesia, and which
resulted in the final confirmation of the title of Prussia, a title
rather of might than of right (Peace of Htibertsburg, 1763) ;
(4) by the legal and ecclesiastical reforms whereby Joseph II.,
son of Maria Theresa, partially liberalized and rehabilitated
the Austrian Empire ; and (5) by the leagued opposition of
German princes, acting under the leadership of Frederic of
i*russia, to the attempt of Joseph to absorb Bavaria by trans-
ferring its heir to the Austrian Netherlands.
381. End of the Old Empire. — This last event was upon
the eve of the French Eevolution : and that revolution event-
ually brought forth Hapolepn Bonaparte, whose sweeping con-
quests forced Francis of Austria to abdicate the imperial office
in 1806} and so brought to an end at once the real German
1 This was the period (1742-1765) of the election of Charles of Bavaria
and Francis of Lorraine to the imperial dignity.
242 THE GOVEENMENTS OF GERMANY.
Empire which Maximilian had founded, and the tradition of
the Holy Roman Empire which ran back to the great Charles
and the year 800.
382. Austria's Rival, — Prussia. — Meantime a rival to
Austria had grown up in the north, out of the North Mark
established by Henry the Fowler in 930 as the Empire's bar-
rier against the Wends (sec. 363). North Mark as well as
East Mark had waxed great and independent ; they now stood
face to face, the two great border kingdoms, in a rivalry which
was to have the most momentous influence upon German
history.
383. The Mark Brandenburg. — The original North Mark,
— afterwards known as the Altmark, or Old Mark, — was a
small district upon the left bank of the Elbe, where the river
turns decisively and finally northwest on its way to the North
Sea.^ The Elbe then constituted the northeastern limit of
the Erankish kingdom ; neither Carolingiah nor Saxon empe-
rors had been able to maintain a permanent foothold beyond it.
They had gained a fringe of territory on the right bank of the
stream, only to lose it again to the Wends, its sturdy Slavonic
masters. In 1134, however^ the Emperor conferred the Mark
upon one Albert of the powerful house of Anhalt, who has
come down to us as ' Albert the Bear,' a man of daring and
energy of the sort that loves strenuous contests with the foes
both of circumstance and of the battle-field. Before him the
stubborn heathen gave way. He pushed beyond the river and
began rapidly to widen the North Mark into a great territory
which should have the Elbe at its back instead of at its front
in facing the barbarians beyond. Albert's successors, though
not so capable and masterful as he had been, were able pretty
steadily to advance the work which he had begun. Step by
step they pushed their conquests on till the next great river
of the north, the Oder, had been reached, till even the Oder
1 About sixty-five miles northwest from Berlin,
THE GOVERNMENTS OP GERMANY. 243
had been passed, and both Mecklenburg between the rivers,
and Pommerania beyond, had been brought under their power,
and two-thirds of the southern shore of the Baltic acknowl-
edged them as masters. The House of Anhalt continued to
furnish Markgrafs for this great task of conquest for almost
two hundred years (1134-1320), — the period which saw the
rise and fall of the Hohenstaufen, the' Interregnum, and the
greatest degradation of the imperial office, — a period con-
sequently of the greatest opportunity for independent action
and self-aggrandizement on the distant northern borders.
384. And Anhalt did its work thoroughly. It not only
conquered, but also colonized. Great numbers of colonists both
from Holland and from the more southern Teutonic lands were
brought into the newly acquired territory ; fully one hundred
towns are said to owe either their foundation or their re-
foundation on a Germanic basis to this time. The land was
thoroughly Teutonized, with the double benefit of a new and
vigorous popirlation and a new fertility and wealth, — for the
new-comers coaxed the barren soil of the country into an un-
wonted productiveness, and the towns created and rapidly
developed an unaccustomed trade. Meantime the country, so
much extended beyond the narrow area of the Old Mark, had
become the "Mark Brandenburg," a name which it took from
its new capital city, once a stronghold of the Wends under the
name Branibor.
385. Independence of the Markgraf . — Under the House
of Anhalt, too, the Mark had undergone more than territorial
expansion and material development : it had undergone also a
significant political transformation. The Grafs of the old
North Mark had not generally assumed to be more than officers
of the Empire, the Emperor's lieutenants on the border. Prob-
ably even Alfred the Bear fully acknowledged this complete
subordination of his functions to the control of the imperial
will. But by the time the North Mark had expanded into the
Mark Brandenburg, the Markgrafs, secure in hereditary pos-
244 THE GOVERNMENTS OE GERMANY.
session of their office, had begun to act not as real officers, but
only as nominal vassals of the Empire. They ruled their
domain with a peculiar potency, moreover. Not many great
estates were developed in Brandenburg during the early
periods of its development. Most of the immigrants held
directly of the Graf ; there were few, except the burghers of
the fast-growing towns, to dispute his complete supremacy.
It looked as if a kingdom of unprecedented homogeneity and
compactness were a-making in the lands between the Elbe and
the Oder.
386. Anarchy in Brandenburg. — But before any such
process could work itself out the heirs of Anhalt failed, and
the Mark fell to the Emperor as a lapsed fief. From 1324 to
1373 it was held by the imperial House of Bavaria;^ from
1373 to 1411 by the House of Luxemburg ; and during these
eighty-seven years anarchy and dissolution worked a constant
work of destruction. The Anhalt grafs had made the govern-
ment and extension of the Mark their chief concern, and so
had kept it well in hand, both against disorder within and
covetous neighbors without ; but to the Bavarians and Luxem-
burgs Brandenburg was a mere' appendage to other more im-
portant possessions. They were absentee lords ; and in their
absence their Mark land rapidly slid towards ruin. Lawless-
ness such as the whole Empire had strained under during the
Interregnum now wrenched government from its foundations
in the neglected Mark. The more powerful vassals hastened
to fortify themselves in the special privileges of a virtual in-
dependence; nobles became highwaymen; towns that could
escape the clutches of neighbor barons escaped also all con-
trol of the legitimate government; and every prince whose
territories touched those of Brandenburg helped himself
almost as he listed to such parts of the apparently doomed
1 It was during the tenure of Bavaria that the right of Brandenburg
to a yote in the electoral college was acknowledged by the Golden
Bull (sec. 300).
THE GOVERNMENTS OT? GEKMANY. 245
Mark as most tempted or could least withstand him. It
looked as if Anhalt's work was to be utterly undone and
Brandenburg become common spoil for Germany.
387. The HohenzoUern. — Just in time, as it would seem,
a House capable as any to reconstitute the torn domain and as
interested as any to identify its fortunes with their own, came
into possession of the diminished authority of the markgraf-
ship. This was the now famous House of HohenzoUern. This
House, a branch of the Swabian Zollern, had been invested, in
1192, with the burggrafship of Niirnberg. The'Burggraf of
Niirnberg, like the Markgraf of the North Mark, was originally
an imperial officer ; but the burggrafship became hereditary
and semi-independent like all other grafships (sec. 360) ; and
in the hands of the HohenzoUern it had attained to a very
great power and importance. Gradually piece after piece of
the territories about JSTurnberg was absorbed until both Ans-
bach and Bayreuth were included in the possessions of the
ambitious burggrafs, and the HohenzoUern had taken their
place among the most important princes of the Empire.
Sigismund of Luxemburg, who was elevated to the imperial
throne in 1410, was probably in debt to Frederic of Hohen-
zoUern, the Burggraf of Niirnberg, for stanch support against
his rivals in the imperial race. At any rate he created Fred-
eric Markgraf of Brandenburg in 1411. Twenty-seven years
afterwards, upon the death of Sigismund, this same Frederic
aspired to succeed him, but Albert, the first of the continuous
line of Habsburgers, was chosen. The day for the real rivalry
between Habsburg and HohenzoUern was not yet. The Bran-
denburger had first to nurse his power to its full stature.
388. The Dispositio Achillea. — Nothing, perhaps, con-
tributed more to the ultimate supremacy of Brandenburg in
Northern Germany, than the wise provisions speedily adopted
by the HohenzoUern concerning the manner in which their
new territory should be handed on by inheritance. They not
only recompacted the Mark by restoring firm government,
246 THE GOVERKMBKTS OP GEEMANY.
retaking some of its stolen parts, and stamping out the threaten-
ing internal divisions between noble and noble ; they also deter-
mined that they would not themselves divide the domain. A
family law was promulgated by the Markgraf Albert 'Achilles'
(1471-1486) which forbade any division of the Mark lands or
of the estates of Ansbaeh and Bayreuth. These latter and the
Mark might be separated from each other ; but neither was to
be partitioned within itself. This is known as the Dispositio
Achillea, and has justly been regarded as one of the principal
foundation stones of Hohenzollern predominance. Tor in thus
consolidating the power of their House by adopting the princi-
ple of primogeniture, the new masters of Brandenburg were
beforehand with the rest of Germany. Elsewhere noble fami-
lies were constantly dissipating carefully cumulated power by
partitions amongst heirs. The Hohenzollern, on the contrary,
though they did not, for a generation or two after the Dispo-
sitio, quite strictly hold to their new rule of inheritance, adhered
to it closely enough eventually to preserve their power whole.
Thereafter every acquisition added to the compact mass.
389. Joachim II. — Later Hohenzollern showed a capacity
for legal reforms of another kind. Joachim I. (1499-1636)
established at Berlin a supreme court to give unity to the ad-
ministration of justice ; and, in order to give unity also to the
law, introdxiced the Roman Code as a convenient substitute
for a perhaps impossible systematization of the heterogeneous
customs native to the Mark. The reign of Joachim II. (1635-
1571) marks a sort of turning point in the history of Branden-
burg ; for it was then that the power of the Elector and the
influence of the ' estates ' of the Mark, — the nobles and the
municipalities, — were most nearly at an equilibrium. Imine-
diately afterwards the towns declined, and all circumstances
shaped themselves in favor of the Elector and against a con-
tinued control of affairs by the 'estates.' More important
still, Joachim identified himself with the Protestant side in the
great controversy of the Reformation, and from him dates that
THE GOVERNMENTS OF GERMANY. 247
steady Protestantism of the House of HohenzoUern which came
eventually to constitute a chief part of its claim to lead Ger-
many in opposition to Catholic Austria. It was this Joachim
II., too, who prepared much of the later history of his House
by obtaining from the Duke of Prussia, in 1569; assent to a
solemn covenant that when the then ducal line should run out
the duchy should pass to Brandenburg. In 1618 the compact
was fulfilled, and John Sigismund of HohenzoUem became
Mso Duke of Prussia.
_ 390. Prussia was a district of considerable size, lying be-
tween the rivers Vistula and Memel at the southeast extremity
of the Baltic. It had been taken from the Lithuanian inhabi-
tants between the years 1230 and 1283 by the Teutonic Knights,
who were out of congenial employment since the end of the
fighting in Palestine and were eager for a stirring new crusade
against the heathen of Northern Europe. The Knights col-
onized and organized their conquests much as Albert the Bear
'and his successors had colonized and organized Brandenburg.
For more than a century they held their possessions in virtual
independence ; but in 1467 they were compelled to acknowl-
edge themselves subject to Poland. In 1611 the effort of the
Order to govern as an Order had been abandoned, and East
Prussia had been erected by Albert, a Franconian Hohenzol-
lern, Grand-Master of the Order, into a duchy held as a fief of
Poland. The Prussia, therefore, to whose ducal throne John
Sigismond succeeded in 1618 was a fief of Poland, and was
separated from Brandenburg by the wide expanse of West
Prussia, a large district extending from Pommerania to the
Vistula, which had once been part of the domain which the
Teutonic Knights had won, but which was now an integral part
of the territory of Poland.
391. " The Great Elector." — But in 1640 there came upon
the stage a HohenzoUem who was to force upon his neighbors
numerous changes in the political map. This was Frederic
William (1640-1688), ever since honored with the name of the
248 THE GOVEEKMENTS OP GERMANY.
Great Elector. By the Peace of Westphalia, Frederic Wil-
liam obtained Magdeburg and most of Pommerania (which
in a previous time of disintegration had been absorbed by Swe-
den). In 1657, by skilful playing of a double part in a war
between Sweden and Poland, he extorted from the latter a
relinquishment of her feudal rights over Prussia, and so made
it a free duchy. One-third of his territory at his death lay
outside of the Empire and owned no master but himself.
Inside his dominions he established absolutism. In Branden-
burg the towns had greatly declined ; and the nobles had abdi-
cated their control over the Elector by granting him a permanent
income, so that only management and force of character were
needed to make the Elector's will supreme there. In Prussia
he did not scruple to make force his instrument in establishing
absolutism.
392. The Kingdom of Prussia. — Frederic, son of the
Great Elector, used the power left him by his father to give
weight to intrigues whereby he finally got the consent of the'
Emperor to his assumption of the title of King of Prussia.
The Emperor would not consent to the erection of a new king-
dom within the Empire ; but Prussia lay outside the Empire ;
Frederic might call himself King of Prussia. Frederic accord-
ingly crowned himself with great impressiveness and pomp
at Konigsberg in Prussia, becoming King of Prussia and
Elector of Brandenburg. The greater title speedily swallowed
up the less. The King of Prussia was an independent monarch;
the Elector of Brandenburg was still a subject of the Empire.
The Elector always preferred, consequently, to be known by
the title of greater dignity. A brief time and the natural
result will follow : instead of Brandenburg's giving its name to
Prussia, Prussia will give its name to Brandenburg.
393. Frederic the Great. — Frederic, the first king of Prus-
sia, governed from 1688 to 1713. His son, Frederic William I.
(1713-1740), rounded out Brandenburg's possessions in Pom-
merania, and hoarded the money and prepared the army with
THE GOVERNMENTS OF GERMANY. 249
which his son, Frederic the Great (1740-1786), was to complete
the greatness of Prussia. The great Frederic took Silesia from
Austria, as we have seen (sec. 380), and then, joining in the
heartless and scandalous partition of Poland in 1772, filled up
the gap between Brandenburg and East Prussia with West
Prussia and the Netze district, territory already thoroughly
German. The second and third partitions of friendless Poland
in 1793 and 1795 added to Prussia the districts known now as
South and East Prussia.
Prussia was now ready for her final rivalry with Austria for
the leadership of Germany ; but first there was to be the great
storm of the Napoleonic wars, which was to sweep away so
much, besides the Empire, that was old in German political
arrangements, and create the proper atmospheric conditions
for German nationality.
394. Napoleon : the Confederacy of the Rhine. — One of
the earliest acts of Napoleon in his contest with Austria and
Prussia was to isolate these two great German states by thrust-
ing between them a barrier of smaller German states attached
to the French interest. Bo little coherent was Germany, so
little had the Empire made of the Germans a single nation,
that Napoleon was able to detach from all alliance with either
Austria or Prussia every one of the German states except
Brunswick and the electorate of Hesse. Of these the chief were,
of course, the kingdoms of Bavaria and Wiirttemberg and the
grand-duchy of Baden. Napoleon organized out of these allies
the so-called ' Confederacy of the Rhine,' of which he consti-
tuted himself ' Protector,' and which lasted from 1806 till 1813.
Bui, despite the ease with which he at first divided Ger-
many in order to conquer it. Napoleon discovered at last that
he had himself aroused there a national feeling which was to
cast him out and ruin him. In 1813 Germany rose, the Con-
federacy of the Ehine went to pieces, and all Napoleon's plans
were undone. He had done Germany the inestimable service
of making her patriotic.
2^0 THE GOVBENMENTS OE GERMANY.
395. The German Confederation (1815-1866). — The Coa-
gress of Vienna, which met at the close of the Napoleonic
wars to recompose Europe, had no less a task than the formal
undoing of all that Napoleon had done. It oould not, however,
revivify the German Empire : that had been dead for some
time before Napoleon forced a winding up of its affairs. Ger-
many was not to remain disintegrate, nevertheless. In 1815
was formed the German Confederation which, loose as it was,
united the German states more closely than they had been
united for many generations. Austria was the president of
the Confederation ; its organ was a Diet of ambassadors from
the thirty-nine com^ponent states (kingdoms, duchies, cities,
principalities), which was to mediate between the states in all
matters of common concern ; and the Confederation maintained
an army of thirty thousand men. The arrangement was little
enough like union : the large states had a preponderant repre-
sentation in the Diet, Austria dominating all ; and each state,
whether great or small, was suffered to go its own way, make
its own alliances and fight its own wars, if only it refrained
from injuring any one of the Confederates or the interests of
the Confederation. But there was suf&cient cohesion to keep
the states together while German national feeling grew, and
while the political revolutions of the century (1830 and 1848)
liberalized political institutions.
396. Period of Constitutional Reform. — In 1848 most of
the German states, except Prussia, granted to their people con-
stitutional government. In the same year a ' German National
Parliament ' met at Erankfort (the seat of the Diet of the Con-
federation) and attempted to formulate a plan for more perfect
union under the leadership of Prussia ; but the time was not
yet ripe for svich union, and the attempt failed. Still earlier,
in 1833, Prussia had led in the formation of a ' Customs Union '
(Zollverein) between herself and all ■■ the states of the Confed-
1 The Union did not at first include this 'all,' but it did eventually.
THE GOVEENMBNTS OF GERMANY. 251
eration except Austria, which laid the free-trade basis for those
subsequent political arrangements from which also Austria was
to be excluded.
In 1860 Prussia received from the hands of her king the
forms, at least, of a liberal government, with parliamentary in-
stitutions ; and these concessions, though at first largely make-
believe, served eventually as the basis for more substantial
popular liberties.
397. The North German Confederation (1867-1871). —
Finally, in 1866, came the open breach between Prussia and
Austria. The result was a six weeks' war in which Austria
was completely defeated and humiliated. The Confederation
of 1815 fell to pieces ; Prussia drew about her the Protestant
states of Northern Germany in a 'North German Confederal
tion'j the middle states, Bavaria, Wiirttemberg, Baden, etc.,
held off for a while to themselves ; and Austria found herself
finally excluded from German political arrangements.
398. Austria out of Germany. — Since then Austria, orig-
inally predominantly German, has devoted herself to the task
of amalgamating the various nationalities of Southeast Europe
under her hegemony, and so has become in large part a non-
German state. Prussia has become the head and front of
Germany, in her stead.
Meantime Prussia has grown more than one-fifth in terri-
tory. The reaj-rangement at Vienna in 1815 gave her Swedish
Pommerania and the northern half of Saxony; the war of
1866 confirmed her in the possession of Schleswig-Holstein,
Hannover, Hesse-Cassel, Hesse-Nassau, and Frankfort.
399. The German Empire. — The finishing impulse was
given to the new processes of union by the Franco-Prussian
War of 1870-1871. Prussia's brilliant successes in that con-
test, won, as it seemed, in the interest of German patriotism
against French insolence, broke the coldness of the middle
states towards their great northern neighbor; they joined the
rest of Germany ; and the German Empire was formed (Palace
of VersaiUes, Jan. 18, 1871).
252 THE GOVERNMENTS OF GERMANY.
GOVBENMENT OF THE EmPIBE.
400. Austria and Germany: Character of the German
Empire. — When he ceased to lae Emperor of the Holy Roman
Empire (1806 ; sec. 381), Erancis I. still remained Emperor of
Austria. He had assumed that title in 1804 ; and from that
day to this there has been in full form — what there had long
been in reality — an Austrian Empire. In 1871 there arose
by its side a new German Empire, but the two empires are
thoroughly unlike one another. The Austrian Empire, though
wearing the form of a dual monarchy as Austrian-Hungary, is
composed of the hereditary possessions of the House of Habs-
burg ; the German Empire, on the other hand, is a federal
state composed of four kingdoms, seven grand-duchies, four
duchies, seven principalities, three free cities, and the imperial
domain of Alsace-Lorraine, these lands being united in a great
' corporation of public law ' under the hereditary presidency of
the king of Prussia. Its Emperor is its president, not its
monarch.
The four kingdoms are Prussia, Bavaria, Wiirttemberg, and Saxony ;
the grand-duchies, Baden, Mecklenburg-Schwerin, Hesse, Oldenburg,
Brunswick, Saxe- Weimar, and Mecklenburg-Strelitz ; the duchies, Saxe-
Meiningen, Anhalt, Saxe-Coburg, and Saxe-Altenburg ; the principali-
ties, Waldeck, Lippe, Schwarzburg-Rudolstadt, Schwarzburg-Sonders-
hausen, Eeuss-Schleiz, Schaumburg-Lippe, and Ueuss-Greiz ; the free
cities, Hamburg, Lubeck, and Bremen.
401. The Central German States and the Empire. — The
first step towards union was taken in 1870, when Baden, Bava-
ria, and Wiirttemberg, fearing that the object of Napoleon III.
was to conquer the central German states or renew the Con-
federation of the Rhine, had decisively espoused the side of
Prussia and the North German Confederation. While the
siege of Paris was in progress these three states sent delegates
to King William at Versailles and formally united themselves
with their northern compatriots ; the North German Conf ed-
THE GOVBKNMENTS OF GERMANY. 253
eration became tlie German Confederation, with King William
as president. Almost immediately, however, the influences of
the time carried the Confederates a step farther : at the sugges-
tion of the king of Bavaria, the president-king was crowned
Emperor, and the German Confederation became the German
Empire.^
402. The Constitution of the Empire. — The new Empire,
however, bears still, in its constitution, distinctest traces of
its derivation. It is still a distinctly federal rather than
unitary state, and the Emperor is still only its constitutional
president. As Emperor he occupies not an hereditary throne,
but only an hereditary office. Sovereignty does not reside in
him, but " in the union of German federal princes and the free
cities." He is the chief officer of a great political corporation.
403. The Emperor. — Still his constitutional prerogatives
are of the most eminent kind. Unlike other presidents, he is
irresponsible : he cannot be removed, his office belonging in-
alienably to the throne of Prussia, whether its occupant be
king or regent only. He summons, opens, adjourns, and closes
the two Houses of the federal legislature, the Bundesrath and
the Reichstag, the latter of which he can also, upon the advice
of the Bundesrath, dissolve. He appoints, and may a;t his
pleasure remove, the Imperial Chancellor, who is both the
vital centre of all imperial administration and chairman of
the Bundesrath; and he appoints also, under the countersignar
ture of the Chancellor, all minor officers of the imperial ser-
vice, whom, with a like co-operation of the Chancellor, he may
also, of course, dismiss. He controls the foreign affairs of
the Empire and commands its vast military forces ; and in this
latter capacity, of commander-in-chief of the imperial army,
it rests with him, acting with the consent of the Bundesrath,
to coerce into obedience such states of the Empire as may at
any time wilfully and pertinaciously neglect to fulfil their
1 The present constitution of the Empire bears date April 16, 1871.
254 THE GOVBENMENTS OP GERMANY.
federal duties. He has, in brief, to the fullest extent, both the
executive and the representative functions now characteristic
of the head of a powerful constitutional state. There are dis-
tinct limits to his power as Emperor, limits which mark and
emphasize the federal character of the Empire and make of it
a state governed by law, not by prerogative ; but those limits
nevertheless lie abundantly wide apart. Adding, as he does,
to his powers as hereditary president of the Empire his com-
manding privileges as king of Prussia and, as king of Prussia,
the dominant member of the Union, he possesses no slight
claim to be regarded as the most powerful ruler of our time.
(Compare sees. 319, 321, 326, 595, 604, 611, 626, 626, 637, 644,
678, 706, 1102, 1148, 1149.)
404. Sovereignty of the Empire in Legislation. — So com-
plete, so unlike that of a mere confederation is the present
union of the German states that the sovereign legislative power
of the Empire is fheoretically unlimited : ' it can by means
of constitutional amendment set aside the bounds placed by
the constitution between its sphere and that of the individual
states, that is, alter them without the consent of the states ;
it can also withdraw from the states the powers reserved to
them. In a certain sense, therefore, it may be said that the
individual states possess their magisterial rights only by suf-
ferance of the Empire, only by virtue of its will.' ' Amend-
ments of the constitution are not submitted either to the
people or to the governments of the states : nor are they
passed by any special or peculiar procedure, as in France (sees.
311, 318). They are originated and acted upon as ordinary
laws would be. The only limitations put upon their passage
are, first, that fourteen negative votes in the Bundesrath will
defeat a proposed amendment, and, second, that no state can
be deprived of any right guaranteed to it by the constitution,
without its own consent. But, notwithstanding this great con-
^ Laband, Das Staatsrecht des deutchen Reiches (Marquardsen's Ilaiid-
bmh), p. 22.
THE GOVERNMENTS OF GERMANY. 255
eentration of sovereign powers in the legislative authorities
of the Empire, its constitution still retains strongly federal
features ; and the mirror of those features is the Bundesrath.
405. The Bundesrath ; its Composition and Character. —
In form and theory the Bundesrath is a body of ambassadors.
Its members represent the governments of the states from
which they come, and are accredited to the Emperor as diplo-
lomatic agents, plenipotentiary charges d'affairs, to whom he
must extend the same protection that is extended to the. like
representatives of foreign states. It is a fundamental concep-
tion of the German constitution that " the body of German
sovereigns together with the senates of the three free cities,
considered as a unit, — tanquam unum corpus, — is the reposi-
tory of imperial sovereignty." '^ The Bundesrath is the repre-
sentative of this body, and is therefore the organ through
which the sovereignty of the Empire is expressed. The Em-
peror, consequently, shares the sovereignty of the Empire
only as king of Prussia, and takes part in its exercise only
through the Prussian members of the Bundesrath. It follows,
of course, from this principle that the members of the Bundes-
rath are only the agents of their governments, and act under
instrvictions from them, making regular reports of the pro-
ceedings of the Bundesrath to their home administrations.
The votes of a state are valid, whether cast by her represen-
tatives in accordance with their instructions or not ; but the
delegates are responsible for every breach of instructions to
their home authorities.
Of course as a matter of practice the delegates to the Bundesrath
receive only instructions of a very general, unspeciflc character, or none
at all, seeking special instruction only for votes of great importance.
406. Representation of the States in the Bundesrath.—
The states of the Empire are unequally represented, accord-
ing to their size. Prussia has seventeen votes ; Bavaria six ;
1 Laband, p. 40.
256 THE GOVERNMENTS OP GERMANY.
Saxony and Wiirttemberg four each ; Baden and Hessen each
three ; Mecklenburg-Schwerin and Brunswick each two ; the
other seventeen states one apiece. The votes of each state
which is entitled to more than one vote must be cast together
as a unit, and each such state can cast her full vote whether
or not she have her full number of representatives present.
The significance of the constitutional provision that amendments to
the constitution may not pass if there be fourteen negative votes cast
in.the Bundesrath is quite evident. A combination of the small states
may defeat any organic change of law proposed by the large states ;
and Prussia alone can bar any amendment to which she is opposed.
The seventeen votes of Prussia on the one side and the seventeen votes
of the small states on the other may be said to constitute the central
balance of the system.
/
407. Functions of the Bundesrath. — The Bundesrath oc-
cupies a position in the German system in some respects not
unlike that which the Roman Senate held in Rome's govern-
ment (sec. 149). It is, so to say, the residuary legatee of the
constitution ; all functions not specifically entrusted to any
other constitutional authority remain with it ; no power is in
principle foreign to its jurisdiction. It has, therefore, a com-
posite character ; it is at one and the same time an adminis-
trative, a legislative, and a judicial body.
408. In its legislative capacity it may be considered the
upper house of the legislature. It may originate bills to be
sent to the Reichstag ; and its sanction is indispensable to the
validity of all legislation. Its consent must be had also to
any treaty which works any change in either the constitutional
or statutory law of the Empire (see, also, sec. 409). Members
of the Bundesrath have, moreover, the right to express their
views concerning pending legislation on the floor of the Reichs-
tag, even when their views are no't those which have been
accepted by the majority of the Bundesrath.
409. The administrative function of the federal chamber
may be summed up in the word oversight. It considers all
THE GOVEENMENTS OP GERMANY. 257
defects or needs ■which discover themselves in the adminis-
trative arrangements of the Empire in the course of the exe-
cution of the laws, and may in all cases where that duty has
not been otherwise bestowed, formulate the necessary regular
tions to cure such defects and meet such needs. It has, more-
over, a voice in the choice of some of the most important
officers of the imperial service. It nominates or elects the
members of the Court of Accounts, of the Supreme Court of
the Empire (ReiclisgericM) , of the "Chamber of Discipline,"
as well as the officials who administer the imperial pension
funds, and those who constitute the directory of the Imperial
Bank. It confirms the nomination, also, either directly or
through one of its committees, of consuls and of the officers
who exercise the imperial control over the duties and taxes laid
by the states under laws of the Empire. It may also be
reckoned among the executive functions of the Bundesrath
that its consent is necessary to a declaration of war (except
in case of invasion, when the Emperor may act alone), to a
dissolution of the Beicltstag during a legislative period, and to
other like weighty acts of government.
410. The Judicial functions of the Bundesrath spring in part
out of 'its character as the chief administrative council of the
Empire. When acting as such a council, many of its conclu-
sions partake of the nature of decisions of a supreme adminis-
trative court of appeal. But its jurisdiction as a court is much
wider than questions of administration. It can declare a state
of the Empire delinquent, and order execution to issue against
it. It is the court of highest, instance in every case of the
denial of justice to an individual in a state court arising out of
a defect or deficiency in the law of the state ; it being within its
competence in such a case to compel the state to cure the defi-
ciency and afford the suitor the proper remedy. It is the court
of appeal in all cases of dispute between two or more states of
the Empire which involve not mere private law questions (such
cases go to the ordinary civil courts), but points of public law.
258 THE GOVERNMENTS OF GERMANY.
In case it cannot agree upon a conclusion in such disputes, the whole
legislative power is brought into play and a law is passed covering the
matter in controversy. If in any case it considers itself unfitted by
its organization, or for any other reason, to act.as a court in controver-
sies brought before it, it may delegate its judicial powers to a court or
to experts.
This it did in 1877 witli reference to the dispute between Prussia and
Saxony concerning the Berlin-Dresden railway.^
411. Organization of the Bundesrath. — The Imperial
Chancellor is chairman of the Bundesrath. He is appointed by
the king of Prussia, and he must also be one of Prussia's seven-
teen representatives, — for it is the better opinion among Ger-
man constitutional lawyers that the Chancellor's membership
in the federal chamber is necessary to his presidency of the
body. In case of a tie vote, the Chancellor's vote is decisive :
that is to say, the side on which Prussia's votes are cast prevails,
for her vote must be undivided — the Chancellor's vote is not
his own, but is one-seventeenth part of Prussia's whole vote.
The Chancellor may appoint a substitute to act in his absence as
president, this limitation resting upon his choice, that if he does not
appoint a Prussian delegate to the office he must appoint a Bavarian.
He may also appoint a substitute to perform all his functions, and such
an appointment would of course include the presidency of the Bundes-
rath unless a separate and special delegation of that oiBce were made,
— and unless, also, perhaps, the general substitute were not a member
of the federal Council.
412. Committees. — The Bundesrath follows, of course, the
practice of other legislative bodies in referring various matters
to special committees of its members. It has, too, like other
bodies, certain standing committees. These are three : one on
Alsace-Lorraine, one on the Constitution, and one on the Order
of Business.
Much more important than these, however, are eight delega-
tions of its members which, though called committees, may be
1 Laband, p. 43, n.
THE GOVBENMENTS OF GERMANY. 259
more properly described as Commissions, for like the executive
committee of our own Congress under the old Confederation
(sec. 8G7) they continue to sit during the recesses of the cham-
ber which they in a sense represent. Of these Commissions
two are appointed by the Emperor, namely a Commission " for
the Land Forces and Fortifications " and a Commission " for
Naval Affairs " : five are chosen yearly by the Bundesrath,
namely, those "on Tariffs and Taxation," "for Trade and Com-
merce," " for Railways, Posts, and Telegraphs," " on Justice,"
and "on Accounts" {Bechnungswesen) ; the eighth and most
important, the " Commission on Foreign Affairs," consists of
the representatives of Bavaria, Saxony, and Wiirttemberg, and
of two other members chosen by the Bundesrath. At least
five states must be represented on each of these Commissions,
and Prussia must always be one of the five, except in the case
of the Commission on Foreign Affairs. On this last Prussia
needs no representation ; she has committed to her, through
her king who is also Emperor, the whole conduct of the foreign
affairs of the Empire ; the Commission is appointed simply to
watch the course of international relations, and to inform the
several states of the posture of foreign affairs from time to
time. " It has to prepare no conclusion for the Bundesrath and
to make no reports to it : it serves to receive communications
concerning the foreign affairs of the Empire and to exchange
opinions with the imperial administration concerning" those
affairs.' Its action is thus independent of its. connection with
the Bundesrath ; and this is the chief point of contrast between
it and the other Commissions. Their duties are principally to
the Bundesrath : they for the most part only make reports to it.
Besides their right to representation on the Commission on Foreign
Affairs, of which Bavaria has the presidency, Wiirttemberg, Bavaria,
and Saxony have also the. right to appointments on the Commissions
for Land Forces and Fortifications and for Naval Affairs which it is the
privilege of the Emperor to name.
1 Labaud, p. 46.
260 THE GOVERNMENTS OP GERMANY.
Prussia is entitled to the presidency of all the Commissions except
that on Foreign Affairs.
Each state represented has one vote in the action of a Commission,
I and a simple majority controls.
+
413. The Reichstag : its Character and Competence. — It
/would lead to very serious misconceptions to regard the Bundes-
rath and the Reichstag as simply the two houses of the impe-
rial legislature, unlike each other only in some such way as our
Senate and House of Representatives are unlike, only, i.e., be-
cause the upper house is differently constituted and is entrusted
with a certain share in functions not legislative. Properly con-
ceived, the Bundesrath and Beichstag stand upon a very dif-
ferent footing with reference to each other. The legislative
functions of the Bundesrath are only incidental to its charac-
ter as representative organ of the sovereign body of the Em-
pire, the " body of German sovereigns and the senates of the
free cities." It sanctions legislative measures passed by the
Beichstag, rather than legislates ; and legislation is no more
peculiarly its business than is the superintendence of adminis-
tration or the exercise of judicial functions. It, as part of the
administration, governs ; the Beichstag, as representing the
German people, controls. The control of the Beichstag is ex-
ercised, not only through its participation in legislation, but
also through the giving or withholding of its sanction to cer-
tain ordinances to whose validity the constitution makes its
concurrence necessary ; through its power of refusing to pass
the necessary laws for the execution of treaties of which it
does not approve ; through its right to inquire into the conduct
of affairs ; and through its right of remonstrance. Its powers
are not enumerated ; they are, exercised in one form or another,
as wide as the activities of the Empire. The legislative com-
petence of the Empire is, since 1873, legally unlimited as to
private law: it covers the whole field of civil and criminal
enactment, though as a matter of fact it has been exercised as
yet only over a part of that field ; much the greater part of
THE GOVERNMENTS OF GERMANY. 261
I^rivate law has been left to the regulation of the several
states.
414. Composition of the Reichstag. — The Reichstag repre-
sents, not the states, or the people of the several states regarded
separately, but the whole G-erman people. Representation is
distributed on the basis of one representative to every one
hundred thousand inhabitants. Representatives are, however,
elected by districts, one for each district, and no district may
cross a state line and include territory lying in more than
one state. If, therefore, any state of the Empire have less than
one hundred thousand inhabitants, it may, nevertheless, con-
stitute a district and send a representative to the Reichstag.
The Beichstag at present (1889) consists of three hundred and ninety-
seven members ; and of this number Prussia returns two hundred and
thirty-six.
415. The members of the Reichstag are elected for a term
of five years ^ by universal suffrage and secret ballot. The
voting age in Germany is twenty-five years ; and that is also,
of course, the earliest age of eligibility to the Reichstag.
The election districts are determined in tlie northern states according
to laws passed under the North German Confederation ; in Bavaria, by
the Bavarian legislature ; in the other southern states, by the Bundes-
rath. The subdivisions of the districts, the voting precincts, are deter-
mined by the administrations of the states.
An absolute majority is required for election. In case no candidate
receives such a majority, the commissioner of election, — an officer
appointed by the administration for each district, — is to order a new
election to take place within fourteen days after the official publication
of the result of the first, the voting to be for the two candidates who
received the highest number of votes. Should this second election
result in a tie the lot decides.
416. Election to the Reichstag takes place, not on days set
by statute, but on days appointed by executive decree, as in
1 By a law of March 19, 1888, to take effect after the legislative period
1887-'90.
262 THE GOVERNMENTS 03? GERMANY.
France (sec. 315). For the Reichstag may be dissolved by the
Emperor, with the consent of the Bundesrath (by a vote in
which Prussia concurs) before the completion of its regular
term of five years.
In case of a dissolution, a new election must be ordered within sixty
days, and the Reichstag must reassemhle within ninety days.
The Emperor may also adjourn the Reichstag without its own con-
sent (or, in English phrase, prorogue it) once during any session, for
not more than thirty days.
417. Sessions of the Reichstag. — The Reichstag meets at
the call of the Emperor, who must call it together at least once
each year ; he may convene it oftener. He must summon at
the same time the Bundesrath. The sessions of the Reichstag
must be public ; it is not within its choice to make them pri-
vate. A private session is regarded as, legally, only a private
conference of the members of the Reichstag and can have no
public authority whatever.
Members of. the Reichstag who accept a salaried office under the
Empire or one of the states, or an imperial or state office of higher
rank or power than any they may have held when elected, must resign
and offer themselves for re-election (compare sec, 683).
418. Organization of the Reichstag. — The Reichstag elects
its own President, Vice-presidents (2), and Secretaries. For
the facilitation of its business, it divides itself by lot into
seven 'Sections' {Abtheilungen) , every Section being made to
contain, as nearly as may be, the same number of members as
each of the others. These Sections divide among them the
work of verifying the election of members and the choice
of special committees. The Reichstag has no standing com-
mittees ; but from time to time, as convenience suggests,
temporary committees are named, whose duty it is to prepare
information for the body, which they present in reports of
a general nature. These committees it is which the Sections
select. Each Section contributes its quota of members to each
committee.
THE GOVERNMENTS OF GERMANY. 263
419. Course of Legislation.'— One-half of the members constitute
a quorum. An absolute majority is requisite for a valid vote.
Every measure passes through three readings. On the first there is
a general debate on the question whether the matter shall be referred
to a committee or be taken up at once by the body itself (in plenum) ;
on the second, the individual clauses of the bill, and amendments to
each clause, are considered; on the third, the work of the second reading
is debated as a whole (amendments being admitted only if supported
by thirty members), votes are taken on the clauses and amendments
seriatim, and then a vote is had upon the entire measure as completed.
420. Election of Officers. — The initial constitution of a newly
elected Reichstag is interesting. It comes to order under the presidency
of the oldest member; it then elects its president, two vice-presidents,
and secretaries ; the president and vice-presidents for a term of only
four weeks. At the end of these four weeks a president and vice-
presidents are elected for the rest of the session. There is no election
of officers for the whole legislative term, as in England and the United
States : at the opening of each annual session a new election takes
place. It is only at the first, however, that there is a, so to say, experi-
mental election for a trial term of four weeks.
421. Imperial Administration. — While the distinction be-
tween the executive and legislative functions of government
is sharply enough preserved in Germany, no equally clear dis-
crimination is made in practice between executive and judicial
functions. The judiciary is a branch of the administration.
The caption ' Imperial Administration ' covers, therefore, all
activities of the government of the Empire which are not
legislative.
Although it is a fundamental principle of the imperial con-
stitution that ' the Empire has sovereign legislative power, the
states only autonomy,' the Empire has heretofore occupied
only a part of the great field thus opened to it, and has con-
fined itself as a rule to mere oversight, leaving to the states
even the execution of most imperial laws.
The judges of all but the supreme imperial court, for instance, the
tariff officials and gangers, the coast officers, and the district military
authorities, are all state officers.
264 THE GOVERNMENTS OF GERMANY.
422. The Imperial Chancellor. — The Empire has, of course,
however, its own distinct administrative organs, through which
it takes, whether through oversight simply or as a direct ex-
ecutive, a most important and quite controlling part in affairs ;
and the head and centre of its administration is the Imperial
Chancellor, an officer who has no counterpart in any other con-
stitutional government.
(1) Looked at from one point of view, the Chancellor may
be said to be the Emperor's responsible self. If one could
clearly grasp the idea of a responsible constitutional monarch
standing beside an, irresponsible constitutional monarch from
whom his authority was derived, he would have conceived the
real, though not the theoretical, character of the Imperial
Chancellor of G-ermany. He is the Emperor's responsible
proxy. Appointed by the Emperor and removable at his pleas-
ure, he is still, while he retains his office, virtually supreme
head of the state, standing between the Emperor and the Reich-
stag, as the butt of all criticism and the object of all punish-
ment. He is not a responsible minister in the English or
French sense (sees. 327, 686, 687) ; there is, strictly speaking, no
'parliamentary responsibility' in Germany. In many respects,
it is true, the Chancellor does occupy with regard ijp the Reich-
stag much the same position that a Erench or English ministry
holds towards the representatives of the people ; he must give
an account of the administration to them. But an adverse
vote does not unseat him. His 'responsibility' does not
consist in a liability to be forced to resign, but consists simply
in amenability to the laws. He does not represent the majority
in the Reichstag, but he must obey the law.
This 'responsibility' of the Chancellor's, so far as it goes, shields,
not the Emperor only, but also all other ministers. "The constitution
of the Empire knows only a single administrative chief, the Imperial
Chancellor." i
So all-inclusive is the representative character of the chancellorship
1 Laband, p. 57.
THE GOVERNMENTS OF GERMANY. 265
that all powers not specifically delegated to others rest with tlie Chan-
cellor. Thus, except when a special envoy is appointed for the pur-
pose, he conducts all negotiations with foreign powers. He is also
charged with facilitating the necessary intercourse between the Bundes-
rath and the Reichstag.
The Chancellor's relation to the Reichstag is typified in his
duty of submitting to it the annual budget of the Empire.
423. (2) Still further examined, the chancellorship is found
to be the centre, not only, but also the source of all de-
partments of the administration. Theoretically at least the
chancellorship is the Administration : the various departments
now existing are offshoots from it, differentiations within its
all-embracing sphere. In the offtcial classification adopted in
German commentaries on the public law of the Empire, the
Chancellor constitutes a class by himself.^ There are (1)
The Imperial Chancellor, (2) Administrative officials, (3) Inde-
pendent {i.e., separate) financial officials, and (4) Judicial
officials. The Chancellor dominates the entire imperial service.
424. (3) A third aspect of the Chancellor's abounding au-
thority is his superintendency of the administration of the
laws of the Empire by the states. With regard to the large
number of imperial laws which are given into the hands of
the several States to be administered, the Empire may not only
command what is to be done, but may also prescribe the way
in which it shall be done : and it is the duty of the Chancellor
to superintend the states in their performance of such behests.
In doing this he does not, however, deal directly with the
administrative officials of the states, but with the state gov-
ernments to whom those officials are responsible. In case of
conflict between the Chancellor and the government of a state,
the Bundesrath decides.
The expenses of this administration of federal laws by the states
fall upon the treasuries of the states themselves, not upon the treas-
ury of the Empire. Such outlays on the part of the states constitute
1 Laband, p. 66.
266 THE GOVEBNMENTS OP GERMANY.
a part of their contribution to the support of the imperial govern-
ment.
The states are required to make regular reports to the imperial gov-
ernment concerning their conduct of imperial administration.
426. (4) When acting in the capacity of chairman of the
Bundesratli, the Chancellor is simply a Prussian, not an im-
perial, official. He represents there, not the Emperor, for the
Emperor as Emperor has no place in the Bundesrath, but the
king of Prussia.
426. The Vice-Chancellorship, — The laws of the Empire make a
double provision for the appointment of substitutes for the Chancellor.
As I have already said, in connection with his presidency of the Bun-
desrath (sec. 411), he may himself appoint a substitute, for whose acts
he is, however, responsible. In addition to this a law of 17 March,
1878, empowers the Emperor to appoint a responsible Vice-chancellor.
This appointment is made, upon the motion of the Chancellor himself,
for the administration of all or any part of his duties, when he is him-
self hindered, even by an overweight of business, from acting; the
Chancellor himself judging of the necessity for the appointment. The
Chancellor may at any time, too, resume any duties that may have
been entrusted to the Vice-chancellor, and himself act as usual. He
is thus, in effect, ultimately responsible in every case, — even for
the non-exercise of his ofHce. The vice-chancellorship is only a con-
venience.
427. Foreign Affairs. — The full jurisdiction over the for-
eign affairs of the Empire conferred upon the imperial govern-
ment by the constitution of the Empire does not exclude the
several states from having their own independent dealings
with foreign courts : it only confines them in such dealings to
matters which concern them without immediately affecting
imperial interests. The subject of extradition, for instance,
of the furtherance of science and art, of the personal relations
and private affairs of dynasties, and all matters which affect
the interests of private citizens individually, are left to be
arranged, if the states will, independently of the imperial For-
eign Office. The states, therefore, have as full a right to send
THE GOVERNMENTS OP GERMANY. 267
ambassadors for their own constitutional purposes as the Em-
pire has. to send ambassadors for its greater objects affecting
the peace and good government of Europe. It may thus often
happen that the Empire and several of the states of the Em-
pire are at the same time separately represented at one and
the same court. In the absence of special representatives
from the states, their separate interests are usually cared for
by the representative of the Empire. The department of the
imperial administration which has charge of the international
relations of the Empire is known as the Foreign Office simply
(das Auswartige Amt).
428. Internal Affairs. — The general rule of government in
Germany, as I have said, is that administration is left for the
most part to the states, only a general superintendence being
exercised by the imperial authorities. But the legislative
sphere of the Empire is very much wider than is the legis-
lative sphere of the central government in any other federal
state. Imperial statutes prescribe in very great variety the
laws which the states administer, and are constantly extending
farther and farther their lines of prescription. From the Em-
pire emanate not qply laws which it is of the utmost moment
to have uniform, — such as laws of marriage and divorce, — but
also laws of settlement, poor laws, laws with reference to in-
surance, and even veterinary regulations. Its superintendence
of the local state administration of imperial laws, moreover, is
of a very active and systematic sort.
429. Weights and Measures. — Imperial methods of super-
vision are well illustrated in the matter of weights and meas-
ures. The laws with reference to the standard weights and
measures to be used in commerce are passed by the imperial
legislature and administered by state officials acting under the
direction and in the pay of the state authorities ; but thorough
control of these state ofiGLcials is exercised from Berlin. There
is at the capital a thoroughly organized Weights and Measures
Bureau (Normal-Eichungskommission), which supplies standard
268 THE GOVERNMENTS OP GERMANY.
weights and measures, superintends all the technical business
connected with the department, and is in constant and direct
association with the state officials concerned, to whom it issues
from time to time specific instructions.
430. Money. — With regard to money the control of the
Empire is, as might be expected, more direct. The states are
forbidden to issue paper money, and imperial legislation alone
determines money-issue and coinage. But even here the states
are the agents of the Empire in administration. Coining is en-
trusted to state mints, the metal to be coined being distributed
equally among them. This, however, is not really state coin-
age. These state mints are the mere agents of the imperial
government : they coin only so much as they are commanded to
coin ; they operate under the immediate supervision of impe-
rial commissioners ; and the costs of their work are paid out of
the imperial treasury. They are state mints only in this, that
their officers and employees are upon the rolls, not of the
imperial, but of the state civil service. The Empire would
doubtless have had mints of its own had these not already
existed ready to its hand.
431. Railways. — The policy of the Envpire with reference
to the management of the railways is as yet but partially
developed. The Empire has so far made comparatively little
use of the extensive powers granted it in this field by its con-
stitution. It could virtually control ; but it in practice only
oversees and advises. The Imperial Railway Office (Beichs-
Eisenhahnamt) has advisory rather than authoritative func-
tions ; its principal supervisory purpose is the keeping of the
various roads safe and adequately equipped. The railways
are owned in large part by the several states ; and the states
are bound bj' the constitution to administer them, not inde-
pendently or antagonistically, but as parts of a general German
system. Here again the Empire has refrained from passing
any laws compelling obedience to the constitution on this
point ; possibly because the states have assiduously complied
THE GOVERNMENTS OP GERMANY. 269
of their own accord. Using the Bundesrath for informal con-
ference on the matter (though the Bundesrath has no consti-
tutional authority in railway administration) .they have effected
satisfactory co-operative arrangements.
The railways of Bavaria stand upon a special footing : for Bavaria
came into the federation on special terms, reserving an independence
much greater than the other states retain in the management of her
army, her railways, and her posts and telegraphs.
For military purposes, the Empire may command the services of the
railways very absolutely. It is as aids to military administration pri-
marily that their proper construction and eflcient equipment are in-
sisted on through the Imperial Railway Office. Even the Bavarian
railroads may he absolutely controlled when declared by formal impe-
rial legislative action to be of military importance to the Empire.
With reference to any but the Bavarian roads a simple resolution of
the Bundesrath. alone suffices for this declaration.
The duty of the states to administer their roads as parts of a single
system is held to involve the running of a sufficient number of trains to
meet all the necessities of passenger and freight traffic, the running of
through coaches, the maintenance of jiroper connections, the affording
of full accommodations, etc.
At times of scarcity or crisis, the Emperor may, with the advice of
the Bundesrath, prescribe low tariffs, within certain limits, for the trans-
portation of certain kinds of provisions.
432. Posts and Telegraphs. — Here the administrative ar-
rangements of the Empire are somewhat complicated. Bavaria
and Wiirttemberg retain their own systems and a semi-indepen-
dence in their administration, just as Bavaria does with regard
to her railways also ; being subject to only so much of imperial
regalation as brings their postal and telegraphic services into
a necessary uniformity with those of the Empire at large. In
most of the states the imperial authorities directly administer
these services ; in a few, — Saxony, Saxe-Altenburg, the two
Mecklenburgs, Brunswick, and Baden, — there is a sort of part-
nership between the states and the Empire. The principle
throughout is, however, that the Empire controls.
270 THE GOVERNMENTS OF GERMANY.
433. Patents, etc. — Besides the administrative activities with refer-
ence to internal affairs which I have mentioned, the Empire issues
patents, grants warrants to sea-captaius, naval engineers, steersmen, and
pilots ; and examines sea-going vessels with a view to testing their sea-
worthiness.
434. Military and Naval Affairs. — The Empire as such
has a navy, but no troops. Prussia is the only state of the
Empire that ever maintained a naval force, and she has freely
resigned to the Empire, which she virtually controls, the ex-
clusive direction of naval affairs. But the case is different, in
form at least, with the army. That is composed of contingents
raised, equipped, drilled, and, in all but the highest commands,
officered by the states. This at least is the constitutional ar-
rangement ; the actual arrangement is different. Only Bavaria,
Saxony, Wiirttemberg, and Brunswick really maintain separate
military administrations. The other states have handed over
their military prerogatives to the king of Prussia ; and Bruns-
wick also has organized her contingent in close imitation of
and subordination to the Prussian army. Bavaria's privileges
extend even to the appointment of the commander of her con-
tingent. The Emperor is commander-in-chief, however, appoint-
ing all the higher field officers ; and the imperial rules as to
recruitment, equipment, discipline, and training, of troops, and
as to the qualifications and relative grading of officers are of the
most minute kind and are imperative with regard to all states
alike. The language of the constitution in this connection is :
" To the Emperor belongs the uniform regulation and ordering
of the army, the supreme command in war and, peace, the de-
termination of recruiting needs, and of expense accounts ; to
the individual states remain command of the contingents, and
[military] self-government."
435. Finance. — The expenses of the Empire are met partly
from imperial revenues, and partly from contributions by the
states. The Empire levies no direct taxes ; its revenues come
principally from customs duties and excises, certain stamp
THE GOVERNMENTS OF GERMANY. 271
taxes, the profits of the postal and telegraph system, of impe-
rial railways, of the imperial bank, and like sources. So far as
these do not suffice, the states assist, being assessed according
to population. And here, again, the states undertake much
of the actual work of administration : the customs officials, for
example, being state ofiicers acting under imperial supervision.
The financial bureaux, like all other branches of the imperial
government, are immediately subordinated to the Imperial
Chancellor.
436. Justice. — In the administration of justice, as in so
many other undertakings of government, the Empire superin-
tends, merely, and systematizes. The state courts are also
courts of the Empire : imperial law prescribes for them a uni-
form organization and uniform modes of procedure : and at the
head of the system stands the Imperial Court (Beichsgericht)
at Leipzig, created in 1877 as the supreme court of appeal. The
state governments appoint the judges of the state courts and
determine the judical districts ; but imperial laws fix the quali-
fications to be required of the judges, as well as the organi-
zation that the courts shall have. The decisions of the court
at Leipzig give uniformity to the system of law.
437. Citizenship. — Every citizen of a state of the Empire
is a citizen of the Empire also and may enjoy the rights and
immunities of a citizen in every part of the Empire ; but citi-
zenship is conferred by the states, not by the Empire. There is
no imperial naturalization law ; each state admits to citizenship
on its own terms. There is in this a reminiscence of the con-
federate idea, as if there were no federal state (Bundesstaat)
but only a confederation of states (Staatenbund) (compare
sees. 916-920) . Citizenship of the Empire is only mediate, —
through a state. The obligations of the citizen to the Em-
pire are none the less strong, however. His duty of allegiance
to the imperial government is as direct as his duty to obey
the government of his state.
272 THE GOVERNMENTS OF GERMANY.
The Government of Prussia.-'
438. The organizatioii of government in Prussia has, for the
student of German political institutions, a double interest and
importance. In the first place, Prussia's king is Germany's
Emperor, and Prussia is the presiding state of the Empire :
many of her executive bureaux are used as administrative agen-
ci,es of the Empire. Her government is to a certain extent an
organ and representative of the imperial government. In the
second place, Prussia's administrative system serves as a type
of the highest development of local government in Germany.
Prussia has studied to be more perfect than any other European
state in her administrative organization.
439. Stages of Administrative Development. — Until the
time when- she emerged from the long period of her develop-
ment as the Mark Brandenburg and took her place among the
great military states of Europe, Prussia's administrative organ-
ization -was of a very crude sort, not much advanced beyond the
mediaeval pattern. Later, under the Great Elector and his im-
mediate successors, though well out of her early habits, she was
still little more than a mere military state, and her administra-
tion, though more highly developed, had almost no thought for
anything but the army. Only since the close of the Napo-
leonic wars has her system of government become a model of
centralized civil order.
440. History of Local Government. — It must of course be
remembered that in dealing with Prussian local government
we are dealing with a complex of historical members. The
Prussia of to-day is not Brandenburg merely, but Pommerania,
Silesia, Hannover, a score of now compacted provinces which
once had their separate existence and their own individual his-
tories. Brandenburg may, however, be made to serve as a norm
in the story, inasmuch as she has dominated and the others
1 The present constitution of Prussia was proclaimed April 30, 1851,
THE GOVERNMENTS OF GERMANY. 273
have in great part conformed to her standards and her organ-
ization. The royal, centralizing, systematizing forces have
> worked outwards from her, receiving local modifications, but
impressing much of uniformity. The process is even yet in-
complete, but its drift is unmistakable and decisively estab-
lished.
441. Early Organization in the Mark Brandenburg. — We
have already seen what were the circumstances of the conquest
and settlement of the Mark Brandenburg (sec. 383). The
German colonists were invited to the Mark by easy conditions
of tenure ; towns were built upon contract, special privileges
being accorded the contractors ; and at first the complexities
of the feudal system were kept out by the direct relations
sustained by the settlers and town-builders to the Mark-
graf. Under the double system of conquest and settlement
there emerged three classes of towns : (1) The original
Wendish towns which the conquerors found already estab-
lished. These became German and were accorded special
privileges which gave them a separate standing in the new
political order. (2) "Bourgs,'' or fortresses, around which
colonists had clustered, and which, finally losing their mili-
tary organization and spirit, as the times became peaceful, or
wars passed beyond them to the advanced frontiers of the
Mark, took on the ordinary features of a civil municipality.
(3) Full-grown villages or trading settlements. Many of the
towns, of course, fell in spite of themselves into the feudal
order, as that fixed itself- upon the Mark, and became manorial
boroughs ; but some kept for a very long time their separate-
ness and semi-independence.
442. The Early Local Officials. — The Markgraf and the
various princes and greater landlords who presently took their
places in the ex:pandiag Mark kept their hold upon the towns
and the population of the rural districts through the instrumen-
tality of Schulzen and Burggrafen, officers having substantially
the same position and functions as we have seen the French
274 THE GOVERNMENTS OF GERMANY.
haillis and privots exercising (sec. 297). The Schulze was a
rural officer. He was the " intermediary between the peasants
and their prince or their landlord," receiving the rents and
taxes and acting as chief constable and judge. The Burggraf,
on the other hand, as his name implies, was a city officer, the
direct agent of the Markgraf, presiding in the town as head of
the civil and military administration.
443. Subsequent Development in Town Government. —
This system, however, proved by no means permanent. The
Burggrafen eventually disappeared. Municipal councils were
suffered to assume the chief part in the direction of civil affairs,
though the administration of justice was retained in the hands
of a city Schulze, and the civil authority of the Markgraf was
still represented by an officer of consideration, known as the
Vogt. The Vogt, however, though substituted for the Burg-
graf as civil officer of the central government, was not dis-
tinctively a city official : his jurisdiction probably included a
more or less extensive district of which the town was only the
centre.
444. Not only did the towns gain thus much of autonomy ;
they also obtained representation in the provincial diets, and
were permitted to assume control, by purchase, of their feudal
contributions to the purse of the Markgraf, under the vicious,
but, so far as they were concerned, fortunate system of farming
the revenues.
445. Resulting Units of Local Government. — The several units
of local government thus developed were, cities, royal domains, manors,
and rural coramtines. Such were the materials out of which the
afterwards compacted administration of the monarchy was to be put
together.
446. Process of Centralization. — The Great Elector, as we
have seen (sec. 391), reduced the Estates of the Mark to com-
plete subjection to his will. He it was, also, who began the
policy by which local affairs as well were to be centralized.
In the towns the process was simple enough. The difficulties
THE GOVERNMENTS OF GERMANY. 275
of centralization ■were everywhere measured by the openness
or the obstructions of the channels through which the authority
of the Elector was to reach the lower local instrumentalities of
government. In the towns there was little effective obstruc-
tion : the channels were already open. There the military
authorities, directly representative of the Elector, had all along
dictated in police and kindred matters ; direct ordinances of
the Elector, moreover, regulated taxation and the finances, and
even modified municipal privileges at pleasure. It did not
take long, such being the system already established, to make
burgomasters creatures of the royal will, or to put effective
restrictions upon municipal functions.
447. In the provinces, however, it was quite another matter
to crush out local privilege. The Prussia of the Great Elector
and his successors was no longer the Mark Brandenburg, but
the extended Prussia of conquest. There were many Estates
to deal with in the several principalities of the kingdom ; and
these Estates, exercising long-established prerogatives, very
stubbornly contested every step with the central power. They
were the channels through which the sovereign's will had at
first to operate upon provincial government, and they were by
no means open channels. They insisted, for a long time with
considerable success, that the chief officers of the provinces
should be nominated by themselves ; and they nominated na-
tives, men of their own number. Only by slow and insidious
processes did the Elector, or his successor^ the kings of Prus-
sia, make out of these representative provincial officials subser-
vient royal servants.
448. First Results of Centralization. — The system pursued
in these processes of centralization, so far as there was any
system in them, was a system of grafting central control upon
the old growths of local government derived from the Middle
Ages. The result was of course full of complexities and com-
promises. In the vast royal domains bailiffs administered jus-
tice and police, as did Schulzen in the manorial villages. In
276 THE GOVERNMENTS OE GERMANY.
the larger rural areas a Landrath, or sheriff, "nominated by
the county nobility, usually from among their own number,
and appointed by the king," saw to the preservation of order,
to the raising of the levies, to tax collection, and to purvey-
ance. In the towns there was a double administration. Magis-
trates of the towns' ©wn choosing retained certain narrow local
powers, constantly subject to be interfered with by the central
authority ; but royal tax-commissioners, charged with excise
and police, were the real rulers. Above this local organizar
tion, as an organ of superintendence, there was in each prov-
ince a ' Chamber for War and Domains,' which supervised alike
the Landrath and the city tax-commissioners.
A War and Domains Chamber consisted of a president, a " director
or vice-president, and a number of councillors proportioned to the size,
populousness, or wealth of the province." The president of a chamber
was "expected to make periodical tours of inspection throughout the
province, as the Landraths did throughout their counties." In the
despatch of business by a Chamber, the councillors were assigned
^ special districts, special kinds of revenue, or particular public imBTOve-
ments for their superintendence or administration, the whole board
supervising, auditing, etc.i
449. Justice and Finance. — " Much progress towards cen-
tralization was also made by the organization of justice and
finance. " The administration of justice was in the hands of
boards, the Begierungen, or governments, on the one hand [the
whole organization of administration in Prussia being charac-
teristically collegiate], and the courts on the other."
In finance also there was promise of complete systematiza-
tion. During the period preceding the Napoleonic wars, when
Prussia figured as a purely military state, the chief concern of
the central government was the maintenance and development
of the army. The chief source of revenue was the royal do-
mains: the chief need for revenue arose out of the under-
1 Tuttle, History of Prussia, Vol. III., pp. 107-109.
THE GOVERNMENTS OF GERMANY. 277
takings of war.' There were, therefore, at the seat of govern-
ment two specially prominent departments of administration,
the one known as the ' General War Commissariat,' and having
charge of the army, the other known as the ' General Finance
Directory,' and commissioned to get the best possible returns
from the domains ; and here and there throughout the prov-
inces there were ' War Commissariats ' and ' Domains Cham-
bers ' which were the local branches of the two great central
departments.^ These two departments and their provincial
ramifications were, however, instead of being co-ordinated, kept
quite distinct from each other, clashing and interfering in their
activities rather than co-operating.
450. Fusion of Departments of War and Domains. — Such
at least was the system under the Great Elector and his imme-
diate successor, Frederic I., if system that can be called which
was without either unity or coherence. Frederic William I.
united War and Domains under a single central board, to be
known as the ' General Supreme Financial Directory for War
and Domains,' and brought the local war ■ and domains boards
together in the provinces as Chambers for War and Domains.
Under this arrangement the various ' war councillors ' who
served the provincial Chambers were charged with a miscel-
lany of functions. Besides the duties which they exercised in
immediate connection with military administration, they were
excise and police commissioners, and exercised in the cities
many of the civil functions which had formerly belonged to
other direct representatives of the crown. In the rural dis-
tricts the Chambers were served in civil matters by the several
Landrdthe.
451. Differentiation of Central Bureaux. — This arrange-
ment speedily proved as cumbrous as the name of its central
organ, and an internal differentiation set in. The General
1 The army consumed about five-sevenths of the entire revenue.
2 Seeley, Life and Times of Stein, Vol. I., Chap. II. Also Tuttle, Vol. I.,
pp. 421, 422.
278 THE GOVEENMENTS OF GERMANY.
Directory separated into Committees ; and, as time went on,
these committees began to assume the character of distinct
Ministries — tliough upon a very liaphazard system. The work
was divided partly upon a territorial basis, there being central
bureaux for certain provinces of the state, and partly upon a
logical basis, there being central bureaux for certain classes of
the public business, irrespective of territorial divisions. Fred-
eric the Great further confused the system by creating spe-
cial departments immediately dependent upon himself and a
special cabinet of advisers having iro connection with the Gen-
eral Directory. He was himself the only cohesive element in
the administration : it held together because clasped entire
within his hand.
452. Reforms of Stein and Hardenberg. — Order was at
last introduced into the System through the influence of Baron
vom Stein and the executive capacity of Count Hardenberg,
the two most eminent ministers of Frederic William III., who
together may be said to have created the present central admin-
istration of Prussia. Prussia owes to the genius of Stein,
indeed, the main features of both her central and her local
organization. Her central organization is largely the direct
work of his hands ; and her local organization derives its prin-
ciples ;from his thought not only, but also from the provisions
of the great Ordinance by which he reconstructed the adminis-
tration of the towns.
463. Prussian administrative arrangements as tliey now exist may
be said to be in large part student-made. As tlie Roman emperors hon-
ored tlie scientific jurists of the Empire by calling upon them to preside
over legal development, so have Prussian kings more and more inclined
to rely upon the advice of cultured students of institutions in the
organic development of the government. Stein was above/all things
else a student of governments. In our own day the influence of Profes-
sor Gneist upon administrative evolution has continued the excellent
tradition of student power. And because she has thus trusted her
students, Prussia has had practical students : students whose advice
has heen conservative and carefully ohservant of historical coaditionB,
THE GOVERKMENTS OF GERMANY. 279
Of course it is much easier to give such influence to students where
the government follows for the most part royal or executive initiative
than where all initiative rests with a popular chamber. It is easier to
get and to keep the ear of one master than the ears of five hundred.
454. Reform of Local Government before 1872. — The
county law (Kreisordnung) of the 13 December, 1872, has
been called the Magna Qharta of Prussian local government.
Upon it all later changes and modifications rest. Between the
period of Stein's reforms and the legislation of 1872 the
organization of local government was substantially as follows : '
The provinces were divided into 'Government Districts,' as
now, the Government Districts into ' Circles ' or Counties. An
administrative Board established in the Government District
was then, as now, the vital organ of local administration. In
the province there was also a' board, exercising general super-
visory powers, the eye of the central bureaux in the larger
affairs of administration, the affairs, that is, extending be-yond
the area of a single Government District ; and, as the chief
officer of the province, a 'Superior President' of influential
position and function. But alongside of this quite modern
machinery stood the old provincial Estates (revived in 1853),
representing, not the people, but the social orders of a by-gone
age, and possessing certain shadowy powers of giving advice.
In the 'Circle' or County, there was still the Landrath, as
formerly, appointed from a list of local landed proprietors, and
associated with the ' Estates of the Circle,' a body composed
of the county squires and a few elected representatives from
the towns and the rural townships, — a body of antiquated
pattern recalled to life, like the Estates of the province, in
1853. In the towns, which had directly received the imprint
of Stein's reforming energy and sagacity, administration was
conducted by boards of magistrates chosen by popular councils
and associated with those councils in all executive business by
1 See R. B. D. Morier's essay on Local Government in Germany, in the
Tolume of Cobden Club Essai/s for 1875.
280 THE GOVERNMENTS OF GERMANY.
means of a joint-committee organization, the burgomasters
being presidents rather than chief magistrates.
455. Landgemeinde and Manors. — Besides these areas of admin-
istration there were rural communes {Landgemeinde^ still connected,
quite after the feudal fashion, with adjacent or circumjacent manors,
their government vested in a Schulze and two or more SchSffen (sheriffs
or justices), the former being appointed either by the lord of the manor,
or, if the village was a free village, as sometimes happened, by the
owner of some ancient freehold within the commune with which mano-
rial rights had somehow passed. The commune had, besides, either a
primary or an elective assembly. The communes were often allowed,
under the supervision of the official board of the Government District,
to draw up charters for themselves, eihbodying their particular local
laws and privileges.
Within the manors police powers, poor-relief, the maintenance of
roads, etc., rested with the proprietor. Local government was within
their borders private government.
466. Reform of 1872.— The legislation of 1872 took the
final steps towards getting rid of such pieces as remained of
the antiquated system. It abolished the hereditary jurisdic-
tion of the manor and the ' dependent office of Schulze, and
established in place of the feudal status, an equal citizenship of
residence. In place of the Estates of the province and county
it put real representative bodies. It retained the Landrath,
bu.t somewhat curtailed his powers in the smaller areas within
the Circle, and associated with him an effective administrative
hoard, of which he became little more than president. It car-
ried out more thoroughly than before in the various areas the
principle of board direction, integrating the lesser with the
greater boards, and thus giving to the smaller areas organic
connection with the larger. It reformed also the system of
local taxation. It is upon this legislation, as I have said, that
the system of local government now obtaining in Prussia is
erected ^ (sees. 471-493).
1 Morier, p. 434.
THE GOVERNMENTS OE GERMANY. 281
457. The Central Executive Departments. — Stein's scheme
for the development of the central organs of administration
brought into existence five distinct ministries, which no longer
masqueraded as committees of a cumbrous General Directory,
and whose functions were distributed entirely upon a basis of
logical distinction, not at all upon any additional idea of terri-
torial distribution. These were a Ministry of Foreign Affairs,
a Ministry of the Interior, a Ministry of Justice, a Ministry of
Finance, and a Ministry of War. This, however, proved to
be by no means a final differentiation. The Ministry of the
Interior was at first given a too miscellaneous collection of
functions, and there split off from it in 1817 a Ministry of
Ecclesiastical, Educational, and Sanitary Affairs, in 1848 a
Ministry of Trade, Commerce, and Public Works and a Min-
istry of Agriculture. In 1878 a still further differentiation
took place. The Ministry of Finance, retaining distinct remi-
niscences of its origin in the administration of the royal
domains, had hitherto maintained a Department for Domains
and Forests. That department was in 1878 transferred to the
Ministry of Agriculture. At the same time the Ministry of
Trade, Commerce, and Public Works was divided into two, a
Ministry of Trade and Commerce and a Ministry of Public
Works.
There are now, therefore, nine ministries : (1) a Ministry of Foreign
Affairs (Stein, 1808) ; (2) a Ministry of the Interior (1808) ; (3) a
Ministry of Ecclesiastical, Educational, and Sanitary Affairs (1817) ;
(4) a Ministry of Trade and Commerce (1848) ; (5) a Ministry of Agri-
culture (1848), Domains, and Forests (1878) ; (6) a Ministry of Public
Works (1878) ; (7) a Ministry of Justice (1808) ; (8) c Ministry of
Finance (1808) ; and (9) a Ministry of War (1808).
458. The Council of State. — Most of these ministries were
created before Prussia had any effective parliamentary system,
and when, consequently, there was no instrumentality in ex-
istence through which there could be exercised any legislative
control of the executive. Stein would have revived for the
282 THE GOVEBNMENTS OF GERMANY. "
exercise of some such, function the ancient Council of State
(Staatsrath) founded by Joachim Friedrich in 1604, -which had
at first presided over all administration but whose prerogatives
of oversight and control had gradually decayed and disappeared.
This council, which bears a general family resemblance to the
English Privy Council (sec. 672), had a mixed membership
made up in part of princes of the blood royal, in part of cer-
tain civil, military, and judicial officials serving ex officio, and
in part of state officials specially and occasionally summoned.
It was Stein's purpose to rehabilitate this body, which, was in
a sense representative of the classes standing nearest to gov-
ernment and, therefore, presumably best qualified to test
methods, and to set it to oversee the work of the ministers : to
serve as a frame of unity in the administration without with-
drawing from the ministers their separate responsibility and
freedom of movement. This part of his plan was not, however,
carried out, and the Council of State, though still existing, a
shadow of its former self, has never fully regained its one-
time prominence in administration.
459. Between 1817 and 1848 the Council of State exercised certain
important functions : it considered proposed laws and ordinances, passed
upon contests as to jurisdiction arising between the several executive
departments, heard complaints against decisions of ministries, and ful-
filled other uses as a consultative council. Between 1848 and 1852 its
meetings were infrequent and only at the king's pleasure, its powers
passing into the hands of a committee of its members selected by the
king, just as the powers of the English Privy Council passed to the
Qabinet (sec. 674). Since 1852 it has been partially, but only partially,
.Jltecalled to life.
460. The Staatsministerium. — Instead of adopting Stein's
plan. Count Hardenberg integrated the .several ministries by
establishing- the Ministry of State, or College of Ministei's
{StaMsministerium), which stands in much the same relation
to Prussian administration that the French Council of Minis-
ters (sec. 326) occupies towards administration in France,
THB GOVERNMENTS OF GERMANY. 283
though it in some respects resembles also the French Council
of State (sec. 363) . It is composed of the heads of the several
ministries and meets, once a week or oftener, for the considera/-
tion of all matters which concern all the executive depart-
ments alike, to discuss proposed general laws or constitutional
amendments, to adjust conflicts between departments, to hear
reports from the ministers as to their policy in the prosecution
of their separate work, to exercise a certain oversight over
local administration, to concert measures to meet any civil
exigency that may arise, etc. It serves to give unity and
coherence to administration.
.461. The Supreme Chamber of Accounts. — The same pur-
pose is served by the Supreme Chamber of Accounts {Ober-
rechnung shammer) and by the Economic Council ( Vollcswirtlv-
schaftsrath) . The Supreme Chamber of Accounts was founded
in 1714 by Frederic William I. Its members have the tenure
and responsibility of judges. Its president is appointed by
the crown on the nomination of the Ministry of State ; its
other members are appointed by the crown upon the nomina-
tion of its president, countersigned by the president of the
Ministry of State. It constitutes a distinct branch of the
government, being subordinate, not to the Ministry of State,
but directly responsible to the crown. Its duty is the careful
oversight and revision of the accounts of income and expendi-
ture from all departments ; the oversight of the state debt and
of the acquisition and disposition of property by the state. It
watches, in brief, the detailed administration of the finances,
and is the judicial guardian of the laws concerning revenue
and disbursement.
462. The E-conomic Council. — The Economic Council con-
siders proposals for laws or ordinances affecting weighty
economic interests which fall within the domains of the three
ministries of Trade and Commerce, of Public Works, and of
Agriculture. Such proposals, as well as the proposals for the
repeal of such laws and ordinances, are submitted to its debate
%'
284 THE GOVERNMENTS OF GEEMANY.
before going to the king for his approval. It is also privileged
to consider the question how Prussia's votes shall be cast upon
such matters in the Bundesrath. Of course, however, its part
in affairs is merely consultative. It is composed of seventy-
five members appointed by the king for a term of five years,
forty-five of this number being appointed upon the nomination
of various chambers of commerce, mercantile corporations-, and
agricultural unions.
463. The Ministries of War and of Foreign Affairs are practically,
not Prussian, but imperial (sec. 427).
464. The Ministers in the Legislature. — The king — or,
more properly, the Administration, — is represented in the
legislative houses by the ministers, who need not be members
in order to attend and speak on the public business.
466. The Landtag : the House of Lords. — The Prussian
Landtag, or Legislature, consists of two houses, a House of
Lords (Ilerrenhaus) and a House of Representatives (Abgeord-
netenhaus). The House of Lords might better be described as
a house of classes. It contains not only hereditary members
who represent rights of blood, but also life members who rep-
resent landed properties and great institutions, and officials who
represent the civil hierarchy. There sit in it princes of the
blood royal nominated to membership by the king ; the heads of
the houses of HohenzoUern-Hechingen and HohenzoUern-Sigma-
ringen and of eighteen houses once sovereign whose domains
have been swallowed iip by Prussia; certain noblemen ap-
pointed by the crown ; the foiir chief officials of the province
of Prussia (the Supreme Burggraf, the High Marshal, the
Grand Master of the Teutonic Order, and the Chancellor) ;
and a great number of representatives appointed by the king
upon the presentation of various bodies ; certain evangelical
foundations, namely, certain colleges of counts, and of land-
holders of great and ancient possession, the nine universities,
and the forty-three cities which have received the right of
THE GOVERNMENTS OF GERMANY. 285
nomination. The king may, besides, issue special summons
to sit in the House of Lords to such persons as he thinks
worthy. There is no limit placed upon the number of mem-
bers, — the only restriction concerns age ; members must be
at least thirty years old.
466. The House of Representatives, though in a sense
representing every Prussian twenty-five years of age who is
not specially disqualified to vote, is not constituted by a direct
popular franchise, or even by an equal suffrage. The vote is
indirect and is proportioned to taxable property. The country
is divided into districts ; the qualified voters of each district
are divided into three classes in such a way that each class
shall represent one-third of the taxable property of the dis-
trict ; each of these classes selects by vote a third of the number
of electors to which the district is entitled ; and the electors
so chosen elect the members of the House of Eepresentatives.
467. The Electoral System. — One elector is chosen for every two
hundred and fifty inhabitants ; the voting is not by the ballot, but is
public, and an absolute majority of the electors is required to elect.
The total number of members of the House is 432. The term is five
years. Any Prussian who is thirty years of age and in full possession
of civil rights may be chosen.
468. It need hardly to be remarked that the division of the primary
voters into classes according to the amount of taxes they pay gives a
preponderance to wealth. The three classes are of course very unequal
in numbers. It requires a comparatively small number of rich men to
represent one-third of the taxable property in a district ; it takes a con-
siderably larger number of the well-to-do to represent another third ;
and the last third will be represented by the great majority of the in-
habitants of the district. For the classes are not constituted with a view
to distributing the small tax-payers and equalizing the classes numeri-
cally. Those who pay most taxes constitute the first class ; those who
pay less, the second; those who pay least or none, the third; and it
may very well happen that a very small number of persons elects thus
a third of the electors.
469. Equality and Competence of the Houses. — The
consent of both Houses is necessary, of course, to the passage
286 THE GOVBENMENTS OP GEEMAKY.
of a law, and they stand upon a perfect equality as re-
gards also the right of initiative in legislation, — except that
all financial measures must originate in the lower house,
and that the upper house can pass upon the budget, which
must be presented first to the House of Representatives, only
as a whole. The Lords cannot amend the budget in part
when it comes up to them : they must accept or reject it
entire.
470. The King's Po'V7er of Adjournment and Dissolution. —
The king may adjourn the House of Representatives for a period not
exceeding thirty days, once during any one session without its consent.
He may also dissolve it. When a dissolution is resorted to he must
order a new election within sixty days, and the newly elected House
must assemble within ninety days. (Compare sec. 315.)
471. Local Government. — The organization of local gov-
ernment in Prussia is rendered complex by a mixture of his-
torical and systematic elements : it is compounded of old and
new, — of the creations of history aiid the creations of Stein.
For Stein's hand is even more visible in local organization in
Prussia than in the organization of the central ministries.
More conservative than the Constituent Assembly and Napo-
leon in Prance, he did not sweep away the old provinces of
Prussia, whose boundaries, like those of the French provinces
of the old regime, were set deep in historical associations. The
twelve provinces were given a place — a function of superin-
tendence — in the new system established. The country was
divided into Districts (Bezirke) corresponding in general char-
acter and purpose with the French Departments; but these
Districts were grouped under a superintendent provincial or-
ganization. There are, therefore, in Prussian local organiza-
tion (1) the Province, then (2) the Government District, then
(3) the Circle (Kreis) or County, and last (4) the township
and the town. The township and the town are, as we shall
see, co-ordinate, standing, not in subordination to each other,
but in the same rank of the series.
THE GOVERNMENTS OP GERMANY. 287
472. The usual organs of local government throughout all the series
of the Prussian system are " first, a representative body with an exclu-
sive control over the economic portion of the communal business ; sec-
ondly, an executive board with an exclusive control over the public
portion of the communal business ; thirdly, mixed committees, com-
posed of members of both bodies, for the ordinary management of the
affairs of the community; fourthly, the division of the communal area
into administrative districts under overseers responsible to the execu-
tive board." i
473. The Province. — There are in the Province two sets of
governmental organs : one of which represents the state and its
oversight, the other the Province and its self-government. (1)
The state is represented by a Superior President and a Provin-
zialrath associated with him. Stein's purpose in retaining the
provincial organization was to secure broad views of adminis-
tration through ofScials charged with the oversight of extended
areas and so elevated above the near-sightedness of local routine
and detail. Nearer to the particulars of local administration
than the ministers at Berlin, but not so near as the ofGlcials of
the Grovernment Districts, the provincial representatives of the
state are charged with the care " of all such affairs as concern
the entire province or stretch beyond the jurisdiction of a
single [district j administration."^ These are such matters
as affect imperial interests or the whole Prussian state ; the
concerns of public institutions whose functions extend beyond
a District ; insurance companies ; extensive plans of improve-
ment ; road and school management, etc. In exercising most
of these functions the provincial authorities act, however, not
through officers of their own, but through the District Admin-
istrations. There lies with the Superior President, also, the
duty of overseeing district administration, the provincial tax
directors, and the general Commission for the regulation of
' R. B. D. Morier, Cobden Club Essays (1875) on Local Government and
Taxation, p. 433.
2 Schulze, Das Staatsrecht des Konigreichs Preussen (in Marquardsen's
HandbucK), p. 63.
288 THE GOVERNMENTS OP GBKMANY.
the relations between landlords and tenants. He represents
the central government, also, in all special, occasional duties,
and under all extraordinary circumstances. He has, too, ini-
tial jurisdiction in cases of conflict between District Adminis-
trations, or between such Administrations and specially com-
missioned officials not subject to their orders.
The extraordinary powers of the 'Superior President' are illus-
trated by the fact that, in case of serious civil disturbance, of war or
the danger of war, he is authorized to assume the whole authority of
administration, local as well as general, within the Province.
In overseeing the District Administration, however, he has no execu-
tive, but only advisory powers. He is the eye of the Ministries at
Berlin, advising them of all matters needing their action. Like the
French Prefect, he is the servant of all Ministries alike, though most
directly and intimately associated with the Ministry of the Interior.
474. The defect of the provincial organization in Prussia is said to
be lack of vitality. Critics like Professor Gneist think that it renders
the system of local government cumbrous without adding to its eflScacy.
It is too much restricted to gratuitous advice, and too little authorized
to take authoritative action.
~ 475. The Provinzialrath, the Council associated with the Su-
perior President, consists, besides the President or his repre-
sentative as presiding officer, of some high administrative official
appointed by the Minister of the- Interior and of five members
chosen by the Provincial Committee for a term of six years.
476. (2) The organs representing the Province and its self-
government are the Provincial Landtag, the Provincial Com-
mittee, and the Landeshauptmann or Landesdirektor. In a
Prussian law concerning local government the province is de-
scribed as " a communal union established with the rights of
a corporation for self-government of its own affairs."^ The
provincial legislative body, the Landtag, is composed of repre-
sentatives elected from the Circles or Counties by the diets of
the Circles : for, when looked at from the point of view of self-
1 Schulze, Das Staatsrecht des KBnigreicka JPreussen (in Marquardsen's
Sandbuch), p. 85.
THE GOVERNMENTS OF GERMANY. 289
government, the Province is a union of Circles, not of Dis-
tricts : the Districts are organs of the central government only.
The functions of the Landtag lie within the narrow field of
such matters as the apportionment of taxes among the Circles
(which in their turn apportion them among individuals), the
examination of the local budget, the care of provincial prop-
erty, and the election of certain officials.
It also, on occasion, gives its opinion on bills concerning the Province
and on other matters referred to it, for an expression of opinion, by the
authorities at Berlin.
477. The Landtag elects the Provincial Committee and the
Landeshauptmann, who are the executive organs of provincial
self-government. The Landeshauptmann and the Committee
stand related to each other very much as do the Superior
President and Provinzialrath, Prefect and Prefectural Council :
the Landeshauptmann is the executive, the Committee the con-
sultative organ of local self-administration.
478. The spheres of the representatives of the state and of the repre-
sentatives of local self-government are quite sharply distinguished in
Prussia. The Provincial Committee and the Landeshauptmann have
nothing to do with the general administration : that is altogether in the
hands of the Superior President and t\ie Provinzialrath,vi\\o on their part
have nothing to do with local self-government. The sphere of local
self-government, though very narrow indeed, is much more guarded
against the constant interference of the central authorities in Prussia
than in France. (Compare sec. 346.)
479. Communal Estates. — In some Provinces there still exist cer-
tain corporations, representing the old organization by 'estates' of in-
dependent districts, which retain their 'landtag,' tlieir separate property,
and a small part of their privileges. They constitute rural poor-unions,
and play a limited part in local administration according to the sharply
explicit laws of incorporation under which they now exist. They are,
however, being gradually abolished or transformed by special enact-
ments. Their German name is Kommunal-standische Verhdnde, which
may be translated, Unions of Communal Estates.
480. The Government District (BegierungsbezirJc). — Un-
like the Province, the Government District has no organs of
290 THE GOVERNMENTS OF GERMANY.
self-government : it is exclusively a division of state admin-
istration. Its functionaries are the principal — it may even
be said the universal — agents of the central government in
the detailed conduct of administration : they are charged with
the local management of all affairs that fall within the sphere
of the Ministries of the Interior, of Finance, of Trade and
Commerce, of Public Works, of Agriculture, of Ecclesiastical
and Educational Affairs, and of War, exclusive, of course,
of such matters as are exceptionally entrusted to oficers
specially commissioned for the purpose. In brief, they serve
every ministry except the Ministry of Justice.
481. Collectively the functionaries of the District are called
the 'Administration' (Begierung), and their action is for the
most part collegiate, i.e., through Boards. The exception to
this rule concerns matters falling within the province of the
Ministry of the Interior. That Ministry acts in the District,
not through a board of officials, but through a single official,
the President of the Administration {Regierung^rdsident) .
In dealing with all other matters the action is collegiate ; but
the Boards are not independent bodies : they are divisions
(Abtheilungen) of the ' Administration ' taken as a whole, and
in certain affairs of general superintendence the ' Administra-
tion' acts as a single council (m Plenum). Each Board is
presided over by a ' Superior Administrative Councillor '
(Oberregierungsrath) ; and that on Domains and Eorests has
associated with it a special functionary known as the Forest-
master. The members of the ' Administration ' are all ap-
pointed by the central government, which places upon the
Boards whose functions require for their proper discharge a
special training certain so-called " technical members " : for
instance, school experts, medical experts, road-engineers, and
technically instructed forest commissioners.
These ' Administrations ' hare taken the places of the old-time "War
and Domains Chambers of which I have spoken (sec. 449), and which,
like the Administrations, acted through Boards as a sort of universal
THE GOVERNMENTS OF GERMANY. 291
agency for all departments of government. It is only since 1883 that
the affairs of the Interior have been given Into the sole charge of the
President of the Administration. Before that date they also were in the
hands of a Board.
482. " Every head of a department, as well as every Rath and as-
sessor, is bound each year to make a tour through a portion of the
[Government] district, to keep an oflScial journal of all he sees, to be
afterwards preserved amongst the records of the Board, and thus to
make himself practically acquainted with the daily life and the daily
wants of the governed in the smallest details." ^
483. The President of the Administration is the most
important official in the Prussian local service. Not only does
he preside over the Administration, the general and most im-
portant agency of local government ; he is also equipped for
complete dominance. Shouldering all responsibility, he may
annul decisions of the ' Administration ' or of any of its Boards
with which he does not agree, and, in case delay seems disad-
vantageous, himself command necessary measures. He may
also, if he will, set aside the rule of collegiate action and
arrange for the personal responsibility of the members of the
' Administration,' whenever he considers any matter too press-
ing to await the meeting and conclusions of a Board, or, if
when he is himself present where action is needed, he regards
such an arrangement as necessary.'' In brief, he is the real
governing head of local administration.
484. The District Committee. — Although, as I have said,
the Grovernment District is not an area of self-government, a
certain part in the oversight of government action in the Dis-
trict is given to representatives of the provincial agents of the
people. A District Committee (Bezirksausschiiss) , composed
of two members (one of whom must be a qualified judge, the
other a qualified member of a high grade of the administrative
service) appointed by the king for life, and of four members
1 Morier {Cohden Club Essays), p. 422.
2 Schulze (in Marquardsen), p. 64.
292 THE 60VEEKMENTS OP GEEMAHY.
chosen by the Provincial Committee (sec. 477), for a term of
six years, is allowed an oversight of ' such affairs of the Dis-
trict as are suitable for lay participation and for collegiate
handling.' It is constituted,, i.e., a sort of eye of the District
in state concerns : for, though indirectly representative of the
self-governing body of the Province, the District Committee,
like all other District authorities, concerns itself with state
administration exclusively. Very much more important than
its administrative functions are the judicial functions with
which it has been recently invested. Since 1883 the District
Committee has been the Administrative Court of the District
(sec. 600).
The Government Districts number twenty-eight, and are grouped, as ■
I have said, within the twelve Provinces.
485. The Circle (Kreis) . — In the Circle, as in the Prov-
ince, there emerges a double set of functions : there is the
state administration and, alongside of it, the narrower func-
tions of self-government. The Circles are considered ' the
chief pillars of state administration and of communal organi-
zation.' This double set of functions is performed, however,
by a single set of functionaries : by the County Justice (Land-
rath) and the Circle Committee (Kreisausschuss) as executive,
and the Diet of the Circle (Kreistag) as consultative and super-
visory, authority. There are not, as in the Province, one
council and one executive for the state, another council and
another executive for the locality.
486. The Landrath and the Circle Committee. — The
Landrath stands upon a peculiar footing : his office is ancient
and retains many of its historical features. Originally the
Landrath represented the landed gentry of various districts of
Brandenburg; he was appointed upon their nomination and in
a sense represented their interests. In some parts of Prussia
traces of this right of presentation to the office by the land-,
owners still remain ; and in almost all parts of the kingdom
THE GOVEKNMKNTS OF GERMANY. 293
the privilege of nomination has been transferred to the Circle
Diet, as heir of the control once exercised, by the local lords of
the soil. The Landraih is, therefore, formally, the represen-
tative of the locality in which he officiates. In reality, how-
ever, he is predominantly the agent of the state, serving both
the Administration of the District and the departments at
Berlin. He is chief of police within the Circle, and, within
the same limits, superintendent of all public affairs. Associ-
ated with him in the administration of his office, and organized
under his presidency, is the Circle Committee, which consists,
besides himself, of six members chosen by the Circle Diet.
This Committee also constitutes the Administrative Court of
the Circle (sec. 600).
■ 487. The Diet of the Circle represents, not the people,
but groups of interests, — it is based upon the economical and
social relations of the people. Each Circle includes all towns
lying within it which have less than 25,000 inhabitants and
representation in the Diet is divided between town and country.
The country representation, in its turn, is divided between the
rural Commune and the greater landowners.
The cities elect representatives either singly or in groups : if singly,
through their magistrates and councils acting together ; if in groups,
through electors who assemble under the presidency of the Landrath.
As ' greater landowners ' are classed all those who pay, in their own
right, 75 thalers annual land or building tax ; and these are organized
for electoral purposes in Unions (Verbdnde). The rural Communes
elect in groups through electors. The term of members of the Circle
Diet is six years. Cities having more than 25,000 inhabitants constitute
separate Circles, and combine in their town governments both Circle and
Commune under the forms of city government.
488. The Magisterial District (Amtshezirk). — The rural
Communes are grouped into some five thousand six hundred
and sixty-eight Magisterial Districts, which are presided
. over by a Eeeve (Amtsvorsteher) , nominated by the Circle
Diet, and by an associate Magisterial Committee {Amtsaus-
294 THE GOVERNMENTS OF GERMANY.
schuss) composed of the chiefs of the Communes and the pos-
sessors of certain historically derived independent proprietary
districts. These districts serve in their grade as minor units
for both state administration and communal self-direction.
489.. The Rural Commune (Lanrlgemeinde). — The organi-
zation of the Rural Commune varies "widely in the different
Provinces, resting in part on ancient local custom and old
local laws, and not altogether upon any uniform plan. Com-
mune differs from Commune in points of economical and social
condition too important to be overlooked. In some a general
assembly of the people acts as the controlling body ; in others
a representative council. In some the executive oflfl-cer is
known as ' mayor,' in some as ' president,'^ in some as ' village
judge ' ; in most he is assisted by one or more aids or alder-'
men, and a great variety of modes of choice to the executive
ofiice prevails. The Communes may be said to be in all
stages of the approach to complete self-government in local
affairs. System has not yet thoroughly penetrated to them.
490. The City Communes (Stadtgemeinde) . — Among the
City Communes there is also great variety of organization;
but not so great as among the rural Communes. The towns
have been brought to a somewhat uniform system by reforms
introduced by that great systematizer and vivifier of Prussian
administration, Baron vom Stein. In some cities there is a
single executive, — a single Burgomaster, — perhaps assisted
by certain Boards ; in others the Burgomaster has colleagues ;
in still others the magistracy is collegiate, — is itself a Board.
In all there are councils more or less directly representative of
the people. In the cities, as in every other unit of local ad-
ministration, the subjects of finance, police, and the military
are exclusively controlled from Berlin ; and in these branches
of administration the city governments are agencies of the
central government. They thus have a double character; they
are at one and the same time representatives of the authori-
ties at the capital and of the citizens at home. When acting
THE GOVERNMENTS OE GERMANY. 295
as agencies of the state administration they are, of course,
responsible to the central Departments.
The qualifltations for citizenship vary widely in the different city
Communes. In some the possession of landed estate is required, in
others the payment of a certain tax, etc.
There is in Prussian local organization none of the extreme, the
rather forced uniformity so noticeable in France, where no difference is
made between rural Communes and city Communes, only the greater
cities, like Paris and Lyons, being given a special organization. In
Prussia historical and other grounds of variety have been freely
observed.
491. General Principles of Prussian Town Government.
— Although without uniformity of structure, town govern-
ment in Prussia has certain uniformities of principle at its
basis which render it a striking example of active self-
government. The mayor of a Prussian city is not the Execu-
tive ; he is simply directing president of the executive. There
is associated with him a board of Aldermen most of whose
members are elected from the general body of citizens, to
serve without salary, but an important minority of whose
members are salaried officials who have received a thorough
technical training in the various branches of administration,
and whose tenure of office is in effect permanent : and this
board of Aldermen is the centre of energy and rule in city
government. But it acts under check. A town council repre-
sents the citizens in the exercise of a control over the city
budget and citizens not of the Council as well as Councilmen
act with the Aldermen in the direction of executive business.
The Aldermen act in Committees in the administration of the
city, and associated with their committees are certain delega-
tions of town-couneilmen and certain ' select citizens ' named
by the Council. In the wards of the larger towns the Alder-
men command also the assistance of local committees of citi-
zens, by whom the conditions and needs of the various districts
of the town are familiarly known. Thus in the work of poor-
296 THE GOVERNMENTS OF GERMANY.
relief, in the guardianship of destitute orphans, in education,
and in tax assessment ' select citizens ' commonly reinforce the
more regular, the official, corps of city officers. This literal
self-government, which breaks down the wall of distinction
between the official and the non-official guardian of city in-
terests and presses all into the service of the community, is
not optional ; it is one of the cardinal principles of the system
that service as a ' select citizen ' is to be enforced by penalties
— by increasing the taxes of those who refuse to serve.
492. Berlin "governs itself through more than ten thousand men
belonging to the wealthier part of the middle classes." ^ The citizens
chosen for ward work or for consultation with the central committees of
Aldermen and town-councillors include merchants, physicians, solicitors,
manufacturers, head-masters of public schools, and like representative
persons.
493. The three-class system of voting described in sees. 466 and 468
obtains also in all municipal elections in Prussia, so that weight in the
electoral control of city affairs is proportioned to tax-assessment. One-
third of the elected Aldermen and town-councillors represent the
wealthy class, one-third the middle class, one-third the 'proletariat.'
494. The Administration of Justice. — The Prussian courts
of justice, like those of the other states of the Empire, have
the general features of their organization and jurisdiction pre-
scribed by imperial law (sec. 436). They are Prussia's courts;
but they also serve as courts of the Empire ; Prussian law
commands only their personnel and their territorial compe-
tence. At the head of the system sits the supreme court of
the Empire (Beichsgericht), to which the courts of all the
other states stand subordinated.^ In each Province there is a
Superior District Court (OberlandesgerioM), and, next below it,
a District Court (Landgericht) . In each magisterial District
there is an AmtsgericJit
1 Professor Gneist, Contemporary Review, Vol. 46 (1884), p. 777.
2 Prussia is vouchsafed by imperial law the privilege of retaining her
own supreme court ; but she has not availed herself of the permission.
THE GOVERNMENTS OP GERMANY. 297
496. The Amtsgericht, -which is the court of first instance in
minor civil cases, consists of one or of several judges, accord-
ing to the amount of business there is for the court to despatch :
for when there is more than one judge, the work is not handled
by them together, but separately ; it is divided, either logically
or territorially.
496. The higher courts, the District Court, that is, and the
Superior District Court, consist each of a number of judges.
At the beginning of each year, the full bench of judges in
each court determine a division of the business of the court
among themselves, constituting themselves in separate ' cham-
bers ' for separate classes of cases. There is always a ' civil
chamber' and a 'criminal chamber,' and often a chamber for
commercial cases (Kammer fiir HandelssacJien) .
Each chamber has its own president and its own independent
organization.
497. Minor criminal cases are tried in sheriffs' courts (Schof-
fengerichte) sitting in the Magisterial Districts ; more serious
offences by the criminal chamber of the District Court ; all
grave crimes by special jury-courts (Schwurgerichte) which sit
under the presidency of three judges of the District Court.
An appeal from a sheriff's court on the merits of the case can go no
further than the District Court. Appeals on the merits of the case from
the criminal chamber of the District Court are not allowed ; but a case
can be taken from that court on the ground of the neglect of a rule of
law to the Superior District Court, and on other legal grounds to the
Imperial Court, for revision.
498. The nomination of all judges rests with the king : but
the appointment is for life and the judges stand in a position
of substantial independence. The Minister of Justice, how-
ever, completely controls all criminal prosecutions : for no
criminal prosecution can be instituted except by the states-
attorneys who represent the government in the several courts,
and these hold their of3.ces by no permanent tenure, but only
at the pleasure of the Minister.
298 THE GOVERNMENTS OF GERMANY.
Purity In tile administration of justice is sought to be secured by
public oral proceedings. Until a very recent period all proceedings in
the Prussian courts were written : the plea and the answer constituted
the suit. Now public oral proceedings are made imperatire.
499. The organization of justice in Prussia provides for the assump-
tion by the state of a certain 'voluntary' jurisdiction, some of which,
such as the exercise of guardianship and the probate of wills (which
latter is made a function of the Amtsgerichf) are quite familiar to the
practice of other countries ; but others of which, such as an oversight
over certain feudal interests, are somewhat novel in their character.
The system knows also certain officially commissioned Arbitrators
{Schiedsmanner) and certain trade judges, which are in some respects
peculiar to itself.
500. Administrative Courts (Verwaltungsgerichte). — Tlie
same distinction between administrative and ordinary courts
of justice that we have observed in France obtains also in
Prussia (sec. 353). 'Where the use of the state's sovereignty
{Hoheitsrecht) begins, there begins the competence of the ad-
ministrative courts.' ^ Here again appears the organizing hand
of Stein. He established for Prussia the principle that cases
arising out of the exercise of the state's sovereignty should be
separated in adjudication from cases between private individ-
uals and be allotted to special courts. Such are cases of dam- '
age done to an individual through the act of an administrative
ofBeer, or cases of alleged illegal action on the part of a public
oflcial, — in brief, all cases of conflict between the public
power and private rights.
501. The courts charged with this jurisdiction are, (1) in the
Circle, the Circle Committee (sec. 486), presided over, as in
dealing with other matters, by the Landrath, and in the cities
which themselves constitute Circles, the City Committee (^Stadt-
attsschuss), consisting of the Burgomaster as president and
four members, all of whom must be qualified for judicial or
for the higher grades of administrative office, elected by the
magistracy of the city, acting coUegiately, for a term of six
1 Schulze, p. 160.
THE GOVERNMENTS OP GERMANY. 299
years. (2) In the Government District, the District Committee
(sec. 484), to whose presidency when sitting in this capacity,
the king may appoint, as representative of the President of the
Administration, one of its members under tlie title of Direc-
tor of the Administrative Court (VerwaltungsgerichtsclireMor).
(3) The Superior Administrative Court in Berlin ( Oherverwalt-
ungsgerioht), whose members are appointed by the king, with
the consent of the' council of ministers, for life. This court
stands upon the same footing of rank with the supreme fed-
eral tribunal, the Reichsgericht. Its members must be qualified,
half of them for high judicial, half for high administrative
office. It acts, like the other courts, in divisions or ' senates,'
each of which has its separate organization and which come
together only for the settlement of certain general questions.
502. The Court of Conflicts ( Gerichtshof fUr Kompetenz-kon-
flikte). — Between the two jurisdictions, the ordinary or private
and the administrative, stands, as in France, a Court of Con-
flicts. It consists of eleven judges appointed for life (or for
the term of their chief of&ce) ; and of these eleven six must
be members of the Superior District Court of Berlin, — must
belong, that is, to a court of the ordinary jurisdiction. The
other five must be persons eligible to the higher judicial or
administrative offices.
503. The PrusBian Courts and Constitutional Questions,—
The Prussian courts have no such power of passing upon the consti-
tutionality of laws as is possessed by the courts of the United States.
They cannot go beyond the question whether a law has been passed, or,
in administrative cases, an official order issued, in due legal form.
504. " When the Prussian citizen, admitted, in the severe school of
self-government, to a share in the magisterial function, shall have
gained iii political consciousness; when the protection of right within
the sphere of public law shall have been more surely secured and ex-
tended through an ever wider sphere, then will the Prussian state, not
merely through military development, but also through its well-mera-
bered (wohlbegliederle) and free administrative arrangements, fulfil its
national destiny (deutschen Bemf), in virtue of which it is bound
300 THE GOVERNMENTS OF GERMANY.
(bestimmf) to advance, with a strong hand and to a fortunate issue
(jjluckliche hinausziifiihreTi) upon the immovable foundations of a truly
popular monarchy, the great political and economical tasks of the
present." i
Some Representative Authoeities.
Lahand, " Das Staatsrecht des Deutschen Reiohes." 3 vols. Tiibingen,
1876-1882. First vol. of new ed., 1888.
Laband, " Das Staatsrecht des Deutschen Reiches " (in Marquardsen's
" Handbuch des oefientlichen Rechts der Gegenwart "). Frei-
burg in B., 1883.'
V. Sonne, " Das Staatsrecht des Deutschen Reiches." 2d ed. Leipzig,
1876.
Grais, Graf Hue de. (See under Prussia.)
Mejer, Otto, "Einleitung in das deutschen Staatsrecht." 2d ed. Frei-
burg in B., 1884.
Demomhynes, " Constitutions Europ^ennes," Vol. II., p. 487 et seq.
PRUSSIA.
Schulze, Hermann, "Das preussische Staatsrecht, auf Grundlage des
deutschen Staatsrechtes." 2 vols. Leipzig, 1872-1877.
Schulze, Hermann, " Das Staatsrecht des Konigreichs Preussen " (in
Marqviardsen's " Handbuch "). Freiburg in B., 1884.
Ronne, Ludwig v., " Das Staatsrecht der preussischen Monai'chie." 8
Parts, 5 vols. 4th ed., 1881-1883.
Grais, Graf Hue de, " Handbuche der Verfassung und Verwaltung in
Preussen uud im deutschen Reiche.'' 2d ed. Berlin, 1882.
Demomhynes, " Constitutions Europ^ennes," Vol. II., p. 733 et seq.
Seeley, J. R., " Life and Times of Stein." (Part I., Chap. V. ; Part
III., Chap. L; Part V., Chaps. II., III.)
Morier, R. B. D., in Cobden Club Essays on " Local Government and
Taxation." 1875.
1 Schulze, p. 165.
VIII.
THE GOVERNMENTS OF SWITZERLAND.
505. Feudalism in Switzerland. — Until the beginning of
the fourteenth century the towns and communes of the country
now called Switzerland were all held fast in the meshes of the
feudal system. Real vassalage, indeed, such as the low coun-
tries of France and Germany knew, had never penetrated to
all the valleys of the Alps ; many a remote commune had
never known anything but a .free peasantry ; and hardly any-
where near the heart of the great mountains had feudal fealty
meant what it meant elsewhere. Still great neighbor lords and
monasteries had swept even these mountain lands at least nomi-
nally within their overlordships, and most of the Swiss Can-
tons of to-day represent for the most part various pieces of old
feudal domains.
506. First Movements towards Cantonal Independence. —
'In 1309, however, began the process which was to create the
Switzerland of our time. In that year the Cantons of Schwyz,
Uri, and Unterwalden, lying close about the lake of Lucern,
won from the Emperor Henry VII. the recognition of their
freedom from all supremacy save that of the Empire itseK.
They had already, about the middle of the thirteenth century,
drawn together into a league which proved the seed of the
modern Confederacy. That Confederacy has two distinguish-
ing characteristics. It has brought down to us, through an
almost unbroken tradition, the republican institutions of the
Middle Ages ; and it has by slow processes of cautious federa-
302 THE GOVERNMENTS OE SWITZERLAND.
tion, drawn together into a real union communities the most
diverse alike in point of race, of language, and of institutions
without destroying their individuality.
607. The Processes of Confederate Growth. — In its brief-
est terms the story is this. The Cantons broke from the fatal
toils of the feudal system while still in possession of those local
liberties which the disintegrateness of that system gave leave
to grow wherever courageous men could muster numbers enough
to assert their independence ; having a common cause against
the feudal powers about them, they slowly drew together to
each other's support ; and, having allied themselves, they went
on to show the world how Germans, French, and Italians, if
only they respect each other's liberties as they would have
their own respected, may by mutual helpfulness and forbear-
ance build up a union at once as stable and as free as political
history can show. Several centuries elapsed before the de-
velopment was complete, for the Confederation, as finally
made up, eolisisted of the two very different elements of
strong, and for the most part aristocratic free cities and quiet
rural peasant democracies. It was necessarily a long time be-
fore even common dangers and common interests brought proud
Cantons like Bern, and aristocratic cities like Geneva, into cor-
dial relations with the humble originators of the Confederacy,
Schwyz, Uri, and Unterwalden. But circumstances constrained
and wisdom prevailed : so that iinion was at last achieved.
508. French Interference. — The year 1513 may be taken
a,s marking the close of the period during which the Con-
federacy won the place it was always to keep among the powers
of Europe. In that year the League was joined by the last of
those thirteen German Cantons which were to constitute its
central membership, so to say, down to the French Revolution.
It was not till 1848, however, that its constitution was put
upon its present foundations ; and not till 1874 that that con-
stitution received at all points its present shape. In the mean-
time events of the greatest magnitude gave direction to Swiss
THE GOVERNMENTS OP SWITZERLAND. 303
affairs. The great powers had recognized the independence of
Switzerland in the Treaty of Westphalia, 1648 (sec. 373). The
thirteen original Cantons had received great French cities, like
Geneva, to the East, and certain Italian lands to the South
either into close alliance or into fixed subjection. The French
Revolution had sent French troops into Switzerland, in sup-
port of a fruitless attempt to manufacture out of the always
stiffly independent Cantons, hitherto only confederates, a com-
pact and centralized " Helvetic Republic," after the new model
just set up in unhappy France (1798-1802). Napoleon had
intervened (1803-1814) for the purpose of both loosing these
artificial bonds and creating a new cement for the League in
the shape of a common allegiance to himself. And, in 1815,
the pressure of the French power being removed, reaction had
come. The irritated Cantons, exasperated by the forms of a
government not of their own choosing, had flung apart, to the
practice of principles of cantonal sovereignty broader, extremer
even than those upon which they had based their Union before
1798. The reaction then, in its turn, of course, brought its own
penalties. Troubles had ensued which read very much like
those, so familiar to Americans, which forced a strong federal
government upon the United States.
609. The Sonderbund War. —Religious differences of opin-
ion, however, not political, were in Switzerland the occasion of
the strife which was to bring union out of disunion. After the
power of Napoleon had been broken, the Congress of Vienna
had sought to readjust all the arrangements that he had dis-
turbed, and Swiss affairs had not been overlooked. The Can-
tons were induced to receive Geneva, Valais, JSTeuchatel, and
the territories hitherto held as dependencies, into full confed-
erate membership, and to agree to a Pact (known as the Pact
of 1815) which gave to the League, with its increased member-
ship of twenty-two Cantons, a new basis of union. One of the
clauses of that Pact contained a solemn guarantee of the rights
and privileges of the monasteries still maintained in the Roman
304 THE GOVEENMENTS OP SWITZERLAND.
Catholic Cantons : and upon that guarantee were based the hopes
of all parties for peace among the members of the League touch-
ing questions of religion. But the guarantee was broken down.
The wave of democratic reform swept steadily and resistlessly
through Switzerland during the revolutionary period of 1830-
1848, and where the Protestant and Eoman Catholic parties
were nearly equal in popular force threatened not a few of the
oldest foundations of the mediaeval church. The crisis was first
felt in Zurich, where the excesses of a radical party temporarily
in control brought about, in 1839, a violent reaction. The next
year saw the disturbance transferred to Aargau. There the
anti-Catholic party, commanding, during a period of constitu-
tional revision, a narrow popular majority, and exasperated by
the violent opposition tactics of the clerical party, forced a
vote in favor of the abolition of the eight monasteries of the
Canton. The Diet of the Confederation was thereupon asked,
of course, by the aggrieved party whether it would permit so
flagrant a breach of the Pact of 1816. It was forced by a con-
flict of interests to a compromise, agreeing to the abolition of
four of Aargau's eight monasteries. This was in August, 1843.
The next month saw the formation of a separate League (Son-
derbund) by the seven Roman Catholic cantons, Schwyz, Uri,
Unterwalden, Lucerne, Preiburg, Valais, and Zug. The depu-
ties of these Cantons were, however, slow in withdrawing from
the Diet, and the Diet was reluctant to come to open strife
with its recalcitrant members. Four ^ears this league within
a league was permitted to continue its obstructive agitation.
But at last, in November, 1847, war came — a sharp, decisive
contest of -only, eighteen days' duration, in which the seceded
Cantons wore overwhelmed and forced back to their allegiance.
510. The New Constitution. — Constitutional revision fol-
lowed immediately. The Pact of 1815 was worn out : a strong
and progressive constitution had become a necessity which not
even the party of reaction could resist or gainsay. By the
Constitvxtion of 1848 there was created, out of the old dis-
THE GOVERNMENTS OB' SWITZEKLAKD. 306
cordant Confederation of States (Staatenbund) the present
federal State {Bundesstaat) . That Constitution, as modified
and extended by the important revision of 1874, is the present
Constitution of Switzerland.
511. Character of the Constitution. — The federal govern-
ment thus established has many features whicli are strikingly
like, as well as many which are almost as strikingly unlike,
the familiar features of our own national system. It has had,
since 1874, a federal Supreme Court, which is in many imjior-
tant fields of jurisdiction the highest tribunal of the land ; and
it has had ever since 1848 a Legislature consisting, as with us,
of two branches, or Houses, the one representative of the peo-
ple, the other representative of the states of the Confedera-
tion. The popular chamber is called the " National Council "
{der Nationalrath), the federal senate, the " Council of States "
(der S lander ath) . The former represents the people as a
whole; the latter, the States as constituent members of the-
Confederation.
Much of the resemblance of these atrangements to our own is due to
conscious imitation. The object of the reformers of 1848 and 1874 was
not, however, to Americanize their government, and in most respects it
remains distinctively Swiss.
512. Nationality and State Sovereignty. — Much as such
institutions resemble our own federal forms, the Constitution
of Switzerland rests upon formal fou^ndations such as were laid
for our Union by the failure of the Articles of Confederation,
rather than upon su.cB. as were laid by our war between the
States, — upon a federal, that is, rather than upon a national
conception. The Swiss Constitution does indeed itself speak
of the Swiss nation^declaring that "the Swiss Confederacy
has adopted the following Constitution with a view to estab-
lishing the union (Bund) of the Confederates and to maintain-
ing and furthering the unity, the power, and the honor of the
Swiss nation " : and not ew^en thfe war between the States put
the word nation into our Constiljition. But the Constitution
306 THE GOVBRNMEIJTS OF SWITZERLAND.
of Switzerland also, with little regard for consistency, contains
a distinct and emphatic assertion of that principle of divided
sovereignty which is so much less familiar to us now than it
was before 1861. It declares that "the cantons are sover-
eign, so far as their sovereignty is not limited by the federal
Constitution, and exercise as such all rights which are not con-
ferred upon the federal power " ; and its most competent inter-
preters are constrained to say that such a constitution does
not erect a single and compacted state (Einheitstaat) of which
the Cantons are only administrative divisions ; but a federal
state, the units of whose membership are themselvds states,
possessed, within certain limits, of independent and supreme
power. The drift both of Switzerland's past history and her
present purpose is unquestionably towards complete nation-
ality ; but her present Constitution was a compromise between
the advocates and the opponents of nationalization ; and it does
not yet embody a truly national organization or power.
513. Indefinite Constitutional Grants. — At the same time,
the Swiss Constitution leaves open a larger debatable ground
between federal and cantonal powers than that which is left
open by our Constitution between the powers of the federal
government and the powers of the States. The Constitution
of the United States limits the federal power by drawing a
tolerably clear line between state and national provinces : it
distinctly enumerates the powers which Congress shall exer-
cise as well as those which the States shall not exercise (sees.
889-892). The Swiss Constitution, on the other, hand, makes
no such careful enumeration. It contents itself with such in-
definite grants as these : that the federal legislature shall have
power to pass " laws and resolutions concerning those subjects
which the Confederacy is commissioned by the federal consti-
tution to act upon"; to control the foreign relations of the
Cantons ; to guarantee the constitutions and territories of the
Cantons ; to provide for the internal safety, order, and peace
of the country ; to adopt any measures " which have the ad-
THE GOVERNMENTS OP SWITZERLAND. 307
ministration of the federal Constitution, the guaranteeing of
the cantonal constitutions, or the fulfilment of federal duties
for their object " ; and to effect revisions of the federal Consti-
tution.
This indefiniteness is due, in large part at least, to the fact
that the federal Constitution has not yet been put upon a thor-
oughly logical basis. Though the drift of national sentiment
has been strong enough to give the federal government great
powers, it has not as yet been strong enough to give it com-
plete powers within its own sphere. Cantonal jealousy has
withheld logical roundness from the prerogatives of the cen-
tral authorities : with the result of leaving their outlines a
little vague..
614. Guarantee of the Cantonal Constitutions. — The Swiss
federal Constitution is more definite in guaranteeing to the
Cantons their constitutions than our federal Constitution is in
guaranteeing to the States " a republican form of government."
The guarantee is made to include the freedom of the people
and their legal and constitutional rights ; the exercise of those
rights under representative democratic forms ; and the revision
of any cantonal constitution whenever an absolute majority of
the citizens of the Canton desire a revision.
The Cantonal Governments.
615. The Cantonal Constitutions and the Federal Consti-
tution. — So deeply is Swiss federal organization rooted in can-
tonal precedents,, that an understanding of the government of
the Confederation is best gained by studying first, the political
institutions of the Cantons. At almost all points the federal
government exhibits likeness to the governments of the Can-
tons, out of whose union it has grown. As our own federal
Constitution may be said to generalize and apply colonial habit
and experience, so the Swiss Constitution may be said to gen-
eralize and apply cantonal habit and experience : though both
E08- THE GOVERNMENTS Oi' SWITZERLAND.
our. own Constitution and that of Switzerland have profited
largely by foreign example also.
In some respects the Swiss Constitution is more conservative,
— or, if you will, less advanced — than the Constitution of the
United States. Those who have fought for union in Switzer-
land have had even greater obstacles to overcome than have
stood in the way of the advocates of a strong central govern-
ment in this country. Differences of race, of language, and of
religion, as well as stifiB.y opposing p(3litical purposes, have
offered a persistent resistance to the strengthening and even
the logical development of the prerogatives of the federal
power. The Constitution of the Confederation, therefore, bears
many marks of compromise. It gives evidence at many points
of incomplete nationalization, even of imperfect federalization.
Cantonal institutions are, consequently, upon a double ground
entitled to be first considered in a study of the govermnents
of Switzerland. Both their self-assertive vitality and their
direct influence upon federal organization make them the cen-
tral subject of Swiss politics.
516. Position of the Legislative Power. — The develop-
ment of political institutions has proceeded in the Swiss cantons
rather according to the logic of practical democracy than ac-
cording to the logic of the schools — the logic of elsewhere
iaccepted political philosophy. The Swiss have not, for one
thing, hesitated to ignore in practice all dogmas concerning
the separation of legislative, executive, and judicial functions.'
The leading principle according to which they proceed in all
political arrangements is, that in every department of affairs
the people inust, either immediately or through representatives,
exercise a direct, positive, effective control. They do not hesi-
1 1 say ' in practice ' ; for iu theory such distinctions are observed.
The constitutions of fully half the Cantons say explicitly that legislatire,
executive, and judicial functions shall be kept fundamentally distinct;
but in the practical arrangements actually made the line of demarcation
is by no means sharply drawn.
THE GOVERNMENTS OF SWITZERLAND. 309
tate, therefore, to give to their legislative bodies a share both in
the administration and in the interpretation of lavi^s ; and these
bodies are unquestionably the axes of cantonal politics.
517. A Single House. — A very great variety of practice
marks the organization of government in the Cantons ; each
Canton has had its own separate history and has, to a certain
extent, separately worked out its own political methods ; but
there is one point of perfect uniformity, — the Legislature of
each Canton consists of'but a single House. The two Houses of
the federal legislature have been made after foreign, not after
Swiss, models. In Uri, Unterwalden, Glarus, and Appenzell
this single law-making body is the Landsgemeinde, the free
assembly of all the qualified voters, the folk-moot; but in the
other Cantons the legislative assembly is representative. Rep-
resentatives are elected by direct popular vote in all the Cantons,
and in almost all by the secret ballot.
Elections are for a term which varies from one year to six in the
different Cantons, the rule being a term of from three to four years.
The number of representatives bears a proportion to the number of
inhabitants which also varies as between Canton and Canton, the average
being about one to every 994 inhabitants.!
In most of the cantons the legislative body is called the Greater
Council (Grosser Math) — the executive body being the Lesser Council.
In some it is called the Cantonal Council (Kantonsrath) ; in others, the
Landrath.
518. Functions of the Cantonal Legislatures. — The func-
tions of these councils have the inclusiveness characteristic of
Swiss political organization of democracy. Not only are they
entrusted with such legislative power as the people are willing
to grant away from themselves ; they also, as a rule, elect
the administrative officers of the Canton, and exercise, after
such election, a scrutiny of administrative affairs which pene-
trates to details and keeps executive action completely within
1 Orelli, Das Staatsrecht der schweizerischen Eidgenossenschaft (HandhucK)
pp. 100, 101,
310 THE GOVERNMENTS OF SWITZERLAND.
their control. It is a recognized principle of cantonal govern-
ment, indeed, tliat the executive body — executive po-wer, as
we shall see, being vested in a board or commission, not in an
individual — is a committee of the representatives of the peo-
ple, — a committee of the legislative Council.^ To that coun-
cil they are responsible, as the selectmen of a New-England
town are responsible to the town-meeting (sees. 1003, 1004).
. 519. Share of the People in Legislation : Imperative Peti-
tion. — So far has the apparent logic of-democracy been carried
in Switzerland that the people are given in several ways a
direct part in law-making. It may even be said that in some
of the Cantons the councils merely formulate the laws, while
the people pass them. Swiss law, like that of all other states
possessing popular governments, gives to the people a certain
right of initiative, in the right of petition — which is generally
coupled with a duty on the part of the body petitioned to give
to the prayers of all petitioners full and careful consideration.
But it also goes much further. In many of the Cantons an
additional, an imperative initiative by petition is given to the
people. Any petition which is supported by a certain number
of signatures (the number is usually from five to six thousand)
and which demands action upon any matter, must be heeded by
the Council ; a vote must be taken upbn it by the Council, and
then it must be submitted to the popular vote, even if the
action of the Council upon it has been unfavorable.
It was by such popular initiative that compulsory vaccination was done
away with in Ziirich, by a decisive vote, against the wishes of the Can-
tonal Council, in 1883. Of course certain formalities are required for the
starting of thes^ so to say, authoritative petitions, or a certain backing
by a portion of the members of the Council. Thus, for instance, it was
the law in Uri until the adoption of her new Constitution in May, 1888,
that such a petition could be started only if first proposed by seven men
belonging to seven different families. The new Constitution provides that
petitions proposing changes in the Constitution must bear at least fifty sig-
natures ; and that every voter may propose acts for the Landsgemeinde.
1 Orelli, p. 99,
THE GOVEENMEKTS OP SWITZERLAND. 311
520. The Popular Veto. — In some of the smaller cantons,
again, the people are given a right of Veto. It is provided
that, within a certain length of time after the publication of
a measure passed by the Council (generally about a month) a
popular vote upon the measure may be forced by the petition
of some fifty citizens (the number varies of course in different
Cantons) and the measure be made to stand or fall according
to the decision of that vote.
521. The Referendum. — The Veto, however, may be said to
have given way to the Referendum. In every Canton of the
Confederation, except Freiburg only, the right of the people
to have all important legislation referred to them for confir-
mation or rejection has now been, in one form or another,
established by law.' In the smaller Cantons, which have had,
time out of mind, the directest forms of democracy, this legisla-
tion by the people is no new thing ; they have always had their
Landsgemeinden, their assemblies of the whole people, and the
legislative function of their Councils has long been only the
■duty of preparing laws for the consideration of the people ;
just as the pro-bouleulic Senate in Athens prepared legislation
for the people voting in the Assembly (sec. 76). At stated in-
tervals every year, all. acts of importance are submitted to the
popular vote, a vote which is taken in the little Cantons, like
Uri and Unterwalden, in the Assembly, and in the other purely
democratic Cantons which have no popular Assembly, by the
ordinary processes of polling. Among the Cantons which have
representative institutions, on the other hand, the Referendum
is merely ' facultative ' ; that is, laws are not submitted to the
people, as of course, but only upon the demand, through peti-
tion, of a certain large number of voters, as in the case oi'
the 'Veto.' The ' obligatory,' or invariable Referendum is, of
course, simply popular legislation ; the ' facultative ' Referen-
1 In Valais, however, the Referendum applies only to certain votes upon
financial measures.
312 THE GOVERNMENTS OP SWITZERLAND.
ditm may be described as a popular oversight of legislation : it
is the right of appeal from the Council to the people.
522. History of the Referendum. — The term Beferendum is as
old as the sixteenth century, and qontains a reminiscence of the strictly-
federal beginnings of goyernraent in two of the present Cantons of the
Confederation, Grauhiinden, namely, and Valais. These Cantons were
not at that time members of the Confederation, but merely districts
allied with it (zugewandte Orte). "Within themselves they constituted
very loose confederacies of communes (in Graubiinden three, in Valais
twelve). The delegates whom the communes sent to the federal assem-
bly of the district had to report every question of importance to their
constituents and crave instruction as to how they should vote upon it.
This was the original Meferendum. It had a partial counterpart in the
constitution of the Confederation down to the formation of the present
forms of government in 1848. Before that date the members of the
central council of the Confederation acted always under instructions
from their respective Cantons, and upon questions not covered by their
instructions it was their duty to seek special direction from their home
governments. The Beferendum as now adopted by almost all the
Cantons bears the radically changed character of legislation by the
people. Only its name now gives testimony as to its origin.i
623. The Executive Power is collegiate in all the Cantons,
is exercised, that is, not by a single individual or by several
individuals acting independently of each other, but by a com-
mission. This Commission is variously called in the different
Cantons. In some it is known as the " Landamman and Coun-
cil," in others as the " Estates-Commission " {Standeskommis-
sion), in some as the " Smaller Council," but in most as the
"Administrative Council" (Begierungsrath) . Its term of office
varies in the different Cantons from one to six years ; but the
custom is re-election, so that the brief tenure does not in prac-
tice result in too frequent changes in executive personnel.
The members of the executive have always in the mountain
Cantons been chosen by the people themselves ; in the others
they were formerly elected always by the legislative council —
1 Orelli, p. 104.
THE GOVERNMENTS OF SWITZERLAND. 313
whence the name, in some cantons, of " smaller council." Now
direct election by the people has been abnost universally
adopted. Still the Administrative Council remains, in func-
tion, a committee of the Legislative Council, being responsible
to it for its acts, and taking an active part in the preparation
and consideration of legislative measures. It has proved nec-
essary for the Administrative Council to give over trying to
act in all matters as a Board and to divide its work among
Departments having a general resemblance to ministries. But
these Departments are, strictly speaking, only committees, and
the Council has usually a very real coherence.
The presiding officer of an Administrative Council is generally known
either as Landammann or as Regierungsprdsident.
524. Local Government : the Districts. — Local government
in the Cantons exhibits a twofold division, into Districts and
Communes. The District is an area of state administration,
the Commune an area of local self-government. The executive
functions of the District, the superintendency of police, namely,
and the carrying into effect of the cantonal laws, are entrusted,
as a rule, not to a board, but to a single officer, — a Bezirksam-
mann or Regierungs-Statthalter, — who is either elected by pop-
ular vote in the District or appointed by one of the central
cantonal councils, the legislative or the administrative. Asso-
ciated with this officer, there is in some Cantons a District or
county Council chosen by vote of the people.
525. The Gemeinde, or Commune, enjoys in Switzerland a
degree of freedom in self-direction which is possessed by
similar local organs of government hardly anywhere else in
Europe. It owns land as a separate corporation, has charge
of the police of its area, of the relief of the poor, and of the
administration of the schools, and acts in the direction of
communal affairs through a primary assembly which strongly
reminds one of the New-England town-meeting (sec. 1003).
Besides its activities as an organ of self-governiaent in the
314 THE GOVERNMENTS OF SWITZERLAND.
direction of local affairs, it serves, however, also as an organ
of the state administration, as a subdivision of the District ;
and in such functions it is subject to the jurisdiction of the
District Statthalter.
Citizenship in Switzerland is naturally associated very closely with
the Commune, — the immediate home government of the citizen, — the
primary and most vital organ of his self -direction in public affairs.
The Commune is, so to say, the central political family in Switzerland ;
it is to it that the primary duties of the citizen are owed.
526. In the Commune, as in the Canton itself, the executive
power is exercised by a Board, a communal or municipal coun-
cil. Legislative and consultative power rests, in all but the
Romance Cantons, with a general assembly of the people (Ge-
meindeversammlung) . In the Eomance Cantons the people del-
egate their functions, by election, to a large Committee or Gen-
eral Council. In all the Cantons alike the executive body
the communal or municipal council — is elected by the people
or their representatives, the Committee of the Romance Can
tons. The president of the executive council (who is also
sometimes called Hauptmann, sometimes Syndic) often exer-
cises some functions separately from the Council ; but, as a rule,
all executive action is collegiate.
As an area of general state administration the Commime serves as aa
electorial district, as a voting district for the Referendum, etc.
The rEDBRAL GOVBKNMENT.
527. The Federal Executive. —In no feature of the federal
organization is the influence of cantonal example more evident
than in the collegiate character of the Executive. The execu-
tive power of the Confederation, like the executive power of
each Canton, is vested not in a single person, as under monarch-
ical or presidential government, but in a board of persons.
Kor does Swiss jealousy of a too concentrated executive author-
THE GOVERNMENTS OP SWITZEELAND. 315
ity satisfy itself with thus putting that authority 'in commis-
sion ' : it also limits it by giving to the legislative branch of
the government, both in the Cantons and in the federal system,
an authority of correction as regards executive acts such as no
other country has known. The share of the legislative branch
in administrative .affairs is smaller, indeed, under the federal
Constitution than under the laws of the Cantons ; but it is large
even in the federal system, and it has reqiiired a long fight be-
tween the friends and the opponents of effective central gov-
ernment to bring the federal executive to even its present
degree of independence and efficiency.
528. The executive commission of the Confederation is known
as the Federal Council (Bundesrath). It consists of seven
members elected for a term of three years by the two houses
of the federal legislature acting together in joint session as
a Federal Assembly (Bundesversammlung) . The Constitution
forbids the choice of two of the seven from one and the same
Canton : they must represent seven of the twenty-two Cantons.
The Council organizes under a President and Vice-President
chosen by the Federal Assembly from among the seven coun-
cillors, to serve for a term of one year, the Constitution insist-
ing upon the extreme democratic doctrine of rotation. Neither
President nor Vice-President can fill the same oflB.ce for two con-
secutive terms ; nor can the President be immediately nominated
to the office of Vice-President again upon the expiration of his
term. There is nothing to prevent the Vice-President succeed-
ing the President, however ; and it has hitherto been the uni-
form practice to follow this natural and proper line of promo-
tion.
The Federal Assembly may elect to the Council any Swiss citizen
who is eligible to either Chamber of the Legislature. It may even
choose members of the Chambers, though an election to a place in the
executive body necessitates a resignation of the legislative function.
529. The choice of the Federal Assembly in constituting the execu-
tive has liitherto been admirably conservative. Some of the more prom-
inent members of the Council have been retained upon it by repeated
316 THE GOVERNMENTS OF SWITZERLAND.
re-election for fifteen or sixteen years. Only twice, indeed, since 1848,
hate members who wished re-election been refused it.i
530. The Federal Assembly of course fills all vacancies in the mem-
bership of the Council.
531. The three-years term of the Council is coincident with the
three-years term of the National Council, the popular branch of the
Legislature. At the beginning of each triennial term of this lower
House, the two Houses come together as a Federal Assembly and elect
the Federal Council.
532. The precedence of the President of the Council is a
merely formal precedence : he is in no sense the Chief Executive.
He represents the Council in receiving the representatives of
foreign powers ; he enjoys a somewhat enhanced dignity, being
addressed in diplomatic intercourse as ' His Excellency ' ; and
he receives a little larger salary than his colleagues receive.
633. The Executive and the Legislature. — The members
of the Federal Council, though they may not be at the same
time members of either House of the Legislature, may attend
the sessions of either House, may freely take part in debate,
and may introduce proposals concerning subjects under consid-
eration : may exercise most of the privileges of membership,
except the right to make new motions and the right to vote.
They thus to a certain extent occupy a position resembling that
which a French or English ministry occupy ; but there is this
all-important difference : the English or French ministers are
subject to 'parliamentary responsibility,' — must resign, that
is, whenever any important measure which they favor is de-
feated; whereas the Swiss ministers are subject to no such
responsibility. Defeat in the Legislature does not at all affect
their tenure. They hold office for a term of years, not for a
term of legislative success.
There have bepn two cases since the establishment of the Council
in 1848, — two cases, that is, in forty years, — of resignation from the
Council on the ground of disagreement in political opinion, — but two
only.2
1 Westminster Eeview, Vol. 129, p. 207, ^ jn^l.
THE GOVERNMENTS OF SWITZERLAND. 317
534. The Executive Departments. — The Council acts as a
body of Ministers. It was the purpose of the Constitution
that all executive business should be handled by the Council as
a whole, but of course such collegiate action has proved prac-
tically impossible : it has been necessary to divide the work
among seven Departments. Each member of the Council pre-
sides over a Department, conducting it much as an ordinary
minister would under a Cabinet system, though there is a
somewhat closer union of the several Departments than charac-
terizes other systems, and a greater degree of control by the
ministers over such details of administration as the 'perma-
nent ' subordinates of Cabinet ministers generally manage, by
virtue of possession, to keep in their own hands, to the restraint
and government of transient political chiefs. All important
decisions emanate from the Council as a whole ; and, so far as
is practicable, the collegiate action contemplated by the Con-
stitution is adopted.
The seven Departments, as organized by a law taking effect Jan. 1,
1888, are (1) of Foreign Affairs, (2) of Justice and Police, (3) of the
Interior, (4) of War, (5) of Finance and Imposts, (6) of Industry and
Agriculture, and (7) of Posts and Railways. The department of Foreign
Affairs is now separated from the presidency, with which it was formerly
always associated, so that greater continuity of policy is now possible
in all departments.!
The arrangement of administrative business in Departments is ef-
fected in Switzerland, not as in France and Germany, by executive
decree, but by legislative enactment, as in the United States.
535. It is considered the capital defect of this collegiate organization
of the Swiss executive, combined as it is with the somewhat antagonistic
arrangement of a division of executive business among departments,
that it compels the members of the Qouncil to exercise at one and the
same time two largely inconsistent functions. They are real, not simply
nominal, heads of departments in Swiss practice, and are obliged as
such to give their time and attention to the routine, the detail, and the
technical niceties of administration ; and yet as a body they are expected
to impart to the administration as a whole that uniformity, breadth, and
1 See Hiltz, PoUtisches Jahrbuch der Schweiz, 1887, p. 778.
318 THE GOVERNMENTS OP SWITZEKLAJSTD.
flexibility of policy that can be imparted only by those who stand aloof
from detail and routine and command the wider views of general ex-
pediency. They are called to be both technical officials and political
guides. It has been suggested by thoughtful Swiss publicists that it
would be vastly better to give the departments permanent heads and
leave to a board of ministers such as the present Council only a general
oversight. Political and administrative- functions require different
aptitudes, must be approached from very different points of view, and
ought never to be united in the same persons. i
536. Mixed Functions of the Executive. — Swiss law, as I
have said, makes no very careful distinctions between executive,
legislative, and judicial functions. Popular jealousy of execu-
tive power has resulted, alike in the cantonal systems and in
the system of the Confederation, in the vesting of many execu-
tive functions either wholly or in part in the law-making bodies ;
and a very singular confusion between executive and judicial
functions has issued in the possession by both the executive
and the legislative bodies of prerogatives which should, on any
strict classification, belong only to regularly constituted courts
of law. It is, consequently, somewhat difficult to get a clear
summary view of the rdle played in Swiss federal affairs by
the central executive Council. Its duties give it a touch both
of legislative and of judicial quality.
637. (1) It stands closely connected with the Legislature
because of its part in shaping legislation. The Council both
originates in the Houses proposals with reference to pending
questions and gives its opinion upon proposals referred to it,
either by the Houses or by the Cantons. In connection with
annual reports to the Houses concerning its conduct of adminis-
tration and the condition of the Confederation, it urges upon
them necessary measures of reform or amelioration. It pre-
sents the budget of the Confederation also to the Houses and
leads in its debates of financial legislation. It is, in brief, the
1 Orelli, Das Staatsrecht der Schweizerischen Eidgenossenschaji (JlandbucK),
p. 36.
THE GOVERNMENTS OF SWITZERLAND. 319
intimate servant and in part tlie authoritative guide of the
Legislature.
538. (2) In the exercise of several of its most important
duties the action of the Council is essentially judicial. It is
empowered to examine the agreements made by Cantons among
themselves or with foreign governments and to judge of their
conformity with federal constitutional law, withholding its ap-
proval at its discretion. In like manner there are other can-
tonal laws and ordinances whoSe validity is made dependent
upon its approval ; and to a very limited extent, a jurisdiction
like that entrusted to the Federal Court in hearing complaints
concerning breaches of federal law is given it.
Here are some of the topics touching which the authoritative opinion
of the Council may be taken : Cantonal school affairs ; freedom of
trade and commerce, and the interpretation of contracts with foreign
states which concern trade and customs-levies, patent rights, rights of
settlement, freedom from military service, free passage, etc. ; rights of
settlement within the Cantons ; freedom of belief ; validity of cantonal
elections, votes, etc. ; gratuitous equipment of the militia.1
639. (3) Its strictly executive functions are, however, of
course its most prominent and important functions. It ap-
points all officers whose selection is not otherwise specially
provided for by law ; it of course directs the whole executive
action of the government, overseeing all federal officials, con-
trolling federal finance, and caring for all federal interests ; •
equally of course, it manages the foreign affairs of the Con-
federation. Besides these usual executive and administrative
functions, it exercises, however, others less common. It is the
instrument of the Constitution in making good to the Cantons
the federal guarantee of their constitutions. It executes the
judgments of the Federal Court, and also all agreements or
decisions of arbitrators concerning matters in dispute between
Cantons.^ In cases of necessity it may call out and itself direct
1 Orelli, pp. 43, 44. 2 lud., p. 34.
320 THE GOVERNMENTS OF SWITZERLAND.
the movements of such cantonal troops as are necessary to
meet any sudden danger, provided the Legislature is not in
session to command such measures, and provided the call is
for not more than two thousand men or for a service of more
than three weeks. If more men or longer service seem neces-
sary, the Legislature must be called at once and its sanction
obtained. This power of the Council to call out troops to meet
a pressing peril of war or riotous disorder is a logical part of
the general duty which is imposed tipon it of guarding both
the external and the internal safety and order of the Confeder-
ation, a duty which embraces the general police function of
keeping the peace.
540. The Army. — The Confederation can maintain no standing
army ; only the Cantons can maintain troops in time of peace ; and even
they cannot keep more than three hundred men apiece without the con-
sent of the Confederation.
541. Preservation of Internal Order. — The rule that it is the
province, not of tlie Cantons, but of the federal government to preserve
the internal order as well as secure the external safety of the Confed-
eration is very absolutely held. The Cantons may not even suppress
disorder themselves ; they must call upon the federal authorities, who
must intervene. If the case be urgent, ^ Canton may call in the help
of a neighbor Canton. If the cantonal authorities most immediately
concerned cannot act at all, the federal authorities must themselves
take the initiative. There would seem to be no case contemplated in
which a Canton might take the responsibility of acting alone and for
itself. There must be some form of inter-cantonal co-operation: more
than one Canton must agree to the propriety of employing force.
542. Extradition. — The most common subject of those agreements
between Cantons which it is the duty of the federal authorities to enforce
is Extradition. But such conventions do not either in Switzerland or
in Germany (where Swiss example in this matter is followed) include
either political or press offences among the extraditable crimes.
543. Appeal in Judicial Cases. — Following the example
of the cantonal constitutions, which provide for a very abso-
lute dependence of the executive u])on the representatives of
the people and freely neglect, in . practice, the careful differen-
THE GOVERNMENTS OF SWITZERLAND. 321
tiation of legislative from administrative functions, the federal
Constitution of 1848 allowed an appeal in all cases from the
Federal Council to the Federal Assembly (Bundesversamm-
lung)} The constitutional revision of 1874, which had as one
of its chief objects the development and strengthening of the-
judiciary of the Confederation, transferred such appeals to a
Federal Court, but did not at all restrict the right of appeal.
It transformed the confusion hitherto existing between legisla-
tive and executive functions into a new confusion of executive
with judicial functions. Nor was the legislative branch even
then entirely excluded from judicial action. It was provided
that the Federal Court should hear appeals from the Federal
Council, but it was also arranged that certain ' administrative '
cases might be reserved to the Assembly by special legislative
action. Eeligious and 'confessional' questions have, accord-
ingly, been retained by the Legislature — questions which
would seem to be as far as possible removed from the character
of administrative matters.
644. It seems to have been the conscious purpose of the more
advanced reformers in 1874, to bring the Federal Court as near as pos-
sible in character and functions to the Supreme Court of the United
States ; but they were able to realize their purpose only in part. The
most important prerogative of our own Court, its powers, namely, of
constitutional interpretation, was denied the Federal Court in Switzer-
land. Most constitutional questions are decided by the Legislature,
except when specially delegated to the Court by legislation. The
chief questions of this nature now taken cognizance of by the Court
are disputes as to constitutional rights between cantonal and federal
authorities.
545. The Federal Chancellor. —The office of Federal Chan-
cellor is an inheritance of the present from the older Confed-
eration, in whose days of incomplete federalization the Chan-
1 There was a decided disposition on the part of the constitution-makers
of 1848, in Switzerland, because of a prevalent dread of creating too strong
a central executive, to restrict the federal Executive even beyond Canto-
nal precedent.
322 THE GOVERNMENTS OP SWITZERLAND.
cellor typified the unity of the Cantons. The Chancellor is
elected by the Federal Assembly at the same time and for the
same term (three years) as the Federal Council. He acts as
Secretary of the National Council (Nationalrath), is keeper
of all the federal records, and exercises a semi-executive func-
tion as preserver of diplomatic forms and usages. There is
also a Viee-Chancellor who serves as Secretary of the Council
of States (Stdnderath).
646. The Federal Legislature. — Properly speaking the
legislatiye powers of the Confederation are vested in the Federal
Assembly ; but that Assembly consists of two distinct Houses,
the National Council and the Council of States, and these two
Houses act separately in all strictly legislative matters, coming
together as a single Assembly only for the exercise of certain
electoral and judicial functions. The two Houses stand in all
respects upon ah equal footing as regards all subjects of legis-
lation, and divide the work of each session, — that is the
originating of measures with regard to the questions to come
before them, — by a conference of their Presidents at the begin-
ning of the session. Sessions of the Houses are required by
the Constitution to be held annually : as a matter of practice
they are held oftener. There are usually two sessions of con-
siderable length every year, one beginning in June, the other
in December; and extra sessions are resorted to whenever
the state of the public business requires. Such special sessions
may be called either by resolution of the Federal Council or
upon the demand of five cantons or of one-fourth of the mem-
bers of the National Council. An absolute majority of its
members constitutes a quorum in each House.
547. Composition of the Houses : I. The National Council.
— The popular chamber of the Assembly consists of one hun-
dred and forty-five members chosen from forty-nine federal
electoral districts ( WahhKreise) in the proportion of one rep-
resentative for every 20,000 inhabitants. The federal electoral
districts cannot, however, cross cantonal boundary lines and
THE GOVEKNMENTS OP SWITZERLAND. 323
include territory in more than one Canton. If, therefore, in
the apportionment of representatives among the Cantons, the
division of the number of inhabitants of any Canton by the
number 20,000 shows a balance of 10,000, or more, that balance
counts as 20,000, and entitles to an. additional representative.
Reappointments are made from time to time to meet changes
in the number of inhabitants as shown by decennial censuses.
If any Canton have less than 20,000 inhabitants, it is, never-
theless, entitled to a representative.
This is the case with the three so-called half-cantons, Obwalden,
Nidwalden, and Inner Appenzell. The other Cantons which have only
one representative *re Uri, with 23,744 inhabitants, and-Zug, with
22,829. Berne, on the other hand, which has 530,411 inhabitants, has
twenty-seven representatives, and Zurich, with 316,074, sixteen, while
one other, Vaud, has twelve, and two, St. Gallen and Graubiinden, have
ten each.
548. In those electoral districts which send more than one representa-
tive — as for instance, in Berne, whose twenty-seven members are sent
from six districts, — candidates are voted for upon a general ticket,
each voter being entitled to vote for as many representatives as the
district returns (sec. 315).
549. Every Swiss twenty years of age who is not a clergy-
man and who is qualified to vote by the law of his Canton may
vote for members of the National Council. The term of the
National Council is three years. Elections take place always
in October, on the same day throughout the country — and
that day is always a Sunday.
550. It is upon the assembling of each new National Council that the
election of the Federal Council takes place (sees. 528-531). The three-
years term of the executive Council is thus made to extend from the
beginning of the first session of one National Council to the beginning
of the first session of the next.
551. The National Council elects its ownoflScers; but in selecting
its President and Vice-President it is bound by » rule similar to that
which limits the choice of the Federal Council in its yearly election of
a presiding oflScer. No one who has been President during a regular
session can be either President or Vice-President during the session
324 THE GOVERNMENTS OF SWITZERLAND.
next following; nor can any one be Vice-President twice in succession.
For the officers of the National Assembly, like the officers of most
European law-making bodies, are elected every session instead of for
the whole term of the body, as in our House of Representatives and
the English House of Commons.
552. II. The Council of States (Stdnderath) is composed of
forty-four members : two from each of the twenty-two Cantons.
It would thus seem to resemble very closely in its composition
our own federal Senate and to represent distinctively the fed-
eral feature of the union between the Cantons. In fact, how-
ever, it has no such clearly defined character : for the mode
in which its members shall be elected, the qualifications which
they shall possess, the length of time which they shall serve,
the salary which they shall receive, and the relations they
shall bear to those whom they represent, in brief, every ele-
ment of their character as representatives, is left to the deter-
mination of the Cantons themselves, and the greatest variety
of provisions consequently prevails. From some Cantons the
members are sent for one year only ; by some for three ; by
others for two. In the Cantons which have the obligatory
referendum they are elected by popular vote, as the members
of the National Council are ; in those which have representar
tive institutions they are elected by the legislative body of
the Canton. Differing, thus, from the National Council, as
regards at least very many of its members, only in the fact
that every Canton sends the same number as each of the others
and chooses the term for which it shall elect, the Council of
States can hardly be called the federal chamber : neither is it
merely a second chamber. Its position is anomalous and obvi-
ously transitional.
553. The Council of States elects its own President and Vice-
President, but under the restriction that neither President nor Vice-
President can be chosen at any session from the Canton from which
the President for the immediately preceding session was taken, and that
the office of Vice-President cannot be filled during two successive reg-
ular sessions by a member from the same Canton.
THE GOVEKNMENTS OF SWITZEELAKD. 325
554. The Cantons, upon enumeration, number, not twenty-two, but
twenty-flve, because three of them have been divided into ' half-
cantons,' namely, Unterwalden, Basel, and Appenzell. The half-cantons
send each one member to the Council of States. The following is a
list of the Cantons: Zurich, Berne, Luzern, Uri, Schwyz, Obwalden,
Nidwalden, Glarus, Zug, Freiburg, Solothurn, Baselstadt, Baselland,
Schaffhausen, Outer Appenzell, Inner Appenzell, St. Gallen, Graubiin-
den, Aargau, Thurgau, Ticino, Vaud, Valais, Neuchatel, Geneva.
5o5. Functions of the Houses. — It may be said, in general
terms, that its Legislature is the supreme, the directing organ
of the Confederation. It is difficult, therefore, to classify the
functions which the Houses exercise, because they extend into
every field of government; but the following may serve as
a distinct arrangement of them : 1. They exercise the sover-
eignty of the Confederation in its dealings with foreign states,
controlling all alliances or treaties with foreign powers, deter-
mining questions of peace and war, passing all enactments
concerning the federal army, and taking the necessary meas-
ures for maintaining the neutrality and external safety of
Switzerland. 2. They maintain the authority of the Confed-
eration as against the Cantons, taking care to pass all the
measures necessary for preserving internal safety and order
and for fulfilling the federal guarantee of the cantonal consti-
tutions, and deciding, upon appeal from the Federal Council,
the validity of agreements between the Cantons or between a
Canton and a foreign power. 3. They exercise the general
legislative powers of the Confederation, providing for the car-
rying out of the federal Constitution and for the fulfilment of
all federal obligations. 4. They pass upon the federal budget
and control the federal finances. 5. They organize the federal
service, providing for the creation of all necessary departments
or offices and for the appointment and pay of all federal offi-
cers. 6. They oversee federal administrative and judicial
action, hearing and acting upon, complaints against the decis-
ions of the Federal Council in contested administrative cases.
326 THE GOVEENMENTS OF SWITZERLAND.
7. With, the concurrence of the people, they revise the federal
Constitution.
656. Revision of the Constitution. — When the two Houses
can agree concerning a revision of the Constitution, it is effected
by the ordinary processes, under the ordinary rules, of legislar
tion, though it is followed by an obligatory Referendum to
the people. But a revision may also be otherwise accomplished.
If one House demands partictilar changes and the other House
refuses to assent, or if 50,000 qualified voters call for a revis-
ion by petition, the question whether or not a revision shall
be undertaken must be submitted to popular vote ; and if there
be a majority of the whole of such popular vote in the affirma-
tive, new Houses must be elected and the revision proceeded
with. In every case the amendments adopted by the Houses
must be voted upon by the people and must be accepted by a
majority of the people and by a majority of the Cantons in
order to go into force. In reckoning up the votes by Cantons,
on such occasions, the vote of a half-canton counts as half a
vote.
557. The Federal Referendum. — " Federal laws, as well as
generally binding federal resolutions, which are not of a press-
ing nature, shall be laid before the people for their acceptance
or rejection upon the demand of 30,000 qualified Swiss citizens
or of eight cantons." Such is the language of Article 89 of
the federal Constitution which establishes for the Confederal
tion the 'facultative' Referendum'^ (sec. 521).
The whole detail of the exercise of the Referendum is regulated by
federal legislation. A period of ninety days, running from the date of
the publication of the law, is set within which the demand for a popular
vote must be made. Copies of all federal laws which are subject to
Meferendum are sent to the authorities of each Canton, and by them
published in the Communes. For the Communes are constituted the
districts in which the popular demand is to be made up. That demand
must be made by written petition addressed to the Federal Council; all
1 Orelli, p. 80.
THE GOVERNMENTS OF SWITZERLAND. 327
signatures must be autographic ; and the chief ofiScer of the Commune
must attest the right of each signer to vote. Demands from Cantons
for the Referendum are made through the cantonal councils, subject to
the right of the people, under the provisions of the cantonal referendum,
to reverse the action.
In ease it appears that 30,00Cf voters or eight Cantons demand the
Beferendum, the Federal Council must set a day for the popular vote :
a day which must be at least four weeks later than the resolution which
appoints it.
558. Functions of the Federal Assembly. — The functions
■which the Houses exercise in joint session as the Federal
Assembly are not legislative but electoral and judicial. 1. The
Assembly elects the Federal Council, the federal judges, the
Chancellor, and the generals of the confederate army. 2. It
exercises the right of pardon. 3. It determines conflicts of
jurisdiction between federal authorities, fuliilling the func-
tions delegated under the French and Prussian constitutions
to a special Court of Conflicts (sees. 367, 502) .
The President of the National Council presides over the sessions of
the Federal Assembly, and the rules of the National Council for the
most part govern its proceedings.
659. Administration of Justice : I. The Cantonal Courts.
— The Cantons are left quite free by the federal Constitution
to organize their courts as they please. . Not even a general
uniformity of system is prescribed as in Germany (sec. 436) ;
nor are the cantonal courts subordinated to the Federal Court
except in certain special cases provided for by statute. It may
be said, in general terms, that justice is administered by the
Cantons, with recourse in selected cases to the tribunal of the
^Confederation.
There is, however, a certain amount of uniformity in judi-
cial organization throughout Switzerland. There are usually
two ranks of courts in each Canton : District Courts (Bezirksge-
richte or Amtsgerichte) which are courts of first instance, and
a Supreme or Appellate Court (Obergerichte or Appellationsge-
328 THE GOVERNMENTS OP SWITZERLAND.
richte) which is the court of final instance. There are also in
some of the Cantons Justices of the Peace. Petty police cases
are heard by the District Courts subject to appeal to the
Supreme Court, just as civil cases are ; but for the hearing of
(criminal cases there is trial by* jury under the presidency of a
section of the supreme court justices, or by a special criminal
court acting without a jury.
560. In three of the larger cantons, Geneva, Zurich, and St. Gallen,
there are special Cassation Courts put above the Obertjerwht. Ziirich
and Geneva have also special Commercial Courts (Handelsgerichte).
561. In many of the cantons the Supreme Court exercises certain
semi-executive functions, taking the place of a Ministry of Justice In
overseeing the action of the lower courts and of all judicial officers,
such as the states-attorneys.
562. In most of the cantons, too, the Supreme Court makes annual
reports to the legislative Council, containing a full review of the judi-
cial business of each year, discussing the state of justice with criticisms
upon the system in vogue and suggestions of reform. These reports
are important sources of judicial statistics.
563. The terms of cantonal judges vary. The usual terms
are three, four, and six years. The judges of the inferior
Qourts are as a rule elected directly by the people : those of
the supreme courts commonly by the legislative Council.
564. In Berne the legislative Council also elects the Presidents of
the District Courts ; but this is not the usual practice.
565. No qualifications for election to the bench are required by Swiss
law except only the right to vote. But here, as well as in regard to
the very brief terms of the judges, practice is more conservative than
the law. To the higher courts, at least, competent lawyers are gener-
ally elected ; and re-election is in most cases the rule.
586. In Geneva the States-attorney, instead of the Supreme Court,
is given the general duties of superintendence which, outside of Switzer-
land, are vested in a Minister of Justice ; and in other cantons similar
officers are given prerogatives much more extensive than are usually
associated with such offices elsewhere.
567. II. The Federal Court. —^he Federal Court was
created by the Constitution of 1848. Before that time arbitrar
THE GOVERNMENTS OF SWITZERLAND. 329
tion had been the only form of adjudication between the Can-
tons.^ Even in creating it, however, the Constitution of 1848
withheld from the Federal Court all real efficacy : its jurisdic-
tion was of the most restricted kind and was condemned to be
exercised under the active superintendence of the then omnip-
otent Federal Assembly. It was one of the chief services of
the constitutional reform of 1874 that it elevated the Federal
Court to a place of substantial influence and real dignity. It
still rests with the Houses to determine by statute the par-
ticular questions which shall be submitted to the Court ; but
its general province, as well as its organization, is prescribed
by the Constitution. Doubtless the Federal Court, like the
Council of States, is still in a transitional stage, and will
ultimately be given a still more independent and influential
position.
568. The Federal Court consists of nine judges chosen by the
Federal Assembly (with due regard to the representation of
the three official languages of Switzerland, — German, French,
and Italian) for a term of six years. Every two years, also,
the Federal Assembly selects two of these nine to act, the one
as President, the other as Vice-President, of the Court. The
Court sits, not at Berne, the legislative capital of the Confed-
eration, but at Lausanne.
The Federal Assembly elects, at the same time that it chooses the
judges, nine substitutes also, who sit, as occasion demands, in place of
any judge who cannot act, and who receive for their occasional services
a per diem compensation.
The members of the Court may not hold any other office or follow
any other business during their term as judges ; nor can they be mem-
bers of any business corporation.
The Court elects two secretaries, one of whom must represent Ger-
man, the other French Switzerland, — and one of whom must also know
Italian.
Seven judges constitute a quorum of the Court. The number of
judges who sit in any case must alway be an uneven number, including
the president.
330 THE GOVERNMENTS OF SWITZERLAND.
569. Criminal Jurisdiction of the Federal Court. —In the
exercise of its criminal jurisdiction the Federal Court goes on
circuit. The country is divided into iive assize districts {Assi-
senbezirke), one of which embraces French Switzerland; a
second, Berne and the surrounding Cantons ; a third, Zurich
and the Cantons bordering upon it ; a fourth, central and part
of east Switzerland ; and the fifth, Italian Switzerland.
The Court annually diyides itself, for criminal business, into three
bodies : A Criminal Chamber, a Chamber of Accusation, and a Cassa-
tion Chamber. The Criminal Chamber decides at what places in the
several Districts assizes shall be held. The places selected furnish, at
their own cost, a place of meeting. The cantonal police and court offi-
cers serve as officers of this Court.
The Court elects every six years, to hold for the whole term of the
Court, two "Judges of Inquest" (Untersuchungsrichter) who are charged
with the preparation of cases.
A States-attorney appears for the Federal Council in all cases.
670. Cases in Public Law. — The jurisdiction of the Fed-
eral Court, as determined by statute, covers a great variety of
causes. There are (1) Cases in Public Law. These include
disputes between Cantons concerning such matters as the ful-
filment of inter-cantonal agreements, the settlement of boun-
dary lines, conflicts of jurisdiction between the authorities of
different Cantons, and extradition; also the enforcement of
agreements between Cantons and foreign governments; and,
most fertile of all, cases involving the constitutional rights of
citizens, whether those rights rest upon the federal or upon a
cantonal constitution.
571. It is considered " the proper and natural province of the Federal
Court " in Switzerland " to defend the people and the citizens against
abuses of power, whether they proceed from federal or cantonal au-
thorities." Such a province is, however, in the very nature of the case,
insusceptible of definite limitations; and the powers of the Federal
Court have gradually spread far abroad by reason of the temptations
of this vague prerogative. The most usual and proper cases arising
under it are infringements of the federal guarantee to the citizen of
THE GOVERNMENTS OF SWITZERLAND. 331
fequality before the law, of freedom of settlement, of security against
double taxation, of liberty of the press, etc., but the Court has gone
much beyond these. Its jurisdiction has been extended to the hearing
of complaints against cantonal authorities for ordinary alleged failures
of justice, such as the Constitution can hardly have contemplated giving
into the hands of the Federal Court. The Court has even " brought
within the circle of its judgments, cases where the appellant asserts a
denial of his claims by a cantonal judge grounded upon merely ob-
structive motives or an arbitrary application of the law." ^
572. The Federal Court lias also cognizance of contested
citizenship cases between Communes of diiferent Cantons. For
citizenship in Switzerland is first of all of the Commune. The
Commune is, so to say, the unit of citizenship, and it is through
communal citizenship that cantonal citizenship is held.
573. (2) Civil Cases in Private Law. — The administrar
tion of justice between individuals under federal laws is left
for the most part to the cantonal courts, which thus serve in a
sense as federal tribunals ; but if, in any case falling under
federal law, a sum of 3000 francs be involved, or if the matter
involved be not susceptible of money valuation, an appeal may
be taken to the Federal Court from the court of last resort in
the Canton. Certain other private law cases, even when they
do not involve federal law, may be brought, — not by appeal,
but in the first instance, — before the Federal Court upon
another principle, because, i.e., of the nature of the parties to
the suit, viz. : Cases between Cantons and private individuals
or corporations ; cases in which the confederation is defend-
ant ; cases between Cantons ; . and cases between the confed-
eration and one or more Cantons (sec. 1082).
Cases of the first two of these four classes can be brought in the
Federal Court only if they involve a sum of 3000 francs. Otherwise
they must be instituted and adjudged in the cantonal Courts.
By agreement of both parties, the jurisdiction of the Federal Court
may be invoked in any case in which the subject of litigation is rendered
important by virtue of federal legislation.
1 Orelli, p. 42.
362 THE GOVERNMENTS OF SWITZERLAND.
574. A special railroad jurisdiction, too, lias been given to tlie Fed-
eral Court, coyering -cases concerning right of way and the right of emi-
nent domain, and cases in private law between railroads and the Con-
federation.
575. (3) Criminal Cases. — The criminal jurisdiction of
the Federal Court covers cases of high treason and of out-
break or violence against the federal authorities, breaches of
international law, and political offences which were the cause
or the result of disorders which have necessitated the inter-
vention of the Confederation. It may, however, in the dis-
'cretion of certain authorities, include a variety of matters in
addition to these. Federal officers,' whose breaches of duty
are ordinarily punished upon judgment of the cantonal tribu-
nals, may, by resolution of the Federal Council or of the Fed-
eral Assembly, be handed over to the Federal Court to be
judged. Cases may even, also, be assigned to the federal tri-
bunal by cantonal constitutions or laws, if the Federal Assem-
bly assent to the arrangement.
The Cassation Chamber of the Federal Court takes cognizance, be-
sides, of complaints concerning judgments of the cantonal courts given
under certain fiscal, police, and banking laws of tlie Confederation.
576. The Federal Council : (4) Administrative Cases. —
The administrative jurisdiction of the Confederation, which is
exercised, not bjybhe Federal Court, but by the Federal Coun-
cil, includes a great number of important cases. It covers
questions touching the calling out of the cantonal militia, the
administration of the public-school system of the Cantons,
freedom of trade, occupation and settlement, consumption
taxes and import duties, freedom of belief and worship, the
validity of cantonal elections and votes, and rights arising out
of contracts with foreign powers regarding trade relations, the
credit to be given to patents, exemption from military service,
freedom of passage, etc. In all these cases an appeal lies from
the Federal Council to the Houses.
THE GOVERNMENTS . OF SWITZERLAND. 333
577. Inter-Cantonal Judicial Comity. — The Swiss Consti-
tution, in close imitation of the provision on the same subject
in the Constitution of the United States, requires that full
force and credit be given the judgments of the courts of each
Canton throughout the Confederation.
Some Rbpebsentative Authokities.
Bluntschli, J. C, " Geschichte des schweizerischen Buudesrechts von
den ersten ewigen Bundeu bis auf die Gegeiiwart.'' 2 vols. 1840-
'52. 2d ed. Vol. I, 1875.
Blumer, J. J., "Handbuoh des schweizei'ischen Bundesstaatsrechts."
2 vols. 1863-'65. New ed., completed by J. Morel, 1887.
Dubs, J., " Das offentliche Recht der schweizerischen Eidgenossen-
schaft." 1877-78. 2 parts.
Demombynes, G., " Les Constitutions Europdennes." Ed. 1883. Vol.
II., p. 304 et seq.
Orelli, Alois von, " Das Staatsrecht der schweizerischen Eidgenossen-
schaft " (in Marquardsen's " Handbuoh des ofientlichen Rechts ") .
Freiburg in B., 1885.
Snell, Ludw., " Handbuch des schweizerischen Staatsrechts." 2 vols.
Zurich, 1837-'45. Contains a great deal of original material for
the period preceding the formation of the present federal govern-
ment.
Meyer, Johann, " Geschichte des schweizerischen Bundesrechts."^
vols. 1875-78. Supplement, 1881. *w^-,
" Eidgendssische Bundesverfassung, Bundesgesetze, und Bun-
desbeschlusse," 1876. ^
" Staatskalender der schweizerischen Eidgenossenichaft," 1880.
Adams, Sir F. O., and Cunningham, C. D., " The Swiss Confederation."
8vo. London and New York, 1889.
Moses, Bernard, "The Federal Government of Switzerland, An Essay
on the Constitution.'' A comparative study. San Francisco, 1889.
IX.
THE DUAL MONAECHIES:. AUSTRIA-HUNGARY —
SWEDEN-NORWAY.
«j»;o«
678. The Dual Monarchies. — Midway in character be-
tween unitary kingdoms like England and federal states like
Germany stand the dual monarchies of AustriarHungary and
Sweden-Norway. These governments have two features in
common : each consists of two kingdoms united under a single
monarch, and under neither is there any extensive fusion of
the political institutions of the two countries thus united.
Each kingdom keeps its own institutions, and therefore to a
large extent its own individuality ■ but at the summit of their
governments a single throne unites them, and in some things
a common machinery of administration. Very interesting and
important differences of law and organization, however, separ
rate Austria-Hungary from its northern analogue, Sweden-
Norway. The union of Austria and Hungary is much more
complete than that between Sweden and Norway : the southern
state has what the northern state has not, a common legisla-
tive authority, namely, and common departments of adminis?
tration.
Austria-Hungary.
579. Austria's Historical Position. — The general course
of Austrian history I have already noted, in tracing the devel-
opment of German imperial politics (sees. 374, 381, 398).
Until the middle of the present century Austria stood at the
THE DUAL MONAKCHIES. 335
front of G-erman political union ; not until 1866 was she de-
posed from leadership in Grermany and set apart to the difficult
task of amalgamating the polyglot dual monarchy of Austria-
Hungary.
580. Acquisition of Hungary and Bohemia It was un-
questionably Austria's headship in the Empire which enabled
the Habsburg princes at once to broaden and to consolidate
their domain in the southeastern border-land between Slav
and Teuton. Their power and influence within the Empire of
course gave them their opportunity to control the destiny of
border states like Bohemia and Hungary, lying at Austria's
own doors. Both Hungary and Bohemia fell to Habsburg in
the same year, the year 1626. The Austrian monarchy, as we
know it, may be said to have begun its history with the reign
of the Habsburger of that date, Ferdinand I.
581. Bohemia. — Bohemia was a Slavonic wedge thrust into
the side of Germany. Compassed about by hostile powers, it
was a prize to be fought for. Alternately conquered by
several neighboring kingdoms, it finally fell into German
hands and became an apanage of the Empire. It was as such
that the Habsburgers seized it when its throne became vacant
in consequence of the extinction of a Luxemburg line of
princes. In 1526 their hold upon it was made complete, and
in 1547 they were able to make its possession hereditary
within their family.
682. Moravia. — Moravia also was and is Slavonic. Slavs early
drove out its Teutonic possessors, and were prevented from joining the
Slavs of the southeast in the formation of a vast Slavonic kingdom
only by the intervention of the Magyars, the conquerors of Hungary.
This dominant race in the tenth century thrust themselves in between
the Slavs of the northwest and those of the southeast, and, driving
back the Slavs of Moravia, reduced the once ' Great Moravia ' to the
dimensions of the present province. Striven for by Hungary, by
Poland, and by Bohemia, Moravia finally met her natural fate in in-
corporation with Slavonic Bohemia (1029), and passed, along with that
kingdom, into Austrian hands, in 1526.
336 THE DUAL MONARCHIES.
683. Hungary. — Hungary is the land of the Magyars, a
Turanian race which retains even to the present day its dis-
tinctive Oriental features, habits, and bearing among the native
European races about it. After having suffered the common
fortune of being overrun by numerous barbaric hordes at the
breaking up of the Eoman empire, the territory of Hungary
became, in 889, the realm of the Magyar duke ArpM, the Con-
queror. In the year 1000 the duke Vaik, who had succeeded
to the duchy in 997, received at the hands of Pope Sylvester
II. the title of " apostolic king " of Hungary, and, under the
name of Stephen, became the first of a line of native monarchs
which kept the throne until 1301. From 1301 till 1526 kings
of various families and origins won places upon the throne.
During this period, too, Hungary felt the full power of the
Turk, since 1453 master of Constantinople. The battle of
Mohdcs (29 August, 1526 ) brought terrible overthrow upon
the Hungarian forces at the hands of Soliman the Magnificent,
and death to Louis, the Hungarian king. Louis was child-
less ; his widow, Maria, was sister to Ferdinand I. of Aus-
tria; and it was her influence which led the more powerful
party of nobles within the kingdom to elect the Habsburger
to the throne and so put Austria permanently in the Hungarian
saddle. Not, however, until 1665-1671, a period of insurrec-
tion in Hungary, did the Habsburgers convert their elective
into an hereditary right to the throne.
584. Traasylvania, Slavonia, Croatia. — Transylvania, Slavonia,
and Croatia, annexed at various times to Hungary, passed with Hun-
gary to the house of Habsburg. Except during the period 1848 to
1867, the period during which Hungary was being disciplined for lier
revolt of 1848-9, these provinces have remained apanages of Hungary,
though Croatia occupies a somewhat distinctive position, and is always
accorded a representative of lier own in the Hungarian ministry. From
1848 to 1867 Transylvania, Slavonia, and Croatia were treated as
Austrian crown lands.
585. Galicia, Dalmatia. — Galicia, a district much fought for and
often divided, but for some time attached to Poland, came to Austria
THE DUAL MONARCHIES. 337
upon the first partition of Poland, in 1772. Dalmatia, once part of
ancient Illyria, afterwards a possession of Venice, much coveted and
sometimes held by Croatia and by Hungary, was acquired by Austria
through the treaty of Campo Formio, in 1797.
586. Bosnia and Herzegovina. — The Congress of Berlin, 1878, met
to fix upon a basis for the new settlements resulting from the victories
of Russia over Turkey, added to Austria's multifarious duties as ruler
of many races the protectorate of Bosnia and Herzegovina, districts
inhabited by a Servian race and long subject to Turkish dominion.
587. Austria-Hungary : Nature of the Union. — The
present constitution of the Austro-Hungarian monarchy prac-
tically recognizes but two parties to the union, Austria and
Himgary, namely. Bohemia, for all she has so much individ-
uality and boasts so fine a history of independence, is swal-
lowed up in Austria: only the Magyars of Hungary, among
all the races of the heterogeneous realm of the Habsburgers,
have obtained for the kingdom of their making a standing of
equality alongside of dominant Austria.
588. Variety of Race. — The commanding difficulty of
government throughout the whole course of Austro-Hungarian
politics has been the variety of races embraced within the
domain of the monarchy. First and most prominent is the
three-sided contrast between German, Slav, and Magyar;
within this general classification of the population, again, Slav
differs from Slav by reason of many sharp divergencies of
history, of speech, and of religion ; and outside this classifica^
tion, there is added to German, Slav, and Magyar a miscellany
of Italians, Jews, and others before the sum of variety is com-
plete. This variety is emphasized by the fact that only the
Czechs, among all these peoples, have among the larger divis-
ions of the empire a home land in which they are in the
majority. In Bohemia and Moravia the Czechs constitute
considerably more than half the population ; but in Hungary
the Magyars, though greatly outnumbering any other one
element of the population, are less than half the whole number
of inhabitants ; and in Austria, though Germans are very
338 THE DTJAL MONABCHIES.
greatly in the majority in the central provinces which may be
called Austria proper, they constitute in Austria taken as a
ivhole very little more than one-third of the population.
689. Home Rule : Bohemia, Hungary. — At least two
among these many races, moreover, are strenuously, restlessly,
persistently devoted to independence. No lapse of time, no
defeat of hopes, seems sufB.cient to reconcile the Czechs of
Bohemia to incorporation with Austria : pride of race a,nd the
memories of a notable and distinguished history keep them
always at odds with the Germans within their gates and with
the government set over their heads. They desire at least the
same degree of autonomy that has been granted to Hungary.
590. Not ' granted ' either : perhaps it would be more strictly
correct to say the degree of autonomy tvon by Hungary. Dom-
inant in a larger country than Bohemia, perhaps politically
more capable than any Slavonic people, and certainly more en-
during and definite in their purposes, the Magyars, though
crushed by superior force in the field of battle, have been able
to win a specially recognized and highly favored place in the
monarchy. Although for a long time a land in which the noble
was the only citizen, Hungary has been a land of political lib-
erties almost as long as England herself has been. The nobles
of Hungary won from their king, Andreas II., in 1222, a
" Golden Bull " which was a veritable Magna Charta. It lim-
ited military service in the king's army, it regulated taxation,
it secured for every noble trial by his peers, it gave order and
propriety to judicial administration, it even enacted the right
of armed resistance to tyranny. The nobles, too, were entitled
to be personally summoned to the national Reichstag. Stand-
ing upon these privileges, they were long able to defeat even
the absolutism of the Austrian monarchs. Ferdinand I. ac-
quired the throne of Hungary only after recognizing her con-
stitution ; not for more than a hundred years did the crown
become hereditary in the Austrian house ; and not till 1687 did
the ancient right of armed resistance lose its legal support.
THE DUAL MONAKCHIES. 339
591. The period of reaction which followed the N"apoleonic
wars and the Congress of Vienna found kings everywhere tight-
ening where they could the bonds of absolutism : and nowhere
were those bonds more successfully strengthened than in Aus-
tria-Hungary under the reigning influence of sinister Metter-
nich. 1848, however, saw the flames of insurrection break
forth more fiercely in Hungary than anywhere else in terror-
struck Europe : only by the aid of Eussia was Austria able
once more to get control of her great dependency. So -com-
pletely was Hungary prostrated after this her supreme effort,
however, that she had no choice but to suffer herself to be de-
graded into a mere province of Austria.
592. The Constitution of 1867. — Wars and disasters pres-
ently came upon absolutist Austria, however, in an overwhelm-
ing storm. Thrust out from Germany, she was made at length
to feel the necessity, if she would give her realm strength, to
give her subjects liberty. Her eyes at last fully opened to the
supreme folly of keeping the peoples under her rule weak and
spiritless, poor and motionless, in order that her monarchs
might not suffer contradiction, she assented, 18 February, 1867,
to that constitution which rec6gnized the kingdom, not as
Austria's, but as the joint kingdom of Austria-Hungary, and
which gave to the empire its present relatively liberal political
organization.
593. Dual Character of the Monarchy. — The Austro-Hun-
garian monarchy, although compacted by the persistent forces
of a long historical development, is not a unitary state, a ter-
ritorial and legal unit, but a "real union" simply "of two con-
stitutionally and administratively independent states." This
union is, indeed, more substantial than that between Sweden
and Norway : the latter has existed less than seventy-five years,
and is, as we shall see (sees. 625,- 628), but an arrangement by
which two kingdoms may subsist under a single king, as part-
ners in international undertakings but as. something less than
partners in affairs of nearer interest ; Austria-Hungary, on the
340 THE DtTAL MONARCHIES.
contrary, -held as a dual possession by a single royal house for
more than three hundred and fifty years, subjected by that
house to the same military and financial services, and left the
while in possession of only such liberties as they could retain
by dint of turbulent insistence, consists of two countries at
many points interlaced and amalgamated in history and in
institutional life.
694 The Fundamental Laws. — The dukes of Austria at
first held their possessions as vassals of the Empire ; but they
held them under definite and liberal charters which vouchsafed
to them most of the substantial attributes of sovereignty.
The elevation of the Habsburgers to the imperial throne did
not essentially change the relationship of the Austrian domin-
ions to their immediate lords : they continued to be their pos-
sessions in the full feudal sense of that term, the rights of their
peoples conditioned, indeed, by their own character and history,
but in every legal aspect subject to the disposing will of feu-
dal masters. The present constitutional law of the kingdom,
therefore, rests upon grants of privilege from the crown (sees.
1139, 1140). It is divisible into three parts: the laws of the
union, the laws of Austria, arid the laws of Hungary, (a) The
laws of the union embrace, besides various other rules concern-
ing succession to the throne, the Pragmatic Sanction of 1713
(sec. 380), which was formally adopted by the representatives
of the Hungarian group of states ; and the identical Austrian
and Hungarian laws, passed in December, 1867, which fix the
relations of the two kingdoms to one another and arrange for
the administration of their common affairs, (b) The funda-
mental law of Austria consists of various royal decrees, ' di-
plomas,' and patents, determining the membership, privileges,
etc., of the national Eeiohsrath and of the provincial Landtags.
Of these the chief are five fundamental laws of December,
1867, by which a general reconstruction of the government was
effected in agreement with the new constitution given to the
union in that year, (c) The constitutional arrangements of
THE DTTAL MOKARCHIES. 341
Hungary rest upon the Golden Bull of Andreas II., 1222, touch- >
ing the privileges of the Estates (sec. 590) ; upon certain laws
of 1790-91 concerning the political independence of Hungary,
and her exercise of legislative and executive powers ; upon
laws of 1847-'48 granting ministerial responsibility, annual
sessions of the Eeichstag, etc. ; and upon a law of 1868
(amended in 1873) whereby CroatiarSlavonia is given certain dis-
tinct privileges to be enjoyed independently of Hungary. These
are most of them older laws than the Austrian. Although
able for long periods together to keep Austria at their feet,
the Habsburgers have never been able to bring Hungary to a
similar attitude of submission. Her constitutional separate-
ness and independence, though often temporarily denied in
practice, have never been destroyed. The co-operative rights
of the Estates in government, communal self-administration,
and the privileges of the free cities have triumphantly per-
sisted spite of all efforts made for their suppression.
595. The Common Government: the Emperor-King —
The Emperor of Austria bears also the titles King of Bohe-
mia and ' Apostolic ' King of Hungary (sec. 583). He stands
at the head, not of one of the branches of the government,
but of the whole government in all its branches. In theory,
indeed, he alone governs : he makes, Eeichsrath and Landtags
only assent to, the laws. Laws limit his powers : the sphere of
his authority is fixed in each kingdom by definite constitutional
provision ; but, whatever practical concessions modern move-
ments of thought and of revolution may have compelled, it yet
remains the theory, and to a certain extent the fact, of consti-
tutional development in Austria^Hungary that the monarch
has himself willed such limitations upon his prerogative as
exist. There is, therefore, significantly enough, nothing to
be said by constitutional commentators in AustriorHungary
either concerning the king's veto or concerning any special
arrangements for constitutional change. It is thought to go
without the saying that the monarch's negative will absolutely
342 THE DUAL MONARCHIES.
kill, Ills 'let it be' abundantly vitalize, all laws, whether con-
stitutional or other.
Of course limitations upon the monarch's prerogative are not neces-
sarily any the less real because he maij abrogate them if he dare, so
long as the whole disposition and temper of his people and of his times
forbid his abrogating them.
596. Succession, Regency, etc. — The laws touching the succes-
sion to the Austro-Hungarian throne provide so minutely for the widest
possible collateral inheritances, that provision for a vacancy is appar-
ently not necessary. Permanent laws vest the regency, in specific repre-
sentatives of the royal house. The royal age of majority is sixteen years.
597. The Common Ministries. — The Emperor-king is as-
sisted in his direction of the common affairs of his two king-
doms by three Ministries and an Imperial Court of Audit.
There is (1) a Ministry of Foreign Affairs and of the Imperial
Household, which, besides the international functions indi-
cated by its name, is charged with oversight of the foreign
trade and shipping interests of the dual kingdom. (2) The
Ministry of War, by which the common standing army of the
two kingdoms is administered. ' The legislation upon which
the maintenance of this common standing army is based origi-
nates with the legislatures of the two kingdoms acting sepa-
rately. It is, in brief, matter of agreement between the two
countries. It covers such points as the size of the army, lia-
bility to military service, rules and methods of recruiting, etc.,
and is embodied in identical laws adopted by the two legis-
latures.
As commander-in-chief of the army, the Emperor-king has the full
right of discipline, full power to appoint, remove, or transfer officers
of the line, and the determination of botli the war and peace organiza-
tions of the army, quite independently of any action whatever on the
part of the minister of war. In most other concerns of the military
administration, however, his acts require the counter-signature of the
minister.
The militia services of the two kingdoms are separate, and separately
maintained ; but in war the militia of both countries becomes supple-
mentary to the regular army.
THE DUAL MONARCHIES. 343
(3) The Ministry of Finance : acting tinder the Emperor, the
miiiister of fmance prepares the joint budget, apportions the
costs of the common administration between Austria and Hun-
gary, .sees to the raising of the relative quotas, applies the
common income in accordance with the provisions of the
budget, and administers the common floating debt. The Min-
istry of Finance is in addition charged with the administration
of Bosnia and Herzegovina.
598. These two countries, although still nominally parts of the
Turkish empire, have really, since the Treaty of Berlin (1878), been
subject in all things to Austria. The Austrian ministry of finance
stands for them in the position of all administrative departments com-
bined.
599. The chief sources of the common revenue in Austria-Hungary
are customs duties and direct contributions from the treasuries of the
two states. Certain parts of the customs duties are assigned to the
common treasury ; and such expenses as these are not sufficient to
meet are defrayed by the contributions, Austria paying seventy, and
Hungary thirty, per cent, of the sums needed.
600. The Economic relations of Austria and Hungary are regu-
lated in the important matters of commerce, the money system, the
management of railroads whose operation affects the interests of both
kingdoms, the customs system, and the indirect taxation of industries
by formal agreements of a semi-international character entered into
every ten years, and brought into force by separate but of course
identical laws passed in the national legislatures of both countries.
Each state controls for itself the collection of customs duties within its
own territory; but Austria-Hungary is regarded as forming but a single
customs and trade territory, and the laws touching administration in
these fields must be identical in the two countries.
There is a joint-stock Austro-Hungarian bank at Vienna ; the two
kingdoms have the same system of weights and measures ; and there is
separate coining but the same coinage.
601. Patents, Posts, and Telegraphs. — A common system of
patents and copyrights is maintained ; and both countries have the same
postal and telegraph service.
602. The Delegations. — The most interesting and char-
acteristic feature of the common government of AustriarHun-
344 THE DUAL MONAECaiES.
gary is the Delegations, which constitute, in germ at least, a
common Legislature. There are two Delegations, an Austrian
and a Hungarian. They are committees of the Austrian and
Hungarian legislatures respectively, consisting each of sixty
members, chosen one-third by the upper, two-thirds by the
lower chamber of the legislatures which it represents; but
although thus in form a committee of the legislature which
sends it forth, each Delegation may be said to represent the
kingdom from which it comes rather than the legislature of
that kingdom: for it is not subject to be instructed, but acts
upon its own judgment as an independent body. The two
Delegations sit and act separately, and may not improperly be
described as two parts of a single consultative body, though to
them both belong identical functions. Each passes judgment
upon the budget of the common administration, each is at lib*
erty to take action upon the management of the common debt,
each superintends the common administration, and can freely
question and ' interpellate ' (sec. 328) the ministers, from whom
each hears periodical reports, and over whom each holds sus-
pended a possible impeachment ; and each has the privilege of
initiative as regards all measures coming within their compe-
tence : and these functions are concurrent, not joint. They
are, nevertheless, obviously functions which must under such
a system be exercised in full agreement : the common admin-
istration cannot serve two masters. If, therefore, after a
triple exchange of resolutions no agreement has been reached
between the two bodies, a joint session is held, in which, with-
out debate, and by a mere absolute majority vote, the question
at issue is decided.
The terra for which the Delegations are elected is one year. They
are called together by the monarch annually, one year at Vienna, the
next at Buda-Pest.
In the selection of members of the Delegations the Austrian crown
lands (the provinces once separate or independent) are entitled to
representation, as is also favored Croatia-Slayonia on the Hungarian
side.
THE DUAL MONABCHIES. 345
When the two Delegations meet in joint session, the number of
members present from each must be equal to the number of those
present from the o'ther, any numerical inequality being corrected by
ballot.
603. Citizenship. — There is no common citizenship for the
two kingdoms ; but in all business relationships the citizens of
each state are regarded as citizens of the other.
604. The Government of Austria: the Executive. — The
governing power rests in Austria with the Emperor. The Empe-
rors of the present day may by no means venture upon the cen-
tralization of authority attempted and in part effected by Maria
Theresa and Joseph II. ; but Austrian constitutional law does
not assign duties to the head of the state : it assigns functions
to the ministers and grants privileges to the representative
t»dies. All powers not explicitly so conferred remain with
th^ Emperor. He directs all the administrative activities of
fhd state ; he appoints the members of the upper house of the
Bmhsralh; and he in large measure controls legislation. But
he must act in administration through his ministers and in leg-
islation through the parliament. The countersignatures of the
ministers are necessary for the validity of his decrees ; and the
will of the Reiclisrath is indispensable to the determination of
the policy and content of all legislation. The only judicial
prerogative that remains with him is the power of pardon.
On all sides his power is circumscribed by the legally neces-
sary co-operation of other regularly constituted authorities.
606. The Ministry, which consists of a Minister-President
and seven heads of departments, act as the Emperor's council,
but it does not constitute a board whose majority vote decides
administrative questions : action is taken, rather, in each
department upon the individual responsibility of the minister
at its head. The ministers have a threefold office : they are
the Emperor's councillors, they execute his commands, and
they are independent administrators of special branches of the
public service. They act for the Emperor also in introducing
346 THE DUAL MONARCHIES.
measures in the BeichsratJi. They must attend both houses to
defend the policy of the executive and to answer 'interpellar
tions.'
There are seven executive departments : Interior, Land Defence,
Religion and Education, Trade, Agriculture, Finance, and Justice. The
Minister-President has no portfolio.
606. Legislation: the National and Provincial Legisla-
tures. — In all legislation of ■whatever kind the co-operation of
the representatives of the people is necessary; but not all
of this co-operative privilege belongs to the BeichsratJi, the
national legislative body. Co-operation in the greater matters
of legislation is expressly given by law to the Reichsraih] but
all legislative powers not expressly granted to it belong to
the sphere of the provincial Landtags.
607. The Reichsrath. — The Beiclisrath consists of a House
of Lords and a House of Eepresentatives. To the House of
Lords come princes of the blood royal who have reached their
majority, the archbishops and certain bishops, nobles of high
rank who have acquired hereditary seats in the chamber, and
such life members as the Emperor chooses to appoint in recog-
nition of special services to the state, to the church, to sci-
ence, or to art. To the other house come representatives of
the great landowners, of the cities and marts, of chambers of
trade and commerce, and of the rural ' communes. The term
of the lower house is six years.
The present number of members in the House of Representatives is
three hundred and fifty-three. Representation is apportioned among
the several lands which form the Austrian domain ; and in Dalmatia
the greater tax-payers, instead of the greater landowners, are repre-
sented. In the class of landowners women may vote. The franchise
— which is partly direct, partly indirect — is made to rest throughout
all the classes of voters in one way or another upon property.
The assent of the chambers is required not only in legislar
tion but also for the validity of treaties which affect the trade
of the country, which lay economic burdens upon the state,
THE DUAL MONAKCHIES. 347
which affect its legal constitution, or which concern any aliena-
tion or extension of territory.
It is the general rule, of course, that the assent of both houses is
necessary to every resolution or action of the Reichsrath. ; but an inter-
esting exception is to be noted. If a disagreement arise between the
chambers upon a question of finance or of military recruitment, the
lowest figures or numbers are to be considered adopted.
The Emperor names not only the members but also the presi-
dent and vice-president of the House of Lords. He calls and
opens the sessions of the Reichsrath, and may close, adjourn,
or dissolve it.
608. It is within the prerogatire of the Emperor, acting with the
advice of his ministers, to enact any laws which may seem to be imme-
diately necessary during a recess of the Meichsrath, provided they be
not financial laws, or laws which in any way permanently encumber the
state. But such laws must be submitted to the Bekhsrath within four
weeks after its next assembling (going first to the House of Kepresen-
tatives), and altogether lapse unless submitted to the Reichsrath within
that time, and sanctioned by it. ,
609. The Landtags. — -The greater provinces of Austria possess
their own Landtags, or legislatures, and to these belong considerable
legislative powers. The Emperor names the chairmen of the Landtags
and their substitutes ; he calls, opens, and may close, adjourn, or dis-
- solve the Landtags. But their assent is necessary to all laws which
affect the provinces which tliey represent, and their privileges consti-
tute an important part of the total of legislative power which rests
with the representatives of the people. The provinces have also exten-
sive rights of self-administration.
610. Local Government. — The Landtags are of course the
most conspicuous organs of self-government; each Landtag
consists of a single chamber and represents the same four
classes of voters that send members to the national Reichsrath,
— with the addition of a fifth, official class. The administra-
tive organ of the province is a provincial Copimittee, as in
France (sec. 345). Within the province there are, in some
parts of the country, circles, which are areas of financial
348 ' THE DUAL MONARCHIES.
administration; and throughout the country the smallest
areas of local government are the Communes, local bodies
which, acting within the commission of general statutes, exer-
cise considerable powers of self-direction through a communal
Committee and a communal president chosen, together with a
certain number of assistants, by the Committee.
The Communes are organs of the provinces, and their presidents to
a certain extent serve the general state administration.
611. The Government of Hungary : the Executive. —The
king bears substantially the same relations to the other
powers of the state in Hungary that he bears in Austria : the
directing head of the state, he yet must act in all administra-
tive matters through the ministers, and in all legislative mat-
ters through the Reichstag. Even his treaty-making power is
limited as regards Hungary in the same way that it is limited
as regards Austria (sec. 607).
The Hungarian Ministry consists of a Minister-President and, if he
hold no portfolio, of ^ight other ministers : a minister attendant upon
the king, a minister of the Interior, a minister of Finance, a minister of
Public Works and Communication, a minister of Trade and Agriculture,
a minister of Justice, a minister of Religion and Education, and a
minister of Land Defence. Added to these there is always also a
special minister for Croatia-Slavonia.
The ministers attend the sittings of the chambers and play
there the same part that the Austrian ministers play in the
Reiclisrath (sec. 605).
612. The Reichstag. — The Reichstag, the national repre-
sentative body, consists of a House of Magnates and a House
of Eepresentatives. To the former go all hereditary peers
who pay an annual land tax of three thousand florins, the
highest officials of the Eoman Catholic and Greek churches,
certain ecclesiastical and lay representatives of the Protestant
churches, fifty life peers appointed by the king, certain mem-
bers ex officio, one delegate from Croatia-Slavonia, and those
THE DUAL MONAECHIES. 349
royal archdukes -who Have reached their majority and who own
landed estates in Hungary. The House of Kepresentatives
consists of four hundred and fifty-three members elected by
direct vote for a term of five years.
The franchise rests upon the payment of a small amount of taxes on
land or on income. Members of certain learned and professional classes,
however, possess the franchise without any property qualification.
The president and vice-president of the upper house are nominated
by the king.
As in the case of the Austrian representative bodies, so also in the
case of the Hungarian, the king convenes and opens, and may close,
adjourn, or dissolve them.
613. Local Government. — For purposes of local govern-
ment Hungary is divided into shires, certain self-administered
cities, and Communes. The organization is throughout sub-
stantially the same. In each area, — the Commune excepted,
— there is a president who represents the central government ;
in each, without exception, there is a subordinate of&cer who
is executive representative of the local body ; and in each
there is an assembly, in part representative and in part
primary, inasmuch as those who are most highly taxed are
entitled to be present.
614. Croatia-SIavouia. — There is not in Hungary the provincial
organization which we have seen to exist in Austria (sees. 609, 610).
Croatia-Slavonia is the only constituent part of the Hungarian lands
which has its own separate Landtag. The organization of this territory
is in all respects exceptional. It has been given legal rights which can-
not be taken away from it without its own consent ; and it has a dis-
tinct administration responsible to its own Landtag. It is nevertheless
of course an integral part of the Hungarian monarchy.
SWEDBN-NOBWAY.
615. Danes and Northmen. — The territory of the three
northern kingdoms of Denmark, Sweden, and Norway very
early became a home of the Teutonic peoples, a nursery of
350 THE DUAL MONAECHIBS.
Teutonic strengthi, a peculiar possession of Teutonic institu-
tions. It was from this northern land that the fierce North-
men issued forth to win dominions in France, in Russia, and
in Sicily ; from it, too, came the Dane to lay his strong hand
upon England. Its roving giants kept the world in terror of
piracy and invasion for centuries together.
616. Early Institutions of Sweden and Norway. — The
institutions of these strenuous northern folk were of the usual
Germanic sort. Sweden aijd Norway were at first, like all the
German countries, divided into a few score of loosely confed-
erated parts held together by no complete national organizar
tion or common compacting authority. By degrees, however,
the usual slow and changeful methods of consolidation wrought
out of the general mass of petty political particles the two
kingdoms of Sweden and Norway. In each a dominant family
had worked its way to recognized supremacy and a throne.
As in other Germanic countries of the early time, so in these
the throne was elective ; but, as elsewhere, so also here, the
choice always fell upon a member of the dominant family, and
the kingly house managed most of the time to keep together a
tolerably compacted power.
617. Union of Denmark, Sweden, and Norway. — Once
and again intermarriage or intrigue united Sweden and Norway
under the same monarch ; once and again, too, Danish power
was felt in the Scandinavian peninsula, and the house of Den-
mark obtained a share in the distribution of authority. Mnally,
in 1397, a joint council of deputies from the three kingdoms
met at Kalmar, in Sweden, and effected the Kalmarian Union.
This union resulted directly from the marriage of Hakon VI.,
joint king of Sweden and Norway, with Margaret, daughter of
Valdemar of Denmark ; the Council of Kalmar only put it
u.pon a basis of clear understanding. It wajS agreed that the
three kingdoms should acknowledge a common monarch ; that,
in default of heirs of the house then on the' throne, the three
kingdoms should elect their common monarch, by such methods
THE DUAL MONARCHIES. 351
of agreement as they could devise ; but that, whether uudeu
elected 01- under hereditary monarch, each kingdom should
retain its own laws and institutions.
618. The Independence of Sweden. — For Norway this
union with Denmark proved of long standing. Not until 1814
was it finally severed. Upon Sweden, however, Denmark
maintained a very precarious and uncertain hold, now ruling
her, again thrust out, and favored the while only by her own
power and by the sleepless jealousies of the patriotic but self-
ish and suspicious Swedish nobles. At length, in 1523, Sweden
was able to break finally away from the union. Her deliverer
was Gustaf Eriksson, better known as Gustavus Vasa, who by
force of a singular genius for leadership and war first drove
the Dane out and then established the royal line which was to
give to Europe the great Gustaf Adolf, the heroic figure of the
Thirty Years' War. Gustaf Eriksson reigned for thirty-seven
years (1523-1560), and with him the true national liistory of
Sweden may be said to have begun. The house which he
founded remained upon the throne of Sweden until 1818, and
under the long line of sovereigns which he inaugurated the
Swedish constitution was worked out through a most remarka-
ble series of s\yings back and forth between the supremacy of
the monarch and the supremacy of the royal council. Accord-
ing as the personal weight of the king was great or small did
the royal power wax or wane.
619. Oscillating Development of the Swedish Constitution.
— The old constitution of Sweden associated with the king
a powerful council of nobles and an assembly of Estates. In
the latter, the Riksdag (Reichstag), four orders had acquired
representation, the nobles, the clergy, the burghers, and the
peasants. For two hundred years the constitutional history of
Sweden is little more than a changeful and perplexing picture
of the ascendency now of the king, now of the Council or of
•the Kiksdiiij, and again of the king, or of the Council and
Biksdag combined. With Gustaf Adolf (1611-1632) origi-
352 THE DUAL MONAECHIES.
nated the clumsy plan, retained until the present century,
according to which each of the orders represented in the
Riksdag acted separately in the consideration of national
affairs, to the fostering of dissension among them. By dint of
the masterful policy of Karl XI. (1672-1697) the power of the
crown was made absolute, the Council eclipsed. Karl XII., a
great soldier, wasted the resources of the country and thereby
prepared the way for a decline of the royal power. 1720 saw
a new constitution effected which gave almost entire control of
affairs to the Council and to a committee of one hundred drawn
from the three first Estates of the Riksdag, and 1734 brought
forth a new code of laws. Gustaf III., however (1771-1792),
again reduced the Council from its high estate, and left to the
Riksdag nothing but a right to vote against an offensive war.
And so the constitution swung backwards and forwards until
the present century.
620. Bernadotte and the Accession of Norway. — The great
change which ushered in the present regime in Sweden came
in 1814, when by the Peace of Kiel and the action of the
Congress of Vienna, Norway was taken from Denmark and
given to Sweden. Karl XIII. of Sweden (1809-1818) was
childless ; and. in 1810 the Swedes, willing to please JSTapoleon,
the master of Europe, chose as prince and successor to the
throne Bernadotte, a man who had risen from the ranks to
be one of the many distinguished generals bred in the service
of Napoleon.
Bernadotte ascended the Swedish throne, with the title of Karl XIV.,
in 1818, but he had really come into the possession of full royal power
in 1811, on account of the failing health of Karl XIII.
It turned out, however, that Bernadotte was more ready to
oppose Napoleon than any longer to serve him. He threw the
weight of Sweden on the side of the Allies, against the designs
of Prance ; and Norway was Sweden's reward when the Allies
made their deal at Vienna.
THE DUAL MONARCHIES. 353
621. Norway's Fight for Independence and her New Con-
stitution. — Norway, though willing euoiigh to escape the do-
minion of Denmark, did not care to exchange for it an equal
bondage to Sweden. She refused to accept the settlement of
1814, rose in rebellion against all outside control, framed for
herself a liberal constitution, and essayed once more the r6le
of an Independent kingdom. And her new constitution she
managed to keep. Bernadotte compelled her acquiescence in
the union with Sweden, but did not force upon her -a surrender
of the institutions which she had chosen to adopt.
Gi;2. The union between Norway and Denmark accomplished
at Kalmar had resulted in the absolute power within his Nor-
wegian domain of the common king. Allying himself with
the citizen class in the national assembly, the king had been
able to crush the nobles, and eventually to destroy all consti-
■tutional liberties. This he was the more readily enabled to do
because the throne of Norway had early become hereditary and
the Norwegian nobles had thus been robbed of that sovereign
influence which, under the elective system of Denmark and
Sweden, they had long contrived to retain. The new consti-
tution adopted by the Norwegians in 1814 naturally spoke an
extreme revolt from the long-hated authority of kings. It was
not only extremely democratic, it was also largely doctrinaire
and visionary. Its framers, having few Norwegian liberties
to build upon, had recourse to the always futile resource of
borrowing foreign experience. They embodied in the new
fundamental law constitutional arrangements which they had
taken from England and the United States and which found
no soil of Norwegian habit in which to grow. Still, her new
constitution gave Norway a valuable impulse towards regulated
political liberty ; and, if not carried out at all points, was at
least a promise of things hoped for and afterwards to be in
great measure attained.
623. Constitutional Contrast between Sweden and Nor-
way. — In Sweden there had been no such democratic revolu-
354 THE DUAL MONARCHIES.
tioii ; and in point of institutions the two kingdoms were in
1814 very unequal yoke-fellows. Until 1866 Sweden retained
her clumsy machinery of four estates in her Itiksdag, as well
as many other constitutional arrangements which made the
royal power predominant. Doubtless the standing example
of Norway's more simple and liberal constitution had much to
do with the revision of the Riksdag undertaken in 186B ; and
it is unquestionable that the democratic ideas embodied in the
fundamental law of the Norwegian kingdom have worked as a
powerful leaven in Swedish politics. Slowly but surely, and
principally by the movement of Sweden, the two countries have
drawn towards each other in institutional development.
624. The Fundamental Laws. — ^ The present fundamental
law of Sweden-Norway consists of three parts : (a) the separate
constitutional laws of Sweden, (&) the separate constitutional
laws of Norway, and (c) the Imperial Beichsacte' oi August,'
1815, which binds the two countries together under a common
sovereign. This last is, so far as Sweden is concerned, a mere
treaty, having never passed the Riksdag as a constituent law
of the kingdom ; but for Norway it is an integral part of her
constitution, having been formally adopted as such by the
Storthing, (a) The separate fundamental laws of Sweden have
never been embodied in any single written constitution, but
consist of various laws regulative of the succession to the
throne passed in the period of dynastic change (1809-1810); of
certain portions of the great enactments of February, 1810,
which gave to the Riksdag an orderly arrangement of its four
Estates and regulated the order of legislative business ; of the
enactments of June, 1868, which, abolishing the fourfold
constitution of the Riksdag, substituted two popular houses ;
and of the laws guaranteeing freedom of the press, passed in
May, 1810,. and July, 1812. Taken together, these laws consti-
tute a body of fundamental provision slowly built up by
Swedish statesmen upon the somewhat inconstant bases of
Swedish constitutional precedent. Perhaps its most signifi-
THE DtTAL MONARCHIES. 355
cant feature appears in the detail with which the enactments
of 1810 enter into the regulation of the order and methods of
Imsiness in the Riksdag. Under the former complicated divis-
ion of that body into four separate houses minute regulative
detail was of course necessary, and, as seen in the laws of 1810,
is illustrative of one of the chief and most interesting difiicul-
ties of constitutional development in Sweden. (6) The consti-
tutional laws of Norway, on the other hand, are, equally from
the nature of the case, very much more simple. They consist of
the treaty of peace signed by Sweden and Denmark at Kiel, on
the 14th January, 1814, whereby Denmark renounced her claim
to Norway in favor of Sweden ; of the constitution framed by
the Norwegians in May, 1814, during the struggle against all
foreign control ; and of the Imperial Reichsacte of August, 1815,
which Sweden has continued to observe as a treaty merely, but
which Norway has made a part of her constitution.
625. The Common Government : The King. — The thong
which binds Sweden and Norway together is the authority of
their common king; but this authority has one character as
respects Sweden and quite another as respects JTorway. The
fundamental laws of each kingdom constitute it a limited
monarchy, but only in Norway does it seem to be the chief
object of constitutional provision to limit royal power. Both
the active and the obstructive parts of the king in legislation
are much more considerable in Sweden than in Norway. In
Sweden it rests exclusively with him to formulate what are
tb^re denominated 'economic laws,' administrative laws,
namely, regulative of trades, commerce, and manufacture, and
of mines and forests. He is, moreover, the sole and sovereign
author of police regulations, and of laws controlling vagrancy ;
he has power to make rules concerning the erection of build-
ings and to originate ordinances touching sanitary precautions
and protection against fire. As regards all other laws he must
act jointly with the Riksdag; but his veto is in every case
absolute.
356 THE DUAL MONARCHIES.
The Bihsdag may of course advise the king concerning the economic
and administrative legislation entrusted thus exclusively to him ; but
any action it may take has the force of advice only. The only control
it can exercise in such cases comes to it through its money power : it
may withhold the money necessary to the carrying out of administra-
tive or economic ordinances determined upon by the king.
626. In Norway, on the other hand, the king has no inde-
pendent legislative powers, except during recesses of the
Storthing; and his veto is only suspensive. Certain police reg-
ulations and certain ordinances touching particular branches of
industry he may issue while the Storthing is not in session,
but these are of force only until the Storthing comes together
again. ..His veto of bills passed by the Storthing may be over-
riddeS by the passage of the same bill (it must continue lit-
erally the same ) by three successive Storthings.
This, of course, renders the passage of bills over his negative an
extremely tedious and difficult undertaking, and usually, in case of a
very urgent disposition on the part of the Storthing to have its own
way, a compromise measure is finally adopted, often at the express
suggestion of the king. In two notable instances, however, — the aboli-
tion of nobility (1821), namely, and the establishment of ministerial
representation in the Storthing (1884),— the veto was overridden,
through the persistence of the Storthing, by means of the constitu-
tional passage of the measures proposed.
627. The Throne. — The royal majority is fixed at eighteen years.
Women are excluded from the succession. The king must be of the
Lutheran faith. He takes the throne under oath to obey the constitu-
tion and laws of the kingdom, and he must temporarily lay down the
governing power when sick or out of the country, except when absent
in the field of battle.
In case a vacancy occurs, the throne is to be filled by election, the
choice to be made by the Riksdag and the Storthing acting separately,
if they can agree ; or, if they cannot agree, by a joint committee of
seventy-two (thirty-six from each body) assembled at Carlstad. This
committee is to' choose between the two candidates by secret ballot.
In the event of an interregnum or of the minority of the king, the
administration of the two kingdoms is to be undertaken by a joint
Council of State, consisting of the ten ordinary state councillors of
THE DUAL MONAECHIES. S57
Sweden and ten special representatives of Norway (sec. 596). If the
interregnum or minority continue more than a year, liowever, the
national representatives must be called together and given an oppor-
tunity to make other arrangements. If the king be sick or absent, his
heir, if of age, governs in his stead.
628. Foreign and Common Affairs. — Almost the only
common affairs of the two kingdoms which are matters, not of
agreement between them, but of sovereign action on the part
of the king acting for both, are those affairs which affect tlie
relations of Norway and Sweden with foreign countries. In
this field of foreign affairs the king has power to declare war
and conclude peace, to form or dissolve alliances, to use ships
of war or troops, to sen,d or recall ambassadors, — has, in brief,
all the prerogatives of sovereignty. His power to act thus for
both kingdoms does not, however, merge Sweden and Norway
as regards international relations : they retain their separate-
ness and individuality in the family of nations ; and the king
may, and often does, conclude treaties affecting one of his king-
doms only. Peace and w,ar are of course, however, common to
both kingdoms.
629. The king is assisted in these functions by no common minister
of foreign affairs : he acts through the Swedish minister, Norway having
no minister of foreign affairs at all. Certain other ministers of state
must be present when the Swedish foreign minister lays diplomatic
affairs before the king ; and when such matters directly affect Norway
a Norwegian minister of state must be present.
Norwegians find ground for serious objection to the present constitu-
tional arrangements existing between the two countries in their own too
slight hold upon the conduct of foreign affairs.
630. War. -^ If, in the exercise of his great international
functions, the question of war arisp, the king must take the
opinion of a joint Council of the two kingdoms (sec. 634), but
he is not legally bound by its opinions. He must himself
assume the full responsibility of deciding the question.
631. A certain limitation rests upon the royal power as regards the
use of the Norwegian forces. He may freely call out the whole military
358 THE DUAL MONARCHIES.
force of Sweden, both land and naval, but be may not use the Norwegian
troops of the line without the express consent of the Storthing. Tlie Nor-
wegian militia, moreover, cannot under any circumstances be employed
outside of Norway, and it is within the competence of the Storthing at
any time to increase the militia at the expense of the regular line. It
has indeed actually done this.
632. Legislative Control of Foreign Relations. — Of course, too,
the king must in every exercise of his royal powers act within the limits
of the fundamental law. He cannot enter into any agreement with a
foreign country which is not consistent with the constitutions of his
kingdoms ; he may not conclusively pledge the legislatures of his king-
doms to any action or to any expenditure of money ; and he is of course
in a large measure dependent upon their co-operation for the execution
of treaties. But these are the familiar limitations of modern representa-
tive government.
633. Concurrent Legislation. — Matters -which are of com-
mon interest to the two countries, but which lie outside of the
prerogatives of the common king, are regulated by concurrent
identical resolutions or laws passed by the Riksdag and the
Storthing severally.
Important examples of such concurrent laws are those which affect
the money systems of the two countries, and those which concern the
Lapps.
634. The Joint Councils. — The place of a common ministry
to advise the king touching questions which affect the inter-
ests of both kingdoms is taken in Sweden-Norway by a com-
plicated system of Joint Councils of State. Whenever any
matters are considered in the Swedish Council of State at
Stockholm which concern Norway also, the Norwegian minister
resident and the two Norwegian Councillors who attend the king
must be called in ; and whenever practicable the opinion of the
whole Norwegian Administration must be so;tght and obtained.
Whenever, on the other hand, matters which directly affect
Sweden are under debate in the Norwegian Council of State at
Christiania, that Council must likewise be strengthened by the
presence of three Swedish ministers. There is thus both a
THE DUAL MONARCHIES. 359
Swedish-Norwegian and a Xorwegian-Swedish Joint Council
of State ; and not a little doubt exists among publicists in the
two kingdoms as to what particular matters are proper to the
consideration of one and what to the consideration of the other
of these anomalous bodies. The whereabouts of the king
serves as a rough criterion as to the predominance of Sweden
or of Norway in these Councils.
The sphere of tliese Councils is quite extended. It includes the
consideration of questions of war and peace, the oversight and the costs
of the diplomatic service, inter-territorial relations, the balance of
financial accounts between the two countries, and all reciprocal affairs
in which the intimate co-operation of the two kingdoms is necessary.
636. Citizenship. — There is no common citizenship for the
two kingdoms, although Swedes are allowed by Norwegian law
to acquire citizenship in Norway by mere residence. Certain
reciprocal advantages are, however, of course accorded : citizens
of either country may, for instance, own land in the other ;
interstate trade is encouraged, and a joint-ownership of vessels
is facilitated.
Legal banishment from one kingdom is banishment from the other.
636. The Government of Sweden. — In all matters of in-
ternal legislation and administration the two kingdoms are as
distinct as if no legal relations existed between them. Each
has its own separate treasury, its own bank, its own money
system, its own army and navy ; and each has its own complete
administrative and legislative organization.
637. The Swedish Executive : The King and Council. —
Sweden's theoretical development in the field of constitutional
law has been less complete than her practical development.
Her fundamental law recognizes only a twofold division of
governmental powers, into Executive and Legislative. Judicial
power is supposed to reside in the king, and is in theory in-
distinguishable from the Executive power. As a matter of
practice, however, though the king nominates the judges, they
360 THE DUAL MONARCHIES.
are quite as independent of liim as tliey -would be were Swedish
theory upon tliis head more advanced.
638. The position and character of the Swedish Executive
are in some res^Dects peculiar. The king is charged to a quite
extraordinary extent not only with the general oversight but
also with the detail of administration : the ministers are not
so much directing heads of departments as councillors of state
assigned the duty of advising the monarch. They have seats
in the Riksdag with a full voice in all its debates and the right,
exercised in the name of the kingj to initiate legislation. This
connection with the legislature involves also, as a natural con-
sequence, frequent resignations of the ministers in cases of
unalterable disagreement between themselves and one or both
of the chambers ; but ministerial responsibility is not as yet
a recognized principle of the constitution. Not only the full
equality of the two chambers stands in the way of its develop-
ment, but also the authority of the king. The ministers serve
too many masters to be altogether responsible to any one of
them. In respect of her Executive, therefore, Sweden may
be said to stand half-way between England and Erance, where
ministers are wholly resjionsible to one house of the legislature,
and Germany, where the ministers are responsible to the sov-
ereign alone.
639. The executive departments in Sweden are the following seven :
Foreign Affairs, Justice, Land Defence, Sea Defence, Civil .4fEairs
(Interior) , Finance, Ecclesiastical Affairs. At tlie head of the Coun-
cil of State (the collective ministry) stands a prime minister who is not
generally assigned any specific executive duties. The division of busi-
ness among the departments rests entirely with the king. Although
the king governs, however, so far as one man may, every decree which
he issues must be countersigned by the head of the department whose
affairs it concerns.
•640. The Riksdag. — The national Riksdag consists, as in
most other governments, of two chambers. Of these one, the
upper chamber, consists of one hundred and forty-three mem-
THE DUAL MONARCHIES. 361
bers chosen for a term of nine years by the representative
bodies of the counties and the councils of the larger towns :
these electoral bodies being in their turn chosen upon the
basis of a comjjlicated communal franchise granted chiefly on
property or income. The lower house, numbering two hundred
and twenty-two members, is chosen for a term of three years
by the electors of the towns and of the rural districts, either
by direct or by indirect vote as a majority of the electors
prefer. The rural districts are allowed one member for every
forty thousand inhabitants, the towns one for every ten thou-
sand inhabitants, the latter being thus given the preference in
representation.
This does not, however, result in the return of a majority of town
members. Only seventy-six members are returned by the towns, one
hundred and forty-six by the rural districts.
In a majority of the electoral districts the vote is now direct, by
choice of the electors.
The proportion of representation in the upper house is one member
for every thirty thousand inhabitants. The rural population has by
this arrangement a larger representation in the upper than in the lower
house. Only the municipal councils of those towns participate in tlie
elections to this house whose population is not represented in the
county councils. Such towns are only four in number: Stockholm,
Goteborg, Malmo, and Norrkoping.
The members of the upper house are not elected for a joint term of
nine years, but each member is chosen to serve that length of time : so
that if any member be chosen to fill a vacancy his term will, of course,
overlap the terms of the members previously elected. The body is
thus given a sort of continuous existence.
641. Joint Legislation upon Financial Questions. — It is
a peculiarity of Swedish constitutional arrangements that,
unrder some circumstances, the two houses are fused. Legisla-
tive business is under the general direction of a joint committee
of the two chambers, and in case of a difference of opinion
between the houses upon financial matters a decision is reached
in joint session. The houses meet in joint session for no
other purpose, however.
362 THE DUAL MONAECHIBS.
642. Local Government. — Local government rests in
Sweden upon very ancient historical foundations. The primi-
tive Germanic institutions of self-government have there never
been entirely overlaid or lost. In the Communes, the oldest
and, so to say, most natural areas of local administration,
there is almost complete autonomy, the people themselves
acting, where the size of the community does not forbid, in
primary assemblies, quite after the immemorial fashion. The
counties are more artificial constructions of a later date and
are presided over by officers appointed by the king ; but in
them also popular representatives play an important super-
visory part.
643. Changes in the Constitution. — Changes in the con-
stitution can be quite simply effected. If proposed by one
Riksdag and adopted by the next (the next after an election
for the lower house) they become, with the royal assent, in-
corporated parts of the fundamental law.
644. The Government of Norway : The Norwegian
Executive. — The king stands in substantially the same relar
tions to his Council in Norway that he occupies towards his
Council in Sweden: the supreme deciding authority is his.
Alike in Norway and in Sweden he must take the opinion of
his ministers upon public questions ; and when he is in Sweden
he may not take any decision upon Norwegian affairs without
hearing the advice of the three Norwegian councillors who
attend him there. On important Norwegian measures not
demanding haste he must even, when in Sweden, ask the
written opinion of the whole Norwegian Council. But the
decision is his in any case. His constant absence in Sweden,
however, gives a weight in government to the Norwegian
Council which its Swedish counterpart never possesses. The
king must leave to the Council, acting under the presidency of
a viceroy or of the prime minister, the major part of the
governing authority, including even his veto ; and his power
to reverse its action is strictly limited. As regards their rela-
THE DUAL MONARCHIES. 363
tions to the national legislature the Norwegian do not differ
greatly from the Swedish ministers. They sit, without voting,
in the Storthing; they have the privilege of initiative, and
they are under no constitutional obligation to resign in case of
defeat (sec. 638).
645. The Norwegian Council of State consists of two parts, (a) a,
minister of state and two councillors, all tliree of whom accompany tlie
king, and (6) the ' Government ' proper, consisting of a minister of
state, as prime minister, and six or seven other ministers, according as
the prime minister has or has not a portfolio. For the administrative
departments in Norway, as in Sweden, are seven in numher; namely,
Ecclesiastical Affairs, Justice, Interior, Finance, War (including, since
1885, the navy), Public Works, and Audit. The division of business
among the several departments rests with the king.
646. The Storthing. — The national /S'tort/ting' has a charac-
ter and constitution quite peculiarly its own. It is, in fact, a
single body, elected as a whole, but self-divided for ordinary
legislative business into two sections, a Lagthing and an
Odelsthing. It is chosen for a term of three years and consists
of one hundred and fourteen members, thirty-eight (or one-
third) of whom are returned by the towns, seventy-six (or
two-thirds) by the rural districts.
This proportion is fixed by law and can be changed only by consti-
tutional provision.
The franchise rests upon a, property qualification, and the voting is
indirect. In the cities the secondary electors are chosen in the propor-
tion of one to every fifty voters ; in the country districts in the propor-
tion of one for every one hundred voters.
647. Upon the assembling of a new Storthing one-fourth of
its members are selected, by the Storthing's own vote, to con-
stitute the Lagthing; the remaining three-fourths constitute
the Odelsthing; and with the Odelsthing remains the right to
originate all measures of legislation. The Lagthing is thus,
as it were, merely a committee of the Storthing set apart as a
revisory body, a sort of upper chamber. It is only with regard
364 THE DUAL MONAECHIBS.
to ordinary bills, however, that the Storthing acts in this way
as two houses. Constitutional and financial questions it con-
siders as a single body.
In case the Lagtldng twice rejects any measure sent to it by the
Odelsthinff, the difference is decided in joint session by a two-thirds vote.
648. Local Government. — Local government in Norway
does not rest upon the same undisturbed foundations of his-
torical tradition which in Sweden uphold it. The laws which
give to it its organization date from 1837. By these the country
is divided into districts and ' communes, in the government of
both of which the people are represented, but in both of which
ofBcials appointed by the central Government exercise consid-
erable powers of oversight and control.
649. Changes of Constitution. — Constitutional amBndment
is effected in Norway substantially as in Sweden. Proposals
of amendment must be introduced at the first ordinary session
of the Storthing held after an election, and must be finally acted
upon, without alteration, during the first session of the next
Storthing. The votes of two-thirds of the members present are
required for the passage of such amendments, and the king's
veto operates as in other eases (sec. 626).
660. The Two Countries. — More than seventy years of
successful union (1814-1889) now stand behind this singular
dual monarchy of Sweden-Norway. The attitude of Sweden
towards her partner land has been marked during most of this
period, as the attitude of the stronger towards the weaker party
should be, by not a little forbearance and consideration. The
two countries have concurred in removing also all the more
serious causes of possible commercial irritation between them,
— each opening its markets to the natural products, of the other.
Sweden, nevertheless, has the preponderant weight and influ-
ence in all common affairs, particularly, of course, in the regu-
lation of the foreign relations of the two kingdoms (sec. 628).
Her policy, moreover, is often, when considered from Norway's
THE DUAL MONARCHIES. 365
point of view, a Swedish policy merely, looking directly or in-
directly towards Swedish control. Not a few causes of jealousy,
not a few points of friction, remain in the system. An influ-
ential party in Norway, therefore, of course desires an e\'eri
larger measure of independence and home rule than is now
possible without fundamental constitutional change, suspect-
ing, probably not without just cause, that it is the object of a
certain party, at any rate, if not of all parties, in Sweden, to
weaken the guarantees of liberty now existing, and to draw
Norway even further within the circle of Swedish control.
The future, it would seem, must assuredly bring forth either
greater consolidation of the dual government or a new and
better, because closer, scheme of confederation.
Some Intjroductoky Authokities.
On Austria-Hungary :
Worms, Baron H. de, " The Austro-Hungarian Empire." 8vo. London,
1877. Historical and descriptive.
Patterson, A. J., " The Magyai-s, Their Country aud Its Listitutions.''
2 vols. London, 1870.
Albricli, J., "Das Staatsrecht der oesterreichisch-ungarischen Mon-
archie," in Marquardsen's " Handbuch des oeffentlichen Reehts."
Freiburg in B., 1884.
Demombynes, G., " Les Constitutions Europeenes," II., pp. 167-304.
Levy, D., " L'Autriche-Hongrie, ses Institutions," etc. Paris, 1872.
On Sweden-Norway :
Dunham, S. A., "History of Denmark, Sweden, and Norway." 3 vols.,
12mo. London, 1840. Best brief history in English.
Geijger, E. J., and Carlson, F. F., "Geschichte Swedens," translated
into German by J. C. Petersen. 5 vols., 8vo. Gotha, 1844-75.
Aschehoug, T. H., "Das Staatsrecht der vereinigten Kdnigreiche
Schweden und Norwegen," in Mlarquardsen's "Handbuch des
oeffentlichen Reehts." Freiburg in B., 1886.
Demombynes, G., "Les Constitutions Europeenes," I., pp. 93-198.
X.
THE GOVERNMENT OF ENGLAND.
I. Central Government.
661. Origin of the Constitution Teutonic. — The history
of government in England, as in Germany, begins with the
primitive politics of the Teutonic races. Those great race
movements of the fifth century which put the Frank in the
Eoman's place in Gaul put the Angles and Saxons in the place
of the Roman in Britain. The first Teutons who madp a
permanent settlement in Britain (a.d. 449) did not find the
Roman there ; the imperial legions had been withdrawn from
the island almost forty years before (a.d. 410) to serve the
Empire's greater necessities in her contest with invading hosts
nearer home. But the new-comers from the lowlands about
the Elbe and the Weser found there many splendid and im-
pressive monuments of the civilization which everywhere kept
company with Roman dominion. What effect these evidences
of the displaced system of Rome may have had upon the
rough seamen who made the new conquest, or how much of
Roman influence may have remained with the people of Britain
to be handed on, in faint reproduction, to future masters of the
island, it is impossible to say. Certainly, however, there was
nothing of Rome's handiwork in the forms of government
which the Teutons established at the basis of English politics.
Those forms were their own. They were reproductions, as
nearly as the conditions of conquest would allow, of the in-
THE GOVEKNMENT OF ENGLAND. 367
stitutions which the Romans had seen in use amoiig their
redoubtable foes beyojid the Eliine before ever the Empire, had
suffered serious inroad.
652. Primitive Teutonic Institutions. — These institutions
had none of the national character which they were in the
course of time to acquire. They illustrated the well-known
historical sequence, in which local government always precedes
central government. Men governed themselves as families and
small communities, before they were governed as nations. For
the Germans of that early time the village was the centre of
political life ; national organization they at first scarcely, knew
except for purposes of war ; kingship among them was honor-
ary and typical rather than real. The freemen of each little
community in times of peace directed their own affairs with
quite absolute freedom in village meeting. Even in war each
freeman had a vote in the distribution of booty and could set
his own imperative individuality as a more or less effectual
check upon the wilfulness of his commander (sees. 162-165).
A very fierce democratic temper seems to have ruled in the
politics of that rough primitive time. And it is not at all
likely that this temper was a whit abated among the hardy
pirates, as tempestuous as the northern waters which they
braved, who founded new kingdoms in Britain in the fifth
century.
653. Institutional Changes effected by Conquest.— It was
kingdoms, however, and not mere loose tribal confederacies,
which they established. Concerted, organized movements for
conquest did the same thing for the Angles and Saxons that
they did for the Franks (sees. 234, 235) : they made real king-
ship necessary as an abiding basis for national organization.
The military leader was of necessity constituted permanent
king, the same cohesion being needed to follow up and enjoy
conquest that had been needed to effect it. But the new king-
doms were at first quite small, — small as the island was, it
held many such, — and the interaal organization of the tribes
368 THE GOVERNMENT OF ENGLAND.
was probably not deeply affected by the fact that a throne had
been set up. The people gathered, as was their long-time, their
immemorial wont, into more or less compact but always small
communities, enjoying their lands according to some system
of co'iumon ownership which left the chief pastures and the
principal water supply open to use by all and reserved only
the arable land to separate use by individuals, — a separate use
which individuals enjoyed, however, subject to the control of
the community. Justice and government still proceeded, as
of old, from the meeting of village freemen.
654. The Hundred-moot and the Folk-moot. — But there
was, besides this local organization time out of mind habitual
with the Germans, a wider organization possessing features
which possibly had not been known in forms quite so fully
and symmetrically developed and integrated in earlier Ger-
manic practice. Communities were combined into 'hundreds,'
and it was a combination of 'hundreds,' doubtless, that con-
stituted the little kingdoms of the first periods of Saxon
dominion, — some of which at any rate became the ' shires '
or counties of the later times when all England was united
under one rule. The ' hundred,' like the smaller units of the
system, the several villages or communities, had its 'moot' or
meeting, composed of the j)riest, the reeve, and four men from
each township within its limits. The principal functions of
this hundred-moot were those of a court : for the hundred" was
distinctively a judicial rather than an administrative district.
Above the hundred-moot, at the top of the primitive system,
was the general folk-moot, a general assembly of the freemen,
playing the same part of tribal or national council that Tacitus
had seen similar assemblies play in Germany in the first
centiiry.
655. English Kingdom and English County. — When the
English kingdoms were many, each, probably, had its general
coiuicil, which sat under the presidency of the king, and which
advised with him concerning- the common interests with some
>
THE GOVERNMENT OF ENGLAND. 369
at least of the old authoritativeness which its conclusions had
possessed before the new kingship had been created. When
England had been made a single kingdom, in the later days
when the Norman conquest was drawing near, these divisions
of the land, these kingdoms which had once had such indepen-
dent political life, sank to the r61e of counties, and their folk-
moots, which had once been in a sense national assemblies,
became mere shire-moots, mere county courts, presided over by
the sheriff as representative of the king, the bishop as repre-
sentative of mother Church, and the ealdorman as representa-
tive of the nation, and composed of the landowners of the
shire, the reeve, priest, and four men from each township,
twelve representatives from each hundred, and all officials.
656. The Witenagemot. — National authority, meantime,
had passed, so far as it had passed to any assembly, to an
assembly of another kind, to a great council called the Wit-
enagemot, or assembly of the Wise. We have no certain
knowledge of the exact character of this famous national
body ; but we are probably warranted in concluding that it
was formed more or less closely upon the model of the assem-
blies which it had displaced. The national councils of the
smaller kingdoms of the earlier time, which had now shrunk
into mere shire courts, handed on their functions of general
counsel, and also, no doubt, in theory at least, their organiza-
tion, to this Witenagemot, the representative of a wider nation-
ality. Probably it was within the right of every freeman to
attend and vote in this great meeting of the nation ; but as a
matter of fact, its membership was limited, apparently from
the first, to the chief men of the shires and of the royal house-
hold. To it came the sheriffs, the ealdormen, the bishops, and
chief ofiQcers and thegns about the king's person.
667. Powers of the Witenagemot. — Its powers were very
great indeed, in theory always, perhaps at first in practice also.
To it belonged the old popular prerogative of electing, or upon
occasion deposing, the king. It gave or withheld its consent
370 THE GOVERNMENT OP ENGLAND.
to grants of the public land. It was the supreme court of the
kingdom, for both civil and criminal cases. It shared with
the king the law-making and appointing power, and joined
him in the imposition of taxes. As the king grew in power
and influence, the co-operation of the Witenagemot in judgment
and legislation became more and more a matter of form only ;
but always there were two or three yearly meetings of the
body, and its action, though in most things merely formal and
perfunctory, was yet a necessary and, symbolically, a valuable
form, preserving, as it did, the memory, if no more, of the
nation's freedom.
658. The Norman Feudalization. — With the Norman con-
quest came profound changes in the government of England.
The chief ofl&cers of the shire became royal oflScers merely, the
ecclesiastical authority being set apart to itself, and the ealdor-
man being shut out from all administrative functions. The
land William confiscated, in the ruthless thoroughness of his
conquest, in vast quantities, because of the stubborn resistance
of its English owners, and granted to Normans or to submis-
sive Englishmen to be held in feudal subjection to himself.
The feudal system, so familiar to the historian of the continent,
with its separated baronial jurisdictions and its personal depen-
dencies of vassal upon lord and of lord upon overlord, began
to be developed in England also. Township courts in most
places gave way to baronial courts ; hundred-moots lost their
one-time importance; and all judicial power that did not pass
into the hands of feudal lords tended to pass to the court of
the sheriff, the king's lieutenant in the shire. Still William
kept the barons under ; he did not suffer their power to become
threatening to his own, but kept them always dependent upon
himself for the continued exercise of their privileges.
659. The Great Council of the Norman Kings. — More im-
portant still, he preserved, with modifications to suit his change
of system, the national assembly of the Saxon polity. He
claimed to come to the throne by natural right and legal sue-
THE GOVERNMENT OF ENGLAND. 371
cession, not by conq.uest, and he sought to continue, as far as
might be, the constitution under which he claimed succession.
He sought and obtained formal election to the throne, as
nearly as possible in accordance with the ancient forms ; and,
his throne secure, he endeavored to rule within the sanction of
ancient custom. He maintained the Witenagemot. But of
course its character greatly changed under his hands. Revolt
hardened his rule, to the exclusion of the old national element
from the central assembly of the realm. As the new organi-
zation of the country assumed a feudal character of the Norman
type, that new character became mirrored in the composition
of the national council. The Witenagemot merged in the Great
Council (magnum or commune concilium) of the king's tenants-
in-chief. To it came at first, besides the earls, the barons, and
the knights, who either in fact or in feudal theory held their
lands of the king, the archbishops also, the bishops, and the
abbots ; subsequently, however, even these ecclesiastical mem-
bers were admitted only as barons, as holding land of the king
and so members of the feudal hierarchy. In theory, it would
seem, every landowner was entitled to claim a seat in this
Council ; it was meant to hold the place of a national assembly
which could speak for the governing classes ; but in fact only
the greater barons and churchmen as a rule attended, and ' ten-
ure by barony ' became at length the exclusive valid title to
membership. The development of this body, the Great Coun-
cil of the Norman kings, if the central subject of early English
constitutional history ; for from it may be said to have sprung
the whole effective organization of the present government of
England. Out of it, directly or indirectly, by one process or
another, have been evolved Parliament, the Cabinet, and the
courts of law.
660. The Feudal System in England. — England was not feudal-
ized by the Normans. Feudalization had grown there, as elsewhere,
with the growth of Teutonic politics, under Saxon and Dane as under
Frank and Goth. Society in Sngland, as on the Continent, had divided
372 THE GOVERNMENT OF ENGLAND.
into ranks of nobles, freemen and slaves bound together by personal
fealty and the principles of landownership. What the Norman did was
to give new directions to the indigenous growth of feudalism. The
system had not gone to such lengths of disintegration in England as it
afterwards went on the Continent, and William the Conqueror's first
care when compacting his power in the island was to subordinate all
feudal elements permanently to the crown. He saw to it, by the un-
hesitating use of his great power, that no baron should be able to cope
with the king without wide combination with other barons, . such as
watchful kings could probably always prevent ; and he dulled the edge
of hostile feeling by giving to the greater barons of the kingdom a,
function of weight in the management of affairs by bringing them into
peaceful and legitimate combination in the Great Council, which he
called together three times every year, and whose advice he never
refused at least to hear. That Council retained, formally at any rate,
the right to choose the king, and all laws were declared to be enacted
by and with its advice and consent.
661. Character of English Institutional Growth. — It has
been noted as a leading characteristic of the constitutional
history of England that her political institutions have been
incessantly in process of development, a singular continuity
marking the whole of the transition from her most ancient to
her present forms of government. It is not a history of breaks
or of new establishments, or of successive new creations of
instrumentalities of legislation and administration: all the
way through it is a history of almost insensible change, of
slow modification, and of unforced, almost of unconscious,
development. Very great contrasts appear between the char-
acter of her government in one age and its character in another
age distant one or more centuries from the first ; but it is very
difficult to perceive any alteration at all when comparison is
made from generation to generation. Almost no changes can
be given exact dates : each took place ' about ' such and such a
year, or in this or that long reign. The whole process, there-
fore, is one which may be outlined in quite brief epitome : its
stages are long, its features large, its details unessential to
clearness. It is possible to trace the evolution of the ordered
THE GOVERNMENT OF ENGLAND. 373
system of Parliament, Cabinet, and courts out of the nebulous
mass of the Great Council withoiit burdening the recital with
too great a weight of particulars.
662. The Course of Development. — In briefest summary
the facts are these : the Great (or National) Council itself
became the Parliament of the realm ; those of its members, as
originally constituted, who were state officers and chief officials
of the court became a Permanent royal Council, out of which,
in course of time, grew the more modern Privy Council and at
length the Cabinet; and those members of the Permanent
Council whose duties were financial and judicial gradually drew
apart from the rest for the exercise of their functions, their
work being finally divided among them according to its nature,
and the several bodies into which they thus fell becoming, in
the end, the courts of Exchequer, of Chancery, and of common
law.
663. The Permanent Council. — The body of state and
court officers whom the king kept about him as his ' Ordinary '
' or Permanent Council were originally all of them members of
the Great Council and seem at first to have acted as a sort of
" committee, or inner circle," of that greater body. The Great
Council met but three times in the year ; its organization was
not permanent ; its membership varied, both numerically and
personally, from year to year. The officers of the permanent
service, on the other hand, were always within easy reach of
consultation ; they were in a certain sense picked men out of
the larger body of the national Council ; it was natural that
they should be consulted by the king and that their advice,
given in their collective capacity as a smaller council, should
carry with it the weight of their connection with the more
authoritative Great Council. As a matter of fact at any rate,
they acquired powers almost coincident with those of the
national body itself. Their powers came, indeed, to possess
an importance superior even to those of the more august assem-
bly, being exercised as they were, not intermittently or occa-
374 THE GOVERKMBKT OF ENGLAND.
sionally, but continuously ; not with a mere outside acquaint-
ance with the posture of affairs, but witli an inside intimacy of
knowledge.
664. Composition of the Permanent Council. — Under the
Norman kings the membership of the Permanent Council con-
sisted, usually, of the two archbishops (of Canterbury and of
York), the Justiciar, the Treasurer, the Chancellor, the Stew-
ard, the Marshal, the Chamberlain, and the Butler, with the
occasional addition of other ofS.cials, such as the king's Ser-
geant, and of such bishops and barons as the sovereign saw
fit from time to time to summon. There was, however, no
fixed rule as to its composition. Possibly every baron, as a
member of the Great Council, could, if he had so chosen, have
attended the sittings of this section of the Great Council also,
which, while the Great Council was not in session, masqueraded
as its deputy and proxy. Practically it would seem always, as
a rule, to have lain within the king's choice to constitute it
how he would.
665. The Powers of the Permanent Council were enormous : '
were as large as those of the king himself, who constituted it
his administrative, judicial, and legislative agent. Its "work
was to counsel and assist the king in the execution of every
power of the crown which was not exercised through the
anachinery of the common law " ; ^ and " the king could do
nearly every act in his Permanent Council of great men which
he could perform when surrounded by a larger number of his
nobles ; except impose taxes on those nobles themselves." ^
But the Permanent Council very early ceased to act as a
whole in the discharge of all its functions alike. Itself a com-
mittee, it presently, in its turn, began to split up into commit-
tees.
666. The Law Courts. — Men specially learned in the law
were brought into its membership, the later kings not hesitat-
1 Stubbs, Constitutional Sistory of England, Vol. III., p. 252.
2 A. V. Dicey, The Privy Council, p. ii.
THE GOVERNMKNT OF ENGLAND. 375
ing, when the needs of the service demanded, to introduce
commoners, as the Council drifted away from even its nominal
connection with the Great Council ; and to these the financial
and judicial functions of the crown were more and more exclu-
sively entrusted. (Compare sec. 293.) It was not long before
(a) a separate Court of Exchequer, which was at first charged
principally with the audit of finance accounts, had been per-
manently assigned its special 'barons' as Justices, and had
acquired jurisdiction over all cases in which the king was
directly concerned ; (6) another special bench of judges had
received, as a Court of Common Pleas, jurisdiction over all
civil cases between subject and subject ; (c) still another, as a
supreme court, or Court of King's Bench, which always accom-
panied the sovereign wherever he went and which was in
theory presided over by the king himself, had been empowered
to supervise local justice and itself control all cases not spe-
cially set apart for the hearing of other courts ; and (d) the
Chancellor, who had once been merely president, in the king's
absence, of the Permanent Council when it heard appeals in its
judicial capacity, had absorbed to himself, in his Court of
Chancery, the whole of that so-called ' equitable ' function of
the crown by virtue of which the king had granted relief to
suitors for whose cases the common law had provided no ade-
quate process. The Chancellorship was thus put in the way
of attaining to its later-day partial ascendency over the ' courts
of law.' This process of the differentiation and development
of the courts began in the early years of the twelfth century
and may be said to have been completed by the middle of the
fourteenth.
667. Parliament. — Meantime the national body, the Great
Council, from which the Permanent Council and courts had in
a sense been derived, had had its own expansions and changes
of form and had taken on a new character of the utmost sig-
nificance. Not greatly altered in its composition during the
century which followed the Norman conquest, the Great Couix-
376 THE GOVBKNMENT OF ENGLAND.
cil was profoTindly affected by the outcome of Magna Charta
(a.d. 1216) and the momentous constitutional struggles which
followed it. It was then that the princii)le of representation
was first introduced into the constitution of Parliament and
commoners as well as nobles given seats in the national assem-
bly. The archbishops, bishops, and abbots attended as of
course, as always before, and the earls and greater barons held
themselves equally entitled to be summoned always by special
personal summons ; but the lesser barons, who formerly had
been called to the Cotincil, not by personal summons, bu.t only
by a general smnmons addressed to them, along with all ten-
ants-in-chief, through the sheriffs of the counties, had given
over attending because of the expense and inconvenience of
the privilege, and were accordingly no longer called. Their
place was filled by rejoresentation. Writs addressed to the
sheriffs, commanding the necessary elections to be held, jjilled
for representatives of the lower clergy and, more important
stiU, for representatives (knights) of the shires and (burgesses)
of the towns. The Parliament which Edward T. siimmoned in
1296 contained all these elements and established the type for
the composition of all future Parliaments.
668. In the fourteenth clause of Magna Charta John was made to
promise that/ besides summoning the arclihishops, bishops, abbots,
earls, and greater barons severally, by special personal letters, he
would summon all lesser barons also by a general summons, through
the sheriffs and bailiffs. But this general summons failed of the
desired effect.
669. Representatives from the towns were summoned first in 1265
by Earl Simon of Montfort, who knew that he could count upon the
support of the Commons of England in his contest with the king,
Henry III., and who called burgesses to the Parliament which he con-
stituted during the brief period of his supremacy in order to give open
proof of that support. Edward I. followed Montfort's example in 1296,
not because he was deliberately minded to form a truly representative
assembly as a wise step in constitutional development, but because he
wanted money and knew that taxes would be most readily paid if voted
by an assembly representing all.
THE GOVBBNMBNT OF ENGLAND. 377
670. Representatives from the shires (knights) had often been called
to Parliament before 1265. Step by step first one element of the nation
and then another had been introduced into Parliament : first the lesser
barons, by general summons, — only, however, to" drop out again, —
tlien the gentry of the shires by election in the counties, finally the
burghers of the towns by similar election in county court.
671. Genesis of the Two Houses. — Sucli a body as the
Parliament summoned by Edward was, however, too conglom-
erate, too little homogeneous to hold together. It did not long
act as a single Assembly ; but presently fell apart into two
' houses.' Had the lower clergy continued to claim represen-
tation, there might and probably would have been three houses
instead of two. But, instead of setting up a separate house in
the civil Parliament, they drew apart for the creation of an
entirely distinct body, which, under the name of ' Convocation,'
was to constitute a separate ecclesiastical parliament, devoting
itself exclusively to the government of the church. Their
share in the management of temporal affairs they left alto-
gether to the ' spiritual lords,' the few greater magnates of the
church who retained their places in the national council, and
to such lay representatives as the clergy could assist in elect-
ing to the lower house.
There were left, therefore, in Parliament two main elements,
lords and commoners. The lords, to whom the archbishops,
bishops, and abbots adhered by immemorial wont, formed a
house to themselves, the House of Lords. The comiuoners
from the towns, who were soon joined by the middle order of
gentry, the knights of the shires, who were neither great lords
summoned by personal summons nor yet commoners, formed
the other house, the House of Commons. These changes also
were completed by the middle of the fourteenth century. Par-
liament was by that time, outwardly, just what it is now.
672. The Privy Council. — The Great Council and its direct
heir,'Parliament, were, of course, not a little jealous of the enor-
mous powers wielded by the preferred counsellors of the king
378 THE GOVERNMENT OP ENGLAND.
whom he maintained in permanent relations of confidence with
himself, and through whom he suffered to be exercised some
of the greatest of the royal prerogatives. Especially did the
arrangement seem obnoxious to those who wished to see the
crown and its ministers restrained, when the vitality of the Per-
manent Council passed to a still smaller ' Privy ' Council. This
body was to the Permanent Council what the Permanent Coun-
cil had been to the Great Council. It was still another " inner
circle." It emerges during the reign of Henry VI. (1422-
1461). The Permanent Council had become too large and un-
wieldy for the continuance of its intimate relations with the
sovereign ; it could no longer be used as a whole for purposes
of private advice and resolution ; and the king separated from
the ' ordinary ' councillors certain selected men whom he con-
stituted his Privy Council, binding them to himself by special
oaths of fidelity and secrecy. From that moment the Perma-
nent Council is virtually superseded, and the Privy Council be^
comes the chief administrative and governing body of the realm.
673. The Privy Council assumes Judicial Powers. — Many
of the judicial prerogatives which really belonged to the king
when sitting in his Great Council, or Parliament, had been
claimed for the king's Permanent Council ; hence the distinct
law courts which had been developed from its midst (sec,
666) ; and the same rights of exercising the powers of a court,
which had been assvimed by the Permanent Council, were in
the later time arrogated to itself by the Permanent Council's
proxy, the Privy Council. Out of it came, in course of time,
the well-remembered Council of the North, the hated Star
Chamber, and the odious High Commission Court, which were
not abolished until 1641, when that great revolution had fairly
set in, which was to crush arbitrary executive power forever
in England, and to usher in the complete supremacy of Par-
•liament.
674. Origin of the Cabinet. — Meanwhile, long before the
parliamentary wars had come to a head, the same causes that
THE GOVERNMENT OF ENGLAND. 379
had produced the Permanent and Privy Councils had again as-
serted their strength and produced the Cabinet, still a third
" inner circle," this time of the Privy Council ; a small body
selected for special confidence by the king from the general
body of his counsellors, and meeting him, not in the larger
council chamber, but in a 'cabinet,' or smaller room, apart.
The Privy Council had, in its turn, become " too large for de-
spatch and secrecy. The rank of Privy Councillor was often
bestowed as an honorary distinction on persons to' whom noth-
ing was confided, and whose opinion was never asked. The
Sovereign, on the most important occasions, resorted for advice
to a small knot of leading ministers. The advantages and dis-
advantages of this course were early pointed out by Bacon, With
his usual judgment and sagacity ; but it was not till after the
Restoration that the interior Council began to attract general
notice. During many years old-fashioned politicians continued
to regard the Cabinet as an unconstitutional and dangerous
board. Nevertheless, it constantly became more and more im-
portant. It at length drew to itself the chief executive power,
and has now been regarded during several generations as an es-
sential part of our polity. Yet, strange to say, it still continues
to be altogether unknown to the law. The names of the noble-
men and gentlemen who compose it are never oificially an-
nounced to the public ; no record is kept of its meetings and
resolutions ; nor has its existence ever been recognized by any
Act of Parliament." '
676. The Development of the Cabinet. — The Cabinet first
comes distinctly into public view as a preferred candidate for
the highest executive place in the reign of Charles II. It is
now the central body of the English Constitution. The steps
by which it approached its present position are thus summa-
rized by a distinguished English writer :
" (1) First we, find the Cabinet appearing in the shape of a
1 Macaulay, History of England, Vol. I., pp. 197, 198 (Harper's ed.,
1849).
380 THE GOVERNMENT OF ENGLAND.
small, informal, irregular Gamarilla, selected at the pleasure
of the Sovereign from the larger body of the Privy Council,
consulted by and privately advising the Crown, but with no
power to take any resolutions of State, or perform any act of
government without the assent of the Privy Council, and not
as yet even commonly known by its present name. This was
its condition anterior to the reign of Charles I.
'•' (2) Then succeeds a second period, during which this
Council of advice obtains its distinctive title of Cabinet, but
without acquiring any recognized status, or permanently dis-
placing the Privy Council from its position of de facto as
well as de jure, the only authoritative body of advisers of the
CrSwn. (Eeign of Charles I. and Charles II., the latter of
whom governed during a part of his reign by means of a
Cabinet, and towards its close through-a ' reconstructed ' Privy
Council.)
" (3) A third period, commencing with the formation by
William III." of a ministry representing, not several parties,
as often before, but the party predominant in th^ state, " the
first ministry approaching the modern type. The Cabinet,
though still remaining, as it remains to this day, unknown to
the Constitution," had "now become de facto, though not de.
Jure, the real and sole supreme consultative council and execu-
tive authority in the State." It was " still, however, regarded
with jealousy, and the full realization of the modern theory of
ministerial responsibility, by the admission of its members to
a seat in Parliament," was " only by degrees effected.
" (4) Finally, towards the close of the eighteenth century,
the political conception of the Cabinet as a body, — necessarily
consisting (a) of members of the Legislature ; (&) of the same
political viewjS, and chosen from the party possessing a ma-
jority in the House of Commons ; (c) prosecuting a concerted
policy ; (d) under a common responsibility to be signified by
collecti^'e resignation in the event of parliamentary censure ;
and (e) acknowledging a common subordination to one chief
THE GOVERNMENT OF ENGLAND. 381
minister, — took definite shape in our modern theory of the
Constitution, and so remains to the present day." ^
676. Parliament and the Ministers. — The principles con-
cerning the composition of the modern Cabinets which are
stated in this last paragraph of Mr. Traill's summary may be
said to have been slowly developed out of the once changeful
relations between Parliament and the ministers of the Crown.
As I have said (sec. 672), the national council very early devel-
oped a profound jealousy of the power and influence of the
small and private council, of state and court oflftcials, which the
king associated with himself in the exercise of his great pre-
rogatives. By every means it sought to control the ministers.
Abandoning very soon, as revolutionary, all efforts to hold the
king himself responsible for executive acts, Parliament early
accepted the theory that the king could do no wrong; the
breaches of law and of right committed by the government
were committed always, — so the theory ran, — by vicious ad-
vice of the king's personal advisers ; they could do wrong
(here the theory shaded off into fact), and they should be held
responsible for all the wrong done. So early as the close of the
twelfth century the Great Council deposed "William Longchamp,
Justiciar and Chancellor of Eichard I., for abuse of power.
During the fourteenth century Parliament claimed and once or
twice exercised the right to appoint ministers and judges ; it
beheaded Edward II.'s Treasurer and imprisoned his Chancellor
for their part in Edward's illegal acts ; and at the close of the
century ( 1386) it impeached Michael de la Pole, Richard II.'s
minister, notwithstanding the fact that he was able to plead
the king's direct commands in justification of what he had
done. In the seventeenth century a new ground of impeach-
ment was added. From that time out, ministers were held
responsible, by the severe processes of trial by Parliament for
high crimes and misdemeanors, not only for illegal, but also
1 H. D. Traill, Central Government (English Citizen Series), pp. 23-25.
382 THE GOVEENMENT OF ENGLAND.
for bad advice to the Crown, for gross mistakes of policy as
well as for overt breaches of law and of constitutional rights.
677. Disappearance of Impeachment. — The Act of Settle-
ment and the policy of William and Mary inaugurated, however,
the final period of Parliament's supremacy. Parliament's pref-
erences began to be regarded habitually in the choice of
ministers, and impeachment, consequently, began gradually
to fall into complete disuse. Its place was taken by parlia-
mentary votes, — finally by votes of the House of Commons
alone. Ministers, who cannot command a majority in the House
of Commons for the measures which they propose, resign, and
Parliament has its own way concerning the conduct of the
government.
678. The Executive. — The Executive, under the English
system, so far as it may be described at once briefly and cor-
.rectly, may be said to consist of the Sovereign and a Cabinet
of ministers appointed with the Sovereign's formal consent.
■All real authority is with the Cabinet ; but the ministers are,
in law, only the Sovereign's advisers, and the government is
conducted in the Sovereign's name. The true place of the
Sovereign in the system is that of an honored and influential
hereditary councillor, to whose advice an exalted title and a
constant familiarity with the greater affairs of state lend a
peculiar weight. The king ' is in fact, though of course not
in legal theory, a permanent minister, differing from the other
ministers chiefly in not being responsible to Parliament for
his acts, and on that account less powerful .than they.
679. The Sovereign is not a member of the Cabinet because George I.
could not speak English. Until the accession of George I. the king
always attended Cabinet councils ; George did not do so because he
could not either understand or be understood in the discussions of the
ministers. Since his time, therefore, the Sovereign has not sat vfith
1 Since the throne of England is generally occupied by a man, it is most
convenient to use ' king ' as the distinctive title of the. Sovereign in every
general statement of constitutional principles.
THE GOVERNMENT OP ENGLAND. 383
the Cabinet. A similar example of the interesting ease with which
men of our race establish and observe precedents is to be found in the
practice on the part of Presidents of the United States of sending writ-
ten messages to Congress. Washington and John Adams addressed
Congress in person on public affairs ; but Jefferson, the third Pi-esident,
was not an easy speaker, and preferred to send a, written message.
Subsequent Presidents followed his example as of course. Hence a
binding rule of constitutional action.
680. Position of the Cabinet. — The Cabinet consists of the
principal ministers of state and has reached its ^jresent position
of power in the government because of its responsibility to
Parliament. The chief interest of English constitutional his-
tory centres in the struggle of Parliament to establish its.
supremacy over all other authorities in the conduct of the gov-
ernment ; that struggle issued in the last century in the com-
plete triumph of Parliament ; it has reached its farthest logical
consequence in our own century in the concentration of parli-
amentary authority in the popular house of Parliament, the
House of Commons. Parliament always claimed the right to
direct in the name of the people, of the nation ; that was the
solid basis of all its pretensions ; and so soon as reforms in the
composition of the House of Commons had made it tmly repre-
sentative of the people, the House of Lords, which represents
only a single class of the people, necessarily sank to a subordi-
nate place.
681. Appointment of the Cabinet Ministers. — The respon-
sibility of the ministers to Parliament constitutes their strength
because it makes them the agents of Parliament : and the
agents of a sovereign authority virtually share its sovereignty.
The king appoints only such ministers as have the confidence
of the House of Commons ; and he does it in this way : he sends
for the recognized leader of the political party which has the
majority in the House of Commons and asks him to form a
Cabinet. If this leader thinks tliiit his party will approve of
his assuming such a responsibility, he accepts the commission,
384 THE GOVERNMENT OF ENGLAND.
and, usually after due consultation with other prominent mem-
bers of his party, gives to the Sovereign a list of the men whom
he recommends for appointment to the chief offices of state.
These the Sovereign appoints and commissions as of course.
They are always men chosen from among the members of both
houses of Parliament, and generally because they have proved
there their ability to lead. They have, so to say, chosen them-
selves by a career of steady success in the debates of the
houses : they have come to the front by their own efforts, by
force of their own ability, and represent, usually, tried parlia-
mentary capacity. Such capacity is necessary for their success
as ministers ; for, after they have entered the Cabinet, they
. constitute, in effect, a committee of the majority of the House
of Commons, commissioned to lead Parliament in debate and
legislation, to keep it, — and, through it, of course the country
at large, — informed concerning all important affairs of state
which can prudently be made public, and to carry out in the
conduct of the government the policy approved of by the rep-
resentatives of the people.
682. Composition of the Cabinet. — The Cabinet does not con-
sist invariably" of tlie same number of ministers. Eleven officials always
have seats in it ; namely, the First Lord of the Treasury, the Lord
Chancellor, the Lord President of the Council, the Lord Privy Seal,
the Chancellor of the Exchequer, the five Secretaries of State (for
Home Affairs, for Foreign Affairs, for the Colonies, for India, and for
War), and the First Lord of the Admiralty. To these are generally
added from three to five others, according to circumstances : often, for
instance, the President of the Board of Trade, sometimes the Chief
Secretary for Ireland, frequently the President of the Local Govern-
ment Board. The general rule which governs these additions is, that
every interest which is likely to be prominent in the debates and pro-
ceedings of the House of Commons ought to have a Cabinet minister
to speak for it and to offer to the House responsible advice.
683. No member of the House of Commons may accept office with-
out the approval of his constituents. Upon receiving an appdintment
as minister he must resign his seat in the House and seek re-election,
as representative plus miniator. The whole matter is merely formal,
THE GOVERNMENT OP ENGLAND. 385
however, in most cases. The opposite party do not usually, under such
cirouni stances, contest the seat a second time, and the minister is re-
elected without opposition.
684. The custom of the Sovereign's selecting only tlie chief minister
and intrusting him with the formation of a ministry also, as well as the
Sovereign's absence from Cabinet meetings, originated with George I.,
who did not know enough of English public men to choose all the
ministers, and so left the choice to Walpole.
686. This method of forming a ministry is, of course, the
outcome of Parliament's efforts to hold the king's ministers to
;i strict responsibility to itself. None but members of their
own party would suit the majority in Parliament as ministers ;
and since the ministers had to explain and excuse their policy
to the houses it was best that they should bn members of the
houses with the full iDrivileges of the floor. Only by such an
arrangement could the full harmony desired between Parliament
and the ministers be maintained : by face to face intercourse.
686. Ministerial Responsibility. — If the ministers are
defeated on any important measure in the House of Commons,
or if any vote of cfensure is passed upon them in that House,
they must resign, — such is the command of precedent, — and
another ministry must be formed which is in accord with the
new majority. The ministers must resign together because
the best form of responsibility for their conduct of the govern-
ment can be secured only when their measures are taken in
concert, and the House of Commons would be cheated of all
real control of them if they could, upon each utterance of its
condemnation of an executive act, or upon feach rejection by it
of a measure proposed or supported by them, ' thro\\' over-
board ' only those of their number whose departments were
most particularly affected by the vote, and so keep substan-
tially the same body of men in office. If a defeated, or censured
ministry think that the House of Commons in its adverse
vote has not really spoken the opinion of the constituencies,
they can advise the sovereign to dissolve the House and order
386 THE GOVERNIifcEKT OF ENGLAND.
a new election ; that advice mnst be taken by the Sovereign ;
and the ministers stand or fall according to the disposition of
the new House towards them.
687. It should be added that exceptional cases do sometimes arise in
which responsibility for an objectionable course of action can be so
plainly and directly fixed upon a particular minister, who has acted, it
may be, without the concurrence, possibly without the knowledge, of his
colleagues, that his separate dismissal from office is recognized' as the
only proper remedy. A notable instance of this sort arose in England
in 1851, when Lord Palmerston, then foreign secretary, was dismissed
from office for adding to various other acts of too great independence
of the concurrence of his colleagues or the crown an unauthorized ex-
pression of approval of the coup d'etat of Louis Napoleon in France.
688. Legal Status of the Cabinet. — The peculiar historical
origin of the Cabinet appears in a statement of its position before the
law. As we have seen (sec. 674), it is not a body recognized by law:
its existence, like the existence of not a few other political institutions
in England, is only customary. The particular ministers who form the
Cabinet have the right to be the exclusive advisers of the Crown, — ■
that is, the only executive power, — only by virtue of their membership
of the Privy Council. They must all bo sworn into the membership of
that body before they can act as ministers, as confidential servants of
the Sovereign. The Privy Council itself, however (as a whole, that is),
has not been asked for political advice for two centuries. It takes no
part whatever in the function which twelve or fifteen ministers exercise
by virtue of belonging to it ; it is not responsible, of course, for the
advice they give ; and it cannot in any way control that advice.
689. Initiative of the Cabinet in Legislation. — Having
inherited the right of initiative in legislation which once be-
longed to the Crown, the Cabinet shape and direct the business
of the houses. Most of the time of Parliament is occupied by
the consideration of measures which they have prepared and
introduced ; at every step in the procedure of the houses it is
the duty of the ministers to guide and facilitate business.
690. The Prime Minister. — " Consistency in policy and vigor in
administration " on the part of the Cabinet are obtained by its organi-
zation under the authority of one ' First' Minister. This Prime Minister
generally holds the office of First Lord of the Treasury. It is not the
THE GOVERNMENT OF ENGLAND. 387
office, however, wliich gives him primacy in the Cabinet, but liis recog-
nized weight as leader of his party. The leader chosen by the Sover-
eign to form the ministry stands at its head when formed. He usually
chooses to occupy the office of First Lord of the Treasury because the
official duties of that place are nominal only and leave him free to
exercise his important functions as leader of the party in power.
691. The Departments of Administration. — So mueli for
the relations of the Cabinet to the Sovereign and to Parlia-
ment. When we turn to view it in its administrative and
governing capacity as the English Executive, we see the minis-
ters as heads of departments, as in other governments. But
the departments of the central government in England are by
no means susceptible of brief and simple description as are
those of other countries, which have been given their present
forms by logical and self-consistent written constitutions, or
by the systematizing initiative of absolute monarchs. They
hide a thousand intricacies born of that composite develop-
ment so characteristic of English institutions.
092. The Five Great ' Offices ' of State. —Not attempting
detail, however, it is possible to give a tolerably clear outline
of the central administration of the kingdom in comparatively
few words. The Treasury I shall describe in a separate para-
graph (sec. 696). The Home Office superintends the constabu-
lary, oversees, to a limited extent, the local magistracy and the
administration of prisons ; advises the Sovereign with refer-
ence to the granting of pardons ; and is the instrument of Par-
liament in carrying out certain statutes restricting at some
points the employment of labor. The Foreign Office describes
itself. So do also, suflBciently, the Colonial Office, the War
Office, and the India Office.
693. These five great ' Offices ' are all, historically considered, in a
certain sense offshoots from a single office, that of the king's Principal
Secretary of State. By one of the usual processes of English constitu-
tional development, an officer bearing this title very early came into
existence as one of the most trusted ministers of the Crown. At first
only a specially confided-in servant of the Sovereign, employed on all
888 THE GOVERNMENT OF ENGLAND.
sorts of confidential missions, he gradually assumed a more regular
official place and began to absorb various important functions. At
length it became necessary to double him and to have two Principal
Secretaries of State, two men theoretically sharing one and the same
office, and alternates of each other. Now he has, to meet the exigencies
of the case, been quintupled. There are five Principal Secretaries of
State, all, in theory, holding the same office, and each, in theory, legally
authorized to .perform the functions of .any or all of the others ; but in
fact, of course, keeping each to a distinct department. There is, then, a
Principal Secretary of State for the Home Department, a Principal
Secretary of State for Foreign Affairs, a Principal Secretary of State
for the Colonies, a Principal Secretary of State for War, and a Prin-
cipal Secretary of State for India. It is an interesting and characteristic
case of evolution.
694. The Admiralty, the Board of Trade, and the Local
Government Board. — The Admiralty is, of course, the naval
office. It is presided over by a Commission of six, consisting
of a chairman, entitled First Lord of the Admiralty, and five
Junior Lords. The Board of Trade is, in form, a committee
of the Privy Council. It is reconstituted at the opening of
each reign by an order in Council. It consists, nominally, of
"a President and certain ex officio members, including the
Pirst Lord of the Treasury, the Chancellor of the Exchequer,
the Principal Secretaries of State, the Speaker of the House
of Commons, and the Archbishop of Canterbury." ^ But it
has long since lost all vital connection with the Privy Council
and all the forms even of board action. Its President is now
practically itself. 'Its duties and privileges are both extensive
and important. It advises the other departments concerning
all commercial matters, and is the statistical bureau of the
kingdom ; it exercises the state oversight of railways, inspects
passenger steamers and merchant vessels, examines and com-
missions masters and mates for the merchant marine, adminis-
ters the statutes concerning harbors, lighthouses, and pilotage,
provides standard weights and measures, superintends the
1 Traill, pp, 126, 127.
THE GOVERNMENT OP ENGLAND. 389
coinage, and supervises the Post Office. The Local Government
Board, which is also in form a committee of the Privy Couiifil,
has also in reality none of the characteristics either of a coui-
inittee or of a board. It is a se]5arate and quite independent
de]jartment, under the control of a President. Its other, nom-
inal, members, the Lord President of the Council, the five
Principal Secretaries of State, the Lord Privy Seal, and the
Chancellor of the Excheqvier, in reality take no part in its
management. It is, in effect, the English department of the
Interior. It is charged with supervising the administration,
by the local authorities of the kingdom, " of the laws relating
to the public health, the relief of the poor, and local govern-
ment," — duties more important to the daily good government
of the country than those of any other department. It also
specially examines and reports upon every private bill affecting
private interests.
695. The Post Office is in England a subdivision of tlie Board of
Trade. At its head is a Postmaster General. It controls, besides tlie
usual business of a post-oflBce department, the telegraph system of the
country, which is owned by the government, and has also under its
direction a useful postal savings-bank system.
696. The Treasury. — The history of this department,
which may be reckoned the most important, may serve as a
type of English departmental evolution. Originally the chief
financial minister of the Crown was the Lord High Treasurer,
with whom was associated at an early date a Chancellor of the
Exchequer. But in the reign of George I. the great office of
Lord High Treasurer was, in English phrase, put permanently
' into commission ' : its duties, that is, were intrusted to a
board instead of to a single individual. This board was known
as the " Lords Commissioners for executing the office of Lord
High Treasurer," and consisted of a First Lord of the Treas-
ury, the Chancellor of the Exchequer, and three others known
as Junior Lords. Evolution speedily set in, as in other similar
English boards. That is, the board ceased to act as a board.
890 THE GOVEr.NMENT OP ENGLAND.
Its functions became concentrated in the hands of the Chan-
cellor of the Exchequer ; the First Lordship, occupied almost
invariably since 1762 by the Prime Minister, gradually lost all
connection, except that of honorary chairmanship, with the
Treasury Commission, its occupant giving all his energies to
his political functions (see. 690) ; and the Junior Lords were
left none but parliamentary duties.
697. The Chancellor of the Exchequer, then, is the work-
ing head of the Treasury Department, and as such plays one
of the most conspicuous and important rdleS' in the govern-
ment of the country. He controls the revenue and expendi-
ture of the state, submitting to Parliament, in the form of an
annual 'budget,' careful comparisons of the sums needed for
the public service and of the sums that may be expected to
accrue from existing or j^ossible sources of revenue, together
with proposals to extend or curtail taxation according as there
is prospect of a deficit or of a surplus under existing arrange-
ments.
698. The Estimates. — The various departments make up their
own estimates ; but tliese are subjected to a careful examination by the
Chancellor of the Exchequer, and with him rests the prerogative of
revising them where they may seem to admit of or require revision.
Thus changes in the clerical forces of the departments or re-distribution
of their work among sub-departments, etc., cannot, if they involve ad-
ditional expense, be made without express approval by the Treasury.
Mr. Gladstone twice, with characteristic energy, held, when Prime
Minister, both the office of Pirst Lord of the Treasury and that of
Chancellor of the Exchequer, thus in effect once more bringing the
Eirst Lord into vital connection with his nominal department.
699. Administrative Departments of the Privy CounciL
— Though superseded as advisory council to the Crown by the
Cabinet and deprived of almost all executive control by the
virtual erection of its several boards into independenf depart-
ments, the Privy Council still has one or two vital parts.
Chief among these are (1) The Education Department, which
consists of the Lord President of the Council, as nominal
THE fiOVEUNMENT OF ENGLAND. 391
chief, a Vice-President as working chief, and certain ex officio
members, among them the Chancellor of the Exchequer and
the Secretary of State for Home Affairs, and which is charged
with the administration of the public educational system of
the country ; and (2) The Agricultural Department, to which is
intrusted the enforcement of the 'Contagious Diseases (Ani-
mals) Acts' of 1878-1886, as well as sundry other poweis.
Both of the^se are veritable departments of the Privy Council
and preserve in a rather more than formal way their collegiate
character. The important judicial duties of the Council I shall
speak of in another connection (sec. 736) .
700. Other Executive Offices. — Subordinate to the Treasury
department, but in reality possessing a quite distinct individuality of its
own, is the Office of Public Works and Buildings, which is cliarged with
the "custody and supervision of the royal palaces and public parks, and
of all public buildings not specially assigned to tlie care of other depart-
ments." 1 It is composed nominally of a First Commissioner, the Prin-
cipal Secretaries of State, and the President of the Board of Trade, but
is controlled in fact by the First Commissioner and his permanent
assistants, the First Commissioner representing it in Parliament.
701. The Lord Privy Seal exercises no important functions except
those of keeping the great Seal of State and affixing it to such public
documents as need its formal attestation ; but the office is a ' Cabinet
office.' The lightness of its duties leaves its incumbent the freer for his
Cabinet functions of counsel. It is a berth for elderly men of mental
and political weight who cannot or will not undertake onerous official
duties.
702. The Chancellor of the Duchy of Lancaster holds an
office whose duties (entirely legal and local) have all been delegated
by long-standing habit to a Vice-Chancellor; but eminent politicians
are often brought into the Cabinet through this sinecure Chancellorship
in order that they may give the ministry the benefit of their advice and
countenance.
703. Political Under Secretaries. — There are often associated
with the principal ministers of state certain ' political ' Under Secre-
taries, whose function is one of very considerable importance, A polit-
ical Under Secretary is one who goes in or out of office with his party,
1 Traill, p. 152.
392 .THE GOVERNMENT OF ENGLAND.
not having a place in the cabinet but sharing its fortunes in the Com-
mons. He is parliamentary spokesman for his chief. If the foreign
minister, for instance, or any other member of the Cabinet, the affairs
of whose department may be expected to call forth frequent comment
or question in the lower House, be a member of the House of Lords,
he is represented in the Commons by an Under Secretary, who there
speaks as the minister's proxy. The representation of the ministers in
both Houses is thus secured.
704. Administration of Scotland and Ireland. — The affairs
of Scotland are cared for through the agency of a Lord Advo-
cate for Scotland, who is the legal adviser of the government
concerning Scotch interests, and a Secretary for Scotland who
is the intermediary between the Scotch members of Parliament
and the ministry, and the official spokesman of the ministers
regarding Scotch business in the House of Commons. Officially
the Lord Advocate ranks as a subordinate of the Secretary of
State for Home Affairs. The Irish executive is, formally at
least, separate from the English, being vested in a Lord Lieu-,
tenant and Privy Council; but in fact it is completely con-
trolled by the English Cabinet through the Chief Secretary to
the Lord Lieutenant, who is always a member of the House of
Commons and, when Irish affairs are specially prominent, a
member of the Cabinet also ; and who, though in titular rank
a subordinate of the Lord Lieutenant, is, by virtue of his
relations to the Cabinet and to Parliament, in effect his master.
705. The Lord Chancellor, the only regular member of the Cab-
inet whose duties I have not yet indicated, is a judicial and legislative
officer. His functions will be mentioned in other connections (sec. 737).
706. The Cabinet as Executive. — It would be a great mis-
take to suppose that, because the Cabinet is in reality a com^
mittee of the House of Commons, drawing all its authority from
the confidence reposed m it by that chamber, it is a mere com-
mittee possessing no separate importance as the executive body
of the kingdom. In a sense the ministers have inherited the
ancient prerogatives of the Crown; and Parliament is, to a
THE GOYBKNMENT OP ENGLANB. 393
very sensible degree, depeiiden,t upon them for the efficacy of
the part it is to play in governing. Almost all important leg-
islation waits for their initiative, and the whole business of the
Houses to a great extent depends upon them for its jirogress.
They can make treaties, of whatever importance, with foreign
countries ; they can shape the policy of the mother country
towards her colonies ; they can take what serious steps they
will with reference to the government of India, can move troops
and naval forces at pleasure, can make a score of momentous
moves of 'policy towards the English dependencies and towards
foreign countries, — in the field, that is, of many of the largest
interests of the Empire, — which may commit the country to
the gravest courses of action ; — and all without any previous
consultation with Parliament, whom they serve. The House
of Commons, in brief, can punish but cannot prevent them.
707. Parliament : I. The House of Commons ; its Origi-
nal Character. — " The Parliament of the nineteenth century
is, in ordinary speech, the House of Commons. When a min-
ister consults Parliament he consults the House of Commons ;
when the Queen dissolves Parliament she dissolves the House
of Commons. A new Parliament is merely a new House of
Commons." ' Such has been the evolution of English politics.
But the processes which worked out this result were almost
five centuries long. During a very long period. Parliament's
first and formative period, the Commons held a position of
distinct and, so to say, legitimate subordination to the Lords,
lay and spiritual ; the great constitutional rdles were played
by the king and baronage. The commoners in Parliament
represented the towns, and spoke, for the most part, at first,
only concerning the taxes they would give. When the house
of Parliament called the House of Commons first assumed a
distinct separate existence, about the middle of the fourteenth
century (sec. 671), it was by no means a homogeneous body.
1 Spencer Walpole, The Electorate and the Legislature (English Citizen
Series), p. 48.
394 THE GOVERNMENT OF ENGLAND.
It held both the knights of the shires and the burgesses of the
towns ; and it was a very, long time before the knights forgot
the doubt which had at first been felt as to which house they
should sit with, Lords or Commons. They were men of con-
sideration in their countries ; the only thing in common between
them and the men from the towns was that election, and not
hereditary possessions or rank, was the ground of their pres-
ence in Parliament. Long use, however, finally obscured such
differences between the two groups of members in the lower
house ; their interests were soon felt to be common interests :
for the chief questions they had a real voice in deciding were
questions of taxation, which touched all alike.
708. Historical Contrasts between County and Borough
Representatives. — The main object of the Crown in making
the Commons as representative as possible would seem to have
been to bring the whole nation, as nearly as might be, into co-
operation in support of the king's government : and at first the
lower house was a truly representative body. The knights of
the shires were elected " in the county court, by the common
assent of the whole country " ; the burgesses of the towns were
chosen by the borough freemen, a body numerous or limited
according to the charter of each individual town, but gener-
ally sufficiently broad to include the better class of citizens. It
was the decay of the towns and the narrowing of their fran-
chises which made the Commons of the first decades of our own
century, the scandalously subservient, unrepresentative Com-
mons which had driven the American colonies into revolt. So
early as the reign of Henry VI., in the first half, that is, of the
fifteenth century, the franchise was limited in the counties to
freeholders whose landed property was of an annual value of
forty shillings, and forty shilling freeholders were then men of
means ; ' but this franchise remained unchanged until the parli-
amentary reforms of the present century, and tended steadily,
' Forty shillings, it is estimated, were equivalent at that time in pur-
chasing value to forty pounds at present (|200).
THE GOVERNMENT OF ENGLAiJD. 395
with the advancing wealth of the country, and the relative
decrease in the value of the shilling, to become more liberal,
more inclusive. The borough franchise, on the contrary, went
all the time steadily from bad to worse. It became more and
more restricted, and the towns which sent representatives to
Parliament became, partly by reason of their own decay, partly
by reason of the growth and new distribution of population in
the kingdom, less and less fitted or entitled to represent urban
England. New boroughs were given representatives from time
to time ; but all efforts to redistribute representation had virtu-
ally ceased before the dawn of the period of that great increase
of population and that immense development of wealth and
industry which has made modern England what it is. The
towns which returned members to the House of Commons were
mostly in the southern counties where the old centres of popu-
lation had been. Gradually they lost importance a's the weight
of the nation shifted to the central and western counties and
Liverpool, Manchester, and Birmingham grew up, — and not
their importance only, but their inhabitants as well. Some
fell into ruins and merged in neighboring properties, whose
owners pocketed both them and their parliamentary franchise ;
others, which did not so literally decay, became equally subject
to the influence of neighbor magnates upon whom the voters
felt more or less dependent ; and at last the majority of seg,ts
in the Commons were virtually owned by the classes repre-
sented in the House of Lords.
The House of Commons consisted in 1801 of 658 members, and of
these 425 are said to liave been returned " on the nomination or on the
recommendation of 252 patrons." It is said, also, that " -309 out of the
513 members belonging to England and AVales owed their election to
the nomination either of the Treasury or of 162 powerful individuals." ^
709. Geographical Relations of Boroughs and Counties. —
Of course borough populations had no part in the election of county-
members. The counties represented in Parliament were rural areas,
1 Walpole, p. 55.
396 THE GOVERNMENT OP ENGLAND.
exclusive of the towns. Thus the county of Derby was, for the pur-
poses of parliamentary representation, the county of Derby minus its
boroughs.
710. Parliamentary Reform. — It was to remedy this state
of things that the -well-known reforms of the present century
were undertaken. Those reforms have made the House of
Commons truly representative and national : and in making it
national have made it dominant. In 1832 there was made a
wholesale redistribution of seats and a complete reformation
of the franchise. The decayed towns were deprived of their
members, and the new centres of population were accorded
adequate representation. The right to vote in the counties
was extended from those who owned freeholds to those who
held property on lease and those who held copyhold estates, ^
and to tenants whose holdings were of the clear annual value
of fifty pounds. The borough franchise was put upon the
uniform basis of householders whose houses were worth not
less than ten pounds a year. This -was putting representation
into tjie hands of the middle, well-to-do classes ; and with
them it remained until 1867. In 1867 another redistribution
of seats was effected, which increased the number of Scotch
members from fifty-four to sixty and made other important re-
adjustments of representation. The franchise was at the
same time very greatly widened. In the boroughs all house-
holders and every lodger whose lodgings cost him ten pounds
annually were given the right to vote ; and in the counties,
besides every forty shilling freeholder, every copyholder and
leaseholder whose holding was of the annual value of five
pounds, and every householder whose rent was not less than
twelve pounds a year. Thus representation stood for almost
twenty years. Finally, in 1884, the basis of the present fran-
chise was laid. The qualifications for voters in the counties
1 Copyhold estates are estates held by the custom of the manor in
which they lie, a custom evidenced by a ' copy ' of the rolls of the Manor
Court.
THE GOVERNMENT OP ENGLAND. 397
were made the same as the cLualifications fixed for borough
electors by the law of 1867, and over two millions and a half
of voters were thus added to the active citizenship of the
country. There is now a uniform 'household and lodger fran-
chise ' throughout the kingdom.
711. 'Occupier' is used in England as synonymous with the word
lodger. The 'occupation' requisite for the exercise of the franchise
must be of a " clear annual value of £10." Occupation " by virtue of
any office, service, or employment," is considered, for the purpose of
the franchise, equivalent to occupation for which rent is paid, if the
rent would come to the required amount, if cliarged.
712. In 1885 another great Redistribution Act was passed,
which merged eighty-one English, two Scotch, and twenty-two
Irish boroughs in the counties in which they lie, for purposes
of representation; gave additional members to fourteen
English, three Scotch, and two Irish boroughs ; and created
thirty-three new urban constituencies. The greater towns
which returned several members were cut up into single-mem-
ber districts, and a like arrangement was effected ip. the
counties, which were divided into electoral districts to each of
which a single representative was assignecl. ' These changes
were accompanied by an increase of twelve in the total number
of members. Through the redistribution of seats in 1832 and
1867 the number had remained 658 ; it is now 670.
713. The following is an analysis of the present membership of the
House of Commons given in the Statesman's Year Book for 1887 : ■'
the English counties return 253 members, the English boroughs 237,
the English universities 5 ; Scotch counties 39, boroughs 31, universi-
ties 2; Irish counties 85, boroughs 16, universities 2. Totals: counties
377, boroughs 284, universities 9.
714. One signal feature of the reforms of 1884-85 was that they
applied to Scotland and Ireland as well as to England and Wales.
Earlier Acts had applied only to England and Wales, special Acts
1 This was establishing what the French, as we have seen (sec. 315),
would call scrutin d'arrondissement.
2 Where other data also will be found.
398 THE GOVERNMENT OF ENGLAND.
governing the franchise and representation in Ireland and Scotland.
The Irish delegation in the House of Commons is now for the first time
truly representative of the Irish people.
715. The legislation of 1885, by dividing the greater town into single
member constituencies, abolished the ' three-cornered constituencies '
which liad been devised in 1867 for purposes of minoi-ity representa-
tion. Voters in places which returned more than two members were
allowed one vote less apiece in parliamentary elections than the num-
ber of members to be chosen. Thus, if any place returned four mem-
bers, for example, each voter was entitled to vote for three and no
more : it being hoped that the minority would by proper management
under this plan be able to elect one out of the four. The plan was not
found to work well in practice, and has accordingly been abandoned.
716. Election and Term of the Commons. — Members of
the House of Commons are elected, by secret ballot, for a term
of seven years. Any full citizen is eligible for election except
priests and deacons of the Church of England, ministers of
the Church of Scotland, Eoman Catholic priests, and sheriffs
and other returning officers, — and except also, English and
Scotch peers. Irish peers are eligible and have often sat in
the House. ^ The persons thus excepted, — all save the peers,
at least, — can neither sit nor vote.
717. As a matter of fact no House of Commons has ever lived its
full term of seven years. A dissolution, for the purpose of a fresh
appeal to the constituencies, has always cut it off before its statutory
time. The average duration of Parliaments has been less than four
years. The longest Parliament of the present century (elected in 1820)
liveji six years, one month, and nine days.
718. The use of the secret ballot does not rest upon any permanent
statute. -In 1872 its use was voted for one year; and ever since the
provision has been annually renewed.
719. There is no property qualification for election to the House
now, as there was formerly ; but the members receive no pay for their
services; and, unless their constituents undertake to support them, —
as was done in tlie early history of Parliament, and has been done again
in some recent instances, — this fact constitutes a virtual income
qualification.
1 Lord Palmerston, for example, was an Irish peer.
THE GOVEENMBNT OP ENGLAND. 399
720. Summons, Electoral Writ, Prorogation. — No stand-
ing statutes govern the time for electing Parliaments. Parlia^
ment assembles upon summons from the Crown (which, like
all other acts of the Sovereign, now really emanates from the
ministers) ; and the time for electing members is set by writs
addressed to the sheriffs, as of old (sec. 667). Parliament is
also 'prorogued,' (adjourned for the session) by the Sovereign
(that is, the Cabinet) ; and assembled again, after recess, by
special summons.
721. The summons for a new Parliament must be issued at least
thirty-five days before the day set for its assembling ; the summons to a
prorogued Parliament at least fourteen days beforehand. It is now the
invariable custom to assemble Parliament once every year about the
middle of February, and to keep it in session from that time till about
the middle of August.
722. If a seat fall vacant during a session, a, writ is issued for an
election to fill it upon motion of the House itself ; if a vacancy occur
during a recess, the writ is issued at the instance of the Speaker of the
House.
723. Since 1867 the duration of Parliament has not been liable to
be affected by a demise of the Crown ; before 1695 Parliament died
with the monarch. In that year it was enacted that Parliament should
last for six months after the demise of the Crown, if not sooner dis-
solved by the new Sovereign. Parliament, it is now provided, must
assemble immediately upon the death of the Sovereign. If the Sover-
eign's death take place after a dissolution and before the day fixed for
the convening of the new Parliament, the old Parliament is to come
together for six months, if necessary, but for no longer term.
724. Organization of the House. — The Common's elect
their own Speaker (Spokesman) and other officers. The busi-
ness of the House is, as we have seen (sec. 689), quite abso-
■ lutely under the direction of its great committee, the Ministry.
Certain days of the week are set apart by the rules for the
consideration of measures introduced by private members, but
most of the time of the House is devoted to 'government
bills.' The majority put themselves in the hands of their
party leaders, the ministers, and the great contests of the
400 THE GOVERNMENT OF ENGLAND.
session are between the minority on one side of the chamber
and the ministerial party, or majority, on the other side.
725. Down the centre of the hall in which the House sits runs a very
broad aisle. The Speaker's seat stands, upon an elevated place, at the
further end of this aisle, below it the seats and tables of the clerks and
a great table stretching some distance down the aisle, for the reception
of the Sergeant's mace and various books, petition boxes, and papers.
The benches on either side of the aisle face each other. Those which
rise, in tiers, to the Speaker's right are occupied by the majority, the
ministers, their leaders, sitting on the front bench by the great table.
This front bench is accordingly called the ' Treasury Bench,' • — the
Treasury being the leading Cabinet oflSce. On the benches which .rise
to the Speaker's left sit the minority, their leaders also (the ' leaders of
the Opposition,' — the minority being expected, generally with reason,
to be opposed to all ministerial proposals) on the front bench by the
table, and so directly facing the ministers, only the table and the aisle
intervening.
726. II. The House of Lords: Its Composition. — The
House of Lords consisted during the session of 1888 of four
hundred and seventy-six English hereditary peers ( Dukes,
Marquises, Earls, Viscounts, Barons) ; the two archbishops
and twenty-four bishops, holding their seats by virtue of their
offi-ces ; sixteen Scottish representative peers elected by the
whole body of Scotch peers, of whom there are eighty-five, to
sit for the term of Parliament ; twenty-eight Irish peers elected
■by the peers of Ireland, of whom there are one hundred and
seventy-seven, to sit for life ; and three judicial members
known as Lords of Appeal in Ordinary (sees. 728, 735, 736),
sitting, as life-peers only, by virtue of their office.
There is no necessary limitation to the number of hereditary English
peers. Peers can be created at will by the Crown (that is, by the min-
istry), and their creation is in fact frequent. Two-thirds of the present
number of peers hold peerages created in the present century. Thirteen
were created in the year 1886.
The number of Scotch and Irish peers is limited by statute.
The House of Lords is summoned to its sessions when the House of
Commons is and the two must always be summoned together.
THE GOVERNMENT OF ENGLAND. 401
727. Function of the House of Lords in Legislation. —
The House of Lorils is, in legal theory, coequal in all respects
with the House of Commons ; but, in fact, its authority is,
as 1 have already more than once said (sees. 677, 68G, 707),
very inferior. Its consent is as necessary as that of the House
of Commons to every act of legislation ; but it is not suffered
to withhold that consent when the House of Commons speaks
emphatically and with the apparent concurrence of the nation
on any matter : it is then a matter of imperative |)olioy with
it to acquiesce. Its legislative function has been well summed
up as a function of cautious revision. It can stand fast against
the Commons only when there is some doubt as to the will of
the people.
728. The House of Lords as a Supreme Court. — The
House qi Lords is still, however, in fact as well as in form,
the suj)reme court of appeal in England, though it has long
since ceased to exercise its judicial functions (inherited from
the Great Council of Norman times) as a body. Those func-
tions are now always exercised by the Lord Chancellor, who is
ex-officio president of the House of Lords, and three Lords of
Appeal in Ordinary, who are learned judges appointed as life-
peers, specially to perform this duty. These special 'Law
Lords ' are assisted from time to time by other lords who have
served as judges of the higher courts or who are specially
learned in the law.
729. Legislation, therefore, is controlled by the House of
Commons, the interpretation of the law by the judicial mem-
bers of the House of Lords. The House of Lords shares with
the popular chamber the right of law-making, but cannot assert
that right in the face of a pronounced public opinion. The
Sovereign has the right to negative legislation ; but the Sov-
ereign is in the hands of the ministers, and the ministers are in
the hands of the Commons ; and legislation is never negatived.
730. The Constitution of England consists of law and pre-
cedent. She has great documents like Magna Charta at the
402 THE GOVERNMENT OF ENGLAND.
foundation of lier institutions ; but Magna Charta was only a
royal ordinance. She has great laws like the Bill of Eights at
the centre of her political system ; but the Bill of Eights was
only an act of Parliament. She has no written constitution,
and Parliament may, in theory, change the whole structure and
principle of her institutions by mere Bill. But in fact Parlia-
ment dare not go faster than public opinion : and public opin-
ion in England is steadily and powerfully conservative.
That is a very impressive tribute which Sir Erskine May feels able
soberly to pay to the conservatism of a people living under such a form
of government when he says, " Not a measure has been forced upon Par-
liament which the calm judgment of a later time has not since approved ;
not an agitation has failed which posterity has not condemned." i
731. The Courts of Law. — The administration of justice
has always been greatly centralized in England. From a very
early day judges of the king's courts have ' gone on circuit,'
holding their assizes (sittings) in various parts of the country,
in order to save suitors the vexation and expense of haling
their adversaries always before the courts in London. But
these circuit judges travelled from place to place under special
commissions from the ce-ntral authorities of the state, and had
no permanent connections with the counties in which their
assizes were held : they came out from London, were controlled
from London, and, their circuit work done, returned to London.
It was, moreover, generally only the three courts of Common
Law (the Court of King's Bench, the Court of Common Pleas,
and the Court of Exchequer) that sent their judges on circuit;
the great, overshadowing Court of Chancery, which arrogated
so wide a jurisdiction to itself,, drew all its suitors to its own
chambers in "Westminster. The only thing lacking to perfect
the centralization was uniformity of organization and a less
haphazard distribution of jurisdiction among the various courts.
This lack was supplied by a great Judicature Act passed in
1 Constitutional History, Vol. II., p. 243 (Am. ed., 1863).
THE GOVERNMENT OF ENGLAND. 403
1873. By that- Act (which went into force on the 1st E'ovem-
ber, 1875), and subsequent additional legislation extending to
1877, the courts of law, which had grown, as we have seen
(sec. 666), out of that once single body, the ancient Permanent
Council of the Korman and Plantagenet kings, were at last
reintegrated, made up together into a co-ordinated whole.
732. Judicial Reform: the Reorganization of 1873-77. —
These measures of reorganization and unification had been pre-
ceded, in 1846, by a certain degree of decentralization. Cer-
tain so-called County Courts were then created, which are local,
not peripatetic Westminster, tribunals, and which have to a
very considerable extent absorbed the assize business, though
their function, theoretically, is only to assist, not to supplant,
the assizes. Now, therefore, the general ou.tlines of the judi-
cial system are these. The general courts- of the kingdom are
combined under the name. Supreme Court of Judicature.
This court is divided into two parts, which are really two quite
distinct courts ; namely, the High Court of Justice and the
Court of Appeal. Over all, as court of last resort, still stands
the House of Lords. The High Court of Justice acts in three
divisions, a Chancery Division, a Queen's Bench Division, and
a Probate, Divorce, and Admiralty Division ; and these three
divisions constitute the ordinary courts of law, inheriting the
jurisdictions suggested by their names. From them an appeal
lies to the Court of Appeal ; from the Court of Appeal to the
House of Lords. The County Courts stand related to the
system as the Assizes do.
733. " The Chancery Division has five judges besides its pres-
ident, the Chancellor; the Queen's Bench Division has fifteen judges,
of whom one, the Lord Chief Justice, is its president; the Probate,
Divorce, and Admiralty Division lias but two judges, of whom one
presides over the other." ^ This arrangement into divisions is a mere
matter of convenience ; no very strict distinctions as to jurisdiction are
preserved; and any changes that the judges think desirable may be
1 F. W. Maitland, Justice and Police (English Citizen Series), pp. 43, 44.
404 THE GOVERNMENT OF ENGLAND.
made by an Order in Council. Thus an Exchec[uer Diyision and a
Common Pleas division, whicli at first existed, in preservation of the old
lines of organization, were abolished by such an Order in December,
1880. The judges assigned to the various Divisions do not necessarily
or often sit together. Cases are generally heard before only one judge ;
. so that the High Court may be said to have the effective capacity of
twenty-three courts, its total number of judges being twenty-three.
Only when hearing appeals from inferior tribunals, or discharging any
other function different from the ordinary trial of ca^es, must two or
more judges sit together.
734. The Court of Appeals may hear appeals on questions both
of law and of fact. It consists of the Master of the Rolls and five Lords
Justices, who may be said to constitute its permanent and separate
bencli, and of the presidents of the three Divisions of the High Court
who may be called its occaisional members. Three judges are necessary
to exercise its powers, and, in practice, its six permanent members
divide the work, holding the court in two independent sections.
735. The House of Lords may sit, when acting as a court, when
Parliament is not in session, after a prorogation, that is, or even after a
dissolution : for the House of Lords when sitting as a court is like its legis-
lative self only in its modes of procedure. In all other respects it is
totally unlike the body which obeys the House of Commons in law-
making. It is constituted always, as a court, of the Lord Chancellor and
at least two of the Lords of Appeal in Ordinary of whom I have
spoken (sec. 726) ; only sometimes are there added to these a third Lord
of Appeal in Ordinary, an ex-Lord Chancellor, or one or more of such
judges or ex-judges of the higher courts as may have found their way
to peerages. Other members never attend ; or attending, never vote.
736. A Judicial Committee of the Privy Coiuicil, of which
also the Lord Chancellor is a member, and which is presently to con-
sist mainly of the same Lords of Appeal in Ordinary that act in judicial
matters as the House of Lords, constitutes a court of last resort for
India, the Colonies, the Channel Islands, and the Isle of Man.
737. The Lord Chancellor is the most notable officer in the whole
system. He is president of the House of Lords, of the Court of Appeal,
of the High Court of Justice, and of the Chancery Division of the High
Court, and he is a member of the Judicial Committee of the Privy
Council; and he actually sits in all of these except the High Court, —
in the House of Lords and the Privy Council always, in the Court of
Appeal often. More singular still, he is the political officer of the law :
he is a member always of the Cabinet, and like the other members,
THE GOVERNJrENT OF ENGLAND. 405
belongs to a party and goes in or out of ofSoe according to the fayor of
the House of Commons, exercising while in offife, in some sense, the
functions of a Minister of Civil Justice.'
738. Civil Cases are heard either by judges of the High
Court in London, ]>y judges of that court sitting on circuit in
the various 'assize towns' of the county, of \\-hicli there is
always at least one for each county, or by the new County
Courts created in 1846, which differ from the old county courts,
long since decayed and now deprived of all judicial functions,
both in their organization and in their duties. They consist,
not of the sheriff and all the freemen of the shire, but of single
judges, holding their offices during good behavior, assisted by
permanent ministerial officers, and exercising their jurisdiction
not over counties but in districts much smaller than the coun-
ties. They are called county courts only by way of preserving
an ancient and respected name.
739. The County Courts have jurisdiction in all cases of debt or
damage where the sum claimed does not exceed £50, and in certain
equity cases where not more than jE500 is involved — except that cases
of slander, libel, seduction, and breach of promise to marry, as well as
all matrimonial cases are withheld from them. At least, such is their
jurisdiction in rough outline. A full account would involve many de-
tails ; for it has been the tendency of all jecent judicial legislation in
England to give more and more business, even of the most important
kind, to tliese Courts. Their present importance may be judged from
the fact, stated by Mr. Maitland, that "most of the contentious litiga-
tion in England is about smaller sums than " £00.
740. A judge of tlie High Court may send down to a county court,
upon the application of either party, cases of contract in which the sum
claimed does not exceed £100. Any case, however small the pecuniary
claim involved, may be removed from the county to the High Court if
the judge of the county court will certify that important principles of
law are likely to arise in it, or if the High Court or any judge thereof
deem it desirable that it should be removed. Appeals from a county
court to the High Court are forbidden in most cases in which less than
£20 is involved.
1 Maitland, p. 68.
406 THE GOVERNMENT OF ENGLAND.
741. The county court system rests upon the basis of a division of
the country into fifty -six circuits. All but one or two of these include
several ' districts ' — the districts numbering about 501. Each district
has its own separate court, with its own offices, registrar, etc. ; but the
judges are appointed for the circuits, — one for each circuit. They are
appointed by the Lord Chancellor from barristers of seven years' stand-
ing.i
742. Juries are falling more and more into disuse in England in
civil cases. In all the more important causes, outside the Chancery
Division, whose rule of action, like that of the old Chancery Court, is
'no jury,' a jury may be impanelled at the desire of either party; hut
many litigants now prefer to do without, — especially in the County
Courts, where both the facts and the law are in the vast majority of
cases passed upon by the judge alone, without the assistance of the
jury of five which might in these courts be summoned in all cases of
above £20 value.
743. Criminal Cases are tried either before the county Jus-
tices of the Peace, who are unpaid officers appointed by the
Chancellor upon the recommendation of the Lords Lieutenant
of the Counties ; before borough Justices, who are paid judges
much like all others ; or before judges of the High Court on
circuit. The jurisdiction of the Justices may be said to include
all but the gravest offences, all but those, namely, which are
punishable by death or by penal servitude, and except, also,
perjury, forgery, bribery, and libel. There are many Justices
for each county, there being no legal limit to their number;
and they exercise their more important functions at general
Quarter Sessions, at general sessions, that is, held four times
yearly. The criminal assizes of the High Court also are held
four times a year. All criminal cases, except, of course, those
of the pettiest character, such as police cases, are tried before
juries.
" About one-half of the criminal trials," it is stated,^ " take place at
county sessions, about one-fourth at borough sessions, the rest at Assizes
or the Central Criminal Court," the great criminal court of London.
1 The various Acts affecting the county courts were amended and con-
solidated by the County Courts Act, 1888. ^ Maitland, p. 86.
THE GOVERNMENT OP ENGLAND. 407
744. Quarter and Petty Sessions. — For the exercise of their more
important judicial functions the Justices meet quarterly, in Quarter
Sessions; but for minor duties in which it is not necessary for more
than two Justices to join, there are numerous Petty Sessions held at
various points in the counties. Each county is divided by its Quarter
Sessions into petty sessional districts, and every neighborhood is given
thus its own court of Petty Sessions, — from which in almost all cases
an appeal lies to Quarter Sessions. Thus the important function of
licensing (sec. 771) is exercised by Petty Sessions, subject to appeal to
the whole bench of Justices.
745. The Justices of the Peace were, as we shall see more partic-
ularly in other connections (sees. 754-757), the general governmental
authorities of the counties, until the reform of local government effected
in 1888, exercising functions of the most various, multifarious, and
influential sort. They are generally country gentlemen of high stand-
ing in their counties, and serve, as already stated, without pay. They
are appointed, practically, for life. The 'Commission of the Peace,' —
the commissioning, that is, of Justices of the Peace, — originated in
the fourteenth century, and has had a long history of interesting devel-
opment. Considering tlie somewliat autocratic nature of the office of
Justice, it has been, on the whole, exercised with great wisdom and
public spirit, and during most periods with extraordinary moderation,
industry, and effectiveness.
746. The duties which Americans associate with the office of Justice
of the Peace are exercised in England, not by the bench of Justices
sitting in Quarter Sessions, — they then constitute, as we have seen, a
criminal court of very extensive jurisdiction, — but by the Justices singly,
sitting either formally or informally. A single Justice may conduct
the preliminary examination of a person charged with crime, and may
commit for trial if reasonable ground of suspicion be proved. A single
Justice also can issue search warrants to the constabulary for the detec-
tion of crime, etc.
747. Police. — The police force, or, in more English phrase,
the constabulary, of the kingdom is overseen from London by
the Home Office, which makes all general rules as to its dis-
cipline, pay, etc., appoints royal inspectors, and determines,
under the Treasury, the amount of state aid to be given to the
support of the forces ; but all the real administering of the
system is done by the local authorities. In the Counties a
408 THE GOVERNMENT OF ENGLAND.
joint Committee of Quarter Sessions and the County Council
appoint the Chief Constable, who appoints and governs the
force with powers of summary dismissal and punishment, but
who acts in all things subject to the governing control of the
Committee. In those towns which undertake to maintain a
force distinct from that of the County the Head Constable is
chosen by the town authorities and the direction of the force
is superintended by a ' Watch Committee ' of the Town Coun-
cil. London, which employs, it is stated, one-third of the en-
tire police force of the kingdom, has been given a special,
exceptional system of its own. . The city police are governed
by a Commissioner and two Assistant Commissioners who are
appointed by the Home Secretary and serve directly under his
au.thority.
The police throughout the country are given something like military
drill and training, the organization heing made as perfect, the training
as thorough, and the discipline as effective as possible. Ex-array offi-
cers are preferred for the office of Chief Constable.
II. LooAL Government.
748. Complex Character of Local Government in England.
— The subject of local government in England is one of ex-
treme complexity and, therefore, for my present purpose of
brief description, one of extreme difficulty. So perfectly un-
systematic, indeed, are the provisions of English law in this
field that most of the writers who have undertaken to expound
them — even to English readers — have seemed to derive a
certain zest from the despairful nature of their task — a sort
of forlorn-hope enthusiasm. The institutions of local govern-
ment in England have grown piece by piece as other English
institutions have grown, and not according to any complete or
logical plan of statutory construction. They are patch-work,
not symmetrical net-work, and the patches are of all sizes and
colors.
THE GOVERNMENT OF ENGLAND. 409
"For almost every new administrative function," complains one of
the recent handbooks on the subject, " the Legislature has provided a
new area containing a new constituency, who by a new method of elec-
tion choose candidates who satisfy a new qualification, to sit upon a new
board, during a new term, to levy a new rate [tax], and to spend a
good deal of the new revenues in paying new officers and erecting new
buildings." ^
749. It has been the habit of English legislators, instead of
perfecting, enlarging, or adapting old machinery, to create all
sorts of new pieces of machinery with little or no regard to
their fitness to be combined with the old or with each other.
The Local Government Act of 1888 represents the first delib-
erate attempt at systematization ; but even that Act does not
effect system, and itself introduces additional elements of con-
fusion by first adopting another Act (the Municipal Corpora^
tions Act of 1882) as its basis and then excepting particular
provisions of that Act and itself substituting others in respect,
not of all, but of some of the local administrative bodies meant
to be governed by it. It would seem as logical a plan of de-
scription as any, therefore, to discuss the older divisions and
instrumentalities first and then treat afterwards of more recent
legislative creations as of modifications — of however hap-
hazard a kind — of these.
760. General Characterization. — In general terms, then,
it may be said, that throughout almost the whole of English
history, only the very earliest periods being excepted, counties
and towns have been principal imits of local government ; that
the parishes into which the counties have been time out of mind
divided, though at one time of very great importance as admin-
istrative centres, were in course of time in great part swallowed
up'by feudal jurisdictions, and now retain only a certain mfnor
part in the function, once exclusively their own, of caring for
the poor ; and that this ancient framework of counties, towns,
1 Local Administration (Imperial Parliament Series), by Wm. Rathbone,
Albert Pell, and F. C. Montague, p. 14.
410 THE GOVERNMENT OP ENGLAND.
and parishes has, of late years, been extensively overlaid and
in large part obscured : (a) by the combination (1834) of par-
ishes into ' Unions ' made up quite irrespective of county
boundaries and charged not only with the immemorial parish
duty of maintaining the poor but often with sanitary regula-
tion also and school superintendence, and generally with a mis-
cellany of other functions ; (6) by the creation of new districts
for the care of highways; and (c) by new varieties of town
and semi-town government. The only distinction persistent
enough to serve as a basis for any classification of the areas and
functions of the local administration thus constructed is the
distinction between Rural Administration and Urban Adminis-
tration, — a distinction now in part destroyed by the Act of
1888 ; and of these two divisions of administration almost the
only general remark which it seems safe to venture is, that
Rural Administration has hitherto rested much more broadly
than does Urban on old historical foundations.
751. The County: Its Historical Rootage. — For the
County, with its influential Justices of the Peace and its wide
administrative activities, is still the vital centre of rural govern-
ment in England; and the Counties are in a sense older than
the kingdom itself. Many of them, as we have seen (sec. 665)
represent in their areas, though of course no longer in the
nature of their government, separate Saxon kingdoms of the
Heptarchy times. When they were united under a single throne
they retained (it would appear) their one-time king and his
descendants in the elder male line as their eoldormen. They
retained also their old general council, in which eoldorman
and bishop presided, though there was added presently to these
presidents of the older order of things another official, of the
new order, the king's officer, the Sheriff. To this council went
up as was of old the wont, the priest, the reeve, and four picked
men from every township, together with the customary dele-
gates from the 'hundreds.'
Of course the Counties no longer retain these antique forms
THE GOVERNMENT OP ENGLAND. 411
of government ; scarcely a vestige of them now remains. But
the old forms gave way to the forms of the present by no sud-
den or violent changes, and some of the organs of county gov-
ernment now in existence could adduce plausible proof of their
descent. from the manly, vigorous, self-centred Saxon institu-
tions of the ancient time.
762. Early Evolution of the County Organs. — In Norman
times the eoldorman's office languished in the shadow of the
Sheriff's great authority. The spiritual and temporal courts
were separated, too, and the bishop withdrew in large measure
from official participation in local i»litical functions. The
County Court became practically the Sheriff's Court ; its suitors
the freeholders. Its functions were, however, still consider-
able : it chose the officers who assessed the taxes, it was the
medium of the Sheriff's military administration, and it was
still the_ principal source of justice. But its duties were not
slow to decay. As a Court it was speedily handed over to the
king's itinerant justices, who held their assizes in it and heard
all important cases : all ' pleas of the Crown.' Its financial
functions became more and more exclusively the personal func-
tions of the Sheriffs, who were commonly great barons, who
managed in some instances to make their office hereditary,
and' who contrived oftentimes to line their own pockets with
the proceeds of the taxes : for great barons who were sheriffs,
were sometimes also officials of the Exchequer,' and as such
audited their own accounts. The local courts at last became
merely the instruments of the Sheriffs and of the royal judges.
753. Decline of the Sheriff's Powers. — It was the over-
bearing power of the Sheriffs', thus developed, that led to the
great changes which were to produce the county government
of our own day. The interests alike of the Court and of the
people became enlisted against them. The first step towards
displacing them was taken when the royal justices were sent
on circuit. Next, in 1170, under Henry II.'s capable direction,
the great baronial sheriffs were tried for malfeasance in office,
412 THE GOVERNMENT OP ENGLAND.
and, though influential enough to escape formal conviction,
were not influential enough to retain their offices. They were
dismissed, and replaced by Exchequer officials directly depen-
dent upon the Crown. In 1194, in the next reign, it was
arranged that certain 'custodians of pleas of the crown' should
be elected in the counties, to the further ousting of the
Sheriffs from their old-time judicial prerogatives. Then came
Magna Charta (1215) and forbade all participation by Sheriffs
in the administration of the king's justice. Finally the
tenure of the office of Sheriff, which was now little more than
the chief place' in the militia of the county and the chief
ministerial office in connection with the administration of jus-
tice, was limited to one year. The pulling down of the old
system was complete ; fresh construction had already become
necessary.
754. Justices of the Peace. — The reconstruction was
effected through the appointment of ' Justices of the Peace. '
The expedient of ' custodians of pleas of the crown ' (custodes
placitorum coronal) elected in county court, as substitutes for
the Sheriff in the exercise of sundry important functions of
local justice, soon proved unsatisfactory. They, too, like the
Sheriffs, were curtly forbidden by Magna Charta to hold any
pleas of the crown ; and they speedily became only the coro-
ners we know ('crowners' Shakspere's grave-digger in Hamlet
very appropriately calls them), whose chief function it is to
conduct the preliminary investigation concerning every case
'of sudden death from an unknown cause. Better success
attended the experiment of Justices of the Peace. At first
' Conservators ' of the peace merely, these officers became, by a
statute passed 1360, in the reign of Edward III., justices also,
intrusted with a certain jurisdiction over criminal cases, to
the supplanting of the Sheriff in the last of his judicial func-
tions, his right, namely, to pass judgment in his tom-n or petty
court on police cases, — to apply the discipline of enforced
order to small offences against the public peace,
THE GOVERNMENT OP ENGLAND. 413
756. Henceforth, as it turned out, the process of providing
ways of local government was simple enough, as legislators
chose to conduct it. It consisted simply in charging the Jus-
tices of the Peace with the doing of everything that was
necessary to be done. Slowly, piece by piece, their duties and
prerogatives were added to, till the Justices had become im-
measurably the most important functionaries of local govern-
ment, combining in their comprehensive official characters
almost every judicial and administrative power not exercised
from London. Not till the passage of the Local G-overnment
Act of 1888, already referred to, were they relegated to their
older and most characteristic judicial functions, and their
administrative and financial j)owers transferred to another
body, the newly created County Council.
756. Functions of Justices of the Peace prior to Recent Re-
forms. — The Justice of the Peace has been very happily described as
having been under the old system " the state's man of all work." His
multifarious duties brought him into the service (a) of the Privy Coun-
cil, under whose Veterinary Department he participated in the adminis-
tration of the Acts relating to contagious cattle diseases ; (i) of the
Home Office, under which he acted in governing the county constabu-
lary, in conducting the administration of lunatic asylums, and in visiting
prisons ; (c) of the Board of Trade, under whose general supervision he
provided and tested weights and measures, constructed and repaired
bridges, and oversaw highway authorities ; and (rf) of the Local Gov-
ernment Board, under whose superintendence he appointed parish over-
seers of the poor, exercised, on appeal, a revisory power over the poor-
rates, and took a certain part in sanitary regulation. The Justices,
besides, formerly levied the county tax, or ' rate,' out of which the
expenses of county business were defrayed, issued licenses for the sale
of intoxicating drinks (as they still do), for the storage of gunpowder
and petroleum, and for other undertakings required by law to be licensed ;
they divided the counties into highway, polling, and coroners' districts ;
they issued orders for the removal of paupers to their legal place of
settlement ; they fulfilled a thousand and one administrative functions
too various to classify, too subordinate to need enumeration, now that
most of them have been transferred to the Councils. The trial of crimi-
nal cases, together with the performance of the various functions attend-
414 THE GOVERNMENT OF ENGLAND.
ant upon such a jurisdiction, always constituted, of course, one of the
weightiest duties of their office, and is now its chief and almost only
duty.
"Long ago," laughs Mr. Maitland, speaking before the passage of
the Act of 1888, " long ago lawyers abandoned all hope of describing
the duties of a justice in any methodic fashion, and the alphabet has
become the only possible connecting thread. A Justice must have some-
thing to do with ' Railroads, Rape, Rates, Eeeognieances, Records, and
Recreation Grounds ' ; with ' Perjury, Petroleum, Piracy, and Play-
houses'; with 'Disorderly Houses, Dissenters, Dogs, and Drainage.'" '
757. Character and Repute of the Office of Justice. — The office
of Justice of the Peace is representative in the same sense — not an un-
important sense — in which the unreformed parliaments of the early
part of the century were representative of the county populations. The
Justices are appointed from among the more considerable gentry of the
counties, and represent in a very substantial way the permanent inter-
ests of the predominantly rural communities over whose justice they
preside. An interesting proof of their virtually representative char-
acter appears in the popularity of their office during the greater part
of its history. Amidst all the cxleusions of the franchise, all the re-
making of representative institutions which this century has witnessed
in England, the Justiceship of the Peace remained practically untouched,
because on all hands greatly respected, until the evident need to intro-
duce system into local government, and the apparent desirability of
systematizing it in accordance with the whole policy of recent reforms
in England by extending the principle of popular representation by
election to county government, as it had been already extended to ad-
ministration in the lesser areas, led to the substitution of County Coun-
cils for the Justices as the county authority in financial and administra-
tive affairs.
758. The Lord Lieutenant — In the reign of Mary a ' Lord
Lieutenant ' took the place of the Sheriff in the County as head
of the militia, becoming the chief representative of the crown
in the County, and subsequently the keeper of the county
records {Gustos Rotnlorum). The SherifE, since the comple-
tion of this change, has been a merely administrative officer,
executing the judgments of the courts, and presiding over
1 Justice and Police, p. 84.
THE GOVERNMENT OP ENGLAND. 415
parliamentary elections. The command of the militia re-
mained with the Lords Lieutenant until 1871, when it was
vested in the crown, — that is, assumed by the central admin-
istration.
Justices of the Peace are still appointed by the Chancellor upon the
nomination of the Lord Lieutenant of each county (sec. 743).
759. The Reform of 1 888.— The reform of local adminis-
tration proposed by the ministry of Lord Salisbury, in the
spring of 1888, although not venturing so far as it would be
necessary to go to introduce order and symmetry into a patch-
work system, suggested some decided steps in the direction of
simplification and co-ordination. The confusions of the exist-
ing arrangements were many and most serious. England is
divided into counties, boroughs, urban sanitary districts, rural
sanitary districts, poor-law parishes, poor-law unions, highway
parishes, and school districts ; and these areas have been
superimposed upon one another with an astonishing disregard
of consistent system, — without, that is, either geographical
or administrative co-ordination. The confusions to be reme-
died, therefore, may be said to have consisted (a) of the over-
lapping of the various areas of local government, the smaller
areas not being in all cases subdivisions of the larger, but
defined almost wholly without regard to the boundaries of any
other areas ; (b) of a consequent lack of co-ordination and
subordination among local authorities, fruitful of the waste of
money and the loss of eificiency always resulting from confu-
sions and duplications of organization ; (c) of varieties of time,
method, and franchise in the choice of local officials ; and (c?)
of an infinite complexity in the arrangements regarding local
taxation, the sums needed for the various purposes of local
government (for the poor, for example, for the repair of high-
ways, for county outlays, etc.) being separately assessed and
separately collected, at great expense and at the cost of great
vexation to the tax-payer.
416 THE GOVERNMENT 0¥ ENGLAND.
Mr. Goschen is stated to have said in debate upon this subject,
"Every one knows that the first reform needed is to consolidate all
rates and to have one demand note for all rates, and a single authority
for levying the rate and distributing the proceeds among such other
anthorities as have power to call for contributions. It is astonishing
that this should not have been done already. Let nie give you my
personal experience. I myself received in one year eighty-seven demand
notes on an aggregate valuation of about jEIIOO. One parish alone
sent me eight rate-papers for an aggregate amount of 12s. 4d. The
intricacies of imperial finance are simplicity itself compared with this
local financial chaos."
760. The ministry at first proposed to remedy this confusion,
at least in part, by largely centring administration, outside the
greater towns, in two areas, the County and the District. The
system of poor-relief, through parishes and unions (sees. 780,
781, 787, 788), was to be left untouched, but a beginning was
to be made in unification by making the Counties and Districts
the controlling organs of local government, and provision was
to be made for extensive readjustments of boundaries which
would bring the smaller rural areas into proper relation and
subordination to the larger by making them in all cases at least
subdivisions of counties. Little was proposed in rectification
of the financial disorder so patent and so wasteful under exist-
ing arrangements ; but both County and District were to have
representative councils presumably fitted ultimately to assume
the whole taxing function. The franchise by which these
bodies were to be elected was to be assimilated to the simplest
and broadest used in local and parliamentary elections. It was
proposed, moreover, in the interest of uniformity, that the con-
stitution of the councils should be substantially the same as
that of the borough and urban district councils already in
existence.
761. Only a portion of this reform, however, made its way
through Parliament and became an Act : the ' Local G-overn-
ment Bill,' though it retained its name, became in reality only
a County Government Bill before it reached its passage. The
.THE GOVERNMENT OF ENGLAND. 417
provisions relating to Districts were left out, and only the
county was reorganized. The larger boroughs were given
county privileges, the smaller brought into new and closer re-
lations with the reconstructed county governments. London,
too, was given a county organization. The integration of the
smaller areas of rural administration with the new county
system was left "for another time.
This completion of the reform was promised for an early date by the
ministry, however, and may perhaps be very soon accomplished.^
762. Administrative Counties and County Boroughs. —
The Act of 1888, as it stands, co-ordinates Counties and what
are henceforth to be called. " County Boroughs." Every bor-
ough of not less than fifty thousand inhabitants at the time
the Act was passed, or which was, before the passage of the
Act, treated as a county (in all, sixty-one boroughs) is consti-
tuted a " county borough," and is put alongside the county in
rank and privileges. This does not mean, as it would seem to
mean, that these boroughs have been given a county organiza-
tion. Paradoxically enough, it means just the opposite, that
the counties have been given an organization closely resembling
that hitherto possessed by the boroughs only. The nomencla-
ture of the Act would_ be more correct, though possibly less
convenient, had it called the counties ' borough counties ' in-
stead of calling some boroughs ' county boroughs.' The meas-
ure has been very appropriately described as an Act to apply
the Municipal Corporations Act of 1882, whose main provisions
date back as far as 1835 (sec. 794), to county government, with
certain relatively unimportant, modifications.
763. The counties designated by the Act are dubbed " admin-
istrative counties," because they are not in all cases the histor-
ical counties of the map. In several instances counties are
separated into parts for the purposes of the reorganization.
Thus the East Eiding of Yorkshire constitutes one ' admji>is-
1 Written March, 1889.
418 THE GOVERNMENT OP ENGLAND.
trative comity,' the North Riding another, and the West Rid-
ing a third ; Suffolk and Sussex also have each an East and
West division; Lincoln falls apart into three administrative
counties, etc.
All boroughs of less than 50,000 inhabitants not treated as counties
are more or less incorporated with the counties in which they lie.
If any urban sanitary district lie within more tharf one county, it is
to be deemed to belong to the county in which the greater part of its
population live according to the census of 1881.
764. The County Councils : their Constitution. — In pur-
suance of the purpose of assimilating county to borough organ-
ization, the counties are given representative governing assem-
blies composed of councillors and 'aldermen, presided over by
a chairman whose position and functions reproduce those of the
borough mayors, and possessing as their outfit of powers all
the miscellany of administrative functions hitherto belonging
to the Justices of the Peace. There is not, it should be ob-
served, a Council and a Board of Aldermen, as in American
cities, but a single body known as the Council and composed
of two classes of members, the one class known as Aldermen,
the other as Councillors. These two classes differ from each
other, not in power or in function, but only in number, term,
and mode of election. The Councillors -are directly elected by
the qualified voters of the County and hold office for a term of
three years ; the Aldermen are one-third as many as the Coun-
cillors in number, are elected by the Councillors, either from
their own number or from the qualified voters outside, and
hold office for six years, one-half of their number, however,
retiring every three years, in rotation. This Council of Alder-
men and Councillors elects its own chairman, to serve for one
year, and pays him such compensation as it deems sufficient.
During his year of service the chairman exercises the usual
presidential, but no independent executive, powers, and is au-
thorized "to act as a Justice of the Peace, along with the rest
of the ' Commission ' of the County.
THE GOVEUN.AIEXT OF ENGLAND. 419
765. Any one may be elected a councillor who is a qualified voter in
the county, or who is entitled to vote in parliamentary elections by
virtue of ownership of property in the county; and in the counties,
thougli not in the boroughs, from whose constitution this of the coun-
ties is copied, peers owning property in the county and "clerks in holy
orders and otlicr ministers of religion" may be chosen to the council.
766. The number of councillors, and consequently also the num- '
ber of aldermen, in each County Council (for the latter number is
always one-third of the former) was fixed in the first instance by order
of the Local Government Board, and is in some cases very large. Thus
Lancashire has a council (aldermen, of course, included) of 140 mem-
bers, the West Riding of Yorkshire a council of 120, Devon a council
of 104. Rutland, whose council is the smallest, has 28. The average
is probably about 75.
767. For the election of councillors the county, including the bor-
oughs which are not ' county boroughs,' is divided into electoral distrins,
corresponding in number to the number of councillors, one councillor
being chosen from each district. The number of these districts having
been determined by the order of the Local Government Board, their
area and disposition were fixed in the first instance by Quarter Sessions,
or, within the non-county boroughs needing division, by the borough
Council, due regard being had to relative population and to a fair divis-
ion of representation between rural and urban populations.
768. The number of councillors and the boundaries of electoral dis-
tricts may be changed by order of the Local Government Board upon
the recommendation of the council of a borough or county.
769. The County Franchise. — The councillors are elected,
to speak in the most general terms, by the resident ratepayers
of the county. Every person, that is to say, not an alien or
otherwise specially disqualified, who is actually resident within
the county or within seven miles of it, paying rates in the
county and occupying, within the county, either jointly or
alone, any house, warehouse, counting-house, shop, or other
building for which he pays rates is entitled to be enrolled (if
his residence has been of twelve months' standing) and to vote
as a county elector.
A person who occupies land in the county of the annual value of
£10 and who resides in the county, or within seven miles of it, may vote
420 THE GOVEENMENT OF ENGLAND.
in the elections for county councillors though his residence has been
of only six months' standing.
Single women who have the necessary qualifications as ratepayers
and residents are entitled to vote as county electors.
770. Power of the County Councils. — The Council of each
County is a body corporate, under the title of the "County
Council of " (the name of the administrative county),
and as such may have a common seal, hold property, make by-
laws, etc. Its by-laws, however, unless they concern nuisances,
are subject to approval by the Secretary of State,' and may be
annulled by an order in Council.
(1) The Council holds and administers all county property,
and may purchase or lease lands or buildings for county vises ;
(2) With it rests the duty of maintaining, managing, and,
when necessary, enlarging, the pauper lunatic asylums of the
county, and of establishing and maintaining, or contributing
to, reformatory and industrial schools ;
(3) It is charged with maintaining county bridges, and all
main roads in every part not specially reserved by urban author-
ities for their own management because lying within their own
limits ; and it may declare any road a main road which seems
to serve as such, and which has been put in thorough repair,
before being accepted by the county, by the local highway
authorities (sec. 786) ;
(4) It administers the statutes affecting the contagious dis-
eases of animals, destructive insects, fish preservation, weights
and measures, etc. ;
(5) It appoints, pays, and may remove the county Treas-
urer, the county coroner, the public surveyor, the county
analyst, and all other officers paid out of the county rates —
except the clerk of the Peace and the clerks of the Justices —
including the medical health officers, though these latter func-
tionaries report, not to the Council (the Council receives only
1 Presumably the Home Secretary.
THE GOVEl;XMENT OF ENGLAND. 421
a copy of their report), but to tlie Local Government Board,
and the only power of the Council in the premises is to address
to the Board, independently and of their own motion, represen-
tations as to the enforcement of the Public Health Acts where
such representations seem necessary ;
(6) It determines the fees of the coroner and controls the
division of the county into coroners' districts ;
(7) It divides the county into polling districts also for par-
liamentary elections, appoints voting places, and supervises
the registration of voters ;
(8) It sees to' the registering of places of worship, of the
rules of scientific societies, of charitable gifts, etc.
It is obviously impossible to classify or make any generalized state-
ment of tliis miscellany of powers : they must be enumerated or not
stated at all. They are for the most part, though not altogether, the
administrative powers formerly intrusted to the Justices of the Peace.
771. The licensing function, as being semi-judicial, is left
in most cases with the Justices of the Peace ; but the County
Council is assigned the granting of licenses to music and danc-
ing halls, to houses which are to be devoted to the public per-
formance of stage plays, and for the keeping of explosives.
Oddly enough, the County Council is, by Another section of the Act
of 1888, authorized to delegate its powers of licensing in the case of play-
houses and in the case of explosives back to the Justices again, acting
in petty sessions. The same section also permits a similar delegation
to the Justices of the powers exercised by the Council under the Act
touching contagious cattle diseases.
772. The financial powers of the Council are extensive
and important. The Council takes the place of the Justices in
determining, assessing, and levying the county, police and hun-
dred rates, in disbursing the funds so raised, and in preparing
or revising the basis or standard for the county rates ; though
in this last matter it acts subject to appeal to Quarter Sessions.
It may borrow money, " on the security of the county fund,"
for the purpose of consolidating the county debt, purchasing
422 THE GOVERNMENT OF ENGLAND.
property for the county, or undertaking permanent public
■works, provided it first obtain the consent of the Local Gov-
ernment Board to the raising of the loan. The Board gives or
vi^ithholds its consent only after a local inquiry, and, in case
it assents, fixes the ijeriod vsrithin which the loan must be
repaid, being itself limited in this last particular by a provis-
ion of law that the period must never exceed thirty years.
If the debt of the county already exceed ten per cenl. of the annual
ratable value of tlie ratable property of the county, or if the proposed
loan would raise it above that amount, a, loan can be sanctioned only by
I a provisional order of the Board, — an order, tliat is, ■which becomes valid
only upon receiving the formal sanction of parliament also, given by
public Act.
A county may issue stock, under certain limitations, if tlie consent
of the Local Government Board be obtained.
773. Additional Poiwers. — The Act of 1888 provides that any
other powers which have been conferred upon the authorities of
particular localities by special Act, and which are similar in character
to those already vested in the County Councils, may be transferred to
the proper County Councils by provisional order of the Local Govern-
ment Board ; and also that a similar provisional order of that Board
may confer upon a County Council any powers, arising within the County,
which are now exercised by the Privy Council, a Secretary of State,
the Board of Trade, the Local Government Board itself, or any other
government department, provided they be powers conferred by statute
and the consent of the department concerned be first secured.
774. The County Budget. — At the beginning of every
local financial year (April 1st) an estimate of the receipts and
expenditures of the year is submitted to the Council, and upon
the basis of this, the Council makes estimate of the sums to
be needed, and fixes the rates accordingly. The Council's esti-
mate is made for two six-month periods, and is subject to revis-
ion for the second six-month period, provided the experience
of the first prove it necessary either to increase or decrease the
amounts to be raised.
775. Eeturns of the actual receipts and expenditures of each
financial year are also made to the Local Government Board,
THE GOVERNJIENT OF ENGLAND. 423
ill such form and with sucli particulars as tlie Board directs ;
and full abstracts of these returns are annually laid before both
Houses of I'arliaraent. Tlie county accounts arc, moreover,
periodically audited by district auditors appointed by the
Local Government Board.
The accounts of the county Treasurer are audited, too, by tlie Council.
776. Local rates are assessed exclusively upon real estate,
and, until the passage of the Local Government Act of 1888, it
was the habit of Parliament to make annual ' grants in aid of
the rates ' from the national purse, with the idea of paying out
of moneys raised largely upon personal property some part of
the expense of local administration. The Act of 1888 sub-
stitutes another arrangement. It provides that all moneys
collected from certain licenses (a long list of them, from liquor
licenses to licenses for male servants and guns), together with
four-fifths of one-half of the proceeds of the probate duty,
shall be distributed among the counties from the imperial
treasury, under the direction of the Local Government Board,
for the purpose of defraying certain specified county expenses,
notably for the education of paupers and the support of pauper
lunatics.
777. The police powers, long exercised by the Justices of
the Peace, are now exercised by a joint committee of Quarter
Sessions and the County Council. This committee is made up,
in equal parts, of Justices and members of the Council ; elects
its own chairman, if necessary (because of a tie vote) , by lot ;
and acts when appointed, not as exercising delegated authority,
but as an independent body. The term of the committeemen
is, however, determined by the bodies which choose them.
778. The County Council is empowered to act in the exercise of all
but its financial powers through committees, and to join in action with
other local authorities in any proper case through a, standing joint
committee such as that which has control of the constabulary.
779. Boundaries. — The Act of 1888 provides for the much needed
co-ordination of areas by empowering the Local Government Board,
"■"^"^"■^
424 THE GOVERNMENT OF ENGLAND.
acting upon the recommendation of a. county or a borough council,
and after a local inquiry publicly held before a Local Goyernment
Board inspector, to make an order for the alteration of county or
borough boundaries, for the union of two boroughs, or for the alter-
ation of any area of local government only partly included in a county •
or borough. Such an order is provisional, however, and must await
the assent of Parliament.
A County Council, moreover, may itself provide for the alteration or
definition of the boundaries of any parish or any county district which
is not a borough, for the union of such parish or district with other
districts or parishes, or for the conversion of rural into urban, or urban
into rural, districts. In case such an order is made by a Council, how-
ever, three months is to be allowed for protests on the part of county
electors. These protests are to be addressed to the Local Government
Board. In case a protest is entered under the proper conditions as to
number and electoral qualification of the protestants, a local inquiry
must be held, and the order may be disallowed. If there be no contest
made in the matter, the order must be confirmed.
780. The Parish. — Parishes there have been in England
ever since the Christian church was established there ; but the
Parish which now figures most prominently in English local
government inherits only its name intact from those first years
of the national history. The church, in its first work of or-
ganization, used the smallest units of the state for the smallest
divisions of its own system ; it made the township its parish ;
and presently the priest was always seen going up with the
reeve and the four men of the township to the hundred and
the county courts. Only where the population was most
numerous did it prove necessary to make the parish smaller
than the township ; only when it was least numerous did it
seem expedient to make the parish larger than the township.
Generally the two were coincident. During much the greater
part of English history, too, citizenship and church member-
ship were inseparable in fact, as they still are in legal theory.
The vestry, therefore, which was the assembly of church-mem-
bers which elected the church-wardens and regulated the tem-
poralities of the local church, was exactly the same body of
THE GOVERNMENT OF ENGLAND. 425
persons that, when not acting upon church affairs, constituted
the township meeting. It was the village moot ' in its eccle-
siastical aspect.' And when the township privileges were, by
feudalization, swallowed up in the manorial rights of the baron-
age, the vestry was all that remained of the old organization of
self-government • the court, or civil assembly, of the township
was superseded by the baron's manorial court. But the church
was not absorbed; the vestry remained, and whatever scraps
of civil function escaped the too inclusive sweep of the grants
of jurisdiction to the barons the people were fain to enjoy as
vestrymen.
781. The Poor-law Parish. — It was in this way that it fell
out that the township, when acting in matters strictly non-
ecclesiastical came to call itself the parish, and that it became
necessary to distinguish the ' civil parish ' from the ' ecclesias-
tical parish.' The vestry came at last to elect, not church-
wardens only, but way-wardens also, and assessors ; and in the
sixteenth century (1636, reign of Henry VIII.) the church-
wardens were charged with the relief of the poor. We are
thus brought within easy sight of the only parish of which it
is necessary to speak at any length in describing the present
arrangements of local government in England, the Poor-law
Parish, namely. The legislation of the present century, which
has been busy about so many things, has not failed to readjust
the parish: in most cases, as altered by statute to suit the
conveniences of poor-law administration, "the modern civil
parish coincides neither with the ancient civil parish, nor with
the ecclesiastical parish," but has been given a new area pecu-
liar to itself. Still, the old parochial machinery survives, and
the old parochial duty of contributing to the support of the
poor. The Poor-law Parish has still its vestry which elects
parish officers ; and still also the church-wardens are ex officio
overseers of the poor. The important feature of the new
administration is, that as actual administrators the parochial
officers have been subordinated to a wider authority. The
426 THE GOVERNMENT OP ENGLAND.
parish is the unit of taxation for the support of the poor, but
the work of assessing and collecting the taxes is done by over-
seers appointed by the county Justices, not by the church-war-
dens, who are now associate, ex officio, overseers merely ; and
the active administration of poor-relief has been intrusted to
the authorities of the 'Union.' The history of the parish,
as an area of civil government, is important, therefore, not
because of what the parish is, but because of what the parish
has been. The administrative history of the parish rounds
out the administrative history of the county, by showing how
the parish-township, the original constituent unit of the county,
has been overlaid by later constructions.
782. Poor-law parishes know no distinction between town and country.
Tliey cover a certain definite area, whetlier tliat area lies within a town or
without, or partly within and partly without. They thus often combine
urban with rural populations for the purposes of poor-law taxation.
783. The ordinary overseers are not paid officers'; but one or more
assistant overseers, who are paid, may be elected by the vestry of a poor-
law parish (to be appointed under the seal of the Justices) ; and when
such officers are appointed they naturally do most of the work.
784. The duties now remaining with the vestry are, chiefly, the
management of parochial property and the administration of certain
locally optional acts, when adopted, concerning the establishment and
maintenance of free libraries and the special lighting and patrolling of
the parochial territory.
Vestries are either 'common' or 'select.' A 'common' vestry
consists of all the ratepayers of the parish, — is a general parish meet,
ing. A 'select' vestry consists of elected representatives of the rate-
payers.
785. The parish serves as an electoral and jury district as well as a
tax district, and the overseers of the poor, besides assessing and raising
the poor-rates, make out the jury lists and the lists of parliamentary,
county, and municipal voters.
786. The Highway Parish. — Various rural 'parishes,' some of
which coincide with the poor-law parish, but others of which are quite
distinct, are charged with an administrative part in the maintenance of
the highways. Often, however, rural parishes are grouped for this pur-
pose into larger ' Highway Districts ' created by order of the Justices in
THE GOVERNMENT OF ENGLAND. 427
Quarter Sessions, and whose way-wardens are elected by the several
component parishes. Urban districts, again, have, in their turn, separate
highway authorities of their own.
787. The Union. — The Union is primarily an aggregation
of parishes effected with a view to a wider and better adminis-
tration of the poor-laws ; though, like most of the districts of
local government in England, it has been charged since its
formation with many functions in no way connected with the
purposes for which it was originally created. In 1834 a cen-
tral Commission was constituted by Act of Parliament to exer-
cise a general oversight over the administration of the poor-
laws, the Act being known as the Poor Law Amendment Act.
This Commission was authorized to group the parishes of the
kingdom into ' Unions ' for the better organization and control
of poor-relief. It was succeeded in time by a more complete
Poor Law Board ; and that Board, in its turn, by the present
Local Government Board. This latter now completely controls
the Unions : it can change, abolish, or subdivide them ; it con-
trols the appointment and dismissal of all Union ofB.cers ; and
it audits, through special district auditors. Union accounts.
788. The administrative authority of the Union is a Board
of Guardians, consisting of the Justices residing within the
Union, who are members ex officio, and of members elected by
the several parishes composing the Union, — every parish
which contains as many as three hundred inhabitants being
entitled to choose at least one Guardian. It is the elected
members, of course, and not the Justices, who really act in the
Board.
789. The Rural Sanitary District. — Later legislation has
charged the Board of Guardians with the care of the sanitation
of all parts of the Union which lie outside urban limits, thus
erecting the rural portions of each Union into a special Eural
Sanitary District.
790. Besides their duties of poor-relief and sanitary regulation, the
Guardians of each Union are charged with attending to the registration
428 THE GOVERNMENT OF ENGLAJSTD.
of births and deaths, to the lighting of such portions of their districts
as need to be lighted, tliough lying outside technically urban limits, and
with the administration of the laws concerning vaccination.
791. The Local Government Board fixes for the Guardians a property
qualification, which is to be in no case above £40" rating. The Guar-
dians are elected by the " owners and ratepayers " of each parish, each
voter being entitled to one vote for every £50 of rated property up to
a total number of six votes. If any one be entitled to vote })Oth as
owner and as ratepayer, he may cast as many as twelve votes, in case he
is rated to a sufficient amount.
792. Unions are of all sizes and plans, though it is within the power
of the Local Government Board to readjust their boundaries and bring
them into proper geographical relations with other larger areas. The
only rule heretofore observed as to their make-up is, that they are
always to be aggregations of parishes already existing. They have not
been conformed to county boundaries at all. It is stated that in 1882,
out of a total of 617 Unions, 176 " included parts of two or more coun-
ties, and of these 29 were each in three counties, and four were each in
four counties."! Unions vary so greatly ip size that it is estimated
that some contain as many as one liundred and twenty times the popu-
lation of others. The average population of the Unions is said to be
about 45,000.
793. Municipalities. — A comprehensive view of municipal
government in England must embrace both those governmental
agencies which English law describes as municipal corporations
and those which it calls Urban Sanitary Districts. Urban San-
itary Districts are simply less developed municipal corporar
tions : sanitary regulation is their chief but by no means their
only function. In any logical classification, they must be
regarded as a species of municipal government.
794. I. Municipal Corporations. — The constitution of
those English towns which have fully developed municipal or-
ganizations rests upon the Municipal Corporations Act of 1835
and its various amendments as codified in an Act of 1882 of
the same name. This latter Act is, in its turn, in some degree
altered by the Local Government Act of 1888. If the inhabi-
1 Local Administration, p. 40.
THE GOVEliNMENT OP ENGLAND. 429
tants of any place wish to have it incorporated as a munici-
pality, they must address a petition to that effect to the Privy
Council. Notice of such a petition must be sent to the Coun-
cil of the county in which the place is situate and also to tlie
Local Government Board. The Privy Council will appoint a
committee to consider the petition, whose consideration of it
will consist in visiting the place from which the petition comes
and there seeing and hearing for themselves the arguments
pro and con. All representations made upon the subject by
either the County Council or the Local Government Board
must also be considered.
Generally there is considerable local opposition either to such a
petition being offered or to its being granted when offered; for the
government of the place is usually already in the hands of numerous
local authorities of one kind or another who do not relish the idea of
being extinguished, and there are, of course, persons who do not care
to take part in bearing the additional expenses of a more elaborate
organization.
If the petition be granted, the Privy Council issue a charter
of incorporation to the place, arranging for the extinction of
competing local authorities, setting the limits of the new
municipality, determining the number of its councillors, and
often even marking out its division into wards.
795. Once incorporated, the town takes its constitution
ready-made from the Act under whose sanction it petitioned
for incorporation. That Act provides that the official name of
the borough shall be "The Mayor, Aldermen and Burgesses
of — '■ — " ; that it shall be governed, that is, by a mayor, alder-
men, and councillors. The councillors hold office for a term of
three years, one-third of their number going out, in rotation,
every year. There are always one-third as many aldermen as
councillors. The a;ldermen are elected by the councillors for a
term of six years, one-half of their number retiring from office
every three years, by rotation. The mayor is elected by the
Council — by the aldermen and councillors, that is, — holds
430 THE GOVERNMENT OP ENGLAND.
office for one year only, and, unlike the councillors and alder-
men, receives a salary. The councillors are elected by the res-
ident ratepayers of the borough. " Every person who occupies
a house, warehouse, shop, or other building in the borough, for
which he pays rates, and who resides within seven miles of
the borough, is entitled to be enrolled as a burgess." ^
796. Judicial Status of Boroughs. — Whatever powers are
not specifically granted to a municipality remain with previ-
ously constituted authorities. Local organization has proceeded
in England by subtraction — by the subtracting of powers
from old to be bestowed upon new authorities. New areas
have been superimposed upon and across old areas and new
authorities have had set apart to them special portions of gov-
ernmental power ; the old authorities have kept the rest.
Thus the Union has been not at all affected, as an area of poor-
relief, by the superimposition of boroughs or of Urban Sani-
tary Districts upon it. In the same way, because the Mu-
nicipal Corporations Act does not provide for the exercise of
judicial powers by the authorities of a borough by virtue of their
separate incorporation, those powers remain with the Justices ;
unless additional special provision is made to the contrary, a
municipality remains, for the purpose of justice, a part of the
county. By petition, however, it may obtain an additional
' commission of the peace ' for itself, or even an independent
Court of Quarter Sessions. Either, then, (a) a borough con-
tents itself in judicial matters with the jurisdiction of the
county Justices ; or (6) it obtains the appointment of addi-
tional Justices of its own, who are, however, strictly, members
of the county commission and can hold no separate Court of
Quarter Sessions ; or (c) it acquires the privilege of having
Quarter Sessions of its own. In the latter case a professional
lawyer is appointed by the Crown, under the title of Eecorder,
to whom is given the power of two Justices acting together and
' Chalmers, Local Government, p. 74.
THE GOVBKNMENT OF ENGLAND. 431
the exclusive right to hold Quarter Sessions — who is made,
as it were, a multiple Justice of the Peace.
Boroughs which have a separate oommissioji of the peace are known
as " counties of towns " ; those which have independent Quarter Ses-
sions as " quarter sessions boroughs."
Every mayor is ex officio Justice of the Peace, and continues to
enjoy that oflSce for one year after the expiration of his term as mayor.
This is true even when his borough has no separate commission of the
peace.
797. County Boroughs. — In every borough the mayor,
aldermen, and councillors, sitting together as a single body,
constitute the ' Council ' of the corporation ; and the powers
of the Council, if the borough be a ' County Borough,' are very
broad indeed. Since the passage of the Local Government
Act of 1888, it is necessary to distinguish, in the matter of
powers, several classes of boroughs. ' County Boroughs ' stand
apart from the counties in which they lie, for all purposes of
local government, as completely as the several counties stand
apart from each other. Except in the single matter of the
management of their police force, they may not even arrange
with the county authorities for merging borough with county
affairs. Their Councils may be said, in general terms, to have,
within the limits of the borough, all the powers once belong-
ing to the county Justices except those strictly judicial in their
nature, all the sanitary powers of urban sanitary authorities,
often the powers of school administration also, — all regula-
tive and administrative functions except those of the poor-
law Union, which hitherto has spread its boundaries quite
irrespective of differences between town and country. In the
case of these ' county boroughs,' all powers conferred upon coun-
ties are powers conferred upon them also.
If the Council of any borough or of a county make representation to
tlie Local Government Board that it is desirable to constitute a borough
that has come to have a population of not less than fifty thousand a
' county borough,' the Board shall, unless there be some special reason
432 THE GOVBENMENT OF ENGLAND.
to the contrary, hold a local inquiry and provide for the gift of county
status to the borough or not as they think best. ' If they order the
borough constituted a ' county borough,' the order is provisional merely.
798. Other Boroughs. — Boroughs which have riot been put
in the same rank with counties and given full privileges of
self-administration as ' county boroughs/ fall into three classes
in respect of their governmental relations to the counties in
which they lie :
(1) Those which have their own Quarter Sessions and whose
population is ten thousand or more. These constitute for sev-
eral purposes of local government parts of the counties in
which they are situate. The main roads which pass through
them are cared for by the county authorities, unless within
twelve months after the date at which the Act of 1888 went
into operation (or after the date at which any road was declared
a 'main road') the urban authorities specially reserved the
right to maintain them separately. They contribute to the
county funds for the payment of the costs of the assizes and
judicial sessions held in them. They send members, too, to
the County Council. Their representatives, however, cannot
vote in the County Council on questions affecting expenditures
to which the parishes of the borough do not contribute by as-
sessment to the county rates. Beyond the few matters thus
mentioned, they are as independent and as self-sufllcient in their
organization and powers as the ' county boroughs ' themselves.
(2) Boroughs which have separate Quarter Sessions but
whose population numbers less than ten thousand. These are
made by the Act of 1888 to yield to the Councils of the
counties in which they lie the powers once exercised by their
own Councils or Justices in respect of the maintenance and
management of pauper lunatic asylums, their control of coro-
ners, their appointment of analysts, their part in the mainten-
ance and management of reformatory and industrial schools,
and in the administration of the Acts relating to fish conservar
tion, explosives, and highways and locomotives.
THE GOVERNMENT OF ENGLAND. 433
They may, in view of their diminislied powers, petition the Crown to
revoke the grant to them of separate Quarter Sessions.
(3) Boroughs which have not a separate court of Quarter
Sessions and whose population is under ten thousand are for
all police purposes parts of the counties in which they are
situate, and have, since the Act of 1888 went into operation
parted with very many of their powers to the County Councils
They have been, in brief, for all save a few of the more exclu
sively local matters of self-direction, merged in the counties,
in whose Councils they are, of course, like all other parts of
the counties, represented.
799. Every borough has its own paid Clerk and Treasurer, who are
appointed by the Council and liold office during its pleasure, besides
" such other officers as have usually been appointed in the borough, or
as the Council think necessary." If a, borough have its own Quarter
Sessions, it has also, as incident to that Court, its own Clerk of the
Peace and its own Coroner.
800. The financial powers of a municipal Council are in all cases
strictly limited as regards the borrowing of money. "In each instance,
when, a loan is required by a municipal corporation, the controlling
authority [the Local Government Board] is to be applied to for its
consent. A local inquiry, after due notice, is then held, and if the loan
is approved, a term of years over which the repayment is to extend is
fixed by the central authority." ^
801. " The accounts of most local authorities are now audited by the
Local Government Board, but boroughs are exempt from this jurisdic-
tion. The audit is conducted by three borough auditors, two elected
by the burgesses, called elective auditors, one appointed by the mayor,
called the mayor's auditor." ^
802. II. Urban Sanitary Districts. — " The boundaries of
poor-law unions are the boundaries of rural sanitary districts,
and the guardians are the rural sanitary authority. The urban
districts are carved out of the rural districts according to the
1 Bunce, Gobden Club Essays, 1882, p. 283 ; title, " Municipal Boroughs
and Urban Districts." ^ Chalmers, p. 87.
434 THE GOVERNMENT OF ENGLAND.
exigencies of population." '■ The organization of an Urban
Sanitary District is more liiglily developed than that of a
rural district, urban districts are in reality a subordinate
species of municipalities. The method of their creation is
quite simple. If the Local Government Board think it expedi-
ent for the public health and good government that any rural
district should be specially organized as a local government
district, or if " the owners and ratepayers of any district
having a definite boundary " desire such organization, the dis-
trict may be created an Urban Sanitary District by order of
the Board. When such an order is issued it determines, as
does the incorporating act of the Privy Council in the case of
a municipality, the boundaries of the area, arranges, if neces-
sary, for its division into wards, and fixes the number of
members to sit in its local board. For the rest, the District
takes its constitution from the Public Health Act of 1875, —
an Act which amends and ' codifies legislation of 1848 and sub-
sequent years. That Act puts the government of the District
into the hands of a board, which is chosen by the owners and
ratepayers just as the councillors of a borough are (sesi. 795),
but under arrangements which admit of cumulative voting as
in the case of Guardians in the Unions (sec. 791). The
powers of the board are fijst of all sanitary; but there are
added to its sanitary powers other powers which make it in
effect a lesser municipal council.
803. The difference between boroughs and urban districts is
not at all at difference of size, — boroughs range from a few
hundred to half a million inhabitants and urban districts
from a few hundred to a hundred thousand ; ' it has hitherto
been a diilerence, apparently, of local preference rather, and
of legal convenience. The boundaries of a borough, when
once fixed by a charter of incorporation, could, until the pas-
sage of the- Act of 1888, be altered only by a special Act of
1 Chalmers, p. 109. 2 Bunce, p. 293.
THE GOVERNMENT OP ENGLAND. 435
Parliament : it is much easier, of course, to apply to tlie Local
Government Board. As towns already incorporated have
grown, therefore, the added portions have become indepen-
dently incorporated Urban Sanitary Districts, and thus the
town has been pieced out. One writer, therefore, was able to
say, in 1882, "Nowhere, from one end of England to the
other, do we find an instance (Nottingham alone excepted) of
a large borough which is municipally self-contained, and con-
sequently self-governing." ^
804. Under the Local Government Act of 1888 the boundaries of a
borough may, as we have seen (sec. 779), be altered by provisional order
of the Local Government Board, upon the address of the borough Coun-
cil. This order, however, being provisional, must receive the sanction
of Parliament, and is made only after local inquiry. The proceedings,
therefore, for changing the boundaries of a borough are still much more
elaborate and difficult than the free action of the Local Government
Board with reference to urban sanitary districts. Formerly a separate
bill, not introduced by the government, was needed to change the boun-
daries of a borough ; now an Act approving a provisional order backed
by the Local Government Board and likely to be acted upon favorably.
Out of 25,986,286 persons in England and Wales, Mr. Bunce esti-
mates, following the census of 1881, 17,285,026 to have been under urban
authority, 8,683,260 under rural.^
805. Central Control of Urban Authorities. — Full municipal
corporations look partly (in the m.itter of sanitary regulation, for ex-
ample,) to the Local Government Board as a central authority exercising
powers of supervision, partly (in the management of the constabulary,
for instance,) to the Home Office, and partly (if seaports) to the Board
of Trade. Urban Sanitary Districts, however, have but a single au-
thority set over them, the Local Government Board.
806. ' Improvement Act Districts.' — Besides the Urban Sanitary
Districts, there are still about fifty districts which have boards with
quite similar powers under special 'Improvement Acts' passed from
time to time with reference to particular localities. These boards are
known as Improvement Commissioners.
807. London. — The metropolis was, until the passage of the
Act of 1888, the unsolved problem, the unregenerate monster,
1 Bunce, p. 298. 2 Ihid., p. 285. .
436 THE GOVERNMEKT OE EKGLAND.
of local government in England. The vast aggregation of
houses and population known by the world as ' London, '
spreading its unwieldy bulk, as it did, over parts of the three
counties of Middlesex, Surrey, and Kent, consisted of the City
of London, a small corporation at its centre confined within
almost forgotten boundaries, still possessing and beligerently
defending mediseval privileges and following mediaeval types
of organization and procedure, and, round about this ancient
City as a nucleus, a congeries of hundreds of old parishes and
new sanitary districts made from time to time to meet the
needs of newly grown portions of the inorganic mass. This
heterogeneous body of medieval trade guilds, vestries, and
sanitary authorities had been in some sort bound together
since 1865 by a Metropolitan Board of Works which exercised
certain powers over the whole area outside the ' City.'
808. The Local Government Act of 1888 makes of the
metropolis, not a ' county borough,' but a county, — the ' Admin-
istrative County of London ' — with its own Lord Lieutenant,
Sheriff, and Commission of the Peace, as well as its own Coun-
cil. This leaves the parishes and district authorities of its area
to retain such powers as they would possess were they situate
in a rural, instead of in a metropolitan, county. It leaves the
City, too, to occupy its separate place in the great metropolitan
county as a quarter sessions borough not enjoying separate
county privileges, — with some limitations special to its case.
809. The number of councillors in the London County Council is
fixed at twice the number of members returned to Parliament, at.the
time of the passage of the Act of 1888, by the various constituencies of
the metropolitan area. The Councillors, thus, number 118. The
Council of the Metropolis is put upon an exceptional footing with regard
to its quota of aldermen. The aldermen ^re to be one-sixth, instead of
one-third, as many as the councillors. The total membership of the
London Council is, therefore, 137.
810. School Districts. — The only important area remaining
to be mentiojjLed is the School District. Under the great Edu-
THE GOVERNMENT OP ENGLAND. 437
cation Act of 1870 and the supplementary Acts of 1876 and
1880, England is divided for educational purposes into districts
which are under the supervision of the Education Department
of the Privy Council. These districts are not mapped out
quite so independently of previously existing boundaries as
other local areas have been ; they are made to coincide, so
far as possible, with parishes or with municipal boroughs, the
adjustment of their boundaries being left, however, to the dis-
cretion of the Education Department. Those districts which
desire such an organization are given an elective School Board,
chosen by the ratepayers, which has power to compel attend-
ance upon the schools in accordance with the Education Acts,
and to provide, under the direction of the Department, the
necessary school accommodation. Other districts are governed
in school matters by an Attendance Committee, simply, which
is a sub-committee of some previously existing authority (in
boroughs, of the town council, for instance) and whose only
duties are indicated by its name.
811. The plan of public education in England contemplates the assist-
ance and supplementing of private endeavor. Where private schools
suffice for the accommodation of the school population of a district, the
government simply superintends, and, under, certain conditions, aids.
Where private schools are insufficient, on the other liand, the govern-
ment establishes scliools of its own under tlie control of a scliool board.
812. Central Control. — The plan of central control in
England is manifestly quite indigenous. The central govern-
ment is not present in local administration in the person of
any superintending ofBcial like the French Prefect (sees. 338,
339, 346), or any dominant board like the ' Administration ' of
the Prussian Government District (sees. 480-483). There
has, indeed, been developing in England throughout the last
half of this century a marked tendency to bring local authori-
ties more and more under the supervision in important matters
of the government departments in London, — a tendency which
has led to the concentration, since 1871, in the hands of the
438 THE GOVERNMENT OP ENGLAND.
Local Government Board of various powers once scattered
among such authorities as the Home Office, the Privy Council,
etc. But this tendency, which is towards control, has not been
towards centralization. It has, so far, not gone beyond making
the advice of the central authority always accessible by local
officers or bodies, and its consent necessary to certain classes
of local undertakings. The central government has not itself
often assumed powers of origination or initiative in local affairs.
Even where the Local Government Board is given completest ■
power the choice of the officers who are to put its regulations
into force is left with the ratepayers in the districts concerned.
Thus the authority of the Board over the Guardians of the
Unions is complete ;. but the Guardians are elected in the par-
ishes. Its authority in sanitary matters makes its directions
imperative as to the execution of the Public Health Acts ; but
in many cases the local health officers are appointees of the
local bodies. It may disallow the by-laws passed by the boards
of sanitary districts, and the by-laws enacted by the county
authorities, unless they affect nu.isances, may be annulled by
an order in Council ; but these are powers sparingly, not habit-
ually, used. In the matter of borrowing money, too, local
authorities are narrowly boirnd by the acl^ion of the Local
Government Board ; and its assent to propositions to raise
loans is seldom given without very thorough inquiry and with-
out good reason shown. But all these are functions of system,
so to say, rather than of centralization. Co-ordination in
methods of poor-relief is sought, that relief being given under
national statutes, and co-operation of central, with local judg-
ment in financial matters, local debts constituting a very
proper subdivision of national finance. But the spirit in which
the control is exercised, as well as the absence of permanent
officials representing the central authority in local government,
and even of permanent instrumentalities for the administration
of financial advice, bespeak a system of co-operation and advice
rather than of centralization.
THE GOVERNMENT OF ENGLAND. 439
The Government of the English Colonies.
813. English Colonial Expansion. — Doubtless the most
significant and momentous fact of modern history is the wide
diffusion of the English race, the sweep of its commerce, the
dominance of its institutions, its imperial control of the desti-
nies of half the globe. When, by reason of the closing of the
old doors to the East by the Turk and the consequent turning
about of Europe to face the Atlantic instead of the Mediterra-
nean, England was put at the front instead of at the back of
the nations of the Continent, a profound revolution was pre-
pared in the politics of the world. England soon defeated
Holland and Spain and Portugal, her rivals for the control of
the Atlantic and its new continents ; and steadily, step by step,
she has taken possession of every new land worth the having
in whatever quarter of the globe. With her conquests and her A
settlers have gone also her institutions, luitil now her people /
everywhere stand for types of free men, her institutions for/
models of free government.
•814. English Colonial Policy. — It is only by slow degrees,
however, that England has learned the right policy towards her
colonies. She began, as Rome did, by regarding her possessions
as estates, to be farmed for her own selfish benefit. Nothing
less than the loss of America sufficed to teach her how short-
sighted such a pojicy was. But, unlike Rome, she was fortu-
nate enough to lose the best part of her possessions without
being herself overwhelmed; and even after the loss of America,
time and opportunity offered for the building up of another
colonial empire scarcely less great.
815. Towards her present colonies her policy is most liberal ;
for the England of the present is a very different England
from that which drove America into rebellion. Even the nota-
ble lesson emphasized in the loss of America would not have
sufficed to bring England to her senses touching her true inter-
ests in the colonies, had she not herself speedily thereafter
440 THE GOVERNMENT OF ENGLAND.
been brought by other causes to a change of heart. The move-
ments of opinion which stirred her to religious revival, to
prison reform, to enlightened charity, to the reform of par-
liamentary representation, to a general social and political
regeneration, stirred lier.also, no doubt, to vouchsafe to her
colonists full rights as Englishmen.
81G. Lord Durham in Canada. — The turning point was
reached in 1837, when a rebellion broke out in Lower Canada.
Lower Canada was French Canada. Its government, like the
governments of the American states south of it in their
own colonial times, consisted of an Executive, a Legislative
Council nominated by the Crown and a legislative chamber
elected by the colonists; the colonists had been exasperated
by just such arbitrariness and lack of sympathy on the part of
the Governor and his Council, and just such efforts to make the
salaries and the maintenance of the judicial officers of the col-
ony independent of the appropriations voted by the popular
assembly, as had hastened the separation of the United States
from England ; and at last rebellion had been made to speak
the demands of the colonists for constitutional reform. The Re-
bellion was put down, but the defeated Colonists were not treated
as they would have been in 1776. A royal commissioner was
sent out to them from the mother country to redress their
grievances by liberal measures of concession and reform. This
commissioner was Lord Durham. He spoiled his mission by
well-meant but arbitrary conduct which was misunderstood at
home, and was recalled ; but his report upon the condition
of Canada and the measxires necessary for her pacification
may justly be called the fountain head of all that England
has since done for the betterment of government in her colo-
nies. Lord Durham recommended nothing less than complete
self-government, with interference from England in nothing
but questions immediately and evidently affecting imperial
interests. 1847 saw independent responsible self-government
completely established in Canada, and subsequent years have
THE G'OVBEN>IENT OF ENGLAND. 441
seen it extended to all the British colonies capable of self-
direction.
817. The Self-governing Colonies. — The English colonies,
as at present organized, may be roughly classified in two groups
as (a) \S elf -governing and (6) Grown colonies. The self-govern-
ing colonies are nine in number ; namely, Canada, Newfound-
land, Cape of Good Hope, the four colonies of the east and
south of Australia (Queensland, New South Wales, Victoria,
South Australia), Tasmania, New Zealand. In all of these
there is practically complete independence of legislation in
all matters not directly touching imperial interests : and in all
there is full responsible government, — government, that is,
through ministers responsible to representatives of the people
for their policy and for all executive acts, because chosen from
and representing the majority in the popular chamber. In the
Cape of Good Hope, Tasmania, Victoria, and South Australia,
both branches of the legislature are elected ; in the other five
the upper chamber, the Legislative Council, as it is invariably
called outside of Canada, is nominated by the Executive. But
the origin of the upper chamber does not affect the full respon-
sibility of the ministers or the practically complete self-direc-
tion of the colony.
818. The Government of Canada. — In 1840 Parliament
provided by Act for the union of Upper and Lower Canada
(now the provinces of Ontario and Quebec) upon a basis sug-
gested by Lord Durham's report ; but the legislative union of
these two provinces, the one English, the other almost wholly
French, was ill-advised and proved provisional only. Although
an Act of 1854 granted to the united colonies a government
as nearly as might be modelled upon the government of Eng-
land herself, no satisfactory basis of self-government was
reached until, by the 'British North America Act' of 1867,
the colonies were at once separated and re-integrated by means
of a federal constitution. That Act is the present constitution
of the " Dominion of Canada." Under that constitution the
442 THE GOVEENMENT OP ENGLAND.
seven provinces now comprised witliin the Dominion ; namely,
Ontario, Quebec, Nova Scotia, New Brunswick, Manitoba,
British. Columbia, and Prince Edward Island, have each a sepa-
rate parliament and administration. In each a Lieutenant-Gov-
ernor presides ; in each, as in the Dominion itself, there is a
ministry responsible for its policy and executive acts to a par-
liament fully equipped for self-direction in local affairs.
819. The provisions of the British North America Act were drafted
in Canada and accepted by tlie Parliament in England without altera-
tion. In the division of powers which they make between the govern-
ment of the Dominion and the governments of the several provinces,
they differ very radically in character from the provisions of our own
federal constitution. Our constitution grants certain specified powers
to the general government and reserves the rest to the states ; the
British North America Act, on the contrary, grants certain specified
powers to the provinces and reserves all others to the government of
the Dominion. Among the powers thus reserved to the federal govern-
ment is that of enacting all criminal laws.
In Ontario, British Columbia, and Manitoba, the legislature consists
of but a single house.
820. The government of the Dominion is a very faithful re-
production of the government of the mother country. The
Crown is represented by the Governor-General, who acts in the
administration of the colony as the Crown acts in the adminis-
tration of the kingdom, through responsible ministers, and
whose veto u.pon legislation is almost never used. His cabinet
is known as the Queen's Privy Council and consists of fifteen
members, representing the majority in the popular house of the
legislature, leading that house in legislation, and in all its func-
tions following the precedents of responsible cabinet govern-
ment established in England. The legislature consists of two
houses, the Senate and the House of Commons. The' Senate
consists of seventy-eight members nominated for life by the
Governor-General, — that is, in effect, appointed by the minis-
ters ; for in the composition of the Senate, as in the creation of
peers at home, the advice of the ministers is decisive, The
THE GOVERNMENT OF ENGLAND. 443
House of Commons consists at jjresent of two hundred and
fifteen members elected from the several provinces, for a term
of five years, upon the basis of one representative for every
twenty thousand inhabitants, it being understood, however,
that Quebec shall always have sixty-five members.
821. Besides his veto, the Governor-General has the right to reserve
measures for the consideration of the Crown (i.e., of the ministers in
England), and this right he sometimes exercises. He may also disallow
acts of the provincial legislatures.
822. The fifteen ministers composing the Council or cabinet are, a
Prime Minister and President of the Council, a Minister of Public
Works, a Minister of Railwa.ys and Canals, a Minister of Customs, a
Minister of Militia and Defence, a. Minister of Agriculture, a. Minister
of Inland Revenue, a Secretary of State, a Minister of Justice, a Minister
of Finance, a Minister of Marine and Fisheries, a Minister of the Inte-
rior, and a Postmaster-General, besides two ministers without portfolios.
823. The distribution of representation in tlie Dominion House of
Commons is at present as follows : Ontario has 92 members, Quebec 65,
Nova Scotia 21, New Brunswick 16, Manitoba 5, British Columbia 6,
Prince Edward Island 6, and the North West Territories (not yet fully
admitted to provincial rank) 4. The representatives are elected by a
franchise based upon a small property qualification.
824. Tlie I'arliament of the Dominion may be dissolved by the
Governor-General upon the advice of the ministers and a new election
held, as in England, when an appeal to the constituencies is deemed
necessary or desirable.
825. The Governments of Australia. — The governments of
the Australian colonies are not different in principle, and are
very slightly different in structure, from the government of
Canada, except that in Australia the colonies stand apart in
complete independence of each other, having no federal bonds,
no common authority nearer than the mother country. Alike
in Queensland and in New South Wales there is a nominated
Legislative, Council and an elected Legislative Assembly ; but
in Queensland a property qualification is required of the electors
who choose the lower house, while in New .South Wales there
is no such limitation upon the suffrage. In South Australia
444 THE GOVERNAIENT OF ENGLAND.
and Victoria both houses of the legislature are elected ; in both
a property qualification is required of the electors who choose
the members of the upper house, and in Victoria a like qualifi-
cation for membership of the upper house, also. In Victoria
certain educational and professional qualifications are allowed
to take the place of a property qualification. In each of the
colonies the governor plays the part of a constitutional monarch,
acting always upon the advice of ministers responsible to the
popular chamber.
826. The Powers of the Colonial Courts. — The action of
the courts in the colonies in certain questions furnishes an in-
structive counterpart to the constitutional functions of our own
courts. The colonial governments are conducted under writ-
ten constitutions as our own governments are, though their
constitutions are imperial statutes while ours are drafted by
conventions and adopted by vote of the people. And colonial
courts exercise the same power of constitutional interpretation
that belongs to our own courts and has often been carelessly
assumed to be a peculiar prerogative of theirs. They test acts
of legislation by the grants of power under which they are
enacted, an appeal lying from them to the Judicial Committee
of the Privy Council in England, which serves as a general
supreme court for the colonies (sees. 736, 869).
The constitutionality of laws passed by the Dominion Parliament in
Canada is considered first, of course, by the courts of the Dominion,
going thence, if appealed, to the Privy Council.
827. The Crown Colonies. — All those colonies which have
not responsible self-government are classed as Crown colonies,
colonies more or less completely directed by the Colonial
Office in London. They range in organization all the way
from mere military administrations, such as have been estab-
lished in St. Helena and Gibraltar, through those which, like
Trinidad and the Straits Settlements, have both a nominated
Executive and a nominated Legislative Council, and those like
THE GOVERNMENT OP ENGLAND. 445
Jamaica and Western Australia, whose nominated Executive
is associated with a Legislative Council in part elected, to
those like the Bahamas and Bermuda, in which the Councils
are altogether elected, but which have no responsible ministry.
828. Powers of Colonial Governors. — It is interesting to
have the testimony of one of the most capable and eminent of
English colonial administrators as to the relative desirability
of the post of governor in a colony in which he is governor
indeed, with no ministers empowered to force their advice
upon him, and in a colony where he must play the unobtrusive
part of constitutional monarch. Lord Elgin says with great
confidence, in his Letters, that his position as governor of Can-
ada was a position of greater official power than his position,
previously held, as governor of Jamaica. He declares his un-
hesitating belief that there is-" more room for the exercise of
influence on the part of the governor " in such a colony as Can-
ada, where he must keep in the background and scrupulously
heed his ministers, than under any other arrangement that ever
was before devised, although his influence there is of course
" wholly moral — an influence of suasion, sympathy, and mod-
eration, which softens the temper while it elevates the aims of
local politics." ' This is but another way of stating the unques-
tionable truth that it is easier as well as wiser, to govern with
the consent and co-operation of the governed than without it —
easier to rule as a friend than as a miaster.
829. India. — India stands in matters of government, as in
so many other respects, entirely apart from the rest of the
British Empire. It is governed, through the instrumentality
of its Governor-G-eneral and his Council, directly from London
by a member of the Cabinet, the Secretary of State for India.
The Secretary of State is assisted by a Council of fifteen mem-
bers appointed by the Crown from among persons who have re-
sided or served in India. Acting under the Secretary of State
1 Letters and Journals of Lord Elgin, ed. by Theodore Walrond, Lend.,
1872, p. 126.
446 THE GOVERNMENT OP ENGLAND.
and his Council in London, there is the Governor-General of
India, who is also assisted by a Council, — a Council which is
first of all administrative, but which, when re-enforced by from
six to twelve additional members appointed by the Governor-
General, has also the functions of a legislative council.
The work of the Goyernor-Geiieral's Council is divided among five
departments, those, namely, of foreign affairs, finances, the interior,
military administration, and public works; but these departments do
not create a ministry ; they are regarded simply as committees of the
Council.
The members of the Council, six in number, besides a seventh so-
called extraordinary member who is commander-in-chief of the forces,
are appointed by the Crown. The sessions of the re-enforced or legis-
lative council are held always in public.
830. Not all of India is directfy administered by the English
government : there are numerous native states, acting with sub-
stantial independence in local affairs, though under English
overlordship and control. Such part of the vast territory as
is administered directly by English officials is divided into ten
provinces, of which the chief in importance are Madras and
Bombay. The governors of Madras and Bombay are appointed
by the Crown and are assisted, as the Governor-General is,
by two councils, administrative and legislative. The Lieuten-
ant-Governors of Bengal and the North West Provinces are
appointed by the Governor-General and assisted by an admin-
istrative council only. The Lieutenant-Governors or Commis-
sioners of the other provinces, who are also appointed by the
Governor-General, are without councils.
831. Greater Britain. — Greater Britain, the world of
English colonies, differs very materially from Greater Greece,
the widespread Hellas of the ancient world. Hellas was dis-
integrate : the Greeks carried with them, as of course, Greek
institutions, but only to allow those institutions wide differen-
tiation ; in no way did Greek settlement signify race integra-
tion, a national nexus of rule. Englishmen, on the contrary.
THE GOVEENMBNT OP ENGLAND. 447
in English colonies, maintain a hoxnogen&ity and integration
both of race and of institutions which have drawn the four parts
of the world together under common influences, if they have
not compacted them for a common destiny. Throughout Eu
rope reformers have copied English political arrangements ;
the colonists have not copied them, they have extended and
are perpetuating and perfecting them.
0
Representative Authorities.
Sttibbs, Wm., "Constitutional History of England." 3 vols. Oxford,
1883.
Hallam, H., " Constitutional History of England." 2 vols. N. Y.,
1880.
May, Sir T. E., " Constitutional History of England." 2 vols. N. Y.,
X^ 1880.
^ TasweU-Langmead, " English Constitutional History." London and
y^ Boston. 3ed. 1886.
Gneist, R., " History of the English Constitution." 2 vols. N. Y., 1886.
"Student's History of the English Parliament." N. Y., 1887.
" Self-Government, Communalverfassung und Verwaltungs-
gerichte." 3d ed. Berlin, 1871.
Bagehot, Walter, "The English Constitution." N. Y., 1882.
English Citizen Series : H. D. Traill, " Central Government."
M. D. Chalmers, "Local Government."
F. W. Maitland, " Justice and Police."
S. Walpule, " The Electorate and the Legislature."
T. W. Fowle, " The Poor Law."
/. S. Cotton §• E. J. Payne, " Colonies and Dependencies."
Hearn, W. E., " The Government of England." 2d ed. London, 1887.
Dicey, A. V., " The Privy Council." London, 1887.
" The Law of the Constitution." 2d ed. London, 1886.
Cobden Club Essays, 1882 : " Local Government and Taxation ia the
United Kingdom."
Lnperial Parliament Series: "Local Administration," by W. Rath-
bone, A. Pell, and F. C. Montague. London, 1885.
448 THE GOVEBNMENT OE ENGLAND.
Todd, Alpheus, " Parliamentary Grovernment in England." New ed.
London and N. Y., 1888-'9.
" Parliamentary Government in the British Colonies." Boston,
1880.
i/ielden, H. St. C, " A Short Constitutional History of England" (a
serviceable topical epitome) . Oxford & London, 1882.
For the local government reforms of 1888, see :
Baker, Chas. E., " The Local Government Act, 1888, with Notes and
Index." London, 1888.
Holdsworth, W. A., " The Local Government Act, 1888, with Introduc-
tion and Notes." London, 1888.
XI.
THE GOVERNMENT OF THE UNITED STATES.
832. The English Occupation of America. — The political
institutions of the United States avR in all tli^ir iriajn features
simply the political institutions of England, as transplanted
by English colonists in the course of the two centuries which
preceded our own, worked out through a fresh development to
new and characteristic forms. Though now possessing so large
an admixture of foreign blood, a large majority of the people
of the United States are still of British extraction ; and at first
the settlements of New England and the South contained no
other element. In the far North, in what is now Canada, there
were French settlements ; in Florida there were colonists from
Spain, and at the mouth of the Mississippi also there was a
French population ; the Dutch had settled upon the Hudson
and held the great port at its mouth, and the Swedes had
established themselves on the Delaware : all along the coast
there was rivalry between the western nations of Europe for
the possession of the new continent. But by steady and for
the most part easy steps of aggression the English extended
their domain and won the best regions of the great coast. New
England, Virginia, and the Carolinas were never seriously dis-
puted against them ; and, these once possessed, the interven-
ing foreigner was soon thrust out : so that the English power
had presently a compact and centred mass which could not be
dislodged, and whose iiltimate expansion over the whole con-
tinent it proved impossible to stay. England was not long in
450 THE GOVERNMENT OP THE UNITED STATES.
widening her colonial borders : the French power was crushed
out in the North, the Spanish power was limited in the South,
and the colonies had only to become free to develop energy
more than sufficient to make all the most competed-for por-
tions of the continent thoroughly English, — thoroughly Anglo-
American.
833. Adaptation of English Institutions. — This growth of
the English power in America involved as of course a corre-
sponding expansion of English local institutions of government;
as America became English, English institutions in the col-
onies became American : they adapted themselves, i.e., to the
new problems and the new conveniences of political life in
separate colonies, — colonies struggling at first, then expand-
ing, at last triumphing; and without losing their English
character gained an American form and JHlavor.
834. It would be an utterly erroneous, an entirely reversed,
statement of our colonial history to say that the English
planted states in America : they planted small isolated set-
tlements, and these settlements grew into states. The process,
in other words, was from local, through state, to national or-
ganization. And not everywhere among the English on the
new continent was the form of local government at first adopted
the same : there was no invariable pattern, but everywhere, on
the contrary, a spontaneous adjustment of political means to
place and circumstance. By all the settlements alike English
precedent was followed, but not the same English precedent ;
each colony, with the true English sagacity of practical habit,
borrowed what was best suited to its own situation. New Eng-
land had one system, Virginia another, New Jersey and Penn-
sylvania still a third, compounded after a sort of the other
two.
835. The New England Colonies In New England the
centre of government was always the town, with its church and
schoolhouse and its neighborly cluster of houses gathered about
these. The soil on the coast where the first settlers established
THE GOVERNMENT OF THE UNITED STATES. 451
themselves was shallow and slow to yield returns even to hard
and assiduous toil ; the climate was rigorous, with its long
winters and its bleak coast winds ; every circumstance invited
to close settlement and trade, to the intimate relationships of
commerce and the adventures of searfaring rather than to the
wide-spreading settlements characteristic of an agricultural
population.
836. The first New Englanders, moreover, were religious
refugees. They had left ■ the Old World tj) esca.pe the Old
World's persecutions and in order to find_ independence of
worship ; they were establishing a church as well as a com-
munity ; they acted as organized congregations ; their life was
both spiritually and temporally organic. Close geographical
association, therefore, such as was virtually forced upon them
by the conditions of livelihood by which they found themselves
constrained, accorded well with their higher social purposes.
The church could be made, by such association, and accordingly
was made, the vital nerve-centre of their imion : the minister
was the ruling head of the community, and church membership
was in several of the settlements recognized as identical with
citizenship.
837. The Separate Towns. — The several parts of the New
England coast were settled by quite independent groups of set-
tlers. There was the Plymouth colony at Plymouth, and alto-
gether distinct from it, the Massachusetts Bay colony at Salem
and Charlestown. To the south of these, founded by men dis-
satisfied with the Massachusetts government, were Portsmouth,
Newport, and Providence, in what is now Rhode Island. On
the Connecticut river other wanderers froin Massachusetts built
Hartford and Windsor and Wethersfield. Saybrook, at the
mouth of the Connecticut river, was settled direct from Eng-
land ; so also was the colony of New Haven, on the coast of
Long Island Sound west of the Connecticut. From year to
year the planting of towns went diligently on : almost every
town became the prolific mother of towns, which either sprang
452 THE GOVEBNMEKT OF THE UNITED STATES.
up close about it and retained a sort of dependence upon it, or,
planted at a distance, ventured upon an entirely separate life
in the wilderness (sees. 115, 116, 118).
838. Union of the Towns. — Gradually the towns of each
of the general regions mentioned drew together into the colo-
nies known to later times, the colonies which were to form the
Union. Plymouth merged in Massachusetts ; Portsmouth,
Newport, and Providence became but parts of Rhode Island ;
New Haven was joined to Connecticut. But at first these
larger colonies were scarcely more than town leagues : each
town retained unaltered its separate organization and a perfect
independence in the regulation of its own local affairs. In
Rhode Island, particularly, their jealousy of each other and
their reluctance to expose themselves to anything like a loss
of perfect autonomy long kept the common government which
they most of the time maintained at a balance between union
and dissolution. In the other New England colonies the same
influences manifested themselves, though in a less degree.
The town system which everywhere prevailed was by its
nature an extremely decentralized form of government : gov-
ernment, so to say, came to a separate head in each locality :
and the chief vitality was in these several self-governing units
of each group rather than in the bonds which connected them
with each other.
839. Forms of Town Government. —The form of town
government was everywhere such as it was quite natural that
Eiiglishmen should have set up. The names of the town offi-
cers were borrowed from the borough governments at home,
and their duties were, as nearly as circumstances warranted,
the same as the duties of the officers whose names they bore.
But the New England town was, at the same time, in maiiy of
its most important and most characteristic features, rather a
reversion to older types of government than a transplanted
cutting of the towns which the settlers had left behind them
in the England of the seventeenth century. There was in it
THE GOVERN|tIEKT OF THE ITNITED STATES. V)^
of eourse none of the elaborated class privilege that narrowed
the town governments of the England of that time. All the
townsmen met in town meeting and there elected their officers :
those officers were responsible to them and always rendered
careful account of their actions to the body which elected
them. Generally the most important of these officers were
called Selectmen, — men selected by the town meeting to carry
on the necessary public business of the community, — and
these Selectmen stood in the closest relations of counsel and
responsibility to the town meeting. In the earliest times the
franchise was restricted, in Massachusetts and New Haven at
least, to those who were church members, and many were ex-
cluded by this rule from participation in the government ; but
even under such circumstances there was real and eifective
self-government. The towns lacked neither vitality nor energy,
for they did not lack liberty. In the late days when great cities
grew up, the simple township system had to be abandoned in
part ; as the colonies expanded, too, they gained in energy and
vitality as wholes, and their component parts, the towns, fell
by degrees to a place of less exclusive importance in colonial
affairs ; but this basis of the township was never lost and is to-
day still the foundation of local government in New England.
840.. Colonial Organization. — As the towns came together
into the groupings which constituted the later colonies other
areas of government of course came into use. Townships
were, for judicial purposes, combined into counties, and by
various other means of organization a new nexus v(as given to
the several parts of the now extended state. Erom the first
the colonists had their " general courts," their central legisla-
tive assemblies representative of the freemen. To these
assemblies went delegates from the several towns comprised
in the colony. As the colonies grew, their growth but
strengthened their assemblies : it was in the common ruling
function of these that the union of the several parts of each
colony was made real and lasting.
454 THE GOVEENMENT OP THE UHITED STATES.
The sheriffs of the counties of colonial Massachusetts were appointed
by the Governor. The development of the county organization brought
into existence, too, Justices of the Peace who met in Quarter Sessions,
afterwards called "General Sessions,'' and who were the general county
authority quite after the fashion of the mother country.^
841. The Southern Colonies. — To this picture of the
political institutions of colonial New England political and
social organization in the Southern colonies offered many-
broad contrasts. The settlers in Virginia were not religious
refugees : they had come out for a separate adventure in polit-
ical, or rather in social, organization, but not for a separate
venture in religion ; and the coast they happened upon, instead
of being rugged and bleak, was low and fertile, with a kindly
climate, deep rivers, broad stretches of inviting country, and a
generous readiness to yield its fruits in season. They had
been sent out by a Company (the " Virginia Company " it was
called) in England, to which the Virginia territory had been
granted by the Crown, and they had no thought but to live
under the governors whom the Company had placed over
them. They founded Jamestown some hundred miles above
the mouth of the James river ; but Jamestown was in no way
like the New England towns, and it soon became evident that
town life was not to be the characteristic life of the colony.
The rich soil invited to agriculture, the numerous rivers, full
and deep, stood ready to serve as natural highways, and as the
population of the colony increased it spread, — spread far and
wide along the courses of the rivers.
842. Expansion without Separation. — Still there would
appear to have been no idea of organic separation in this pro-
cess, as there was so often in the spreadings of the New England
colonists. Great plantations indeed grew up with an almost
entirely separate life of their own, with their own wharves on
1 See Tnmi and Counti/ Government in the English Colonies of North
America, by Edward Channing, Johns Hopkins University Studies in His-
torical and Political Science, 2d Series, pp. 40-42.
THE GOVERNMENT OF THE UNITED STATES. 455
the river fronts and their own direct trade with the outer
world by vessels which came and went between them and
England, or between them and the trading colonies to the
north ; but all this took place without any idea of organic po-
litical separateness. This diffused agricultural population thus
living its own life on the great rural properties which steadily
multiplied in all directions still consciously formed a single
colony, living at first under the general government of the
Company which had sent out the first settlers, and afterwards,
when the Company had been deprived of its charter and pos-
sessions, under the authority of royal governors. Its parts
hung loosely together indeed, but they did not threaten to fall
apart : the plan was expansion, not segregation.
843. Southern Colonial Society. — The characteristics of
'the society formed under such circumstances were of course
very marked. Slaves were early introduced into the colony,
and served well to aid and quicken the development of the
plantation system. A great gap speedily showed itself between
the owners of estates and the laboring classes. Where slavery
exists manual toil must be considered slavish and all the ideas
on which aristocracy are founded must find easy and spontar
neous rootage. Great contrasts of condition soon appeared,
such as the more democratic trading communities of New Eng-
land were not to know until the rise of the modern industrial
organization ; and the governing power rested of course with
the powerful, the propertied classes.
844. Government of Colonial Virginia. — The government
of colonial Virginia bore, in all its broader features, much the
same character as the rural government of England. Organ-
ization was effected through a machinery of wide counties,
instead of by means of compacted townships. There was at
the head of each county, under this first order of things, a
Lieutenant whose duties corresponded roughly with those of
the Lords Lieutenant in England. The other important ex-
ecutive officer of the county, too, in Virginia as in England,
456 THE GOVERNMENT OP THE UNITED STATES.
was the Sheriff. The Lieutenant was appointed by the Gov-
ernor, was chief of the military (militia) organization of the
county, and, by virtue of his membership in the Grovernor's
Council, exercised certain judicial functions in the county.
The Sheriff also was appointed by the Governor, upon the nom-
ination of the Justices of the county. His duties an English
sheriff would have regarded as quite normal. And added to
Jhese officers there was, as in England, a " commission of the
peace," a body of justices or commissioners authorized to hold
county court for the hearing of all ordinary cases not of grave
import ; authorized to levy the county taxes, to appoint sur-
veyors of highways, to divide the county into precincts ; em-
powered to act as the general administrative authority of the
county in the management of all matters not otherwise as-
signed. The Episcopal church had the same offi.cial recog-"
nition in Virginia as in England and contributed the same
machinery, — the machinery of the Vestry, — to local govern-
ment. Even the division of the 'hundred' was recognized,
so close was the outline likeness between the institutions of the
mother country and those of her crude child in the west. The
system was undemocratic, of course, as was its model: "the
dominant idea," as Mr. Ingle says, " was gradation of power
from the Governor downward, not upward from the people." '
The Justices, like the other officers of the county, were ap-
pointed by the Governor, and held only during his pleasure : the
whole system rested upon a rather absolute centralization. But
still there was liberty. There was strong local feeling and
individual pride to counteract the subserviency of the officers :
those officers showed a more or less self-respecting independ-
ence in their administration ; and at least the spirit of English
self-government was kept alive.
1 Local Institutions in Virginia, by Edward Ingle, Johns Hopkins Uni-
versity Studies in Historical and Political Science, 3d Series, p. 97 (con-
tinuous, p. 199).
THE GOVERNMENT OP THE UNITED STATES. 457
845. Virginia's Colonial Assembly. — The vital centre of
the political life of the colony was her representative assembly.
So early as 1619, but twelve years after the foundation of the
colony (1607), the Virginia Company, then still in control, had
called together in the colony, through its governor, an assembly
representing the plantations then existing, which were in this
way treated as independent corporations entitled to a represen-
tative voice in colonial affairs. Later years saw the Assembly
developed upon the basis of a representation by towns, hun-
dreds, and plantations : and even after the governors sent out
by the Company had been supplanted by royal governors this
representative body, this House of Burgesses, as it came to be
styled, continued to exist, and to wax strong in control. The
first Assembly, that of 1619, had sat in joint session with the
governor and his council, but the more fully developed assem-
bly of later times sat apart as a distinct and independent body.
It was this elective representation in the government of the
colony which made and kept Virginia a vital political unit,
with a real organic life and feeling.
846. The constitutions of the other southern colonies
corresponded in aU essential features with the constitution of
Virginia. They, too, had the county system and the general
representation in a central assembly, combined with governors
and councils appointed by the Crown. All save Maryland.
Her constitution differed from the others mainly in this, that
in place of the king stood a ' proprietor ' to whom the fuUest
prerogatives of, government had been granted.
847. The Middle Colonies had a mixed population. New
York had been New Amsterdam, and the Delaware had been
first settled by the Swedes and then conquered by the Dutch.
When the territory, which was to comprise New York, New
Jersey, Delaware, and Pennsylvania, fell into the hands of
the English the foreign element was not displaced but merely
dominated ; and to a large extent it kept its local peculiarities
of institution. For the rest, the English settlers of the region
458 THE GOVEENMBNT OP THE UNITED STATES.
followed 110 uniform or characteristic method of organization.
The middle colonies, though possessed of a rich soil, had also
fine seaports which invited to commerce; their climate was
neither so harsh as that of New England, nor so mild and
beguiling as that of the southern colonies. Their people, conse-
quently, built towns and traded, like the people of jSTew Eng-
land ; but also spread abroad over the fertile country and farmed,
like the people of Virginia. They did these things, however,
without developing either the town system of New England or
the plantation system of Virginia. Townships they had, but
counties also ; they were simple and democratic, like the New
Englanders, and yet they were agricultural also, like the Vir-
ginians : in occupation and political organization, as well as in
geographical situation, they were midway between their neigh-
bors to the north and south.
848. The Charters: Massachusetts. — The political rela-
tions of the colonies to' the mother country during the various
developments of which I have spoken were as various as the
separate histories of the colonies. The three New England
colonies, Massachusetts, Ehode Island, and Connecticut, pos-
sessed charters from the king which virtually authorized them
to conduct their own governments without direct interference
on the part of the Administration at home. During the first
years of English settlement on the American coast it had been
the practice of the government in England to grant territory
on the new continent to companies like the Virginia Company
of which I have spoken, — grants which carried with them the
right of governing the new settlements subject only to a general
supervision on the part of the home authorities. - The colony
of Massachusetts Bay was established under such an arrange-
ment : a Company, to which special privileges of settlement
and government had been granted, sent out colonists who
founded Salem and Chaiiestown ; but the history of this Com-
pany was very different from the history of the Virginia Com-
pany. The Virginia Company tried to manage their colony
THE GOVERNMENT OF THE UNITED STATES. 459
from London, where the members of the Company, who were
active liberals and therefore not very active courtiers, pres-
ently got into trouble with the government and had both their
charter and their colony taken away from them. The Massar
chusetts Company, on the other hand, itself came to America,
and, almost unobserved by the powers in London, erected some-
thing very like a separate state on the new continent. Its
charter was received in 1629 ; in 1630 it emigrated, governor,
directors, charter, and all, to America, bringing a numerous
body of settlers, founded Boston and Cambridge, and put
quietly into operation the complete machinery of government
which it had brought with it. It created not a little stir in
oflB-cial circles in England when it was discovered that the
Company which had been given rights of settlement on the
New England coast had left the country and was building a
flourishing semi-independent state on its territories ; but small
colonies at a great distance could not long retain the atten-
tion of busy politicians in London, and nothing was done then
to destroy the bold arrangement. Fatal collision with the home
government could not, however, it turned out, be permanently,
or even long avoided by the aggressive, self-willed rulers of
the Massachusetts Company. Many of the laws which they
passed did not please the Crown, — particularly those which
set up an exclusive religion and tolerated no other ; they would
not change their laws at the Crown's bidding ; and, though the
evil day was postponed, it came at last. In 1684 the contest
between Crown and colony came to a head, and the charter of
the Massachusetts Company was annulled. Before a change
could be effected in the government, indeed, the king, Charles
IL, died, and during the troublous reign of James II. the colo-
nists quietly resumed their charter privileges ; but in 1692 the
government of William and Mary was ready to deal with them,
and a new form of colonial organization was forced upon them.
They were compelled to take a governor from the king ; the
royal governor appointed the judicial ofGlcers of the colony and
460 THE GOVERNMENT OP THE UNITED STATES.
controlled its military forces ; and, although the colonists re-
tained their assembly and through that assembly chose the
governor's Council, the old charter privileges were perma-
nently lost.
849. The Connecticut Charter. — Ehode Island and Con-
necticut were small and more fortunate. The town of Say-
brook, at the mouth of the Connecticut river, had been founded
under a charter granted to two English noblemen, and consisted,
therefore, of immigrants direct from England ; but Saybrook
did not grow rapidly and proved a comparative failure. The
successful and dominant settlement on the Connecticut was
that which had been founded higher up the river at Hartford
by men from Massachusetts who had neither charter nor any
other legal rights, but who had simply come, settled, and made
a written constitution for themselves. New Haven, westward
of the river on the shore of' the sound, had been established
by a band of English immigrants equally without charter
rights, but equally ready and able to construct a frame of gov-
ernment for themselves. Some thirty years after their settle-
ment, the leaders of the 'Connecticut colony,' up the river,
which meantime had become an extended cluster of towns,
decided that it was time to obtain a charter. Accordingly
they sent their governor, Winthrop, to England to procure
one. He was entirely successful, much more successful than
was pleasant to the settlers of the New Haven district ; for he
had obtained a grant which included their lands and colony
and which thus forced them to become a part of ' Connecticut.'
Saybrook had already been absorbed. The charter gave the
colonists substantially the same rights of self-government that
they had had under their own written constitution, adopted
upon their first settlement ; it was, in other words, just such
a charter as Massachusetts then enjoyed. And, unlike Massar
chusetts, Connecticut kept her charter, kept it not only through
colonial times to the devolution, but made it at the Revolution
her state constitution, and was content to live under it until
THE GOVERNMENT OF THE UNITED STATES. 461
1818. Her shrewdness, her arts of timely concession, and her
inoffensive size enabled her to turn away from herself each
successive danger of forfeiture.
850. Rhod: Island's Charter. — Rhode Island was similarly
protected by fortune and sagacious management. Eoger Wil-
liams, the energetic leader of settlement in that region, obtained
a charter from Parliament in 1644, which was confirmed in
1654, and replaced by a new charter, from Charles II., in 1663,
the year after Connecticut obtained its legal privileges through
the instrumentality of Winthrop. As New Haven and Con-
necticut were joined by Winthrop's charter, so were the towns
of the Ehode Island country united by the charters obtained
by Williams, under the style 'Rhode Island and Providence
Plantations,' — a title which is still the full official name of
the state. The charter of '63 was retained by the people of
Rhode Island even longer than the people of Connecticut re-
tained theirs. It was not radically changed until 1842.
861. Proprietary Governments. — The governments of
almost all the other colonies were at first ' proprietary ' ;
those of Maryland, Pennsylvania, and Delaware remained pro-
prietary until the Revolution. Maryland was granted to the
Calverts, Lords Baltimore ; Pennsylvania and Delaware were
both included in the grant to William Penn ; New York was
bestowed upon James, Duke of York, upon whose ascension of
the throne, as James II., it became an immediate province of
the Crown ; New Jersey, originally a part of New York, was
first bestowed by the Duke of York on Lord John Berkeley
and Sir John Cartaret, was afterwards divided, then sold in
part, and finally surrendered to the Crown (1702) ; the Caro-
linas and Georgia in the same way, given at first to propri-
etors, passed very soon into the hands of the royal govern-
ment. New Hampshire, after several attempts to unite with
Massachusetts, fell quietly into the status of a royal colony,
without having had either a charter or a proprietary* stage
of existence,
462 THE GOVBENMENT OF THE UNITED STATES.
862. Goyernment under proprietors meant- simply govern-
ment by governors and councils appointed by the proprietors,
with in all cases a full right on the part of the people to con-
trol the government through representative assemblies. The
private proprietors, like the great public proprietor, the Crown,
granted charters to their colonies. The charter which Penn
bestowed upon Pennsylvania is distinguished as one of the
best-conceived and most liberal charters of the time; and
under it his colony certainly enjoyed as good government as
most of the colonies could secure.
853. Direct Government by the Crown, which came in turn
to every colony except Rhode Island, Connecticut, Maryland,
Pennsylvania, and Delaware, involved the appointment of
governors by the Crown, and also, everywhere except in Mas-
sachusetts, the appointment of the governor's council. It gen-
erally involved also the dependence of the colonial judiciary,
and in general of the whole administrative machinery of gov-
ernment, upon the royal will ; but it, nevertheless, did not
exclude the colonists from substantial powers of self-govern-
ment. Everywhere legislators disciplined governors with the
effective whip of the money power, and everywhere the people
grew accustomed to esteem the management of their own affairs,
especially the control of their own taxes, matter-of-course privi-
leges, quite as inalienable rights of Englishmen in America as
of Englishmen in England.
854. Development of the Assemblies. — It was, indeed, as
a matter of course rather than as a matter of right that the
powers of the colonial assemblies waxed greater and greater
from year to year. Parliament would have been wise to con-
tinue the policy of neglect which had been the opportunity of
the colonies in the development of their constitutional liber-
ties. Left to themselves, they quickly showed what race they
were of. ^
As Burke said, in their justification, they " had formed within them-
selves, either by royal instruction or royal charter, assentiblies so' en-
THE GOVEENMENT OP THE UNITED STATES. 463
ceedingly resembling a parliament, in all their forms, functions, and
powers, that it was impossible they should not imbibe some opinion of
a similar authority.
"At the first designation of these assemblies, they were probably
not intended for anything more (nor perhaps did they think themselves
much higher) than the municipal corporations within this island, to
which some at present love to compare them. But nothing in progres-
sion can rest on its original plan. . . . Therefore, as the colonies pros-
pered and increased to a numerous and mighty people, spreading over
a very great tract of the globe, it was natural that they should attribute
to assemblies so respectable in their formal constitution some part of
the dignity of the great nations which they represented. No longer
tied to by-laws, these assemblies made acts of all sorts and in all cases
whatsoever. They levied money, not for parochial purposes, but upon
regular grants to the crown, following all the rules and principles of a
parliament, to which they approached every day more and more nearly.
. . . Things could not be otherwise ; and English colonies must be had
on these terms, or not had at all. In the meantime neither party felt
any inconvenience from this double legislature,' to which they had been
formed by imperceptible habits, and old custom, the great support of
alt the governments in the world. Though these two legislatures were
sometimes found perhaps performing the very same functions, they did
not very grossly or systematically clash. ... A regular revenue, by the
authority of Parliament, for the support of civil and military establish-
ments, seems not to have been thought of until the colonies were too
proud to submit, too strong to be forced, too enlightened not to see all
the consequences which must arise from such a system."^
855. In such assertions of a right of parliamentary self-gov-
ernment it might be expected that the charter colonies would
be most forward ; but, as a matter of fact, such was not the
case. Massachusetts was ever, indeed, very stubbornly and
heroically attached to her liberties, but the royal colony of
Virginia was not a whit behind her. The assemblies of the
royal colonies, no less than those of the charter governments,
early, and as if by an instinct and habit common to the race, de-
1 The legislature of England, i.e., and a colonial legislature.
2 "Letter to the Sheriffs of Bristol," Works (ed. Boston, 1880), Vol. II.,
pp. 232, 233.
464 THE GOVERNMENT OP THE UNITED STATES.
veloped a consciousness and practice of local sovereignty, which
comported well enough, indeed, with perfect loyalty, which
was long-suffering as towards ISTavigation Acts and all inter-
ferences by the mother country with the external relations of
the colonies, their place in the politics and commerce of the
outside world, but which was from the first prompt to resent
and resist all dictation as to the strictly interior affairs of the
settlements. And the same was true of the proprietary colo-
nies, also: Maryland assumed the same privileges that Vir-
ginia insisted upon enjoying, and even Pennsylvania, with its
population compounded of English, Dutch, and Swedes, mani-
fested not a little of the same spirit of independent self-
direction.
866. Development of Constitutional Liberty in the Col-
onies. — There was, therefore, a comparatively uniform de-
velopment of constitutional liberty throughout the colonies.
Everywhere the same general causes were operative. The set-
tlement and development of a new country gave to the elective
governing bodies of the colonies a wide and various duty of
legislative regulation; the newness of the country created
everywhere substantially the same new conditions of social rela-
tionship ; everywhere, and more and more as the years went on,
there was a very general participation in communal and colonial
affairs by the mass of the people most interested : democratic
institutions brought in their train equality of law and a wide-
spread consciousness of community of interest. Each colony
grew the while more and more vividly conscious of its separate
political personality in its relations with the other colonies and
with the ruling powers in England.
857. Political Sympathy of the Colonies. — The substan-
tial identity of the lines of institutional development in the
several colonies appears in nothing more clearly or conclu-
sively than in their close and spontaneous alliance against Eng-
land at the Eevolution. Despite very considerable outward
differences of social condition and many apparent divergencies
THE GOVERNMENT OP THE UNITED STATES. 465
of interest as between colony and colony, they one and all
wanted the same revolution: almost without hesitation they ran
together to co-operate by the same means for the same ends ;
they did not so much make a common cause as liave a common
cause from the first. The real concrete case of revolution, so
to say, was made up between England and Massachusetts : to
the politicians in the mother country it seemed possible to di-
vide the colonies on grounds of self-interest : apparently colo-
nies so utterly different in every outward aspect, so strongly
contrasted in actual economic condition as Massachusetts and
Virginia, could easily be played off against one another. But
we now know how little foundation of fact such a view had.
Boston's trade was offered to Salem, her commercial rival, as a
bait to catch Salem's acquiescence in the iniquitous Boston
Port Bill which shut Boston off from all trade ; but Salem
would not have it : what was to prevent similar treatment of
herself in the future ? More striking still, distant Virginia
sounded the call to revolution in behalf of Massachusetts : the
contest was political, she clearly perceived, not economical, —
a contest of principle, not a contest for any temporary interest
or momentary advantage ; from the point of view of politics
Massachusetts' quarrel was Virginia's also. Virginia spoke at
once, therefore, and as a leader, for combination, for a joint
resistance to the aggressions of the home government, and at
length for independence and a perpetual union between the
colonies. For the shortest possible time did the struggle re-
main local ; immediately it became 'continental.'
868. American as compared with English Constitutional
Development. — There was in this development of self-govern-
ment in America a certain very close resemblance to the devel-
opment of self-government in England ; but there were also
other points of very strong and obvious contrast between the
institutional histories of the two countries. Both in England
and America the process of institutional growth was in the same
direction : it began with small, hardy, deep-rooted local insti-
466 THE GOVERNMENT OP THE ONITED STATES.
tutions, with small self-directing oommunities, and widened
from these to national institutions which bound the constituent
communities together in a strong and lasting central union.
England began with her village communities and her judicial
'hundreds/ with the primitive communal institutions of the
Teutonic folk ; these were first gathered to a head in the petty
kingdoms of the days of the Saxon Heptarchy ; another step,
and these one-time petty kingdoms were merely the counties
of a wider union, and England was ready for the amalgamation
of the Norman rule, was ready for the growth of her parliar
ments and her nationality. In like manner, the United States
began with isolated settlements upon a long coast, settlements
separate, self-contained, self -regulative ; these in time merged
in numerous petty colonial states ; and finally these colonial
states fitted themselves together into a national union.
859. Process of Growth in America Federation, in England
Consolidation. — But the means of integration were in the two
cases quite diverse. American integration has been federal ;
English, absorptive, incorporative. The earlier stages of fed-
eration did not appear in the southern colonies ; because there
the unity of the first settlement was generally not broken ; the
Virginia of the Revolution was but an expansion of the James-
town settlement ; growth by agricultural development was not
disintegrating like growth by town establishment. But in
New England the process is obviously federative from the first,
finding its most perfect type, probably, in Ehode Island, whose
town atoms drew so slowly and reluctantly together and so long
stoutly resisted the idea that they had in any sense been
absorbed or subordinated under the operation of the charters
of ' Khode Island and Providence Plantations.' What was at
first mere confederation between these smallest units, however,
by degrees became virtual coalescence, and the absorbed towns
finally formed but subordinate parts in the new and larger
colonial units which drew together in the Continental Con-
gresses, Between these larger units, these full-grown colonial
THE GOVERNMENT 01? THE UNITED STATES. 467
states, of course, union was from the first distinctly federative,
matter of concession and contract. They were united in en-
tirely voluntary association, as of course the Saxou kingdoms
were not.
860. Conscious Development of Institutions in America.
— Throughout their development, therefore, the colonies pre-
sented, in still another equally important respect, a marked
contrast to English development in this, that the formulation
of their institutions was conscious and deliberate. The royal
colonies, like the proprietary and the charter colonies, exercised
their rights of self-government under written grants of privi-
lege from the Crown : their institutions grew within the area
of written constituent law; from the first they had definite
written ' constitutions ' wherein the general fabric of their gov-
ernments was outlined. Constitution by written law, there-
fore, became very early one of the matter-of-course habits of
colonial thought and action. When they east off their alle-
giance to Great Britain their self-constitution, as independent
political bodies, took the shape of a recasting of their colonial
constitutions simply ; Rhode Island and Connecticut, as we
have seen, did not even find it necessary to change their char-
ters in any important particular : they already chose their own
governors and officials as well as made their own laws. The
other colonies, with little more trouble, found adequate means
of self-government in changes which involved hardly more
than substituting the authority of the people for the authority
of the English Crown. But the charter, the written constit-
uent law, was retained as of course : the new governments had
their charters which emanated from the people, as the old gov-
ernments had had theirs given by the king. Popular conven-
tions took the place of the Privy Council. The colonists were
not inventing written constitutions ; they were simply contin-
uing their former habitual constitutional life.
861. English Law and Precedent. — Whatever the form of
colonial institutions, however, their substance and content were
468 THE GOVEENMBKT OF THE UNITED STATES.
thorougMy English. In a sense, indeed, even the forms of
colonial constituent law may be said to have been English,
since it was English practice which originated the idea and
habit oi giving written grants of privilege to distant colonies.
The colonial law of Canada and Australia stands to-day in much
the same relation to the law of the mother coiintry that the law
of the American colonies bore to the law which created them
(sec. 826). Within the constitutions of the colonial and rev-
olutionary time, at any rate, English law and precedent were
closely followed. The English common law has gone with Eng-
lishmen to the ends of the world : the English communities in
America were but projected parts of the greater English commu-
nity at home ; the laws of private and personal relation which
obtained in England were recognized and administered also in
the colonies ; and when, at the time of the Revolution, the
colonists developed out of their charters the constitutions
under which they were to live as independent commonwealths
their first care was to adopt this common law under which
they had always acted. Important modifications were made
indeed in the law thus adopted. It was purged of all class
. privilege, of all church prerogative, of all things incompatible
with the simple democratic society of the new world ; but no
real break was made with the principles of English legal
precedent and practice.
862. Quite as naturally and quite as completely was English
practice adhered to in the public law of the colonies and of the
^independent commonwealths into which they grew. The relar
tions of the colonial legislatures with the colonial governors
were just the relations of King and Parliament reproduced on
a small scale, but with scarcely less earnestness and spirit. In
all respects, except that of the erection of a responsible min-
istry representing and shielding the Executive, the relations of
the people to their governments remind of English precedent.
The powers of the executive were, in small, the powers of the
Crown. The courts were constituted as the English courts
THE GOVERNMENT OF THE UNITED STATES. 469
were, and followed the same rules of procedure. Of course
the English in America, being men of the same practical politi-
cal race as Englishmen in England, struck out not a few lines
of development of their own in suiting their institutions to
the daily needs of a new civilization and to novel conditions of
social organization ; American politics were not long in acquir-
ing in many respects a character peculiarly their own. But
the manner of development was English throughout : there was
nowhere any turning of sharp corners : there was nowhere any
break of continuity : to the present day our institutions rest
upon foundations as old as the Teutonic peoples.
863. Union : Preliminary Steps. — How much of political
precedent that was their own the colonists had developed ap-
peared most distinctly when they came to put the timbers of
their Union together in the days succeeding the Revolution.
The colonies cannot be said to have framed any federative con-
stituent law until 1777, when the Articles of Confederation
were drawn up. Before that time they had co-operated with-
out any determinate law of co-operation, acting rather upon the
suggestions of international procedure than upon any clear
recognition of corporate combination. Preparations for union
there had been, and signs of its coming ; but no more. Eor a
period of forty years following the year 1643 the New England
colonies had held together in loose confederation against the
Indians ; in 1754 colonial delegates who had met at Albany for
conference with representatives of the Six Nations discussed
a premature plan of union ; in 1765 delegates from nine of the
colonies met at New York and uttered in behalf of all English
Americans that protest against taxation by Parliament which
gave the key-note to all the subsequent thought of the revolu-
tionary movement ; and in 1774 sat the first of the series of
' Continental Congresses ' with which began American union.
But in none of these steps was there any creation of organic
union : that was to be the result of slow processes, and was to
be effected only by the formulation of an entirely new body of
law.
470 THE GOVERNMENT OF THE TJNITED STATES.
864. Separateness of the Colonial Governments. — It is very-
important, if a just view is to be formed of the processes by wliich the
tJnion was constructed, to realize the complete separateness of the gov-
ernments of the colonies. They all held substantially the same general
relation to the English authorities ; they had a common duty as towards
the distant country from which they had all come out ; but they were not
connected by any bonds of government on tliis side the sea. Each of
the colonies had its own separate executive ofScials, legislature, and
courts, which had no connection whatever with the officers, legislatures,
and courts of any other colony. Their co-operation from time to time ,
in meeting dangers wliich threatened them all alike was natural and
spontaneous, but it was intermittent; it rested upon mere temporary
necessity and had no basis of interior organic law. The colonists had
many grounds of sympathy. Besides possessing the same blood and the
same language, they entertained the same ideas about political justice ;
their dangers, whether proceeding from aggressions on the part of the
French and Indians whicli threatened their lives, or from aggressions
by Parliament which threatened their liberties, were common dangers :
they were one and all equally interested in the successful development
and liberal government of the new country with which they had
identified themselves. But the motive of their endeavors was always
the preservation of their internal and separate self-government ; their
liberties were historically coincident with "their organization and rights
as separate governments. It was, therefore, only by the slow processes
of a hard experience of the fatal consequences of any other course that
the colonies were brought to subordinate themselves to a central au-
thority which could go further than mere conference and command them.
They saw from the first the necessity for co-operation, but they did not
see from the first the absolute necessity for union. Very slowly, con-
sidering the swift influences of revolution amidst which they worked, and
very reluctantly, considering the evident dangers of separation which
daily looked them in the face, did they construct the union which was
to deprive them of the fulness of their loved independence.
865. The Confederation. — It was not until 1781 that a
foundation of distinct written law was put beneath the prac-
tice of union ; it was not till 1789 that the law of the union
was made organic. In 1781 the Articles of Confederation were
finally adopted which had been proposed by the Continental
Congress of 1777 : but these Articles gave no real integration
THE GOVERNMENT OP THE UNITED STATES. 471
to the constituent states : they were from the first a rope of
sand which could bind no one. They did little more than
legitimate the Continental Congress. Under them the powers
of the Confederation were to be exercised by its Congress ; its
only executive or judicial organs were to be mere committees
or agencies of the Congress ; and it was in fact to have no real
use for executive parts, for it was to have no executive rights.
Its function -was to be advice, not command. It hung upon
' the will of the states, being permitted no effective will of its
own. The Articles were scarcely more than an international
convention.
866. The Articles of Confederation formally vested the exercise
of federal functions in a Congress just such as the Continental Con-
gresses had been, ^ a Congress, that is, consisting of delegates from the
several states, and in whose decisions the states were to have an ahso-'
lutely equal voice. No state, it was arranged, should have her vote in
the Congress unless represented by at least two delegates, and no state,
on the other hand, was to be entitled to send more than seven delegates ;
whether she sent two or seven, however, her vote was to be single vote,
upon which her delegates were to agree. The government thus con-
stituted was ofScially known as "The United States in Congress as-
sembled." For the exercise of representative functions it was very
liberally and completely equipped. To it the independence of the
several states in dealing with foreign powers was entirely subordinated.
It alone was to conduct all international correspondence and sanction
all international agreements; it was to control the army and navy of
the Confederation ; it was to preside over federal finances, doing all
borrowing and all spending that might be necessary for the purposes of
the common government; it was to determine the value of current coin
and the standards of weights and measures; it was to be arbitrator
in disputes between the states; in brief, it was to be the single and
dominant authority for all the graver common interests of the con-
stituent states : its representative position was eminent and complete.
867. ViTeakness of the Confederation. — But it was giwn abso-
lutely no executive power, and was therefore helpless and contemptible.
It could take no important resolution without the difficult concurrence
of nine states, — a concurrence made all the more difficult by the fact
that the removal of the pressure of the war with England very greatly
abated the interest of the states in the functions of the central Con-
472 THE GOVERNMENT OP THE UNITED STATES.
gress, and led some of them again and again to fail to send delegates to
its sessions; its chief executive agency was a committee of its members
representing all the states (hence called the "Committee of States")
and bound by the same hard rule of obtaining the concurrence of nine
of its thirteen members to every important executive step ; and, above
all, its only power to govern the states was a power to advise them. It
could ask the states for money, but it could not compel them to give
it ; it could ask them for troops, but could not force them to heed the
requisition ; it could make treaties, but must trust the states to fulfil
them ; it could contract debts, but must rely upon the states to pay ■
them. It was a body richly enough endowed with prerogatives, but
not at all endowed with powers. "The United States in Congress
assemhled " formed a mere consultative and advisory board.
868. Need of a Better Union. — It was the fatal executive
impotency of the Confederation which led to the formation of
the present stronger and more complete government. The old
Continental Congresses had sufficed, after a fashion, to keep
the colonies together so long as the pressure of the war con-
tinued ; throughout that war there had been, despite much in-
difference now and again on the part of some of the colonies
to their duty, and of not a little positive dereliction of plain
obligations, a wonderful degree of energy and unity of action
among the confederated colonists. But when the pressure of
the war was removed there was an ominous access of indiffer-
ence, an ill-boding decrease of respect for plighted faith between
the states. Signs fast multiplied both of the individual weak-
ness of the states and of the growth of threatening jealousies
between them. A war of tariffs began between neighbor states
on the seaboard, notably between New York and New Jersey
and between "Virginia and Maryland. In Massachusetts there
flared out, by reason of the poverty engendered by the war, a
rebellion of debtors' under Daniel Shays which it was for a mo-
ment feared the state authorities might find it hard to cope
with. It speedily became evident that, both for the sake of in-
ternal order and of inter-state peace and goodwill, a real central
government was needed. Central consultation would not suffice ;
THE GOVERNMENT OF THE UNITED STATES. 473
there must be central government. The Confederation, there-
fore, was no real advance upon the old Continental Congresses.
Before a single decade had passed over the new government
with its fair-spoken Articles a new union had been erected and
the real history of the United States begun.
869. The Constitution: Colonial Precedents. — The pres-
ent Constitution erects a very different government : it is the
charter of a federal state, which has a commanding law and an
independent power of its own, whose Constitution and law are
the supreme law of the land. The Convention which framed
the new constitution met in Philadelphia in May, 1787, and
fused together over the slow fires of prolonged debate the ele-
ments of English and colonial precedent which were to consti-
tute the government of the United States. In the debates of
that Convention during that memorable summer are to be read
the particulars of the translation of English precedent into
American practice made during the formative colonial period.
Through the instrumentality of the able men who composed
that extraordinary assembly, the government of the United
States was fitted out with the full experience of the colonies
and of the revolutionary states.' It was arranged bhat the
legislature of the new federal government should consist of
two houses, not in direct imitation of the English system,
whose House of Lords we did not, of course, have the mate-
rials for reproducing, but in conformity with, an almost univer-
sal example set by the states. A single state furnished the
precedent in accordance with which a real difference of char-
acter was given to the two houses. The upper house of the
Connecticut legislature was constituted by an equal represen-
1 In describing the work of the Convention I follow here Professor
Alexander Johnston's clear exposition given in the New Princeton Review
for September, 1887, under the title "The First Century of the Con-
stitution." A convenient brief survey of the chief features of the state
constitutions at the time of the formation of the present government of the
Union may be found in Hildretli, Vol. III., Chap. XLIV,
474 THE GOVERNMENT OF THE UNITED STATES.
tatioii of the towns of the state, -while her lo-wer house repre-
sented her people at large : and Connecticut's example showed
the Convention a convenient way of compromise by which
they could reconcile the two parties within it which were con-
tending, the one for an equal representation of the states in Con-
gress after the absolute manner of the Confederation, the other
for a proportional representation of the people simply. The
Senate, it was agreed, should represent the states equally,
the House of Eepresentatives the people proportionally. The
names Senate and House of Eepresentatives were to be found
already in use by several of the States. The single Executive,
the President, was an obvious copy of the state governors,
many of whom at that time bore the name of president ; his
veto power was to be found formulated ready to hand in the
constitution of New York : a method of impeachment was
already prepared in the constitutions of half a dozen states.
Several states had also the office of Vice-President. With a
fine insight into the real character of the government which
they were constructing, the Convention provided that its judi-
ciary should be placed, not under the President or the houses,
but alongside of them, upon a footing of perfect equality with
them, and that with it, as a co-ordinate branch of the govern-
ment, should rest the weighty prerogative of passing upon the
constitutionality of all laws. A similar arrangement obtained
under the state constitutions, but the function of constitutional
interpretation was necessarily as old as written charters and
constitutions, had been an inevitable corollary to their funda-
mental proposition of a*gift of limited powers. Written con-
stituent law is by its very nature a law higher than the legis-
lature acting under it can enact, and by that law, as by an in-
variable standard, must the courts test all acts of legislation.^
The colonial courts had often upon this principle questioned
the validity of colonial legislation, and the Supreme Court of
1 See A. V. Dicey, The Lam of the Constitution, Chap. III.; and J. Bryce,
The American Commonwealth, Chap. XXIII.
THE GOVERNMENT OF THE UNITED STATES. 475
the United States had long had a prototype in the Judicial
Committee of the Privy Council, whose function it was to hear
appeals from the colonies, and whose practice it had been to
pronounce against all laws incompatible with the royal charters
(sees. 736, 826).
870. When they came to equip Congress with powers, the
Convention adopted the plan of careful enumeration : it set
out the acts of government which were to be permitted to the
legislature of the new government in a distinctly cast list of
eighteen items. Even in doing this, however, they may be said
to have been simply recording the experience of the Confed-
eration : they were giving Congress the powers for lack of
which the Congress of the Confederation had proved helpless
and ridiculous. It was only when they came to construct the
machinery for the election of the President that they left the
field of American experience and English example and devised
an arrangement which was so original that it was destined to
break down almost as soon as it was put in operation.
871. This general statement of the broader features of the selective
work of the Convention will suffice for the present: other more
particular references to state precedent and experience may be made in
their proper connections in our further discussion of the government.
I wish in these paragraphs only to fix the attention of the student, by
way of clarifying preparation, upon the instructive fact that the work
of the Convention was a work of selection, not a work of creation, and
that the success of their work was not a success of invention, always
most dangerous in government, but a success of judgment, of selective
wisdom, of practical sagacity, — the only sort of success in politics
which can ever be made permanent.
872. Character of the New Government. — It is one of
the distinguishing characteristics of the English race whose
political habit has been transmitted to us through the sagacious
generation by whom this government was erected that they
have never felt themselves bound by the logic of laws, but
only by a practical understanding of them based upon slow
precedent. For this race the law under which they live is at
}
476 THE GOVEENMBNT OF THE UNITED STATES.
any particular time what it is then understood to be; and this
understanding of it is compounded of the circumstances of the
case. Absolute theories of legal consequence they have never
cared to follow out to their conclusions. Their laws have
always been used as parts of the practical running machinery
of their politics, — parts to be fitted from time to time, by
interpretation, to existing opinion and social condition.
873. Character of the Government Changes with Opin-
ion. — It requires a steady, clear-viewed, thoroughly informed
historical sense, therefore, to determine what was at any given
time the real character of our political institutions. To us of
the present day it seems that the Constitution framed in 1787
gave birth in 1789 to a national government such as that
which now constitutes an indestructible bond of union for the
states ; but the men of that time would certainly have laughed
at any such idea, — and for the English race, as I have said,
every law is what those who administer it think that it is.
The men of 1789 meant to form " a more perfect union " than
that which had existed under the Confederation : they saw
that for the colonies there must be union or disintegration ;
they thought union needful and they meant to have it in any
necessary degree. But they had no special love for the union
which they set about consummating, and they meant to have as
little of it as possible, — as little as might be compatible with
wise providence as to the welfare of the new-fledged states.
They were even more afraid of having too strong a central
government than of having one which was too weak, and they
accepted the new constitution offered them by the Convention
of 1787 because convinced of the truth of the arguments urged
by its friends to the effect that the union would be federal
merely and would involve no real sacrifice of individuality or
autonomy on the part of the states.
874. Early Sentiment towards the Union. — It is aston-
ishing to us of this generation to learn how much both of
hostility and of indifference was felt for the new government,
THE GOVERNMENT OF THK UNITED STATES. 477
which we see to have been the salvation of the country. Even
those who helped make it and who worked most sincerely for
its adoption entertained grave doubts as to its durability ;
some of them even questioned, in despondent moments, its
usefulness. Philosophic statesmen like Alexander Hamilton
supported it with ardent purpose and sustained hope ; but for
the average citizen, who was not in the least degree philo-
sophic, it was at first an object of quite unexciting contempla^-
tion. It was for his state, each man felt, that his blood and
treasure had been poured out : it was that Massachusetts and
Virginia might be free that the war had been fought, not that
the colonies might have a new central government set up over
them ; patriotism was state patriotism. The states were living,
organic persons : the union was an arrangement, — possibly it
would prove to be only a temporary arrangement ; new adjust-
ments might have to be made.
875. Early Tolerance for Threats of Secession. — It is
by this frame of mind on the part of the first generation that
knew the present constitution that we must explain the un-
doubted early tolerance for threats of secession. The Union
was too young to be sacred ; the self-love of the states was too
pronounced to be averse from the idea that complete state
independence might at any time be resumed. Discontent in
any quarter was the signal for significant hints at possible
withdrawal. As- the new system lived on from year to year
and from year to year approved itself strong and effective it
became respected ; as it gathered dignity and force regard was
added to respect, until at last the federal government became
a rallying centre for great parties moved by genuine national
sentiment. But at first neither love nor respect shielded
the federal authorities from the jealousies and menaces of the
states. The new government was to grow national with the
growth of a national history and a national sentiment.
876. Growth of the National Idea. — The career and fate
of the Federalist Party very well illustrate the first state of
478 THE GOVEBNMBNT 0¥ THE UNITED STATES.
opinion concerning the Union. The Federalist party was the
party of the Constitution, — the party which had been chiefly
instrumental in bringing about the adoption of the new frame
of government. Immediately upon the inauguration of the
present Union this party of its friends was put in charge of
the new central body politic. It presided over the critical
period of its organization, and framed the first measures which
gave it financial credit, international consideration, security,
and energy. But it soon became evident that the Federalists
held views as to the nature of the new government which not
all of those who had voted for the adoption of the Constitu-
tion were willing to sanction. They assumed for the federal
authorities prerogatives of too great absoluteness, and seemed
to not a few to be acting upon the idea that the purpose of the
Constitution was to subordinate, and if need be sacrifice, state
interests to the interests of the general government. Very
speedily, therefore, they brought a reaction upon themselves,
and were displaced by a party which felt that the limitations
put by the Constitution upon federal authority ought to be
very strictly observed. This new party, calling itself ' Demo-
cratic-Republican, ' may be said to have been created by the
injudicious excesses of the Federalists ; and from this point of
view the Federalist party may be said to have effected its own
destruction. After its first national defeat it never again came
into power. Eapidly in some places, slowly in others, it went .
utterly to pieces.
877. But, although the Federalist party was destroyed, time
worked in favor of its political conceptions. The Democratic-
Eepublicans soon found that success in conducting the affairs
of the federal government was, even for them, conditioned
upon very liberal readings of the authority conferred by the
Constitution ; and by slow degrees they drifted into practices
of ' broad construction ' quite as abhorrent to their own first
principles as the much-berated measures of the Federalists
had been. But the Democratic-Eepublicans, — or the Demo-
THE GOVERNMENT OF THE UNITED STATES. 479
crats, as they were before loug more briefly described, — had
the advantage of a corresponding change in public opinion.
That, too, was steadily becoming nationalist in its tendencies.
878. Railroads, Expansion, and War aid the National Idea.
— So long as the people of one section of the country saw
little or nothing of the people of the other sections, separate-
ness of feeling and localness of view continued to exist and to
exercise a controlling force ; the majority of the people contin-
ued to put the states before the nation in their thoughts and
to demand more or less punctilious regard for state preroga-
tives. But when railroads began to be built and to multiply ;
when people from all parts of the Union began to go out and
settle the West together ; when seeing each other and trading
with each other began to make the people of all the states very
much alike in most of the greater things of habit and institu-
tion, and even in most of the smaller things of opinion and con-
duct ; when new states which had grown up in the West with-
out any of the old conservative colonial traditions began to be
admitted to the Union in increasing numbers, regarding them-
selves as born in and of the Union ; when a second war with
England and a hot struggle with Mexico had tested the gov-
ernment and strengthened a sentiment of national patriotism,
— then at length it began to be very generally thought that
the Federalists had been right after all ; that the federal gov-
ernment ought to come first in consideration, even at the cost
of some state pride.
879. Slavery stands in the Way of Nationality. — What
stood most in the way of the universal growth of this sort of
national feeling was the great difference between the northern
and southern portions of the Union caused by the existence
of slavery in the South. So long as the laborers in the South
were slaves and those of the North free men, these two sec-
tions could not become like one another either socially or
politically, and could not have the same national feeling. The
North and Northwest meant one thing when they spoke of the
480 THE GOVBENMBNT OF THE UNITED STATES.
nation ; the Soutli meant quite another thing. Each meant
a nation socially and politically like itself. The two sections,
therefore, rapidly became dissatisfied with living together under
the same political system, and the secession so much talked
about in various quarters in the earlier days of the Union at
last became a reality. Inevitably came the war of secession,
by means of whose fiery processes the differences of institution
between North and South were to be swept utterly away. ■
880. Civil War completes the Union. — The war wrought
changes of the most profound character. Secession was pre-
vented, the Union was preserved, and slavery was forever
abolished; these were the immediate effects of the struggle;
but the remoter results were even more important. They pene-
trated to the changing of the very nature of the Union, though
the form of the federal government remained in all essential
features unaltered. The great effect of the war was, that the
nation was made homogeneous. There was no longer any
permanent reason why the South should not become like the
rest of the country in character and sentiment. Both sections
were brought to the same modes of life and thought ; there
was no longer any obstacle to our being in reality one great
nation. The effort made in the war, moreover, to preserve the
Union, and the result of the war in making the country at last
homogeneous throughout, has made the federal government, as
representative of the nation, seem greater in our eyes than
ever before, and has permanently modified in the profoundest
manner the way in which all the old questions concerning
constitutionality and state rights are regarded.
881. Present Character of the Union. — It of course by no
means follows that because we have become in the fullest or-
ganic sense a nation, ours has become a unitary government,
its federal features merged in a new national organization.
The government of the Union has indeed become permanent,
the cherished representative, the vital organ of our life as a
nation ; but the states have not been swallowed up by the fed-
THE GOVERNMENT OF THE TJNITED STATES. 481
eral power : their prerogatives are as essential to our system
as ever, — are indeed becoming more and more essential to it
from year to year as the already vastly complex organism of
the nation expands. But, instead of regarding the government
of the United States and the government of a state as two
governments, as our fathers did, we now regard them, — if we
may make a matter-of-fact analysis of our working views in
politics, — as two parts of one and the same government, two
complementary parts of a single system. The value of the plan
of government which our statesmen adopted at the first, the
plan of functions divided between national and state author-
ities, has abated not a whit : we are only a little less anxious
about the clearness of the lines of division. The national
government still has its charter, somewhat enlarged since the
war, but substantially the same document as of old ; and the
national authorities must still confine themselves to measures
within the sanction of that charter: the state governments,
too, still have their charters, and still have valid claim to all
powers not specifically delegated to the , government of the
Union. Liberal construction of the federal charter the nation
wants, but not a false construction of it. The nation properly
comes before the states in honor and importance, not because
it is more important than they are, but because it is all-impor-
tant to them and to the maintenance of every principle of
government which we have established and now cherish. The
national government is the organic frame of the states : it has
enabled, and still enables, them to exist.
882. Present Character of the Government of the Union.
— It is perhaps most in accordance with the accomplished
results of our national development to describe the government
of the United States, not as a dual government, but as a double
government, so complete is the present integration of its state
and federal parts. Government with us has ceased to be plural
and has become singular, the government of the United States :
distinct as are its parts, they are not separate. For the sake of
482 THE GOATEENMENT OP THE TTKITBD STATES.
convenience, we speak of the government of the Union and of
the government of a state, as if the two were quite separate;
but such phraseology scarcely conveys a just impression of the
realities of our practice. The state and federal systems are so
adjusted under our public law that they may not only operate
smoothly and effectively each in the sphere which is exclu-
sively its own, but also fit into each other with perfect har-
mony of co-operation wherever their jurisdictions cross or are
parallel, acting as parts of one and -the same frame of govern-
ment, with an uncontested subordination of functions and an
undoubted common aim.
883. Although these two parts of our government are thus
vitally united, however, thus integrated into what is in reality
a single scheme of government, state law by no means depends
upon federal law for its sanction. The Constitution of the
United States and the laws and treaties passed in pursuance
thereof are indeed the supreme law of the land, but their su-
premacy does not trench upon or displace the self-originated
authority of the states in the immensely important sphere re-
served to them. Although it is true, taking our system as a
whole, that the governments of the states are subordinate in
our political order to the government of the Union, they are
not subordinate in the sense of being subject to be commanded
by it, but only in being less than national in their jurisdiction.
884. The States not Administrative Divisions but Con-
stituent Members of the Union. — The common and conven-
ient distinction between central and local government furnishes
no ground of discrimination as between the federal and state
governments. A central government, as contradistinguished
from a local government within the meaning of this distinc-
tion, is a government which prescribes both the constitution
and the mode of action of the lesser organs of the system to
which it belongs. This the governments of the states do with
reference to the townships, the counties, the cities within their
territories ; these local bodies are merely administrative divis-
THE GOVERNMENT OF THE UNITED STATES. 483
ions of the states, agencies delegated to do the daily work of
government. But, of course, there is no such relationship
between the federal government and the states. They are not
administrative divisions but constituent members of the Union,
co-ordinate with the Union in their powers, in no sense subject
to it in their appropriate spheres. They are excluded, indeed,
by the federal Constitution from the exercise of certain func-
tions, but the great and all-important functions which they do
exercise are not given them by that Constitution ; they are ex-
ercised, on the contrary, upon the completest principles of self-
direction. We may properly distinguish the government of a
county and the government of a state by the distinction be-
tween local and central government, but not the government
of a state and the government of the Union.
Chaeactee, Organs, and Functions op the States.
885. The States properly come first in a description of the
government of this country, not only because it was in conform-
ity with state models and precedents that the federal govern-
ment was constructed, but also and more particularly because
the great bulk of the business of government still rests with
the state authorities ; because the states still carry by far the
greater part of the weight of the governing function, still con-
stitute the ordinary fountains of justice and of legal right, still
stand nearest the people in the regulation of all their social
and legal relationships. Like the Swiss Cantons (sec. 615),
our states have given to the government which binds them to-
gether their own forms of constitution ; but even more than
the Cantons have our states retained their right to rule their
citizens in all ordinary matters without federal interference.
They are the chief creators of law among us. They are the
chief constituent units of our political system not only, but
are also self-directive units. They make up the mass, the body,
the constituent tissue, the organic stuff of the government of
484 THK GOVERNMENT OP THE UNITED STATES.
the country. To them is intrusted our daily welfare, to the
federal government only our collective interests. Upon the
character of the state governments depends the character of
the nation in its several constituent members; upon the char-
acter of the federal government depends the character of the
nation as a whole. If we are to begin our study of our insti-
tutions at the centre, the heart of self-government, we must
begin with the states.
886. The Law of the States: Its Character. — The law
of each state consists of two great parts, (1) the Constitution,
statutes, and treaties of the United States and (2) the consti-
tution and statutes of the state. The Constitution, statutes,
and treaties of the United States are the supreme law of the
land not so much in the sense of being set above the constitu-
tions and laws of the states as in the sense of being, by virtue
of the principles of our public law, integral parts of the law of
the states. The constitutions of several of the states declare
the Constitution of the United States to be a part of .the fun-
damental law of those states : but such declarations are only
formal recognitions of a principle now indubitable. On their
legal as well as on their political side the two parts of our sys-
tem have been completely integrated. Upon the state courts
as well as upon the courts of the United States rests the duty
of administering federal law. The federal Constitution is a
negative portion of state law in respect of the limitations
which it sets to the sphere of state activity ;■ but the laws
passed by Congress under the authority of that Constitution are
also positive portions of state law,. whose mandates all officers
of government, whether state or federal, are bound to observe.
887. The constituted authorities of the states do not stand
in the same relation, however, to the Constitution and laws of
the Union that they bear to state law : of state law they are
the final interpreters, but of federal law they are only provis-
ional interpreters. In acting upon federal law state officers
always act subject to the supervision of the federal tribunals.
THE GOVERNMENT OP THE UNITED STATES.' 485
888. The functions of the state courts with regard to the
Interpretation of federal law very forcibly illustrate the adjust-
ments of our system. If in any case brought in a state court the ques-
tion arise whether a certain state law involved in the case is or is not in
violation of the Constitution of the United States, the court may freely
give its judgment upon the question, and if its judgment be that the law
is not constitutional that judgment is conclusive : only when it declares
the law to he in agreement with the federal Constitution may its opinion
be cited to a federal tribunal for revision. The federal law is, thus, not
regarded as a thing apart from the law of a state, too sacred to be
handled by any but the federal courts, its specially constituted
guardians : it is a part of state law and the state courts may declare
and apply its principles. But of course in the last resort the federal
courts are themselves to shield it from a too liberal or too prejudiced
judgment by state judges, who may very conceivably be interested to
vindicate the statutes of their state as against any objections drawn
from the law of the Union. Both for the sake of making it uniform
and for the sake of keeping it supreme must federal law receive its final
adjudication in its own courts.
889. Scope of State Law. — A moment's thought suffices to
reveal how very great a field of activity, how preponderant a
part remains under our system to the states. The powers of
the federal government seem great by enumeration: besides
being intrinsically powers of the greatest importance, they are
made the more imposing in the Constitution by the fact of
their being set forth in an exhaustive list. The residuum of
powers that remains to the states, consisting as it does of un-
enumerated items, is of course vague, and because vague seems
unimportant by comparison. A moment's examination of this
residuum, however, a moment's consideration of its contents,
puts a very different face on the matter. It is worth while
for the sake of an adequate understanding of the real division
of powers under our government to give to the powers remain-
ing with the states something like the same setting forth that
is given to those granted to the Union.
890. Legislative Powers of the Union. — The Constitution of
the United States grants to Congress first of all, of course, the
486 -THE GOVEENMENT OF THE UNITED STATES.
power to lay and collect taxes, duties, imposts, and excises for
the support of the government of the Union, the payment of its
debts, and the promotion of the common defence and welfare,
and also the power to borrow money on the credit of the United
States ; but these powers of taxation and borrowing belong also
to the states, except that they must raise their revenues with-
out resort to duties, imposts, and excises, the privilege of impos-
ing these being reserved to the Union exclusively. The powers
which distinguish the general government from the govern-
ments of the states are not these powers of raising money but
these others : To control the monetary system of the country,
to maintain post-offices and post-roads, to grant patents and
copyrights, to deal with crimes committed on the high seas or
against the law of nations, to shape the foreign relations of
the country, to declare war and control the military forces of
the nation, and to regulate commerce both with foreign coun-
tries and among the states. It is empowered also to establish
uniform rules of naturalization and uniform laws concerning
bankruptcy ; but these powers do not belong to it exclusively ;
in case Congress does not act in these matters, the states may
adopt laws for themselves concerning them. All the powers
of the general government are plainly such as affect interests
which it would be impossible to regulate harmoniously by any
scheme of separate state action, and only such ; all other
powers whatever remain with the states.
891. Powers withheld from the States. ^Some powers the
Constitution of the United States expressly withholds from the
states, besides those granted exclusively to the general govern-
ment : No state may pass any bill of attainder, ex post facto law,
or law impairing the obligation of contracts, or grant any title
of nobility ; no state may, without the consent of Congress,
lay any imposts or duties, keep troops or ships of war in time
of peace, enter into any agreement with another state or with
a foreign power, or engage in war unless actually invaded or
in such immediate danger as will not admit of delay. But
THE GOVERNMENT OF THE UNITED STATES. 487
these prohibitions obviously curtail scarcely at all the sphere
which the states would in any case normally occupy within
the scheme of federal union.
892. Powers left with the States. — Compared with the
vast prerogatives of the state legislatures, these limitations
seem small enough. All the civil and religious rights of our
citizens depend upon state legislation; the education of the
people is in the care of the states ; with them rests the regula-
tion of the suffrage ; they prescribe the rules of marriage, the
legal relations of husband and wife, of parent and child ; they
determine the powers of masters over servants and the whole
law of principal and agent, which is so vital a matter in all
business transactions ; they regulate partnership, debt and
credit, insurance ; they constitute all corporations, both private
and municipal, except such as specially fulfil the financial or
other specific functions of the federal government ; they con-
trol the possession, distribution, and use of property, the exer-
cise of trades, and all contract relations ; and they formulate
and administer all criminal law, except only that which con-
cerns crimes committed against the United States, on the high
seas, or against the law of nations. Space would fail in which
to enumerate the particulars of this vast range of power ; to
detail its parts would be to catalogue all social and business
relationships, to examine all the foundations of law and order.
893. A striking illustration of the preponderant part played by state
law under our system is supplied in the surprising fact that only one
out of the dozen greatest subjects of legislation wliich hare engaged
the public mind in England during the present century would have come
within the powers of the federal government under the Constitution as
it stood before the war, only two under the Constitution as it stands
since the addition of the war amendments. I suppose that I am justi-
fied in singling out as these twelve greatest subjects of legislation the
following : Catholic emancipation, parliamentary reform, the abolition
of slavery, the amendment of the poor-laws, the reform of municipal
corporations, the repeal of the corn laws, the admission of the Jews to
Parliament, the disestablishment of the Irish church, the alteration of
488 THE GOVEENMENT OP THE UNITED STATES.
the Irish land laws, the establishment of national eduGation, the Intro-
duction of the ballot, and the reform of the criminal law. Of these
every one except the corn laws and the abolition of slavery would have
been under our system, so far as they could be dealt with at all, subjects
for state regulation entirely; and of course it was only by constitutional
amendment made in recognition of the accomplished facts of the war that
slavery, which was formerly a question reserved for state action, and for
state action alone, was brought within the field of the federal authority .^
894. Non-constitutional Provisions in State Constitutions.
— One of the most characteristic features of our state law is
the threatened loss of all real distinction between constitu-
tional and ordinary law. Constitutions are of course adver-
tised by their name to be bodies of law by which government
is constituted, by which, that is, government is given its organ-
ization and functions. Private law, the regulation of the
relations of citizens to each other in their private capacities,
does not fall within their legitimate province. This principle
is fully recognized in the construction of our federal Constitu-
tion, which is strong and flexible chiefly because of its great,
its admirable simplicity and its strictly constitutional scope.
But constitution-making in the states, especially in the newer
states, has proceeded upon no such idea. Not only do the
constitutions of the states go very much more into detail in
their prescriptions touching the organization of the govern-
ment; they go far beyond organic provisions and undertake
the ordinary, but very different, work of legislative enactment.
They commonly embody regulations, for example, with refer-
ence to the management of state property, such as canals and
roads, and for the detailed administration of the state debt;
they determine the amounts and sorts of property which are
to be exempt from seizure for private debt ; they formulate
sumptuary laws, such as those forbidding the sale of intoxicat-
ing liquors ; at a score of points they enter without hesitation
1 See J. F. Jameson, Introduction to the Constitutional and Political His-
tory of the Individual States, Johns Hopkins Univ. Studies in Hist, and Pol.
Sci., Fourth Series, p. 9 (continuous p. 189).
THE GOVEENMENT OP THE UNITED STATES. 489
or misgiving tlie field usually reserved for the action of legis-
lative bodies.
895. Distrust of Legislation. — The motive, of course, is
dissatisfaction with legislation, distrust of legislators, a wish
to secure for certain classes of law a greater permanency and
stability than is vouchsafed to statutes, which stand in con-
stant peril of repeal. A further motive is the desire to give
to such laws the sanction of a popular vote. The practice has
its analogies to the Swiss Referendum (sees. 521, 557). It is
the almost universal practice throughout the Union to submit
constitutional provisions to a vote of the people ; and the non-
constitutional provisions which are becoming so common in
our constitutions are virtually only ordinary laws submitted
to popular sanction and so placed, along with the rest of the
instrument of which they form incongruous parts, beyond the
liability of being changed otherwise than through the acquies-
cence of the same ultimate authority. The practice perhaps
discovers a tendency towards devising means for making all
very important legal provisions dependent upon direct popular
participation in the act of enactment.
896. The objections to the practice are as obvious as they are
weighty. General outlines of organization, such as the Constitution of
the United States contains, may be made to stand without essential
alteration for long periods together ; {)ut in proportion as constitutions
make provision for interests whose aspects must change from time to
time with changing circumstance, they enter the domain of sucli law as
must be subject to constant modification and adaptation. Not only
must the distinctions between constitutional and ordinary law hitherto
recognized and valued tend to be fatally obscured, but the much to be
desired stability of constitutional provisions must in great part be sac-
rificed. Those constitutions which contain the largest amount of extra-
neous matter, which does not concern at all the structure or functions
of government, but only private or particular interests, must of course,
however carefully drawn, prove subject to most frequent change. In
some of our states, accordingly, constitutions have been as often
changed as important statutes. Tlio danger is that constitution-making
will become with us only a cumbrous mode of legislation.
490 THE GOVEENMBNT OF THE UNITED STATES.
897. In one or two of the States the Swiss Referendum has
been more exactly reproduced, though not, so far as I know, in
conscious imitation of Swiss example. Thus the Wisconsin
constitution leaves it with the people to decide whether banks
shall be established by state law or not ; and the constitution
of Minnesota makes certain railway laws and all appropria-
tions from the internal improvement land fund of the State
dependent for their validity upon the sanction of a popular
vote.
The objections to the referendum are, of course, that it assumes a
discriminating judgment and a fulness of information on the part of the
people touching questions of public policy which they do not often
possess, and that it lowers the sense of responsibility on the part of
legislators.
898. Constitutional Amendments. — The amendment of
state constitutions, like the amendment of the federal consti-
tution, can be effected only by elaborate, formal, and unusual
processes which are meant to hedge the fundamental law
about with a greater dignity and sanctity than attaches to any
other body of legal precepts. The theory of our whole consti-
tutional arrangement is, that the people have not only, in
establishing their constitutions, bound their agents, the govern-
ing bodies and ofiicials of the states, but have also bound
themselves, — have bound themselves to change the fundar
mental rules which they have made only by certain formal and
deliberate processes which must mark the act of change as at
once solemn and fully advised.
899. In England, as we have seen (sec. 730), constitutional amend-
ment is not distinguishable from simple legislation. Parliament may,
by simple Act, change any, even the most fundamental, principle of
government that the deliberate opinion of the nation wishes to see
changed. Where the constitution consists for the most part of mere
precedent, and for the rest of Acts of Parliament or royal ordinances
simply, it may be altered as easily as precedent may be departed from.
In England that is not easily. The great conservative force there is the
difficulty with which Englishmen abandon established courses. In
THE GOVERNMENT OF THE UNITED STATES. 491
France, constitutional amendment differs from ordinary legislation
only in this, that the two chambers must sit together at Versailles, as a
single National Assembly, when passing laws which affect the constitu-
tion (sec. 318). In Germany constitutional amendment differs from
ordinary legislation only in the number of votes required for the pas-
sage of an amendment through the Bundesrath, in which fourteen nega-
tive votes will defeat it (sees. 404, 406, n.). In the United States,
on the contrary, constitutional amendment differs from ordinary legis-
lation both in formal procedure and in the political powers called into
action to effect it. The people have always a voice.
900. Preliminary Steps of Amendment. — Legislatures,
with us, may not undertake any general revision of the funda-
mental law. In case a general revision of a state constitution
is sought to be effected, the legislature is empowered to pro-
pose the calling of a popular convention to be chosen specially
for the purpose ; the question whether or not such a conven-
tion shall be called must be submitted to the people ; if they
vote for its being summoned, it is elected by the usual suffrage ;
it meets and undertakes the revision, and then submits the
results of its labors to the popular vote, which may either
accept those results, or reject them and fall back upon the old
constitutional arrangements.
In very many states a proposition for the calling of such a conven-
tion may be submitted to the people only if adopted by a two-thirds
vote of both houses of the legislature.
901. Proposal of Amendments. — Legislatures may, how-
ever, themselves propose particular amendments to constitu-
tional provisions. In some of the states a mere majority vote
suffices for the preliminary adoption of amendments by the
legislature, though in most larger majorities, ranging from
three-iifths of a quorum to two-thirds of the elected members
of each house, must be obtained. But in almost all cases
popular sanction must follow : a vote of the people being made
an indispensable condition precedent to the incorporation of
an amendment in the fundamental law. In many states, in-
492 THE GOVBKNMBNT OF THE UNITED STATES.
deed, amendments proposed thus by the legislature must be
adopted by two successive legislatures besides receiving the
people's sanction before it can become part of the constitu-
tion ; in some a popular vote intervenes between the two
legislative adoptions which must be had before the desired
amendment is effected.
902. Of course the details of these processes differ widely in different '
states. In Vermont only the senate can propose amendments, and it
only at intervals of ten years. In Connecticut amendments can be
originated only by the house of representatives. Various restrictions,
too, are in many of the states put upon the number of clauses of the
constitution to which amendments can be proposed at any single legis-
lative session, the number of times amendments may be submitted to
the people within a specified term of years, and the method to be fol-
lowed in the popular vote when more than one amendment is submitted.
In most states, too, special popular majorities are required for the adop-
tion of all constitutional changes.
903. These processes of amendment have been found by no means
so difficult as they seem. The habit of inserting in state constitutions
enactments not properly belonging with constitutional provisions, and
which must be subject to frec[uent alteration, has of course led to fre-
quent appeals to the people for purposes of amendment, and has served
to sho'w how easy amendment may be made. So easy and normal,
indeed, have appeals to the people in state affairs become that the con-
stitution of New Hampshire goes to the length of providing for the
submission to the vote of the people every seven years of the question
whether or not the state constitution shall be revised by a convention
called for the purpose, while that of Iowa commands the submission
of the same question to the people every ten years, that of Michigan
every sixteen years ; and the constitutions of New York, Ohio, Virginia,
and Maryland direct its submission every twenty years.
904. Conflict of Laws. — This plan of leaving to the states
the regulation of all that portion of the law which most nearly
touches our daily interests, and which in effect determines the
whole structure of society, the whole organic action of in-
dustry and business, has some very serious disadvantages :
disadvantages whicla make themselves more and more em-
THE GOVEENMENT OF THE UNITED STATES. 493
phatically felt as modern tendencies of social and political
development more and more prevail over the old conservative
forces. When the Constitution of the Union was framed the
states were practically very far distant from one another. Dif-
ficulties of travel very greatly restricted intercourse between
them : being, so to say, physically separate, it was no incon-
venience that they were also legally separate. But now that
the railroad and the telegraph have made the country small
both to the traveller and to the sender of messages the states
have been in a sense both geographically and socially fused.
Above all, they have been commercially fused, industrially
knit together ; state divisions, it turns out, are not natural
economic divisions ; they practically constitute no boundaries
at all to any distinctly marked industrial regions. Variety
and conflict of laws, consequently, have brought not a little
friction and confusion alike into our social and into our busi-
ness arrangements.
905. Detrimental Effects. — At some points this diversity
and multiformity of law almost fatally affects the deepest and
most abiding interests of the national life. Above all things
else, it has touched the marriage relation, that tap-root of all
social growth, with a deadly corruption. Not only has the
marriage tie been very greatly relaxed in some of the states,
while in others it retains its old-time tightness, so that the
conservative rules which jealously guarded the family, as the
heart of the state, promise amid the confusion to be almost
forgotten ; but diversities between state and state have made
possible the most scandalous processes of collusive divorce and
fraudulent marriage.
It has become possible for either party to a marriage to go Into
another state and, without aequiring there even a legal residence, obtain
from its courts a routine divorce because the other party has not
answered a summons to defence published only in the state in which
suit is instituted for diyorce and therefore practically certain not to be
brought to the notice of the person for whom it is intended,
494 THE GOVBKNMENT Of THE UNITED STATES.
Under such a system a person may be divorced without knowing it,
and it may be possible for a man to keep diilerent wives, or a woman
different husbands, in several states at the same time.
906. In the matter of taxation so great a variety of law
obtains among the states as to preclude in part a normal and
healthy economic development : special taxes drive out certain
employments from some states, special exemptions artificially
foster them in others ; and in many quarters ill-judged or ill-
adjusted systems of taxation tend to hamper industry and
exclude capital. So, too, as to corporations diversity of state
law works great confusion and partial disaster to the interests
of commerce, not only because some states are less careful in
their creation and control of corporations than others, and so
work harm to their own citizens, but also because loosely in-
corporated companies created by the laws of one state may do
business and escape proper responsibility in another state.
907. In the criminal law, again, variety works social dam-
age, tending to concentrate crime where laws are lax, and to
undermine by diffused percolation the very principles which
social experience has established for the control of the vicious
classes. So, too, in laws concerning debt, special exemptions
or special embarrassments of procedure 'here, there, and every-
where impair that delicate instrument, credit, upon whose per-
fect operation the prosperity of a commercial nation depends.
908. Bankruptcy. — One of the most serious legal embarrassments
at the present time (1888) is the lack of a national bankrupt law.
Since the repeal of the bankrupt law of 1867 (1878) Congress has
neglected to exercise its constitutional right to legislate on the subject
of bankruptcy. The consequence is that, in the absence of any action
in the matter by the states, the relations of debtor and creditor have
fallen into dire confusion. This is due, however, to no fault of the
system, of course, but only to the neglect of Congress.
909. Proposals of Reform. — It is in view of such a state
of affairs, such a multiformity and complexity of law touching
matters which ought, for the good of the country, to be uni-
THE GOVEKNMENT OF THE UNITED STATES. 495
formly and simply regulated throughout the Union, that vari-
ous extensions of the sphere of the federal government have
been proposed by sanguine reformers, who would have all in-
terests which need for their advancement uniform rules of law
given over to the care of Congress by constitutional amendment.
910. Evils of the Case easily exaggerated. — Of course the
extent of the legal friction and confusion complained of may
easily be exaggerated. It is in most cases a confusion of detail
and of procedure rather than of principle or substance, and has
more exasperations for the lawyer than for the layman. Un-
questionably there is vastly more uniformity than diversity.
All the states, as I have said, have built up their law upon the
ancient and common foundation of the Common Law of Eng-
land, the new states borrowing their legislation in great part
from the old. Nothing coidd afford clearer evidence of this
than the freedom with which, in the courts of nearly every
state in the Union, the decisions of the courts of the other
states, and even the decisions of the English courts, are cited
as suggestive or illustrative, sometimes also as authoritative,
precedent. Everywhere, for instance, the laws of property
rest upon the same bases of legal principle, and everywhere
those laws have been similarly freed from the burdens aftd in-
equalities of the older system from which they have been
derived. Everywhere there is the same facility of transfer,
the same virtual abolition of all the feudaf characteristics of
tenure, the same separation between the property interests of
man and wife, the same general rules as to liens and other
claims on property, the same principles of tenancy, of dispo-
sition by will, of intestate inheritance, and of dower. Every-
where, too, contracts, common carriage, sales, negotiable paper,
partnership, rest upon similar principles of practically uni-
versal recognition. We feel the conflicts, because we suffer
under their vexations ; while we fail to realize and appreciate
the uniformities because they are normal and have come to
seem matters of course. It must be acknowledged, moreover,
496 THE GOVERNMENT OF THE UNITED STATES.
that even within the area of irritation there are strong correc-
tive forces at work, a growing moral sentiment and a healthy
fashion of imitation, promising the initiation and propagation
of reform. As the country grows socially and politically, its
tendency is to compact, to have a common thought and common
practices : as it compacts, likenesses will be emphasized, diver-
sities pared and worn away.
911. Louisiana, among the states, and New Mexico, among the ter-
ritories, stand apart with a peculiar law of their own, unlike the law of
the rest of the states, because based upon tlie civil law of France and
Spain, which is Roman law filtered through the histories of the Romance
nations. Inevitably, however, the laws of these exceptional states have
approximated in some degree to the legal systems of the rest of the
Union ; and they will draw still closer to them in the future.
912. Inter-state Law: Commerce. — In a country being
thus compacted, thus made broader than its states in its feel-
ings and interests, thus turned away from the merely local
enterprise of its early industrial history to the national com-
merce and production of the present generation, state lines
must coincide with the lines of very few* affairs which are
not political: there must be many calls for the adjusting
weigftt of an authority larger than that of any single state.
Most such interests, happily, are commercial in their nature,
and with the regulation of inter-state commerce Congress has
always been charged. It was to give Congress this power,
indeed, that the great constitutional convention was called:
inter-state commerce was one of the chief sources of the alarm-
ing friction between the states which marked that time- of crisis.
It is by the operation of this power that the great railroad
systems of the country, and the endless telegraph lines, have
come under the guardianship, and, so far as Congress has
chosen, under the regulation of the federal government. Fed-
eral law cannot touch agencies of commerce which lie wholly
within a single state ; but there are nowadays very few such
agencies, and the jurisdiction of Congress over commerce,
THE GOVERNMENT OF THE UNITED STATES. ' 497
where it does exist, is exclusive of all interference by the
states. Federal law controls all navigable waters which con-
stitute natural highways of inter-state traffic or intercourse,
whether directly or only through their connections ; it extends
to such waters, not only, but also to the control of the means
by which commerce must cross them in its land passage, to
the construction, that is, of bridges over navigable waters for
the facilitation of land traffic. It excludes every state tax or
license law, every state regulation whatever, that in any way
affects by way of restriction or control any movement of com-
merce or intercourse between the states.
913. Posts and Telegraphs. — Directly supplementary to
the power of Congress over inter-state commerce is its power to
establish post-offtces and post-roads. This has been interpreted
to bestow upon Congress the right to facilitate telegraphic inter-
course between the states by taking measures to break down
exclusive privileges granted by a state ; and it miist undoubtedly
be taken as rounding out to a perfect wholeness the control
of the general government over the means of communication
between state and state.
914. Of course, too, this is a jurisdiction wliicli must necessarily ad-
vance with lengthening strides as the movements of our already vast
commerce become yearly even wider still and more rapid. It has been
made, indeed, to carry also a promise even of federal ownership of the
telegraph system of the country, and of a very much more extensive
regulation of railway management than has yet been ventured upon.
The most significant step yet taken was, of course, the creation, in 1887,
of an Inter-state Commerce Commission charged with the prevention of
unjust discriminations in railroad rates either for freight or passage.
This Commission has already become one of the most important judi-
cial bodies of the nation, and illustrates a very important experiment
in federal control (sec. 1120).
915. Citizenship. — Citizenship in the United States illus-
trates the double character of the government. Whoever
possesses citizenship in this country is a citizen both of the
United States and of the state in which he lives. He cannot
498 * THE GOVERNMENT OF THE UNITED STATES.
be a citizen of the United States alone, or only of a state ; he
must be a citizen of both or of neither : the two parts of his
citizenship cannot be separated. The responsibilities of citi-
zenship, too, are both double and direct. Under our federal sys-
tem punishment for the violation of federal law falls directly
upon individuals, as does punishment for the violation of state
law ; the obligation of obedience is in both cases direct : every
citizen must obey both federal law and the law of his own state.
His citizenship involves direct relations with the authorities
of both parts of the government of the country, and connects
him as immediately with the power of the marshals of the
United States as with the power of the sheriff of his own
county.
916. The population of the United States is probably less stationary
in its residence than the population of any other country in the world,
and frequent changes of residence have led to great facilitations of the
transfer of citizenship from one state to another. A very brief term of
abode in a new home in another state secures the privileges of citizen-
ship there : but in transferring his state citizenship a, citizen does not,
of course, at all affect his citizenship of the United States. The term
of residence required for the acquirement of the privilege of suffrage
varies from three months to two years and a half, but is in most cases
one year.
917. Elements of Confusion. — A very considerable amount of
obscurity, it must be admitted, surrounds the question of citizenship
in the United States. The laws of our states have so freely extended
to aliens the right to hold property, and even the right to vote after a
mere declaration of intention to become naturalized citizens (see sec.
937), — have, in brief, so freely endowed aliens with all the most sub-
stantial and distinguishing privileges of citizenship, — that it has become
extremely difficult to draw any clear line, any distinction not merely
formal, between citizens and aliens. Of course if a person not formally
naturalized exchanges residence in a state, in which he was allowed the
privileges of citizenship, for residence in a state in which those privi-
leges are denied him, he can complain of no injustice or inequality.
The Constitution of the United States commands that ■' the citizens of
each state shall be entitled to all privileges and immunities of citizens
in the several states"; but only federal law admits to formal citizen-
THE GOVERNMENT OF THE UNITED STATES. 499
ship, and only formal citizenship can give to any one, wherever he may
go, a right to the privileges and immunities of citizenship. The suf-'
frage in particular is a privilege which each state may grant upon terms
of its own choosing, provided only that those terms be not inconsistent
with a republican form of government (sec. 937).
918. Naturalization. — Naturalization is the name given to
the acquirement of citizenship by an alien. The power to pre-
scribe uniform rules of naturalization rests with Congress alone,
by grant of the Constitution. The states cannot maker rules
of their own in the matter, though they may, singularly and
inconsistently enough, admit to the privileges of citizenship
on what terms they please (sec. 937). The national natural-
ization law requires that the person who wishes to become a
citizen must apply to a court of law in the state or territory in
which he desires to exercise the rights of citizenship for formal
papers declaring him a legal citizen ; that before receiving such
papers he must take oath to be an orderly and loyal citizen and
renounce any title of nobility he may have held ; and that in
order to obtain such papers he must have lived in the United
States at least five years, and in the state or territory in which
he makes application at least one year ; and at least two years
before his application he must have declared in court under
oath his intention to become a naturalized citizen.
It is not necessary for a person who came into the United States to
live three years before coming of age to make sucli a sworn declaration
of his intention to become a citizen. If a man who has made sworn
declaration in due form of such intention dies before taking out his
papers of naturalization, his widow and minor children may become
citizens by merely taking the necessary oath of citizenship at the proper
time. The children of persons who become naturalized, if they live in
the Uiiited States, and are under twenty-one years of age when their
parents take the oatli of citizenship, become citizens by virtue of the
naturalization of their parents.
■919. In Gennany and Switzerland, it will be remembered, the
states individually admit to citizenship on their own terms, and state
citizenship carries with it federal citizenship (sees. 437, 526). The
European states have not, however, any of the problems of naturaliza-
500 THE COVIcnKMENT OF THE tTNITED STATES.
tion which confront and confound us in the United States. The whole
■ world is not coming to them as it is coming to us.
920. Citizenship under a Confederation. — Thfc possession of a
national naturalization law is one of the practical political features
wliich distinguish our general government from the government of a
mere confederation. Tlie states whicli compose it are tlie only ' citizens '
of a confederation : for the individual there is no federal citizensliip ;
and the transfer by an individual of- his citizenship from one state to
another within the confederation is as much a mere matter of inter-
national comity as if the states were not bound together by any com-
mon law.
921. Central Governments of the States. — The governments
of the states depend for their structure and powers, of' course,
entirely upon written fundamental law, upon constitutions
adopted by the people at the suggestion of conventions con-
sisting of their representatives, — upon documents which we
may call popular charters. It was, as I have said, upon the
models and precedents furnished by the governments of the
thirteen original states that the federal government was con-
structed, and this was one of the features cojjied : the state
governments, no less distinctly than the federal government,
rest upon fundamental law proceeding from an authority higher
than themselves.
922. A very great uniformity of structure is observable
among the central governments of the states in all general
features. One of the most obvious points of resemblance be-
tween them is the complete separation and perfect co-ordination
of the three great departments of governmental action, — the
legislative, the executive and the judicial ; and these are set
apart and organized under the state constitutions with a very
much greater particularity than characterizes the provisions
of the federal constitution.
923. The State Legislatures : Their Powers. — The state
constitutions supplement the constitution of the Union, 'pro-
viding for the exercise of all powers not bestowed by the fed-
eral charter ; and the legislatures of the states may be said, in
THE GOVERNMENT OF THE TJNITED STATES. 501
general terms, to possess all law-making powers not given to Con-
gress. But this is by no means a complete statement of the case.
State constitutions contain strict limitations of power no less
than does the Constitution of the United States. Some powers
there are which are altogether withheld : they cannot under
our system be exercised by any existing authority : they have
been granted neither to Congress nor to the legislatures of the
states. Such, for example, is the power to grant to any person
or class of persons exclusive political privileges or immunities,
the power to bestow hereditary privileges or honors, and the
power to abridge in any way the equal rights to life, liberty,
and property which all our state constitutions are careful to set
forth in more or less elaborate Bills of Rights. These may
safely be said, however, to be powers which no state legislature
would dream of exercising, inasmuch as they would have to be
exercised, if exercised at all, in the face of a public opinion
which would certainly refuse re-election to any legislator who
should violate the principles of republican government so
strenuously worked out in our history, from Magna Charta
down, and now so warmly cherished by all classes of our peo-
ple that no denial of them could stand upon our statute books
a single twelvemonth. These are merely limitations put upon
reaction.
924. Limitations of Length of Session, etc. — There are
other limitations, however, of a very different character con-
tained in our state constitutions : limitations meant specially
to control the action of legislatures within the sphere of their
proper and undoubted powers, and unquestionably based upon
a general distrust of the wisdom, if not of the honesty, of leg-
islators. Thus our constitutions very commonly forbid all
private or special legislation, confining legislatures to the pas-
sage of general laws applying uniform rules to all persons
and all cases alike. They limit, moreover, in very many cases,
the length and frequency of legislative sessions, providing
that the legislature shall convene, for instance, only once in
602 THE GOVERNMENT OP THE UNITED STATES.
every period of two years, and slaall continue its biennial ses-
sion for not more than a certain number of days, except under
special or exceptional conditions, when extra sessions may be
called by the governor or regular sessions extended by a special
two-thirds or three-fifths vote. Many constitutions contain,
also, minute provisions concerning the conduct of legislation,
forbidding the introduction of bills later than such and such a
day of a limited session, prescribing the general form of bills,
limiting their subject-matter to a single object each, and even
commanding the manner of their consideration.
925. Other Limitations. — More than this, as we have seen,
there are certain classes of legislative provisions which have
been removed beyond the cognizance of legislatures by being
put into the constitutions themselves : such as exemptions of
certain classes of property from seizure for private debt (gener-
ally called "Homestead exemptions"), 'prohibition' provis-
ions, etc. The embodiment of such measures in constitutions is,
as I have said (sees. 894, 895), only a means of putting them
beyond legislative interference, — is a limitation of the same
indirect sort as a Bill of Eights. It is usual, also, for our
state constitutions to limit the power of legislatures to create
corporations, by provisions which direct the passage of general
laws of incorporation to be applied in a formal administrative
manner by the courts, to which applications for incorporation
are to be made.
926. The period to which the duration of legislative sessions is re-
stricted varies from forty days (Colorado, Georgia) to ninety days
(Maryland and Virginia), the most usual period being sixty days. It
is noteworthy that only four of the original thirteen states have put a
restriction upon the sessions of their legislatures. Eight of these thir-
teen have, however, on the other hand, restricted either wholly or in
part the power to pass private or special legislation, — the power, that
is, to make special rules for special cases or for particular individuals.
It is nevertheless true that it is in the newer states, for the most part,
that the strictest and most extensive limitations of legislative power are
to be found.
THE GOVERNMENT OF THE UNITED STATES. 603
927. State Legislatures not Sovereign Bodies. — It will
ihus be seen that our state legislatures are not in any sense
' sovereign ' bodies : the only sovereign authority lies with the
people. There is a certain serviceable clearness of view to be
had by regarding the state governments as corporations : their
legislatures are Imv-^making bodies acting within the gifts of
charters, and by these charters in most cases very strictly cir-
cumscribed in their action. It is this fact which gives so
unique a place of power under our system to the courts, the
authoritative interpreters of the fundamental law to which all
legislation and all executive action must conform.
928. Legislative Organization. — In all the states the legis-
lature consists of two houses, a senate and house of represen-
tatives, and in most of them the term of senators is four years,
that of representatives two years, one-half of the senate being
renewed every two years at the general elections. There is
QO such difference in character, however, between the two
houses of the state legislatures as exists between the Senate
and the House of Eepresentatives of the United States. Con-
necticut, as we have seen (sec. 869), furnished the suggestion
apon which the framers of the federal constitution acted in
deciding upon the basis and character of representation in the
two federal houses ; for in the Connecticut legislature of that
time the senate represented the towns, as the confederate units
of the state, while the house represented the people directly.
Even Connecticut has now abandoned this arrangement, how-
ever, and in almost all the states representation in both houses
is based directly upon population, the only difference between
the senate and house being that the senate consists of fewer
members representing larger districts. Often, for instance,
each county of a state is entitled to send several representa-
tives to the lower house of the legislature, while several coun-
ties are combined to form a senatorial district.
929. Reasons for Two Houses in State Legislatures. — There
is, consequently, no such reason for having two houses in the states as
504 THE GOVEBNMENT OP THE UNITED STATES.
exists in the case of the federal government. The object of the federal
arrangement is the representation of the two elements upon which the
national government rests, namely, the popular will and a federal union
of states. The state legislatures have two houses simply for purposes
of deliberateness in legislation, in order, that is, that legislation may
be filtered through the debates of two co-ordinate bodies, representing
slightly differing constituencies, though coming both directly from the
people, and may thus escape the taint of precipitation apt often to attach
to the conclusions of a single all-powerful popular chamber. The double
organization represents no principle, but only an effort at prudence.
930. The reason for our having double legislatures cannot, however,
be so simply explained. It is compounded of both deliberate and his-
torical elements. Its historical grounds are sufficiently clear : the sen-
ates of our states are lineal descendants of the councils associated with
the colonial governors, though of course they now represent a very dif-
ferent principle. The colonial councils emanated from'the executive,
and may be said to have been parts of the executive, while our senates,
of course, emanate from the people. Then, too, there was the element
of deliberate imitation of English institutions. One hundred years ago
England possessed the only great free government in the world ; she
was, moreover, our mother-land, and the statesmen who formed our con-
stitutions at the revolution naturally adopted that English fashion of
legislative organization which has since become the prevailing fashion
among all liberalized governments. Possibly, too, they were influenced
by more ancient example. The two greatest nations of antiquity had
had double legislatures, and, because such legislatures existed in an-
cient as well as in modern times, it was believed that they were the only
natural kind.
931. Historical Precedents. — Greeks, Romans, and English alike,
of course, had at first only a single great law-making body, a great sen-
ate representing the elders or nobles of the community, associated with
the king, and, because of the power or rank of its members, a guiding
authority in the state. In all three nations special historical processes
produced at length legislatures representing the people also ; the popu-
lar assemblies were, on one plan or another, coordinated with the aris-.
tocratic assembly, and presently the plan of an aristocratic chamber
and a popular chamber in close association appeared in full develop-
ment. We copied the English chambers when they were in this stage
of real co-ordination; before her legislature had sustained that great
change, which Greece and Rome also had witnessed, whereby all real
power came to rest again with a single body, the popular assembly.
THE GOVERNMENT OF THE UNITED STATES. 606
932. Terms of Senators and Representatives. — Among the older
states of the union there is a more noticeable^ variety of law as to the
terms of senators and representatives than is to be found on a compari-
son of the constitutions of the newer states. In Massachusetts and
Rhode Island, for instance, the term of both senators and representa-
tives is a single year only. In New Jersey senators are elected for
three years, one-third of the senate being renewed every year at the
election for representatives, whose term in New Jersey is but one year.
A large number of the states, however, both new and old, limit the term
of senators to two years, the term of representatives ; while in Louisi-
ana representatives are given the same term as senators, namely, four
years.
933. Names of the Houses. — There is some variety among the
states as regards the name by which the lower house of the legislature
is known. In New York the popular house is called " the Assembly " ;
in Virginia, the " House of Delegates " ; in New Jersey, the " General
Assembly," — a name generally given in most of the states to the two
houses taken together.
934. The qualifications required of senators and represen-
tatives vary widely in the diiferent states, but not in any essen-
tial point of principle. It is universally required, for example,
that members of the legislature shall be citizens; it is very
generally required that they shall be residents of the states,
sometimes that they shall be residents of the districts, for
which they are elected ; and it is in almost all cases required
that a member of the legislature shall have reached a certain
age. Variety aj)pears in these provisions only in respect. of
particulars, of details, as to the length of time citizenship or
residence shall have been acquired before election, the particu-
lar age necessary, etc.
The age required varies in the case of senators from twenty-one to
thirty years, in the case of representatives from twenty-one to twenty-
flve.
Only in Delaware is a property qualification prescribed. In
that state no one can be a senator who is not possessed of a
freehold estate of two hundred acres or of personal or mixed
estate worth. ^1000,
506 THE GOVERNMENT OF THE UNITED STATES.
936. Legislative Procedure. — The same general rules of
organization and procedure are observed in the constitution
and business both of Congress and of the state legislatures.
The more numerous branch is in all cases presided over by an
officer of its own election who is called the ' Speaker ' ; the sen-
ate sits under the presidency, generally, of a Lieutenant Gov-
ernor, who occupies much the same place in the government
of the state that the Vice President of the United States
occupies in the national government : he is contingent substi-
tute for the governor.
936. Standing Committees. — The houses of the state leg-
islatures, too, being separated from the executive in such a
way as to be entirely deprived of its guidance, depend upon
standing committees for the preliminary examination, digestion,
and preparation of their business, and allow to these commit-
tees an almost unquestioned command of the time and the
conclusions of the legislature. The state legislatures of the
early time, as I have said, served as models for Congress ; they
and the legislatures of the later states, made like them, have
retained substantially that first plan of organization, following
the rules of parliamentary practice universally observed among
English-speaking peoples ; and they and Congress alike have
had in the main the same development : as they have grown
larger they have grown more dependent upon their advisory
parts, their committees.
In several States the constitutions themselves command the reference
of all bills to committees and forbid the passage of any measure which
has not been referred and reported upon.
937. The Suffrage. — The suffrage is in all the states given
by constitutional provision to male citizens twenty-one years
of age; but it does not in all the states stop there. Many
of the states extend the privilege of voting also to every
male resident of foreign birth who is twenty-one years of age
and has declared hi^ intention to become a naturalized citizen ;
THE GOVBKNMENT OP THE UNITED STATES. 507
and ten states grant it to every male citizen or Hnhabitaitt'
of voting age. The laws of almost all the states require resi-
dence in the state for a certain length of time previous to the
election in which the privilege is sought to be exercised (the
period varies all the way from three months to two years and
a half), as a condition precedent to voting; most require a
certain length of residence in the county also where the privi-
lege is to be exercised; some a certain length of residence in
the voting precinct. Many states require all voters to have
paid certain taxes; but no state has a property qualification
properly so-called.
938. In (Connecticut and Massachusetts the suffrage is confined to
those who can read the laws of the state. It is common, of course,
throughout the country to exclude criminals, insane persons, idiots, and
in several states the privilege is withheld from those who bet on elec-
tions. In Florida betting on an election not only excludes from the
election in connection with which the oiJence is committed, but is pun-
ished, upon conviction, by entire and permanent disfranchisement. A
number of states also shut out duellists.
939. The privilege of voting in school elections is given to women in
Massachusetts, Minnesota, and Colorado, though the constitutions of
all the states without exception declare the suffrage to be restricted, in
general, to males. In the three territories of Washington,^ Wyoming,
and Utah, women are allowed to vote in all elections. In Kansas they
have the elective franchise in municipal elections.
940. The state Courts. — A very great variety of course
exists among the laws of the several states regarding the con-
stitution, functions, and relative subordination of the courts.
A general sketch of the state courts must, therefore, be made
in very broad outline. Perhaps in this department of state
law, as in others, there may be said to be, despite a bewildering
variety of detail, sufficient unity of general feature to warrant
a generalized description, and to render unnecessary the unsat-
isfactory expedient of choosing the institutions of a single
^ Washington Territory became a state July 1, 1889, being admitted
along with Montana, North Dakota, and South Dakota.
508 THE GOVERNMENT OF THE UNITED STATES.
state as in some broad sense typical, and describing them
alone.
941. The courts of our states are in no sense organ's of fed-
eral justice, as the courts of the German states are (sec. 436) ;
they have an entirely independent standing and organization
and an entirely independent jurisdiction. Their constitution
and procedure are in no "way affected by federal law, — except
of course by way of limitation ; — their sphere is a sphere
apart. The series of courts in each state, therefore, is com-
plete : every state has its supreme court, as well as its inferior
tribunals, and appeals lie from the state courts to the courts of
the United States only in cases involving fedesal law or in
cases where the character of the parties to the suit does not
give any state court complete jurisdiction (sees. 888, 1082,
1083).
942. One of the most characteristic features of our state
courts is what I may call their local attachment. In most cases
the judges are not appointed by any central authority but are
elected by the voters of the district or circuit in which they
hold court r they, like members of legislatures, may be said
to have ' constituents.' Their responsibility is thus chiefly a
responsibility to the electors, a popular rather than -oiiicial
responsibility. The courts are held together in a common
system and to a common duty by law, therefore, not by disci-
pline or official subordination to superior judicial authorities.
The courts may be said to be local rather than central organs ;
they are integrated only by the course of appeal, by the
appellate authority of the higher over the lower courts in
points of law.
943. This localization of the organs of government, in their origin as
well as in their functions, is a general characteristic of American polit-
ical organization, — a characteristic which appears most conspicuously
in the arrangements of local government, which is, as we shall see not
so much organized as left to organize itself under general statutes for
whose enforcement no central machinery is provided.
THE GOVERNMENT OF THE UNITED STATES. 509
944. Common Law Courts. — There are, usually, four
grades of jurisdiction in the judicial systems of the states, with
four grades of courts corresponding. There are generally (1)
Justices of the Peace, who have jurisdiction over all petty police
offences and over civil suits for trifling sums ; who conduct
preliminary hearings in cases of grave criminal offence, com-
mitting the accused, when there is prima facie proof of guilt,
for trial by a higher court ; and who are, in general terms, con-
servators of the peace. They act separately and have quite
lost the high judicial estate which still belongs to the English
Justices, from whom they take their name. Their decisions
are in almost all cases subject to appeals to higher courts.
Mayor's courts in the towns are generally the same in rank and juris-
diction, BO far as criminal cases are concerned, as the courts of Justices
of the Peace.
945. (2) County or Municipal Courts, which hear appeals
from Justices of the Peace and from Mayor's courts, and
whose own original jurisdiction is one step higher than that of
the Justices, including civil cases involving considerable sums,
and criminal cases generally not of the gravest character.
Often, however, courts of this grade, especially the municipal courts
of the larger towns, are given a much higher jurisdiction and are co-
ordinated in some respects with courts of the next higher grade, the
Superior Courts.
In New York, New Jersey, and Kentucky tlie county courts retain
the English name of Quarter Sessions.
946. (3) Superior Courts, which hear appeals from the
county and municipal courts, and generally from all inferior
courts, and which are themselves courts of high original juris-
diction of the most general character in both civil and criminal
eases. They may be said to be the general courts which give
to the courts of lower grade their name of ' inferior.' County
and municipal courts, as their names imply, sit only for certain
small districts; but the districts over which superior courts
have jurisdiction usually cover a wide area, necessitating the
510 THE GOVERNMENT OE THE UNITED STATES.
sitting of each such court in several places in succession. In
other words, superior courts are generally circuit courts, as
in many states they are called.
' Circuit courts ' is, indeed, tlie most generally used name for courts
of this grade, that is, for the principal courts of the state ; though iu
almost as many states they are called 'district courts.' In most of tlie
states these courts have, of course, special judges of their own; hut in
Maine and New Hampshire they are held by the judges of the supreme
court on circuit.
947. In some states civil is separated from criminal jurisdiction in
this grade, and distinct courts are created for each. Tlius in New York
there are Circuit courts which hear civil causes and courts of Oyer and
Terminer, immediately subordinated to a court of General Sessions, for
the hearing of criminal cases ; and in Texas there are District courts for
civil causes. District Criminal courts for criminal cases. In Pennsyl-
vania courts of Quarter Sessions are the courts of general criminal juris-
diction, as in England, civil causes going to the courts of Common Pleas.
Delaware has criminal courts called courts of Gaol Delivery.
948. (4) Supreme Courts, which in most of the states have
no original jurisdiction at all, but only appellate jurisdiction,
hearing appeals in all classes of cases (except such as involve
only trifling offences or small sums of money) from the supe-
rior courts and from various inferior courts.
949. (5) In five states there are supremest courts above the ' supreme.'
Tlius in New York a Court of Appeals revises errors made in certain
cases by the supreme , court ; in New Jersey there is a supreme court
above the circuit, which is itself of high appellate jurisdiction, and a
Court of Errors and Appeals above the supreme ; in Louisiana the
order is reversed and there is a supreme court above a court of ap-
peals ; in Illinois a supreme court above certain district " appellate
courts " ; and in Kentucky a court of appeals above a supreme court
which is called ' superior ' simply. In Texas there are two co-ordinate
supreme courts : one, called the supreme, for the hearing of civil cases
only, the other, called the court of appeals, for the hearing of criminal
cases and of civil casS brought up from the county courts.
950. Decisions rendered by the supreme court of the District of Co-
lumbia are subject to revision by the supreme court of the United States.
THE GOVERNMENT OF THE UNITED STATES. 511
951. The name 'court of appeals' is found also in Maryland, Vir-
ginia, and West Virginia.
952. In five of the original states (New Hampshire, Massachusetts,
Rhode Island, New York, New Jersey), and in Maine, the supreme courts
have, anomalously enough, original as well as appellate jurisdiction in all
cases ; but in the newer states such an arrangement is never found.
953. In several of the larger cities of the country there are complete
sets of courts, reproducing the state judiciary in small. Thus in Balti-
more, for example, there are city courts from the lowest grade up to a
" Supreme Bench of Baltimore City."
954. Courts of Equity. — " Equity " is defined, under the
legal systems of England and the United States, as " that por-
tion of remedial justice which is exclusively administered by
a court of equity, as contradistinguished from that portion of
remedial justice which is exclusively administered by a court
of common law" (Story). In other words, it is that portion
of remedial justice which was administered in England by the
Chancellors, who were ' the keepers of the king's conscience,'
and from whose court, as if from the king's sense of justice,
there issued writs from time to time for the remedy of wrongs
for which the common law made no adequate provision (sees.
666, 1189, 1190). The early Chancellors were ecclesiastics
imbued with Roman law as it had come down through the
medium of the canon law, and both in their hands and in those
of their lay successors of later times, who were the heirs of
their principles and prerogatives, equity law and procedure
became a very different thing from the law and procedure of
the common law courts (sec. 956).
955. Fusion of Law and Equity. — As time has gone on
equity and law have been largely fused, even in England, just
as the jus gentium and the jus civile became merged in the
development of the Eoman law (sees. 206, 208, 212, 216) ; and
in most of the states of the Union the same courts exercise
both equitable and common law jurisdiction. In several states
the whole procedure, even, in both jurisdictions has been made
practically identical, aud law is not distinguishable from
512. THE GOVERNMENT OF THE UNITED STATES.
equity. Generally, however, the distinctive procedure has
been preserved, aiid only courts of the superior and supreme
grades have been given equitable jurisdiction, — jurisdiction,
that is, over cases in which the remedy is equitable. In
Alabama, Delaware, Michigan, Mississippi, New Jersey, Ten-
nessee, and Vermont there are still special chancery courts.
956. Equity processes of trial differ from common law processes,
outwardly, chiefly in the fact that the testimony is written instead of
oral, and that decisions of fact as well as of law rest with the judge
instead -of with a jury. Tor its special subject-matter equity jurisdic-
tion generally embraces such matters as trusts, mistakes, frauds, etc. —
matters hardly tangible by ordinary remedies.
957. Probate Courts. — In most of the states there are spe-
cial probate courts, — special courts, that is, charged with juris-
diction over the proof of wills, the administration of estates,
the appointment of guardians, administrators, etc., the care of
the estates of wards, and, in general of the proper disposition
of the property of persons deceased. In many states, however,
these functions are left to the ordinary courts of law.
958. In England this probate jurisdiction was, from the first until a
very recent date, a prerogative of the ecclesiastical courts, and in two
of our states tlie probate courts retain the names of the officers who
exercised this function in the place of the bishop : in Georgia the court
is called the court of' the 'Ordinary,' in New York the 'Surrogate's'
court. In New Jersey, with a reminiscence of the same origin, it is
called the ' Prerogative ' court. In several states, on the other hand,
it is known, by virtue of one side of its function, as the ' Orphan's '
court.
969. Judges. — The judges of most of the state courts are
elected, generally by the people, in a few cases by the legisla-
ture; only in Delaware are they appointed by the governor,
though in several states they are nominated by the governor and
appointed by and with the advice and consent of the Senate.
Supreme court judges are usually elected by the people of the state
at large ; circuit, district, county, municipal, and other judges by the
electors of the area in which they serve.
THE GOVERNMENT OF THE UNITED STATES. 513
The terms of judges range all the way from two years to a
tenure during good behavior.
960. In New Hampshire, Delaware, and Massachusetts all judges of
the higher courts hold during good behavior ; and in Rhode Island, and
the District of Columbia also, judges of the supreme court have a like
life tenure.
Of course the length of the term varies with the grade of the court, the
tendency being to give longer terms to the judges of the higher courts.
961. The qualifications required of judges by state law are
not stringent. Only some eight or nine of the states require
by law any identification of their judges with the legal profes-
sion ; and only six require ' learning in the law ' ; though of
course, custom and public opinion generally confine the choice
of judges to professional lawyers. Generally a certain age is
required of judges (varying, where there is such a requirement,
from twenty-five to thirty-five years), besides, in most cases,
citizenship and residence in the state or circuit.
As a rule single judges hold all the courts except the highest.
Supreme courts have a more or less numerous ' bench.'
962. The ministerial officers of the state courts, the sheriffs,
are generally not appointed by the judges or responsible to
them, but elected by the people and answerable to 'constit-
uents,' just as the judges themselves are. Even the clerks of
the courts are often elected.
963. The position of sheriff thus differs very materially from the
position of a United States marshal (sec. 1091), the sheriff's counterpart
in the federal judicial system. The marshal is appointed by the Presi-
dent of the United States, and is responsible to a central authority, is
part of a centralized organization of justice. The sheriff, on the con-
trary, is the organ of an extremely decentralized, an almost disinte-
grated, organization of justice.
The bailiffs, the sheriff's deputies, are usually the appointees of the
sherifl.
964. The State Executives. — The Executives of the states
are the least distinct parts of state organization, the least sus-
514 THE GOVERNMEKT OF THE TTNITED STATES.
ceptible of being adequately pictured in outline, or indeed in
any broad and general way.' Under our system of state law
the executive officers of a state government are neither the
servants of the legislature, as in Switzerland, nor the responsi-
ble guides of the legislature, as in England, nor the real eon-
trolling authority in the execution of the laws, as under our
own federal system. The Executive of a state has an impor-
tant representative place, as a type of the state's legal unity ;
it has a weighty function of superintendence, is the fountain
of information, the centre and source of advice, the highest
organ of administration to the general eye ; but it cannot be
said to have any place or function of guiding power. Execu-
tive power is diffused by our law throughout the local organs
of government ; only a certain formal superintendence remains
with the authorities at the state capitals.
Of course this does not apply to the governor's veto power, — that
contains real energy, — but only to executive functions proper; these
are localized, not centralized, after the extremest pattern.
965. Not all of the states have the same central executive
officers. All, of course, have governors ; twenty-seven have
lieutenant governors ; all have secretaries of state ; all have
treasurers ; almost all have attorneys-general ; and a majority,
superintendents of education. Many have also auditors ; eleven
have comptrollers, and eleven boards of education ; three (Mas-
sachusetts, New Hampshire, Maine) associate councils with
their governors.
966. For the rest, there are minor officers of various functions in the
different states ; superintendents of prisons, for instance, registrars of
land offices, superintendents of labor, bureaux of agriculture, commis-
sioners of mines, commissioners of immigration, etc. There is, of
course, no uniformity between the administrations of the states as
regards these special offices; different states undertake different func-
tions, new or old, and create new, or revive old, offices accordingly.
967. The governor's term of office is in almost all of the
states either two or four years, although Massachusetts and
THE GOVERNMENT OF THE UNITED STATES. 515
Rhode Island give their governors a term of but a single year,
while New York -and New Jersey elect theirs for three. The
lieutenant-governor, where such an officer is elected, has the
same term as the governor, and is generally required to have
the same qualifications.
968. These qnaUjiaUioiis consist, almost always, of citizen-
ship of from two to twenty years standing, residence within
the state of from one to ten years, and age of from twenty -five
to thirty years.
In Maine it is required that the governor shall be a native-born citi-
zen. Massachusetts imposes upon candidates for her governor's chair
a property qualification, namely, the possession in his own right of
freehold property lying within the state, and worth .-£ 1000.
969. The terms of the other principal state officers are
usually the same as the term of the governor, though it is n()t
uncommon to give to treasurers, secretaries of state, attorneys-
general, and auditors a longer tenure. The qualifications re-
quired of the different officers are of course of the most various
nature.
In New York, though the governor and lieutenant-governor hold for
three years, the other officers of state are given terms of only two
years.
970. The constitutions of many of the states still exhibit the jealousy
of long terms of office which was so characteristic of the extreme demo-
cratic feeling generated in the colonies by the constant friction between
the representatives of the people and officials who owed their offices,
not to election, but to royal appointment. The constitution of Missis-
sippi forbids the holding of any office for life or during good behavior ;
seven states limit official tenure to a maximum period of seven years ;
Texas makes two years the maximum ; and Massachusetts, Virginia,
and Maryland give express constitutional sanction to rotation in office.
971. Many states effect such a limitation with reference to the tenure
of the governor's- office by provisions setting bounds to the re-eligibility
of the governor. Thus some exclude their governors from successive
terms ; others allow only a single term to any one man within a specific
period of, say, eight years ; while still others withhold re-eligibility
altogether.
516 THE GOVERNMENT OE Tiin; ujnixjiijj oi-vixjco.
972. Contrast between State and Federal Executives. —
The federal executive was, as we have seen "(sec. 869), consti-
tuted in quite close accordance with the models of previous
state organization; but the imitation can ■ scaxcely be said to
have gone further than the adoption of the suggestion that the
United States should have a single governmental head, a presi-
dent, because the states had tried and approved a single presi-
dency. For the rest, the president was given the character,
as regards his relations with the other ofl&cials of the federal
system, rather of an English sovereign than of a state governor.
Certainly the contrast between the official place and power of
the president and the place and power of the state governors
of the present day is a very sharp and far-reaching contrast
indeed. The president of the United States is the only exec-
utive officer of the federal government who is elected; all
other federal officials are appointed by him, and are responsible
to him. Even the chief of thfem bear to him, in theory at
least, only the relation of advisers ; though in fact, it must be
acknowledged, they are in eiJect his colleagues. Of state offi-
cials associated with the governor it may, on the other hand, be
said that both in law and in fact they are colleagues of the gov-
ernor, in no sense his agents or subordinates, except perhaps
in mere formal precedence. They, like himself, are elected by
the people ; he is in no way concerned in their choice. Nor do
they serve him after election. They are not given him as
advisers ; they are, on the contrary, co-ordinated with him.
North Carolina, indeed, calls her chief officers of state a ' cabi-
net ' ; but they are not dependent upon each other even in
counsel, and they are quite as independent of the governor as
Congress is of the president. The only means of removal to
v/hich the principal officers of the states are subject is, ordi-
narily, impeachment, to which the governor also is equally
exposed. Both they and he may be charged with official
crimes and misdemeanors by the house of representatives and
tried, convicted, and removed by the senate of the state. Their
THE GOVERNjSIENT OP THE ITNITED STATES. 517
only other responsibility is to the courts of law, to which, like
any other citizens, they are answerable, after removal from
office, for actual breaches of law. Governor, treasurer, secre-
tary of state, attorney-general, — all state officers alike, serve,
not other officers, but the people, who elected them ; upon the
people they are dependent, not upon each other ; they consti-
tute no hierarchy, but stand upon a perfect equality.
973. In Delaware, Kentucky, Maryland, New Jersey, Pennsylvania,
West Virginia, and Texas, the secretaries of state are appointed by the
governor, subject to confirmation by the senate ; in several states the
attorney-general also is appointed; nor is it uncommon for the state
superintendent of education to be an appointee of the governor : and
these facts offer apparent contradiction to the statement that the several
constituent parts of the state executives stand always apart in complete
independence and co-ordination, — especially when it is added that in
one or two states ofiicers so important as the secretary of state and the
attorney-general hold during the. pleasure of the governor. But these cases
constitute in fact no real exceptions : for the duties of such officers, after
their appointment, are prescribed by constitutional provision or by stat-
ute, not by the governor ; and the governor may remove them, not at
his whim, but for just legal cause only. In brief, though appointed by
him, they do not depend upon him.
974. Real Character of a State 'Executive.' — The gover-
nor therefore, is not the ' Executive ' ; he is but a single piece
of the executive. There are other pieces co-ordinated with
him over which he has no direct official control, anl which are
of less dignity than he, only because they have no power to
control legislation, as he may do by the exercise of his veto,
and because his position is more representative, perhaps, of
the state government as a whole, of the people of the state as
a unit. Indeed it may be doubted whether the governor and
other principal officers of a state government can even when
taken together be correctly described as ' the executive,' since
the actual execution of the laws does not rest with them but
with the local officers chosen by the towns and counties and
bound to the central authorities of the state by no real bonds
518 THE GOVERNMENT OF THE UNITED STATES.
of responsibility whatever. Throughout all the states there is
a significant distinction, a real separation, between ' state ' and
' local ' ofELcials ; local officials are not regarded, that is, as state
officers, but as officers of their districts only, responsible to
constituents, not to central authorities. In all the states,
probably without exception, the sheriffs and other county offi-
cers, the county treasurers, clerks, surveyors, commissioners,
etc., and the town and city officials also, as well as the judges
of the courts and the solicitors or district attorneys who repre-
sent the public authority before the courts, are chosen by the
voters of limited areas, and are regarded, for the most part, as
serving, not the state, but their part of the state. Minor 'state'
officers there are, — minor officers, that is, who servo ministe-
rially the central offices, — and these are often appointed by
the governor ; but it is exceptional for the governor to control
in any real sense the officials, the local authorities, by whom the
laws are in fact put into actual operation. The president of
the United States is the veritable chief and master of the offi-
cial forces of the federal government ; he appoints and in most
cases can remove, for cause, all federal marshals, district attor-
neys, revenxie officers, post-office officials. But the governor of
a state occupies no such position ; nor does any high ' state '
official; the central offices of a state constitute a system of
supervision and report often, but seldom a system of control.
975. In Michigan, it is true, all officials not legislative or judicial may
be removed by the governor for just legal cause ; in New York, too,
sheriffs, coroners, district attorneys, and county clerks are removable
by the same authority, and in "Wisconsin sheriffs, coroners, district
attorneys, and registrars of deeds ; but such provisions are exceptional,
and are not accompanied by any real integration of local government
by a system of continuous central control. Government remains dis-
jointed,— still lies in separated parts.
976. Relations of the Local 'to the Central Organs of Govern-
ment in the States. — It is characteristic of our state organization,
therefore, that the counties, townships, and cities into which the states
are divided for purposes of local go vernment do not serve as organs of the
THE GOVERNMENT OF THE TTNITED STATES. 619
states exactly, but rather as independent organisms, constituted what they
are by state law, indeed, but after being setup, left to themselves almost
as entirely as if tliey were self-constituted. They elect their own officers
and go their own paces in enforcing the general laws of the state.
977. We have not, therefore, local 'self-government,' in the sense in
which Professor Gneist has found that term to be properly used when
employed in the light of its Teutonic history ; we have, instead, separate
local self-direction which is not the application of government, but the
play of independent action. Our local areas are not yoverned, in brief ;
they act for themselves. Self-government Implies, when used in its
strict historical meaning, that the officers of local administration are
officers of the state, of the central authority, whatever may be the
machinery of their appointment, and that their responsibility is central,
not to their neighbors merely. The only sense in which the local units
of our state organization are governed at all is this, that they act under
general laws which are made, not by themselves, but by the central
legislatures of the states. These laws are not executed by the central ex-
ecutive authorities, or under tlieir control, but only by local authorities
acting in semi-independence. They are, so to say, left to run themselves.
978. The Governor. — The usual duties of a state governor
may be conveniently summed up under four general heads :
(1), as towards the legislature, it is his duty to transmit to the
houses at each regular session, and at such other times as may be
required, full information concerning the state of the common-
wealth, and to recommend to them such measures as seem to
him necessary for the public good. It is also his duty in case of
necessity for such a step, or upon the requisition of a sufficient
number of legislators, to summon the houses to extra session.
(2) He is commander-in-chief of the state militia, and as such
is bound to see, not only that foreign invasion is repelled, but
also that internal order is preserved. (3) He exercises the clem-
. ency of the state towards condemned persons, having the right
to grant pardons to persons convicted of crime, to remit fines
and penalties, under certain conditions, and to remove political
disabilities incurred in consequence of conviction of crime ;
though he exercises these high prerogatives subject always to
a definite responsibility to public opinion and to the laws.
520 THE GOVERNMENT OF THE TTNITED STATES.
In some states, as notably in Pennsylvania, the power of granting par-
dons is given to the governor, however, only in form, the sanction being
made necessary of a Board of Pardons, whose action is semi-judicial.
(4). In all the states except four (Delaware, Ehode Island,
Ohio, North Carolina) the governor's assent is made necessary
to the validity of all laws not passed over his dissent by a
special legislative vote upon a second consideration made in full
view of the governor's reasons for withholding his signature.
979. All bills which the governor signs, or upon which he does not
take any action within a certain length of time, become law; those
which he will not sign he must return to the legislature with » state-
ment of his objections. Generally he must return bills which he thus
rejects to the house in which they originated, though in Kansas he must
return them always to the House of Representatives.
980. The vote by which a bill may be passed over the governor's
veto varies very widely among the states. In Connecticut a mere ma-
jority sufSces for its second passage ; in other states a, three-fifths vote
is required, in some a two-thirds vote ; sometimes a majority of elected
members (instead of a special number within a mere quorum) must
concur in a second passage ; and sometimes two-thirds of the elected
members. In Missouri it is provided that the votes of two-thirds of
the elected members shall be necessary in the house in which the meas-
ure originated, while a mere majority of the other house will suffice.
981. In thirteen of the states the governor is given the power to
veto particular items in appropriation bills ; as regards all other bills
his approval or disapproval must cover all of the measure or none of it.
982. The Secretary of State. — The title ' Secretary of State '
borne by a conspicuous officer in each of the states is very apt
to mislead those who have studied first the English executive
or the functions of our own minister of foreign affairs. The
federal Secretary of State is first of all an executive minister,
only secondarily a secretary ; and the five principal Secretaries
of State in England are equally without prominent secretarial
functions. They are one and all executive heads of department.
983. The federal Secretary of State is entitled to his ofiScial name
chiefly by virtue of certain minor duties seldom thought nf by the pub-
lic in connection with the Department of State. He has charge of the
THE GOVEENMBNT OP THE UNITED STATES. 521
seal of the United States ; he preserves the originals of all laws and of
all orders, resolutions, or votes of the houses which have received the
force of law ; he furnishes to Congress, hesides consular and diplomatic
reports, lists of passengers arrived in the United States from foreign
countries, etc.
984. The chief clerical features of the office which the five Principal
Secretaries of State in England theoretically share (sec. 693) would
seem to be represented by the necessity of the countersignature of some
one of them to the validity of the sign-manual.
986. The Secretaries of State in the commonwealths of our
Union, on the contrary, can show substantial cause for holding
their title ; the making and keeping of records is the central .
duty of their office. It is usually their duty to register the
official acts of the governor, to enroll and publish the Acts of
the_ Legislature, to draw up all commissions issued to public
officers, to keep all official bonds, to record all state titles to
property, to keep and affix, where authorized, the seal of the
commonwealth, to preserve careful records of the boundaries of
the various civil districts (the counties, townships, etc.) of the
state, and to give to all who legally apply duly attested copies
of the public documents in their keeping. In brief, the Secre-
tary's office is the public record office.
986. Often other duties are assigned to the Secretary of State. In
one state, for instance, he is constituted Internal Improvement Com-
missioner ; in another Surveyor-general. But such additional Inunctions
are not, of course, characteristic of his office.
987. It is to the Secretary of State in each commonwealth that the
votes of the state's electors for President and Vice President are re-
turned ; it is he who transmits them to the president of the Senate to
be opened in the joint session of the two Iiouses.
988. Votes in state elections also are generally returnable to the
Secretary of State's office, and the Secretary of State is very commonly
one of the state canvassers of election returns. Such duties manifestly
flow very naturally from the general duties of his office.
989. The Comptroller, or that equivalent officer, the state
Auditor, is public accountant. It is his function to examine
and pass upon all claims presented under existing provisions
522 THE GOVERNMENT OF THE UNITED STATES.
of law against the state ; to audit the accounts of all officers
charged -with the collection of the revenue of the state, filing
their vouchers, and requiring of them the necessary bonds, and
crediting them with all sums for which they present the state
Treasurer's receipt; to ensure uniformity in the assessment
and collection of the public revenue by preparing and furnish-
ing to the local fiscal ofl&cers the proper forms and instructions ;
to issue warrants for all legal disbursements of money from the
treasury of the state, keeping a careful account with the state
treasurer ; to submit his books and accounts at any time to ex-
amination by the legislature : in a word, to regulate the assess-
ment, collection, and disbursement of the public moneys.
990. The State Treasurer may be said simply to keep the
public moneys subject to the warrants of the Comptroller.
Without such warrant he can pay out nothing.
991. These, manifestly, are not offices of control. The Comptroller,
for example, can generally proceed against local fiscal officers through
the local law-representatives of the state, the local states-attorneys, in
the ordinary courts, for the purpose of securing the necessary bonds,
when these are not promptly or properly given, or of enforcing the pay-
ment of moneys witliheld or uncollected ; and he may make test of the
validity or sufficiency of official bonds by any means within his reach ;
but he has none but this judicial control, this indirect control, that is,
exercised through the courts over officers who refuse bond or who neglect
the forms and instructions issued to them regarding the assessment and
collection of taxes. The whole machinery of control is local, not central,
— • through courts and states-attorneys who are themselves elected by the
same persons, in town or county, by whom the collecting officers are
chosen. The local fiscal officers are not, in other words, officers of the
state Treasury, but officers of the towns and counties whom the state
employs as its agents.
992. The State Superintendent of Education often occupies
a somewhat different position. It is his prerogative to pre-
scribe the qualifications of teachers and the methods by which
they are to be selected ; he exercises a thorough inspection of
the schools throughout the state ; often he is given power to
THE GOVERNMENT OF THE UNITED STATES. 523
secure proper reports of school work through special inspectors
appointed to act instead of local superintendents whose reports
are irregular or unsatisfactory. School administration is rec-
ognized to require a certain degree of centralization of author-
ity, and so to constitute a legitimate exception to the general
rules as to the constitution of executive power in the states.
Still, even the power of a state Superintendent of Education
does not often go very much beyond mere supervision. The
powers of district or township school directors remain in most
cases very absolute as regards the management of the schools.
They are governed by statute, not by the state Superintendent.
993. Constitutional Diffusion of the Executive Power. — The
constitutions of at least seven of the states make very frank confession
of the diffusion of executive authority upon which I have dwelt as
characteristic of our state system. Thus the constitution of Alabama
provides that the executive power " shall consist of the governor, Secre-
tary of State, state treasurer, state auditor, attorney -general, and super-
intendent of education, and the sheriff for each county." The consti-
tutions of Arkansas, Colorado, Illinois, Minnesota, Pennsylvania, and
Texas, make similar enumerations, with the exception of the sheriffs
of the counties. The Florida constitution of 1868 provided that the
governor should be "assisted by a cabinet of administrative officers"
appointed by himself, subject to the confirmation of the Senate; but
clothed these oflSoers with functions which made them In fact not
assistants but colleagues.
The constitutions of most of the other states declare the executive
power to be vested in the governor, but are hardly through with out-
lining his functions before they provide for the erection of executive
departments among which the greater part of executive power shall be
parcelled out; so that the arrangement is, in effect, that of those states
which declare the executive office to be 'in commission' by enumerating
the officers who are to divide its duties.
994. Full Legal, but no Hierarchical, Control. — This, then, is
the sum of the whole matter : the control of Taw is thorough and com-
plete : statutes leave to no officer, either central or local, any consider-
able play of discretionary power : so far as possible they command every
officer in every act of his administration. But no hierarchy stands be-
tween any officer and the law. The several functions of executive power
524 THE GOVEUNMENT OF THE UNITED STATES.
are segregated, — each official, so to say, serves his own statute. So
thorough is the control attempted by legislation, — and so potent
among us is the legal habit and conscience, the law-abiding sense, —
that no official control, no hierarchical organization has been thought
necessary.
Local Goveenment.
995. General Characteristics. — The large freedom of action
and broad scope of function given to local authorities is the
distinguishing characteristic of the American system of govern-
ment. Law is central, in the sense of being uniform and the
command of the central legislature in each state ; and its pre-
scriptions are minute ; but function and executive power are
local. There is a single comprehensive statutory plan, but a
host of unassociated deputies to carry it into effect, an infinite
variety in the local application of its principles. General laws
are given to the localities by state legislation, and these laws
are generally characterized by a very great degree of particu-
larity and detail of provision; but no central authority has
executive charge of their application : each locality must see
to it for itself that they are carried out.
996. Duties of Local Government. — The duties of local
government include Police, Sanitation, the Care of the Poor,
the Support and Administration of ScLools, the Construction
and Maintenance of Eoads and Bridges, the Licensing of
Trades, the Assessment and Collection of Taxes, besides the
Administration of Justice in the lower grades, the maintenance
of Court Houses and Jails, and every other affair that makes
for the peace, comfort, and local good government of the various
and differing communities of each commonwealth. In many
places libraries are included among the institutions given into
the charge of the officers of local government. Of course local
officers look to state law for their authority ; but practically
state administration represents only the unifying scheme of
local government. Local administration is tJie administration
of the state.
THE GOVEENJIENT QP THE UNITED STATES. 525
997. Local Varieties of Organization. — Almost without
exception the states which have been added to the original
thirteen by whom the Union was formed have derived their
local institutions, whether by inheritance or by imitation, from
the mother-states of the Atlantic seaboard. Wherever New
England settlers have predominated the township has taken
quick rootage and had a strong growth; wherever Southern
men have gone the county has found favor above other forms
of local organization ; wherever the people from the two sec-
tions have met and mixed, as in the early days they met and
mixed in New Jersey and Pennsylvania, the same combination
or mixture of institutions that is characteristic of the middle
Atlantic states is found in full prominence. But in all cases
the new foundations in the west have this common feature:
they have all been in a greater or less degree artificially con-
trived. Towns have not grown up in the northwest for the
same reasons that led to their growth in New England, in the
days when isolation was necessary and when isolation of course
involved compact and complete self-government (sees. 835-837) •■
they have, on the contrary, been deliberately constructed in
imitation of New England models. Neither have western
counties been developed by processes of pioneer agricultural
expansion such as made the irregular, and in a sense geograph-
ically natural, counties of Virginia (sees. 841-843) : they
have, on the contrary, been geometrically laid off in the exact
squares of the government survey because the settlers wanted
to reproduce by statute the institutions which in their old
homes have been evolved by slow, unpremeditated colonial
growth. The institutions of the admitted states, in a word,
were transplanted by enactment, whereas the institutions of
the original states were almost unconscious adaptations of
old custom. It by no means follows that these newer insti-
tutions lack naturalness or vigor : in most cases they lack
neither, — a self-reliant race has simply re-adapted institutions
common to its political habit ; but they do lack the individu-
626 THE GOVEENMENT OF THE XJNITBD STATES.
ality and the native flavor often to be found in the institutions
in whose likeness they have been made.
998. The differences of institution, then, -which show them-
selves in the east between local government in New England,
local government in the South, and local government in the
central belt of Atlantic states extend also into the west.
There, too, we find the three types, the township type, the
county type, and the compound type which stands between
the two ; but the compound type is in the west naturally the
most common : the westerner has had the sagacity to try to com-
bine the advantages of all the experiments tried in the older
states, rejoicing in being fettered by no hindering traditions,
and profiting by being restrained by no embarrassing incapac-
ity for politics.
Keeping these facts in mind, it will be possible to consider
without confusion, the Township, the County, the School Dis-
trict, the Town, and the City as elements of local government
in the United States. The different place and importance
given to- each of these organs in different sections may be
noted as we proceed.
999. The Township : Its Historical Origin. — The town-
ship is entitled to be first considered in every description of local
government in the United States not only because it is a pri-
mary unit of administration, but also by reason of its impor-
tance and because of its ancient and distinguished lineage. It
is a direct lineal descendant from the primitive communal
institutions which Caesar and Tacitus found existing in the
vigor of youth among the peoples living in the ancient seats
of our race. The New England town was not an American
invention ; and the settlers upon the northern coasts did not
adopt the town system simply because they were obliged to
establish themselves in isolated settlements in a harsh climate
and among hostile native tribes. We have seen (sees. 836-6)
that they kept together in close settlements for religious pur-
poses, for mutual defence, and for purposes of trade, and that
THE GOVEENMENT OF THE UNITED STATES. 527
their settlements were completely isolated by stretches of .wild
primeval forest ; but their form of government, or at least the
talent and disposition for it, they brought with them, an inheri-
tance of untold antiquity. Their political organization was
simply a spontaneous reproduction of the ancient Germanic
Mark (sees. 222, 652). In most cases they regarded the land
upon which tljey settled as the property of the community,
just as their remote barbarian ancestors had don^ ; like those
ancestors, they divided out the land among families and indi-
viduals or worked it in common as might be decided by public
vote in general assembly, in open 'folk-moot' we may call
it. This same 'town-meeting,' as they styled it, voted the
common discipline, elected the officers, and made the rules
of common government : each group of colonists constituted
themselves a state with a sovereign primary assembly. They
re-established, too, the old principles of folk-land. Whether
they tilled their lands in common or not, they had always a
communal domain, part of which was kept as open Common
for the general pasturage, and the rest of which was given over
in parcels, from time to time, for settlement. They were
inventing nothing; they were simply letting their race habits
and instincts have natural play. Their methods showed signs
at almost every point, of course, of having been filtered through
intervening English practices ; but they rested upon original
Teutonic principles.
1000. The exceptions to the principle of folk-land occurred where,
as in the Hartford, Windsor, and Wethersfield settlements on the Con-
necticut, the land was held, not in common by the civil community,
but in common by a sort of corporation of joint owners under whose
supervision the new colonies were established. These joint owners were
quite distinct from communal authorities.^
1001. Absorption of the Town in Larger Units of Govern-
ment. — It was towns of this primitive pattern that were drawn
together ultimately into the New England colonies of the later
1 See Andrews, The River Towns of Connecticut (Johns Hopkins Studies,
Seventh Series).
528 THE GOVERNMENT OF THE UNITED STATES.
time by the processes I have already described (sec. 838) ; and
of course in becoming parts of larger organizations they lost
to some extent their independence of movement, as well as in
some slight degree their individuality also. In some cases,
as for instance in the coalescence of ' Connecticut ' and New
Haven (sec. 849), the establishment of central state legisla-
tive control over the towns took the shape of a. mere confirmar
tion to them of their old functions and privileges, and in this
way fully recognized their elder and once sovereign place in
the historical development of the commonwealth ; but it in all
cases necessarily resulted in their virtual subordination. It
led also to the creation of new areas of local government.
Towns were grouped, at first for judicial purposes only, into
counties, and the counties came in time to furnish a more con-
venient basis for certain administrative functions once vested
exclusively in the smaller areas. Great cities, too, presently
grew up to demand more complex, less simply and directly
democratic, methods than those of the towns. But no change
has seriously threatened town organization with destruction :
it is still the most characteristic and most vital element of
local government in New England; and it still has substan-
tially the same officers,, substantially the same functions that
it possessed at its foundation in America.
1002. Of course an' influx of foreigners has in many places disturbed
and even impaired the town system, and the cities, whicli draw to them-
selves so rapidly the rural population, but which are too big for the
primitive methods of town government, are powerful disintegrating
elements in the midst of the old organization ; but the new adaptation
and development of the township in the west, and the tendency to in-
troduce it in some parts of the south, seem still to promise it honor and
length of days.
1003. Town-meeting. — The sovereign authority, the motive
power, of town government is the Town-meeting, the general
assembly of all the qualified voters of the town, which has
reminded so many admiring observers of the ancient Grecian
THE GOVERNMENT OF THE UNITED STATES. 629
and Eoman popular assemblies and of the Landsgemeinde of
Switzerland. The regular session of this assembly is held
once a year, usually in the Spring/ but extra sessions are held
from time to time throughout the year as occasion arises, due
notice being given both of the time of meeting and of the
exact business to be considered. Town-meeting elects all
officers, — its regular annual session being the session for elec-
tions, — and decides every affair of local interest.^ It is pre-
sided over by a ' Moderator ' and attended by the town officers,
who must give full account of their administration, and who
must set before the Meeting a detailed statement of the sums
of money needed for local government. These sums, if ap-
proved, are voted by the Meeting and their collection ordered,
on the prescribed basis of assessment. Everything that the
officials and committees of the town have done is subject to be
criticised, everything that they are to do is subject to be regu-
lated by the Meeting.
1004. The Town Officers. — The officers of the town are
certain 'Selectmen,' from three to nine in number, according
to the size and needs of the town, who constitute the general
executive authority for all matters not otherwise assigned ; a
Town Clerk, who is the keeper of the town records and ^egis^
ters ; a Treasurer ; Assessors, whose duty it is to make valua-
tion of all property for tax assessment ;' a Collector of the taxes
voted by the Meeting or required by the county and state
authorities ; a School Committee ; and a variety of lesser offi-
cers of minor function, such- as Constables, together with cer-
tain committees, such as library trustees, etc. Generally there
are also overseers of the poor and surveyors of highways.
1006. To this corps of officers all the functions of local gov-
ernment belong. The county authorities cannot erlter their
1 In Connecticut in the autumn.
2 In some of the coast towns (townships), as notably in Connecticut, the
regulation of the use of the oyster beds is a very prominent question in
town-meeting.
530 THE GOVERNMENT Of THE tTNlTED STATES.
domain, but must confine themselves to the judicial duties
proper to them and to such administrative matters as the lay-
ing out of inter-town roads, the issuing of certain county-
licenses, the maintenance of county buildings, etc., for the
due oversight of which larger areas than the town seem nec-
essary. County expenses are defrayed by taxes raised by the
towns : the county authorities apportion such taxes, but lay
none.
In Rhode Island the only county officials are those connected with
the administration of justice.
1006. The Township of the Northwest. — The town may,
therefore, be said to exist in New England in its historical
character and simplicity, overshadowed here and there by great
cities, and everywhere modified and partially subordinated by
the later developments of state and county. In the Northwest,
whither New England emigrants have gone, it has entered
another phase and taken on another character, — a character
which may perhaps foreshadow its ultimate organization should
the country have at anj' future time the uniform practices of
local government now dimly promised by certain incipient
forces of institutional interchange and imitation.
1007. In the first place, the Northwestern township is more
thoroughly integrated with the county than is the New Eng-
land township : county and township fit together as pieces of
the same organism. In New England the township is older
than the county, and the county is a grouping of townships
for certain purposes ; in the Northwest, on the contrary, the
county has in all cases preceded the township, and townships
are divisions of the county. The county may be considered as
the central unit of local government : townships as differentia-
tions within it.
1008. The county preceded the township because the county
furnishes, for our people, the natural basis of organization for
a scattered agricultural population ; the- township came after-
wards, at the suggestion of the New England settlers, as the
THE GOVERNHENT OF THE HNITED STATES. 531
natural organization for a population became more numerous
and drawn together into closer association.
1009. Its Origin. — As all the best authorities on this sub-
ject have pointed out, scliool organization supplied the begin-
nings of the township system in all the more newly settled
portions of the country, and is now producing the seeds of it
in the South. The western township has sprung out of the
school as the New England township of the earliest days sprang
out of the church. The government surveyor, who has every-
where preceded final settlement in the west, has in all cases
mapped out the land in regular square plots which, for con-
venience, he has called 'townships,' and in every township
Congress has reserved a square mile of land for the endow-
ment of schools. This endowment had to be administered by
the settlers, school organization had to be effected, the name
township had already been given to the district so endowed,
and there was, therefore, naturally school organization on the
basis of the township. From this there eventually issued an
equally natural growth of local political institutions.^
1010. Spread of Township Organization. — The develop-
ment of the township has progressed almost in direct ratio
with the development of local government : in many sections
of the country, even where population is dense, county organ-
ization is still made to sufiH.ee for such districts as have not
assumed the structure and privileges of village or city incor-
poration, but wherever any special effort has been made to
perfect local rural organization for administrative purposes,
the township has been accepted as the best model of politi-
cal association.
1011. It has received its widest acceptance in such middle states as
New York and Pennsylvania, and in the great Northwestern states of
Michigan, Wisconsin, Illinois, and Minnesota. Elsewhere, in the Middle
West, in Ohio, Indiana, and Kansas, for example; and in such states of
1 See p. 10 of Local Government in Illinois, by Dr. Albert Shaw (Johns
Hopkins Studies in Historical and Political Science, Eirst Series).
632 THE GOVEENMENT OP THE ONTlTEt) STATES.
the far West as California, it is less fully developed, and occupies a
much more subordinate place as compared with the County. The
County, indeed, may be said to be the prevalent unit of local govern-
ment in California, as well as in Oregon, Nebraska, and Nevada.
1012. Township Organization. — The organization of the
township outside of New England, of course, varies with its
development. Where it is most vigorous there is the town-
meeting exercising powers strictly defined and circumscribed
by statute and somewhat less extensive than the powers of
town-meeting in New England, but still covering a multitude
of local interests and representing a very real control. Where
it is less developed there is no town-meeting, but instead- only
the processes of popular election to local ofB.ce. In all cases
the ' selectmen ' have disappeared : at least we find no offtcers
bearing their name, and no officers possessing exactly their
functions. Where the township is most completely organized
we find one or more 'supervisors' standing at the front of
township administration, who are clothed with the duties of
overseers of the poor, who exercise oftentimes a certain control
over the finances of the township, and who are, in general func-
tion, the presiding and directing authorities of the adminis-
tration.
1013. In Michigan and Illinois a single supervisor presides over each
township ; and in the former state each supervisor is also tax assessor,
while in the latter he is treasurer. In Wisconsin and Minnesota there
are three supervisors in each township ; in Ohio three nearly equivalent
officers called ' trustees.'
1014. Where there are several supervisors or trustees in the
township, it is common to associate them together as a Board,
and under such an arrangement they very closely resemble the
New England board of selectmen in their administrative func-
tions. Township boards also exist under the laws of some
states in which there is but a single supervisor for each town-
ship, being composed, usually, besides the supervisor, of such
officers as the town clerk and the Justices of the Peace.
THE GOVEllNMEXT Of THE UKITED STATES. 533
In Michigan such a board has rather extensive supervisory powers ;
in Illinois it is a committee of audit simply.
1015. The number of township officers of course varies with
the degree of development to which the township system has
attained. In Ohio, where the system is stilt more or less in
germ, there are, besides the three trustees, no township oiRcers
save a clerk and a treasurer. In Michigan, even, where the
township system is fully accepted, there is neither an assessor
nor a collector of taxes, the supervisor acting as assessor and
the treasurer as collector. In Illinois, on the other hand, there
is always a very full corps of officers : supervisor, collector, as-
sessor, clerk, commissioners of highways, school trustees, jus-
tices of the peace, constables, etc.
1016. The term of all officers except justices of the peace, road and
school commissioners, and constables, is generally but a single year, as
in New England ; the terms of the other officers named are often three
or four years.
1017. Where there is a town-meeting the officers are elected by it ;
where there is no town-meeting they are of course chosen by ballot.
1018. The Township in the Middle Atlantic States. — Of
course it is reversing the historical order to speak of the town-
ships of the middle Atlantic states after discussing the town-
ships of the newer west ; but it is not reversing the order of
convenient exposition. The processes of formation are plainly
visible in the west ; in the east they are more com]3lex and
obscure,' being the formations of history rather than of legis-
lation.
1019. The New York township is like the townships of
Michigan and Illinois in its structure and functions ; but like
because it is an original, not because, it is a copy. Over it
presides a single supervisor who is the treasurer and general
financial officer of the area. It has its clerk, its assessor, its
collector, its commissioners of highways, its constables, its jus-
tices of the peace. It has also special overseers of the poor.
An annual town-meeting, under the presidency of the justices
534 THE GOVERNMENT OP THE UNITED STATES.
of tlie peace, or of the town clerk, elects all officers, passes
sundry by-laws, votes taxes for schools and poor-relief, and
constitutes the general governing authority.
In counties containing 300,000 or more inliabitants there is a pro-
vision for the election of townsliip officers \>y ballot.
1020. The Pennsylvania Township. — The New York town-
ship system suggested the system of the states about the lakes,
and stands nearest in the order of development to the town-
ship of New England. The township of Pennsylvania, on the
other hand, suggests the township system of the next lower belt
of western states. In it there is no town-meeting, but only an
executive machinery. A board of two or three supervisors hold-
ing for a term of three years presides over the township, and-
has as its most prominent function the care of highways. For
the rest, there are the usual officers, with the somewhat uncom-
mon addition of three auditors. Where the township is charged
with the care of the poor, two special overseers are elected.
1021. Origins of Local Crovernment in the Middle States. —
Local government in New York, Pennsylvania, Delaware, and most of
New Jersey runs back, as to a common source, to the system established
in colonial times by the Duke of York as proprietor. Under that sys-
tem the township was the principal organ of local government. Its
officers were certain constables and overseers ; and above the townsliip
was only an artificial 'Riding' presided over by a sheriff. Certain
General Courts levied highway and poor rates, appointed overseers of
highways, etc. After the period of the Duke's proprietorship, the de-
velopment of local government in the several parts of his domain
exliibited a considerable variety. The township retained its importance
in New York, but further south, particularly in Pennsylvania, the
county gained the superior place.
1022. The Township in the South. — Wherever, in the
south, the principle of local taxation for local schools has been
fully recognized, there the township has begun to show itself,
at least in bud. Virginia, the oldest of the southern states,
and in most respects the type of all the rest in institutional
THE GOVERNMENT OF THE UNITED STATES. 535
development, has, since 1870, had the township system in full
flower.
1023. In the Virginia to-wnships, as in those of the middle west,
there is no town-meeting, — all oflSeers, down even to the constable, are
elected at the polls. Each township has its single supervisor, but, as in
Michigan, the supervisor has authority only as a member of a township
board, on which the commissioner of roads and the assessor are asso-
ciated with him. This board is the auditing and general financial
authority of the township, has charge of highways, has the usual care
of the township property, and the usual general oversight. The clerk of
the township is ex officio treasurer, and must countersign the warrants
of the board. There are special overseers of the poor, but county poor-
housee receive paupers sent from the townships. For the rest, there is
the usual collector, justice of the peace, and constable. As in New
York, the supervisors of the townships collectively constitute the gov-
erning board of the county.
North Carolina, also, and West Virginia have adopted to some extent
the township system.
The division of power between township and county can be
most intelligibly discussed in connection with the following
outline of county organization.
1024. The County. — The natural history of the county is
best studied in the south, where, despite the partial, and in
Virginia the complete formal, adoption of township organiza-
tion, the county remains the chief, and almost the only organ
of local order and government. We have seen (sees. 841, 842)
how natural a basis of government it was for a wide-spread
agricultural population. The county was imported into the
west by southern settlers, but also found there at first its
natural reason for existence in a similarly diffused population.
New England immigration and new conditions of industrial
and social combination have created the township within the
county in the west, as they promise to create it in the south,
also (see see. 1022).
1025. In all cases it would, seem the county was originated
for judicial purposes, as an area in and for which courts were
to be held, though in such confederate colonies as Connecticut
,'^J THE GOVEUNMENT OF THE UlSriTEt) STATES.
it was also in part the outgrowth of the union of different
groups of once independent towns. In the south the county
became also the single area for the administrative organization
of local goTernment, being given the functions elsewhere di.
vided between the county and lesser areas like the township.
In New England certain general functions of a limited charac
ter have been conferred upon it by subtraction from the town-
ships. In the northwest, county and township have been
created almost simultaneously and side by side, and are care-
fully integrated.
1026. The American county was of course in the first instance a
frontier copy of the English shire ; but, of course, the American county
affords no analogy in its growth to the growth of its English prototype.
The English shire in a great many instances traces its history back to
the time when it was a separate Saxon kingdom, and may be said to
hare as natural boundaries as France ; American counties, on the other
hand, have all been deliberately 'laid out,' as judicial and administra-
tive subdivisions, and have no independent historical standing.
1027. The southern county, which undertakes all of local
administration, has, of course, a complete set of officers. At
its head is a small board of county commissioners. Acting
under the general superintendence of the commissioners there
are generally a county treasurer, auditor, superintendent of
roads, superintendent of education, and superintendent of the
poor. On its judicial side, the county has its sheriff, its clerk,
its ordinary or surrogate, its coroner, and its states-attorney,
the latter generally acting for a judicial district inclusive of
several counties. The functions of the county, of course, em-
brace the oversight of education, the maintenance of jails and
poor-houses, the construction and repair of highways, and all
local matters. County officers are in almost all instances
elected by popular vote. Under the southern county system
the sheriff is commonly tax-collector.
1028. Where the township exists there is great variety of
county organization, almost the only point of common likeness
THE GOVERNMENT OP THE UNITED STATES. 537
being the organization of justice. The county always has its
sheriff, and generally its separate courts -with the usual coro-
ner and clerk. The variety exists in the domain of adminis-
trative structure. Sometimes, as in New York, Michigan, and
Illinois, the county administrative authority is a board com-
posed of the supervisors of all the townships ; sometimes, as
in Pennsylvania and Minnesota, the county authority is a
board of three commissioners. In Wisconsin the county board
consists of members each of whom is chosen by two or more
townships. Where the county is given least power, as in
New England, its administrative functions hardly extend be-
yond the maintenance of such county buildings as the jail and
court-house, the granting of certain licenses, and the partial
supervision of the highway system. In New York and the
northwest the county authorities often undertake the relief
of the poor, sometimes exercise an extensive control over the
debt-contracting, privileges of the smaller areas, often audit
the accounts of local officers, and supervise taxation for pur-
poses of equalization.
Where townships exist, then, the division of functions may be said
to be as follows : the township is the area for the administration of
schools, for the relief of the poor (unless by popular vote this function
is given to the county), police, construction and maintenance of high-
ways, sanitation ; the county is the area for the administration of jus-
tice, for the maintenance of jails, courthouses, and sometimes poor-
houses, for tax equalization, and often for the exercise of certain other
general supervisory powers.
1029. Villages, Boroughs, Cities. — Counties and town-
ships are areas of rural organization only ; with the compacting
of population in great towns and cities other and more elabo-
rate means of organization become necessary, and a great body
of constitutional and statutory law has grown up in the states
concerning the incorporation of such urban areas. There is no
municipal corporations act in any of our states such as that
under which, in England, cities of all sizes may acquire the
538 THE GOVERNMENT OF THE UNITED STATES.
privileges and adopt the organization of full borough govern-
ment (sec. 794) : the largest towns are left, under our system,
to depend for their incorporation upon special acts of legisla-
tion. The great cities of the country consequently exhibit a
great variety of political structure, and even cities in the same
state often differ widely in many material points of organiza-
tion and function.
1030. The electors or freeholders of less populous districts
are, however, in most of the states empowered to obtain a sim-
ple sort of urban organization and considerable urban powers,
by certain routine processes, from the courts of law ; villages
(as they are called in New York), boroughs (as they are styled
in Pennsylvania), towns (as they are sometimes designated in
the south), ' cities of the lesser grades (in states where they are
classified according to population), may usually get from the
courts as of course, upon proof of the necessary population
and of the consent of freeholders or electors, the privilege of
erecting themselves into municipal corporations under general
acts passed for the purpose ; just as private joint-stock compa-
nies may get leave to incorporate upon showing to the court
evidence of the possession of the necessary membership, stock,
or paid-up capital.
1031. The town or borough is of course, however, a public, not a
private, corporation, receiving by delegation certain powers of govern-
ment ; and many states have left with their legislatures tlie power to
create all public corporations by special act. The incorporation of
towns is not, therefore, universally governed by general statute.
1032. The Authorities of urban districts thus erected into
separate corporations succeed, generally, to all the powers
of township officers within their area and constitute a local
body apart, though no town or city ever altogether ceases to
be a part of the county in which it lies. It continues to pay
iThe name town when used in New England always means, not an
urban district, but a township.
THE GOVEENMBJSTT OF THE UNITED STATES. 639
county taxes and its electors continue to take their part in
the choice of county officials. The special organization which
these statutory towns receive is unlike that of either county
or township principally in this, that they have at the front of
their government a representative, quasi-legislative, body, an
elected council, that is, which within its sphere is a law-mak-
ing authority.
1033. A common model of organization is : a mayor, president,
or chief burgess ; a small council of trustees, given extensive power of
making by-laws, considerable power of taxation for local improvements
as well as for local administration, and other powers of local direction
which quite sharply differentiate it from the merely executive boards
often found in the townships and always found in the counties ; a
treasurer; a clerk; a collector; a street commissioner; sometimes
overseers of the poor ; and generally such other minor officers as the
council see fit to appoint.
1034. Organization of Government in Cities. — The differ-
ence between the organization of these smaller urban areas
and the organization of great cities is a difference of complexity
not only but often also a difference of kind. Cities, we have
seen (sec. 953), are often given a separate judicial organizar
tion, being made in effect separate judicial circuits or counties,
with their own courts, sheriffs, coroners, and state-attorneys.
They are given also, of course, larger councils, with larger
powers ; a larger corps of officers ; and greater independence
than other local areas possess.
1035. The counoU of a great city usually consists of two sections
or 'houses,' — a board of aldermen and aboard of common councilmen,
differing very much as the two houses of a state legislature differ,
in the number and size of the districts which their members represent.
In the cities of New York State, however, there is but a single legisla-
tive chamber, called sometimes the Board of Aldermen, sometimes the
Common Council.
1036. These boards always constitute the law-making (or rather
orrfmance-making) and taxing power of the city ; and always until recent
years they have been constituted overseers of administration also, by
being given the power' to control it not only by withholding moneys,
540 THE GOVEENMBNT OF THE UNITED STATES.
but also through direct participation in the power of appointment to the
minor city offices, — all those, that is to say, not filled by popular elec-
tion. The chief officers of every city have usually been elected, but
all others have, as a rule, been appointed by the mayor subject to con-
firmation by the city council. The tendency of all very recent legisla-
tion with reference to the constitution of city governments haS been to
concentrate executive power, and consequently executive responsibility,
in the hands of the mayor, leaving to the council only its ordinance-
making power and its function of financial control. Some of the most
recent charters have even extended the appointing power of the mayor
so as to include the most important executive offices of the city admin-
istration. It has been found impossible to prevent corrupt influences
determining the action of councils upon appointments. A numerous
body will, just because it is numerous, be practically irresponsible, and
where there is irresponsibility, the temptation to immorality suffers
little check.
1037. School Administration. — Wherever the public school
exists there we find the School District the administrative
area for educational purposes. Where the county system pre-
vails the county is divided into school districts ; where the
township system prevails the township is divided into school
districts. In every case there are district directors or trustees
who control school administration, and control it so absolutely
as to prevent in great part the existence of any uniform
system of education for the whole state ; but where the town-
ship system prevails there is generally more participation on
the part of the people, gathered in district-meeting, in school
administration, and generally a fuller power of local taxation.
1038. In New England recent years have been witnessing the disap-
pearance of the school district in some states, and its absorption by
the township. Thus in Maine and in Connecticut school administration
Is in many places being transferred from district to township officers,
and the township is thereby being made the school area. This absorp-
tion is left, however, to local option.
1039. In the Northwest schools usually receive support
from three distinct sources : from the land granted to each
school district by the federal government ; from a general state
THE GOVBENMBNT OF THE UNITED STATES. 541
tax for education, whose proceeds are distributed among the
townships, to be further distributed by the township authorities
among the districts ; and from district taxes levied by the dis-
trict directors. In New England there is generally state and
township taxation for the support of the schools. In the south,
under the county system, there is state taxation only, for the
most part, save in certain exceptional localities, and in the
greater towns.
1040. Nowhere is there sufficient centralization of control.
State superintendents or other central educational authorities
are without real administrative powers ; county superinten-
dents seldom have much authority ; township trustees or
committees, as a rule, have little more than a general super-
vision and power of advice; usually the directors of the
smallest area have the greater part of the total of administra-
tive authority, applying their quota of even the state taxes
according to their own discretion. The result is, variety in
the qualifications of teachers, variety in the method of their
choice, variety in courses of study, variety in general efficiency.
1041. Taxation. — The most striking feature regarding
local taxation in the United States is, the strict limitations
put upon it by statute. Commonly no local authorities can
tax beyond a certain fixed percentage of the appraised value
of the property of their district. Under the county system,
requisition is made upon the officers of the counties for the
taxes voted by the legislature for state purposes, and the
county boards raise them, together with the county taxes, upon
the basis of the county assessment. Where the township
exists, the process goes one step further : requisition is made
upon the townships for both the state and county taxes, and
the townships raise these, together with their own taxes, upon
the basis of the assessment made by their own assessors.
1042. An effort is made in most of the states, however, to
equalize assessments. Some county authority acts as a hoard
of equalization with reference to the assessments returned by
542 THE GOVERNMENT OE THE UNITED STATES.
the assessors of the several townships, and above the equaliza-
tion boards of the counties there is generally a state board of
equalization, whose duty it is to harmonize and equalize, upon
appeal, taxation in the several counties. Appeals always lie
from the local assessors to these boards of equalization. The
system is, however, only partially successful. It has- proved
practically impossible, under the present system, of localized
authority, to avoid great varieties and inequalities of assess-
ment : local officials try to cut down the shares of their
districts in the general taxes as much as possible.
1043. General Remarks on Local Government. — Several fea-
tures observable in our systems of local government taken as a whole
are worthy of remark. (1) In the first place, outside of the towns and
cities, the separately incorporated urban districts, there is a marked ab-
sence of representative, law-making bodies. Universally local ofiBcers
and boards have merely executive powers and move within narrow limits
set by elaborate statute law.
(2) In the second place, where there are local law-making bodies,
they act under strict constitutional law : under charters, that is, pos-
sessing thus a strong resemblance, of hind, to state legislatures them-
selves.
(3) In the third place, central control of local authorities exists only
in the enforcement, in the regular law courts, of charters and general
laws : there is nowhere any central Local Government Board with dis-
cretionary powers of restriction or permission.
(4) In the fourth place, relatively to the central organs of the stale,
local government is the most vital part of our system : as compared
cither with the federal government or with local authorities, the central
governments of the states lack vitality not only, but do not seem to be
holding their own in point of importance. They count for much in
legislation, but, so far, for very little in administration.
The Eederal Government.
1044. The Constitution of the United States does not con-
tain all the rules upon which the organization of the federal
government rests. It says that there shall be a Congress which
shall exercise the law-making power granted to the general
THE GOVBRKMBNT OF THE UNITED STATES. £13
government ; a President who shall be charged with the exe-
cution of the laws passed by Congress ; and a Supreme Court
which shall be the highest court of the land for the determi-
nation of what is lawful to be done, either by individuals, by
the state governments, or by the federal authorities, under the
Constitution and laws. It prescribes also in part the organiza-
tion of Congress. But it does not command how Congress
shall do its work of legislation, how the President shall be
enabled to perform his great function, or by what machinery
of officers and subordinate courts the Supreme Court shall be
assisted in the exercise of its powers. It leaves all detail of
operation to be arranged by statute : and statute accordingly
plays a very important part in the organization of the govern-
ment.
The Constitution thus furnishes only the great foundations of the
system. Those foundations rest upon the same firm ground of popular
assent that supports the several constitutions of the states. Framed by
a federal convention and adopted by representative conventions in the
states, it stands altogether apart from ordinary law both in character
and sanction.
1046. Amendment of the Constitution. — The Constitution
cannot be amended without the consent of two-thirds of Con-
gress and three-fourths of the states. Amendments may be
proposed in one of two ways: either (a) two-thirds of the
members of each house of Congress may agree that certain
amendments are necessary ; or (6) the legislatures of two-thirds
of the states may petition Congress to have a general conven-
tion called for the consideration of amendments, and such a
convention, being called, may propose changes. In both cases
the mode of adoption is the same. Every change proposed
must be submitted to the states, to be voted upon either by
their legislatures or by state conventions called for the pur-
pose, as Congress may determine. Any amendment which is
agreed to by three-fourths of the states becomes a part of the
Constitution.
544 THE GOVERNMENT OJT THE UNITED STATES.
The fifteen amendments so far made to the Constitution were all pro-
posed by Congress. No general constitutional convention has been called
since the adjournment of the great body by which the Constitution was
framed in 1787.
1046. None of the written constitutions of Europe are so difficult
of alteration as our own. In Germany, as we have seen (sec. 404), u,
provision changing the imperial constitution passes just as an ordinary
law would pass, the only limitation upon its passage being that fourteen
negative votes in the Bundesrath will defeat it (14 out of 58). In France
(sec. 318) constitutional amendments pass as ordinary laws do, except
that they must be adopted by the two houses of the legislature acting,
not separately in Paris, but jointly at Versailles, as a National Assembly.
In Switzerland such amendments must pass both houses of the federal
legislature and must also be approved, in a popular vote, by a majority
of the voters, and by a majority of the Cantons (sec. 556). In Eng-
land the distinction between constitutional law and statute law can
hardly be said to exist (see sec. 730).
See, also, for a further exposition of constitutional differences between
modern states. Chap. XII.
1047. .The Federal Territory. — The territory of the United
States is of two different sorts : there is ( a) the District of
Columbia, which the nation owns as the seat of its government,
and the arsenals and dock-yards, which it has acquired from
the states for military purposes ; and (6) the great national
property, the territories, which the federal authorities hold in
trust for the nation as a seed-bed for the development of new
states.
1048. The District of Columbia. — It would have been in-
convenient for the federal government to have no territory of
its own on which to build its public offices and legislative halls,
and where it could be independent of local or other state regu-
lations. The Constitution itself therefore provided that Con-
gress should have exclusive authority within any district not
more than ten miles square which any state might give the
federal government for its own uses. Acting upon this hint,
Maryland and Virginia promptly granted the necessary terri-
tory, it having been decided to establish the seat of govern-
THE GOVEENMEKT OP THE UNITED STATES. 545
ment upon the Potomac. The home-land of the federal gov-
ernment, thus acquired, was laid out under the name of the
District of Columbia : there the public buildings were erected,
and there, after the removal of the government offices thither
in 1800, the city of Washington grew up.
1049. The first Congress of the United States met in New York
City; there the first President was inaugurated, and the 'organization
of the new government effected. In 1790 it was determined that tlie
federal officers should live and Congress meet in Philadelphia (as the
Continental Congresses and the congress of the Confederation had
done) for ten years ; after that, in the district specially set apart for
the use of the federal government.
1050. The creation of this federal home-plot is a feature peculiar to
our own federal arrangements. Berlin, of course, is the capital of
Prussia, not the exclusive seat, or in any sense the property, of the
imperial government. Berne, too, is cantonal, not federal, ground. Our
government would have been in the same case as those of Germany
and Switzerland had our federal authorities remained the guests of
New York or Pennsylvania.
1051. The several arsenals and dock-yards established by the federal
government in different parts of the Union are built upon land granted
to the federal government by the states in which they lie for such special
use, and remain the property of that government only so long as used
for the purposes contemplated in the grants.
1062. The Territories. — As the different parts of our vast
national domain have been settled it has been divided, under
the direction of Congress, into portions of various sizes, gener-
ally about the area of the larger states, though sometimes
larger than any state save Texas. These portions have been
called, for want of a better name. Territories, and have been
given governments constituted by federal statute. First they
have been given governors and judges appointed by the Presi-
dent ; then, as their population has become numerous and suffi-
ciently settled in its ways of living, they have been given leg-
islatures chosen by their own people and clothed with the
power to make laws subject to the approval of Congress ; finally,
upon becoming still more developed, they have been granted as
546 THE GOVERNMENT OF THE UNITED STATES.
full law-making powers as the states. The territorial stage of
their develoiDment passed, the most important of them have
one by one been brought into the Union as states.
Until 1803 the only territory of the United States consisted of the
lands this side the Mississippi which had belonged to the thirteen orig-
inal states individually, and had by them been granted to the general
government. In 1803 the vast tract known as ' Louisiana ' was bought ;
in 1848, by conquest, and in 1852, by negotiation, the Pacific coast lands
were acquired from Mexico ; in 1842 Oregon was purchased from
England.
1053. The post-offices, federal court chambers, custom houses,
and other like buildings erected and owned by the general government
in various parts of the country are held by the government upon the
ordinary principles of ownership, just as they might be held by a private
corporation. Their sites are not separate federal territory.
1054. Congress. — As in the states, so in the federal govern-
ment, the law-making power is vested in a double legislature,
a Congress consisting of a Senate and a House of Eepresentar
tivps. Unlike the two houses of a state legislature, however,
the two houses of Congress have distinct characters : the Senate
differs from the House not only in the number of its members,
but also in the principle of its composition. It represents
the federal principle upon which the government rests, for
its members represent the states. The House of Representa-
tives, on the other hand, represents the national principle upon
which also the government has how been finally established,
without threat of change : its members represent the people.
1055. The Senate. — The Senate consists of two represen-
tatives from each of the states of the Union. It has, therefore,
the states being forty-two in number, eighty-four members.'
Each senator is elected, for a term of six years, by the legisla-
ture of the state which he represents ; and a state legislature
is free to choose any one as senator who has been a citizen of
1 Since the admission of Washington, Montana, North Dakota, and
South Dakota, which became states July 1, 1889.
THE GOVERNMENT OF THE UNITED STATES. 547
the United States nine years, who has reached the age of
thirty, and who is at the time of the election a resident of the
state which he is chosen to represent.
1056. The Constitution directed that, immediately after coming to-,
gether for its first session, the Senate should divide its members, by
lot, as nearly as it could into three equal groups ; that the members of
one of these groups should vacate their seafs after the expiration of
two years, the members of another after the expiration of four years,
and the members of the third after the expiration of six years ; after which
arrangement had been accomplished, the terra of every senator was to be
six years as provided. It was thus brought about tliat one-third of the
membership of the Senate is renewed by election every two years.
The result is, that the Senate has a sort of continuous life, — no one
election year affects the seats of more than one-third of its members.
1057. The Senate is, as I have said, the federal house of
Congress, its members represent the states as the constituent
members of the Union. They are not, however, in any sense
delegates of the governments of the states. They are not
subject to be instructed as to their votes, as members of the
German Bundesrath are, by any state authority (sec. 405),
not even by the legislatures which elected them ; each senator
is entitled and expected to vote according to his own individ-
ual opinion. Senators, therefore, may be said to represent,
not the governments of the states, but the people of the states
organized as corporate bodies politic.
1058. There is no rule which obliges senators from the same state to
vote together, after the fashion once imperative in the Congress of our
own Confederation (sec. 866), and still imperative in the German
Bundesrath (sec. 406), — each senator represents his state, not in part-
nership, but singly.
1059. The equal representation of the states in the Senate, of course,
more strictly conforms to the federal principle than does the unequal
representation characteristic of the German Bundesrath (sec. 406) ; but
the rule observed in Germany, that the representatives of each state
must vote together, must, in turn, be allowed to be more strictly con-
sistent with the idea of state representation than is the rule of individual
voting followed in our Senate.
548 THE GOVERNMENT OF THE UNITED STATES.
lOGO. The Vice-President of the United States is president
of the Senate. Unless the President die, this is the only func-
tion of the Vice-President. He is not a member of the Senate,
however ; he simply presides over its sessions. He has a vote
only when the votes of the senators are equally divided upon
some question and his vote becomes necessary, therefore, for
a decision. If the President die, he becomes President.
1061. Organization of the Senate. — The Senate makes its
own rules of procedure, the Vice-President being of course
bound to administer whatever rules it adopts. Naturally the
internal organization of the body is the matter with which its
rules principally concern themselves, and the most important
feature of that organization is the division of the members of
the Senate into standing committees ; into small groups, that
is, to each of which is entrusted the preparation of a certain
part of the Senate's business. The Senate itself would not, of
course, have time to look into the history and particulars, the
merits and bearings, of every matter brought before it ; these
committees are, therefore, constituted to act in its stead in
the preliminary examination and shaping of the measures to
be voted on. Whenever any proposal is made concerning any
important question, that proposal is referred to the standing
committee which has 'been commissioned to consider questions
of the particular class to which the proposed action belongs.
The committee takes the proposal and considers it, in connec-
tion with all other pending proposals relating to the same sub-
ject, and reports to the Senate what it thinks ought to be done
with reference to it, — whether it is advisable to take any
action or not, and if it is advisable to act, what action had best
be taken.
Thus there is a Committee on Finance, to which all questions affect-
ing the revenue are referred ; a Committee on Appropriations, which
advises the Senate concerning all votes for the spending of moneys ; a
Committee on Railroads, which considers all railroad questions ; a Com-
mittee on Foreign Affairs, which prepares for consideration all questions
touching our relations with foreign governments, etc., etc.
THE GOVERNMKKT OF THE tlNITEB STATES. 549
10G2. Influence of the' Standing Committees. — Its stand-
ing committees have, of course, a veiy great influence upon
the action of the Senate. The Senate is naturally always in-
clined to listen to their advice, for each committee necessarily
knows much more about the subjects assigned to it for consid-
eration than the rest of the senators can know. Its committee
organization may be said to be of the essence of the legislative
action of the Senate : for of course the leadership to which a
legislative body consigns itself is of the essence of its method
and must affect, not the outward form merely, but the whole
character also of its action. Under every great system of gov-
ernment except our own, leadership in legislation belongs for
the most part to the ministers, to the Executive, which "stands
nearest to the business of governing; it is a central, and, as
evidenced by its results, extremely important characteristic
of our system that our legislatures lead themselves, or, rather,
that they are led along the several lines of legislation by sepa-
rate and disconnected groups of their members.
1063. The Senate and the Executive. — One of the chief uses of
the committees is to obtain Information for the Senate concerning the
affairs of the government. But, inasmuch as the executive branch of
the government is quite separate from Congress, it Is often very difficult
for the Senate to find out through its committees all that it wishes to
know about the condition of affairs in the executive departments. The
action of the two houses upon some questions must of course be greatly
influenced, and should be greatly influenced, by what they can learn of
administrative experience in the departments in such matters, and the
Senate, as well as the House also, has the right to ast what questions
it pleases of executive officers, either through its committees or by re-
quiring a written report to be made directly to itself by some head of
department. Upon financial questions, for example, the Senate or its
Finance Committee must constantly wish to know the experience of
the Treasury. But it is not always easy to get legislative questions
fully and correctly answered : for the officers of the government are in
no way responsible to either tiouse for their official conduct : they be-
long to an entirely separate and independent branch of the government :
only such high crimes and misdemeanors as lay them open to impeach-
550 THE GOVERNMENT OF THE CTNITED STATES.
ment expose them to the power of the" houses. The committees are,
therefore, frequently prevented from doing their work of inquiry well,
and the Senate has to act in the dark. Under other systems of govern-
ment, as we have seen (sees. 327, 328, 422 et seq., 464, 533, 686-9, etc.),
the ministers are always present in the legislative bodies to be ques-
tioned and dealt with directly, face to face.
1064. The President Pro Tempore, — It is the practice of the
Senate to make itself independent of all chances of the Vice-President's
absence by electing statedly from its own membership a president pro
tempore, to act in case of the absence or disability of the Vice-President.
1065. The House of Representatives. — The House of Rep-
resentatives represents, not the states, but the people of the
United States. It represents them, however, not in the mass,
but by states ; representation is apportioned among the states
severally according to population, and no electoral district
crosses any state boundary.
1066. Apportionment of Representatives. — Congress itself
decides by law how many representatives there shall be ; it
then divides the number decided upon among the states ac-
cording to population ; after which each state is divided by
its own legislature into as many districts as it is to have repre-
sentatives, and the people of each of these districts are entitled
to elect one member to the House. The only limitation put by
the Constitution itself upon the number of representatives is,
that there shall never be more than one for every thirty thou-
sand inhabitants. The first House of Representatives had, by
direction of the Constitution itself, sixty-five members, upon
the proportion of one to every thirty-three thousand inhabi-
tants. The number has, of course, grown, and the proportion
decreased, with the growth of population. A census is taken
every ten years, and the rule is to effect readjustments and a
redistribution of representation after every census.
At present there are three hundred and thirty members, in the House,
and the states are given one member fcfr every 154,326 of their inhab-
itants. In cases where a state has many thousands more than an even
number of times that many inhabitants, it is given an additional mem-
THE GOVEltNMENT OF THE UNITED STATES. 551
ber to represent the balance. Thus, if it have fpur times 154,325
inhabitants, and a. very large fraction over, it is given five members
instead of four only. If any state have less than 154,325, it is given
one member, notwitlistanding, being entitled to at least one by con-
stitutional provision.
There are at present seven states which have but one representative
apiece; namely, Delaware, Colorado, Nevada, Oregon, Washington,
Montana, and North Dakota. But these states, like the rest, have two
senators each.
The reason for allowing a state an extra representative when there
is a large fraction remaining over after a division of its population by
the standard number 154,325, is, of course, that the apportionment of
representatives is made according to states, and not by an even allot-
ment among the people of the country taken as a whole, and that under
such a system a perfectly equal division of representation is practically
impossible. Congress makes the most equitable arrangement that is
practicable each time that it re-apportions the membership of the House
upon the basis of the decennial census which Congress directs to be
taken for this purpose in pursuance of a special constitutional command.
1067. Elections to the House. — Any one may be chosen a
representative who has reached the age of twenty-five years,
has been a citizen of the United States for seven years, and
is at the time of his election an inhabitant of tlie state from
one of whose districts he is chosen. The term of a representa-
tive is two years : and two years is also the term of the whole
House ; for its members are not chosen a section at a time, as
the senators are ; the whole membership of the House is re-
newed every second year. Each biennial election creates 'a
new House.'
1068. Although the Senate has a continuous life, we speak habitu-
ally of different ' Congresses,' as if a new Congress, instead of a new
House of Representatives merely, were chosen biennially. Thus the
Congress of 1887-'89 was known as the fiftieth Congress, because the
House of Representatives of that period was the fiftieth that had been
elected since the government was established.
1069. Federal law does not determine who shall vote for
members of the House of Representatives. The Constitution
552 THE GOVERNMENT OF THE UNITED STATES.
provides, simply, that all those persons in each state who are
qualified under the constitution and laws of the state to vote
for members of the larger of the two houses of the state leg-
islature may vote also for members of the House of Eepre-
sentatives of the United States. The franchise is regulated,
therefore, entirely by state law.
1070. In the fourteenth amendment to the Constitution (passed
1866-'68) a yery great pressure is, by intention at least, brouglit to bear
upon tlie states to induce tliem to make tlieir franchise as wide as their
adult male population. For that amendment provides that, should any
state deny to any of its male citizens who are twenty-one years of age
the privilege of voting for members of the more numerous branch of
its own legislature (and thus, by consequence, the privilege of voting
for representatives in Congress), for any reason except that they have
committed crime, its representation in Congress shall be curtailed in
the same proportion that the number of persons so excluded from the
franchise bears to the whole number of male citizens twenty-one years
of age in the state. This provision has in practice, however, proved of
little value. It is practically impossible for the federal authorities to
get at the facts necessary to ascertain any such proportion.
1071. Organization of the House. — The House, like the
Senate, has its own rules, regulative of the number and duties
of its officers and of its methods of doing business ; and these
rules, like those of the Senate, are chiefly concerned with the
creation and empowering of a great number of standing com-
mittees. The committees of the House are not, however,
elected by ballot, as the committees of the Senate are ; they
are appointed by the presiding officer of the House, the
'Speaker'; and this power of the Speaker's to appoint the
committees of the House makes him one of the most powerful
officers in the whole government. For the committees of the
House are even more influential than those of the Senate in
determining what shall be done with reference to matters
referred to them: they as a matter of fact have it in their
power to control almost all the acts of the House. The Senate,
being a comparatively small body, has time to consider fully
THE GOVEENMENT OF THE UNITED STATES. 553
the reports of its committees, and generally manages to control
its own conclusions. But the House is too large to do much
debating : it must be guided by its committees or it must do
nothing. It is this fact which makes the Speaker's power of
appointment so vastly important : he determines who shall be
on the committees, and the committees determine what the
House shall do. He nominates those who shape legislation.
1072. The appointing power of the Speaker often makes his election
a very exciting part of the business of each new House : for he is always
selected, of course, with reference to what he will do' in constituting the
principal committees.
1073. The House of Representatives is not given a president by the
Constitution, as the Senate is. It elects its own presiding officer, whose
name, of ' Speaker,' is taken from the usage of the English House of
Commons, whose president was so called because whenever, in the old
days, the Commons went into the presence of the king for the purpose
of laying some matter before him, or of answering » summons from
him, their president was their spokesman or Speaker. This name is
used also in the legislative bodies of all the English colonies, — wherever,
indeed, English legislative practices have been directly inherited.
1074. The House has so many standing committees that every repre-
sentative is a member of one or another of them, — but many of the
committees have little or nothing to do : some of thera, though still
regularly appointed, have no duties assigned them by the rules. The
most important committee is that on Appropriations, which has charge
of the general money-spending bills introduced evjery year to meet the
expenses of the government, and which, by virtue of its power under
the rules to bring its reports to the consideration of the House at any
time, to the thrusting aside of whatever matter, virtually dominates the
House by controlling its use of -its time. Special appropriation bills,
which propose to provide moneys for the expenses of single depart-
ments,—as, for example, the Navy Department or the War Depart-
ment, — are, by a recent rule of the House, taken out of the hands of
the Committee on Appropriations and given to the committees on the
special departments concerned. Scarcely less important than the Com-
mittee on Appropriations, though scarcely so busy as it, is the Com-
mittee on Ways and Means, which has charge of questions of taxation.
It is, of course, to the appointment of such committees that the Speaker
pays most attention. Through them his influence is most potent.
554 THE GOVBENMENT OP THE UNITED STATES.
1075. Some members of the House are considered to be entitled, be-
cause of their long service and experience in Congress, to be put on im-
- portant committees, and on every committee there must be representatives
of both parties in tlie House. ' But these partial limitations upon the
Speaker's choice do not often seriously hamper him in exercising his
preferences.
1076. The House has to depend, just as the Senate does,
■ upon its standing committees for information concerning the
aiiairs of the government and the policy of the executive
departments, and is just as often and as much embarrassed
because of its entire exclusion from easy, informal, and regular
intercourse with the departments. They cannot advise the
House unless they are asked for their advice ; and the House
cannot ask for their advice except indirectly through its com-
mittees, or formally by requiring written reports.
1077. Acts of Congress. — In order to become a law or Act
of Congress eT bill must pass both houses and receive the sig-
nature of the President. Such is the ordinary process of legis-
lation. But the President may withhold his signature, and in
that case the measure which he has refused to sanction must
receive the votes of two-thirds of the members of each house,
given upon a re-consideration, before it can go upon the statute
book. The President is given ten days for the consideration
of each measure. If he take no action upon it within the ten
days, br if within'that period he sign it, its provisions become
law; if within the ten days he inform Congress by special
message that he will not sign the bill, returning it to the house
in which it originated with a statement of his reasons for not
signing it, another passage of the measure by a majority of
two-thirds in each house is required to make it a law.
There are, therefore, three ways in which a bill may become law :
either («) by receiving the approval of a majority in each house, and
the signature of the President, appended within ten days after its pas-
sage by the houses; or (J) by receiving the approval of a majority in
each house, and not being acted upon by the President within ten days
after its passage ; or (c) by receiving the approval of two-thirds of each
THE GOVEEKMENT OP THE UNITED STATES. 556
house after having been refused signature by the President within ten
days after its passage by a majority in each house. If Congress ad-
journ before the expiration of the ten days allowed the President to
consider bills sent him, such bills lapse unless he has signed them be-
fore the adjournment.
1078. Neither house can do any business (except send for
absent members or adjourn) unless a majority of, its members
are present, — a majority being in the case of all our legisla-
tures, both state and federal, the necessary quorum.
1079. In the practice of some foreign legislatures the quorum is
much less than a majority of the members. In the English House of
Commons, for instance, it is only forty members, although the total num-
ber of members of the House of Commons is six hundred and seventy.
1080. When it is said that under certain circumstances a bill must
be passed by a vote of two-thirds in order to become a law, it is under-
stood to mean that it must be voted for by two-thirds of the members
present, not necessarily by that proportion of the whole membership of
the body. In the case of bills which the President refuses to sign, how-
ever, the Constitution expressly says that it cannot be made law unless
a second time passed by two-thirds of each House.
1081. A bill may ' originate ' in either house, unless it be a
bill relating to the raising of revenue. In that case it must
.originate in the House of Representatives, though the Senate
may propose what amendments it pleases to a revenue bill, as
to any other which comes to it from the House.
Of course, if one of tlie houses pass a bill, and the other house amend
it, the changes so proposed must be adopted by the house in which the
bill originated before it can be sent to the President and be made a law.
When the two houses disagree about amendments they appoint con-
ference committees ; that is to say, each house appoints a committee to
consult with a similar committee appointed by the other house, to see
what can be done towards bringing about an agreement between the
two houses upon the points in dispute.
1082. The Federal Judiciary : its Jurisdiction. — The Judi-
ciary of the United States consists of a Supreme Court, Cir-
cuit Courts, and District Courts. Its organization and func-
tions rest more than do those of either of the other branches
556 THE GOVERNMENT OF THE UNITED STATES.
of the general government upon statute merely, instead of
upon constitutional provision. The Constitution declares that
" the judicial power of the United States shall be vested in one
supreme court, and in such inferior courts as the Congress may,
from time to time, ordain and establish," and that " the judges,
both of the supreme and inferior courts, shall hold their oifices
during good behavior and shall, at stated times, receive for
their services a compensation which shall not be diminished
during their continuance in ofB.ce." It provides also that the
judicial power of the federal government shall extend to all
cases in law .or equity which may arise under the Constitution,
laws, or treaties of the United States ; to all cases affecting
ambassadors, other public ministers, and consuls ; to all admi-
ralty and maritime cases ; to controversies in which the United
States is a party, controversies between two or more states,
between a state and citizens of another state (the state being
the suitor), between citizens of different states, between citi-
zens of the same state claiming lands under grants from differ-
ent states, and between a state or its citizens and foreign states,
citizens, or subjects. And it directs that in cases affecting
ambassadors, other public ministers and consuls, and in cases
in which a state is a party the supreme court shall have origi-
nal jurisdiction ; while in all other cases it is to have appellate
jurisdiction only, " with such exemptions, and under such regu-
lations, as the Congress shall make."
1083. The judicial power of the federal government is thus made
to embrace two distinct classes of cases : (a) those in which it is mani-
festly proper that its authority, rather than the authority of a state,
should control, because of the nature of the questions involved: for instance,
admiralty and maritime cases, navigable waters being within the exclu-
sive jurisdiction of the federal authorities, and cases arising out of the
Constitution, laws, or treaties of the United States or out of conflicting
grants made by different states, (b) Those in which, because of the na-
ture of the parties to the suit, the state courts could not properly be allowed
jurisdiction, cases afEecting, for instance, foreign ambassadors, who are
accredited to the government of the United States and with whom our
THE GOVERNMENT OF THE UNITED STATES. 557
only relations are national relations, whose privileges rest upon the
sovereignty of the states they represent ; or cases in which the state
courts could not have complete jurisdiction because of the residence
of the parties ; for instance, suits arising between citizens of different
states.
It is always open to the choice of a citizen of one state to sue a
citizen of another state in the courts of the latter's own domicile, but
the courts of the United States are the special forum provided for such
cases.
1084. Power of Congress over the Judiciary, — But these
provisions of the Constitution leave Congress quite free to
distribute the powers thus set forth among the courts for whose
organization it is to provide, and even, if it so cliooses, to leave
some of them entirely in abeyance. In other words, the Con-
stitution defines the sphere of the judicial power of the United
States, while Congress determines how much of that sphere
shall be occupied, by what courts and in what manner, subject
to what rules and limitations.
With regard to the organization of the judiciary Congress deter-
mines not only what courts shall be created inferior to the supreme
court, but also of wliat number of judges the supreme court shall con-
sist, what their compensation and procedure shall be, and what their
specific duties in the administering of justice. It might also determine,
should it see fit, what qualifications should be required of all occupants
of the supreme bench.
1085. The Existing Federal Courts. — In pursuance of
these powers, Congress has passed the Judiciary Act of Sep-
tember, 1789, and the A(^s amendatory thereto upon which
the national judiciary system now rests. As at present con-
stituted, the supreme court consists of a chief justice and eight
associate justices. It is required to hold annual sessions in
the city of Washington, — sessions which begin on the second
Monday of each October, — any six of the justices constitut-
ing a quorum. Next below the supreme court are a set of
circuit courts. These are, in theory, courts held in different
parts of the country by the justices of the supreme court sit-
558 THE GOVERNMENT OF THE UNITED STATES.
ting separately ; but in reality the business of the supreme
court is so great in amount and so engrossing in character that
the justices can by no means regularly attend the sessions
of the circuit courts. The area of the United States (exclu-
sive of the territories) is divided into nine circuits, one justice
of the supreme court is assigned, by the appointment of the
court ij^elf, to each of these circuits, and in addition special
circuit judges are appointed who act quite independently of
the justices, often holding court separately, in another part of
the circuit, at the same time that the justices are themselves
holding circuit court. The circuits are divided into districts,
which, like Congressional districts, never cross state lines ;
and for each of these districts there has been established a
district court. Some of the less populous states constitute each
a single district; others are divided into two, while still
others furnish sufficient business to warrant their being divided
into three. The district courts are the lowest courts of the
federal series. The circuit courts sit in the several districts of
each circuit successively, and the law requires that each justice
of the supreme court shall sit in each district of his circuit at
least once every two years.
1086. The division of jurisdiction between the circuit and district
courts is effected hy act of Congress ; and, inasmuch as Congress has
not seen fit to vest in the courts complete jurisdiction over all cases
arising under the Constitution, laws, and treaties of the United States,
but has given to each court power in certain specified cases, and left the
rest in abeyance, it would be impossible to give in brief compass a
detailed account of the jurisdiction of the several courts. It must
suffice for present purposes to say, tliat the district courts are given
cognizance of certain civil cases within the grant of the Constitution,
subject to appeal to the circuit courts when the sum involved exceeds
1 50; that they have exclusive jurisdiction of admiralty and maritime
cases, an appeal lying to the circuit courts ; and that as regards crimes
punishable by federal law, their jurisdiction is concurrent with that of
the circuit courts, except in case of capital offences, over which the
circuit courts alone have jurisdiction. The circuit courts are given
appellate jurisdiction over the district courts; original jurisdiction in
THE GOVERNMENT OP THE UNITED STATES. 659
civil cases such as are contemplated by the Constitution when the
matter in dispute exceeds 1 500 in value ; and unlimited criminal juris-
diction over cases falling within the purview of federal law.
1087. In criminal cases there is, generally speaking, no appeal.
In civil cases, appeal from the district to the circuit courts can be taken
only when the matter in dispute exceeds $ 50 in value, from the circuit
courts to the supreme court only when it exceeds $ 5000, except that
cases of certain exceptional, specified classes may be appealed without
respect to the amount involved. Any case which involves the interpre-
tation of the Constitution can be taken to the supreme court, however
small the sum in dispute.
1088. All Judges of the United States are appointed by the
President, with and by the consent and advice of the Senate,
to serve during good behavior. There are in all fifty-six
federal judicial districts, and for each of these a special dis-
trict judge is appointed, though in large, thinly populated sec-
tions of the country it has sometimes been customary to have
one judge hold court in several districts.
1089. Federal judges of the inferior courts are, so to say, inter-
changeable. Wlien necessary, a district judge can go into another
district than his own and either aid or replace the district judge there;
a. district judge may also, when it seems necessary for the dispatch of
business, sit as circuit judge ; and a circuit judge may, in his turn, upon
occasion hold district court. This seems the less anomalous when it is
remembered that the earliest arrangement was, for the district judges
to hold circuit court always in the absence of the justices of the supreme
court from circuit, or in conjunction with them, and that special circuit
judges were appointed only because of the necessity for more judges
consequent upon a rapid increase of federal judicial business.
1090. The salary of the chief justice of the United States is -$10,500,
that of each of the other justices, $ 10,000. Circuit court judges re-
ceive $6000, and district judges from |3500 to |5000.
1091. The District Attorney and the Marshal. — Almost
every district has its own federal district attorney and its own
United States marshal, both of whom are appointed by the
President. It is the duty of the federal district attorney to
prosecute all offenders against the criminal laws of th'; United
560 THE GOVERNMEKT OF THE UNITED STATES.
States, to conduct all civil oases instituted in his district in
behalf of the United States and to appear for the defence in
all cases instituted against the United States, to appear in
defence of revenue officers of the United States where they
are sued for illegal action, etc. The marshal is the ministerial
officer of the federal circuit and district courts. He executes
all their orders and processes, arrests and keeps all prisoners
charged with criminal violation of federal law, etc., and has
within each state the same powers, within the scope of United
States law, that the sheriff of that state has under the laws of
the state. He is the federal sheriff.
1092. The orders and processes of a state court are binding and
operative only within the state to which the court belongs ; the orders
and processes of United States courts, on the contrary, are binding and
operative over the entire Union.
1093. The courts of the District of Columbia and of the terri-
tories are courts of the United States, but they are not federal courts;
they bear, so far as their jurisdiction is concerned, the character, of
state and federal courts united. The only laws of the territories and of
the District of Columbia are laws of the United States, inasmuch as the
legislatures of the territories act under statutory grant from Congress.^
The territorial legislatures are, so to say, commissioned by Congress ;
and the laws which they pass are administered by judges appointed by
the President.
1094. The territorial courts and the courts of the District of Colum-
bia do not come within the view of the Constitution at all. With refer-
ence to them Congress acts under no limitations of power whatever.
The rule of tenure during good behavior, for example, which applies to
all judges of the United States appointed under the Constitution, does
not apply to judges of the territories or of the District of Columbia.
The term of office of territorial judges is fixed at four years. The
federal courts sitting in the states, and the United States courts estab-
lished in the territories, ought not to be thought of as parts of the same
system, although the supreme court is the highest tribunal of appeal
' for both.
1 Congress early enacted that the people of the District of Columbia
should continue to live under the laws which had previously had force in
the District when owned by Virginia and Maryland,
THE GOVERNMENT OF THE tlNITED STATES. 561
1095. The procedure of a federal court follows, us a rule,
the procedure of the courts of the state in which it is sitting ;
and state law is applied by the courts of the United States in
all matters not touched by federal enactment. Juries are con-
stituted, testimony taken, argument heard, etc., for the most
part, according to the practice of the state courts ; so that, so
far as possible, both as regards the outward forms observed
and the principles applied, a federal court is domestic, not for-
eign, to the state in which it acts.
1096. It is not withiu the privilege of Congress to delegate to the
courts of the states the functions of courts of the United States ; for
the Constitution distinctly provides that, besides the supreme court,
there shall be no court authorized to exercise the judicial powers of the
United States except such as Congress " may, from time to time, ordain
and establish." The adoption of state courts by Congress is, of course,
excluded by plain implication. A very interesting contrast is thus
established between the federal judicial system of the United States
and the federal judicial systems of Germany and Switzerland (sees.
4,36, 559).
1097. The Federal Executive. — "The executive power,"
says the Constitution, " shall be vested in a President of the
United States of America," who " shall hold his office during
a term of four years." As a matter of fact, of course, it has
proved practically impossible for a single man actually to exer-
cise the whole executive power ; the President is assisted by
numerous heads of departments to whom falls so large a part
of the actual duties of administration that it has become sub-
stantially correct to describe the President as simply presiding
over and controlling by a general oversight the execution of
the laws ; which is doubtless all that the sagacious framers
of the Constitution expected.
The Vice-President has no part in the executive function.
He is the President's substitute, and is chosen at the same time
and in the same manner that the President is chosen.
1098. Election of a President. — The choice is not direct
562 THE GOVEBHMENT OE the tJNiTED STATES.
by the people, but indirect, through electors chosen by the
people. In each state there are elected as many electors as
the state has representatives and senators in Congress, the
"electoral vote" of each state being thus equal to its total
representation in Congress.
The electors are voted for on the Tuesday following the first Monday
of November in the year which immediately precedes the expiration of
a presidential term. They assemble in the several state capitals to cast
their votes on the first Wednesday of tlie December following." Their
votes are counted in the houses of Congress sitting in joint session on
the second Wednesday of the following February. The President is
inaugurated on the fourth of March next.
1099. Practical Operation of the Plan : the Party Conven-
tions. — The theory of this arrangement is that each elector
really exercises an independent choice in the votes which he
casts, voting for the men whom his own judgment has selected
for the posts of President and Vice-President. In fact, how-
ever, the electors only register party decisions made during the
previous summer in national conventions. Each party holds
during that summer a great convention composed of party dele-
gates from all parts of the Union, and nominates the candidates
of its choice for the presidency and vice-presidency. The elec-
tors, again, are, in their turn, chosen according to the selections
of party conventions in the several states ; and the party which
gains the most electors in the November elections puts its can-
didates into office throiigh their votes, which are cast as a matter
of course in obedience to the will of the party conventions.
The party conventions are by far the most important part of
the machinery of election.
1100. Qualifications for the Office of President. — " No per-
son, except a natural born citizen, or a citizen of the United
States at the time of the adoption of this constitution shall be
eligible to the office of president ; neither shall any person be
eligible to that office who shall not have attained to the age of
thirty-fire years, and been fourteen years a resident within the
THE GOVERNMENT OF THE UNITED STATES. 563
United States." ^ In respect of age there is here only a slight
advance upon the qualification required of a senator ; in respect
of citizenship it is of course very much more rigorous than in
the case of members of Congress.
1101. It is provided by the Constitution that the compensation re-
ceived by judges of the United States shall not be diminished during
their terms, of ofBce ; concerning the President, whose tenure of office
is much briefer, it is provided that liis compensation shall neither be
diminished nor increased during his term.
1102. Duties and Powers of the President. — It is the duty
of the President to see that the laws of the United States are
faithfully executed; he is made commander-in-chief of the
army and navy of the United States, and of the militia of the
several states when called into the actual service of the United
States ; he is to regulate the foreign relations of the country,
receiving all foreign ministers and being authorized to make
treaties with the assent of two-thirds of the Senate ; and he is
to appoint and commission all ofB.eers of the federal govern-
ment. The Constitution makes all his appointments subject
to confirmation by the Senate ; but it also gives Congress the
power to remove from the, superintending view of the Senate
the filling of all inferior official positions by vesting the ap-
pointment of such subordinate officers as it thinks proper in
the President alone, in the courts of law, or in the heads of
departments. As a matter of fact, legislation has relieved the
Senate of the supervision of the vast majority of executive
appointments. The confirmation of the Senate is still neces-
sary to the appointment of ambassadors, other public ministers,
and consuls, of judges of the courts of the United States, of the
chief departmental oflftcials, of the principal post-oflBce and
customs officers, — of all the more important servants of the
general government : but these of course constitute only a
minority of all the persons receiving executive appointment:
the majority are appointed without legislative oversight.
1 Constitution, Art. II., sec. i., par. 5.
664 THE GOVERNMENT OP THE UNITED STATES.
1103. The unfortunate, the demoralizing influences which hare been
allowed to determine executive appointments since President Jackson's
time have affected appointments made subject to the Senate's confirma-
tion hardly less than those made without its co-operation : senatorial
scrutiny has not proved effectual for securing the proper constitution
of the public service. Indeed, the "courtesy of the Senate," — the so-
called " courtesy " by which senators allowed appointments in the several
states to be regulated by the preference of the senators of the predomi-
nant party from the states concerned, — at one time promised to add
to the improper motives of the Executive the equally improper motives
of the Senate.
1104. Reform of Methods of Appointment to Federal
Offices. — The attempts which have been made in recent
years to reform by law. the system of appointments have not
been directed towards the higher offices filled with the consent
of the Senate, but only towards those inferior ofiBces which are
filled by the single authority of the President or of the heads
of the executive departments ; have touched in their results,
indeed, only the less important offices. The Act which
became law in June, 1883, and which is known as the " Pen-
dleton Act," may be said to cover only ' employees ' : it does
not affectj'that is, any person really in authority, though it does
affect the large body of federal servants. It provides, in brief,
for the appointment by the President, by and with the advice
and consent of the Senate, of a Oivil Service Commission con-
sisting of three persons, not more than two of whom shall be
adherents of the same political party, under whose recommen-
dation as representatives of the President, selections shall
be made for the lower grades of the federal service upon the
basis of competitive examination. It forbids the solicita-
tion of money from employees of the government for political
uses and all active party service on the part of members of the
civil administration : it endeavors, in short, to " take the civil
service out of politics."
1105. The carrying out of those portions of the Act which relate to
the method of choosing public officers is, however, entirely subject to
THE GOVERNMEXT OP THE tTNITED STATES. 665
the pleasure of the President. The Constitution vests in him tlie power
of appointment, subject to no limitation except the possible advice and
consent of the Senate. Any Act which assumes to prescribe the man-
ner in which the President shall make his choice of public servants
must, therefore, be merely advisory : the President may accept its direc-
tions or not as he pleases. The only force that can hold hira to the
observance of its principle is the force of public opinion.
1106. The Presidential Succession. ^ In case of the removal,
death, resignation, or disability of both the President and Vice-Presi-
dent, the office of President is to be filled ad interim by the Secretary
of State, or, if he cannot act, by the Secretary of the Treasury, or, in
case he cannot act, by the Secretary of War ; and so on, in succession,
by the Attorney General, the Postmaster General, the Secretary of the
Navy, or the Secretary of the Interior. None of these officers can act,
however, unless he have the qualifications as to age, citizenship, and resi-
dence required by the Constitution of occupants of the presidential chair.
Until this arrangement was made, by act of Congress in 1886, the
' succession ' passed first to the president pro tempore of the Senate,
and, failing him, to the Speaker of tlie House of Representatives. This
was found inconvenient because there are intervals now and again when
there is neither a president pro tempore of the Senate nor a Speaker of the
House.
1107. Relations of the Executive to Congress. — The only
provisions contained in the Constitution concerning the rela-
tion of the President to Congress are these : that " he shall,
from time to time, give to the congress information of the
state of the union, and recommend to their consideration such
measures as he shall judge necessary and expedient " ; and that
"he may, on extraordinary occasions, convene both houses, or
either of them," in extra session, "and, in case of disagree-
ment between them, with respect to the time of adjournment,
he may adjourn them to such time as he shall think proper "
(Art. II., sec. iii.). His power to inform Congress concerning
the state of the union and to recommend to it the passage of
measures is exercised only in the sending of annual and special
written ' messages.'
1108. Washington and John Adams interpreted the clause to mean
that they might address Congress in person, as the sovereign in Eng-
66G THE GOVBENMENT of fHE tJNITED STATES.
land may do : their annual ooramunieations to Congress were spoken
addresses. But Jefferson, the third President, being an ineffective
speaker, this habit was discontinued and the fashion of written mes-
sages was inaugurated and firmly established. (Compare sec; 679.)
Possibly, had the President not so closed the matter against new adjust-
ments, this clause of the Constitution might legitimately have been
made the foundation for a much more habitual and informal, and yet
at the «ame time much more public and responsible, interchange of
opinion between the Executive and Congress. Having been interpreted,
however, to exclude the President from any but the most formal and
ineffectual utterance of perfunctory advice, our federal executive and
legislature have been shut off from co-operation and mutual confidence to
an extent to which no other modern system furnishes a parallel. In all
other modern governments the heads of the administrative departments
are given the right to sit in the legislative body and to take part in its
proceedings. The legislature and executive are thus associated in such
a way that the ministers of state can lead the liouses without dictating
to them, and the ministers themselves be controlled without being mis-
understood,— in such a way that the two parts of the government which
should be most, closely co-ordinated, the part, namely, by which the
laws are made and the part by wliich the laws are executed, may be kept
in close harmony and intimate co-operation, with the result of giving
coherence to the action of the one and energy to the action of the other.
1109. The Executive Departments. — The Constitution does
not provide for the creation of executive departments, but it
takes it for granted that such departments will be founded.
Thus it says (Art. II., see. ii., par. 1, 2) that the President
" may require the opinion, in writing, of the principal officer in
each of the executive departments, upon any subject relating
to the duties of their respective offices," and that Congress
may vest the appointment of such inferior officers as it may
see fit " in the heads of departments." The executive depart-
ments consequently owe their creation and organization to
statute only.
1110. The first Congress erected four such departments,
namely, the departments of State, of the Treasury, of War,
and of Justice. In 1798 the management of the navy, which
had at first been included in the duties of the War Department,
THE (iOVEUNMENT OP THE tJNITED STATES. 567
was entrusted to a special Department of the Navy ; in 1829
the post office, which had been a subdivision of the Treasury,
was created an independent Department; and in 1849 a De-
partment of the Interior was organized to receive a miscellany
of functions not easy to classify, except in the feature of not
belonging properly within any department previously created.
A similar character, it is interesting to remark, may be attributed to
some corresponding department, bearing either this name or a name of
like significance, in almost every other modern government. There is
everywliere a department of state to receive functions not otherwise
specially disposed of.
1111. In 1889 there was added to these a Department of
Agriculture. We have, thus, at present, eight executive de-
partments, viz. : (1) A Department of State, which is what
would be called in most other governments our " foreign office,"
having charge of all the relations of the United States with
foreign countries.
1112. (2) A Department of the Treasury, which is the
financial agency of the government, and whose functions cover
the collection of the public revenues accruing through the cus-
toms duties and the taxes on whiskey and tobacco, their safe
keeping and their disbursement in accordance with the appro-
priations from time to time made by Congress ; the auditing of
the accounts of all departments ; the supervision and regulation
of the national banks and of the currency of the United States ;
the coinage of money ; and the collection of certain industrial
and other statistics.
This Department, therefore, contains within it the treasury and comp-
trolling functions which in the states are sepafated.
111.3. To this Department is attached also the Bureau of Printing
and Engraving, by which all the printing of public documents, etc., is
done.
1114. (3) A Department of War, which has charge of the
military forces of the Union ;
5G8 TSB GOVERlJMElvrT OB* THEl TJI^ITED STAMS.
1115. (4) A Department of the Navy, which has charge
of the naval forces of the general government ;
1116. (5) A Department of Justice, from which emanates
all the legal advice of which the federal authorities stand in
need at any time, and to which is entrusted the supervision of
the conduct of all litigation in which the United States may
be concerned. To it are subordinate all the marshals and
district attorneys of the United States, — all ministerial, non-
judicial law officers, that is, in the service of the government.
It may be compendiously described as the lawyer force of the
government. It is presided over by an Attorney General, all
the other departments, except the Post Office, being under
' Secretaries. '
1117. (6) A Post Office Department, under a Postmaster
General, which is charged with the carrying and delivery of
letters and parcels, with the transmission of money by means
of certain ' money orders ' and notes issued by the Department,
or under cover of a careful system of registration, and with
making the proper postal arrangements with foreign countries.
These arrangements with foreign countries may be made without the
full formalities of treaty, the consent of the President alone being neces-
sary for the ratification of international agreements made by the Post-
master General for the facilitation of the functions of the Department.
The United States is a member of the Universal Postal Union, to which
most of the civilized countries of the world belong. The central office
of this Union is under the management of the Swiss administration.
Its administrative expenses are defrayed by contribution of the various
governments belonging to the Union.
1118. (7) A Department of the Interior, which has charge
(i.) Of the taking of the Census, as from time to time ordered
by Congress in accordance with the provision of the Constitu-
tion (Art. I., see. i., par. 3) which makes it the duty of Con-
gress to have a census taken every ten years as a basis for the
redistribution of representation in the House of Representa-
tives among the several states; (ii.) Of the management of
THE GOVERNMENT OE THE UNITED STATES. 569
the public lands {General Land Office); (iii.) Of the govern-
ment's dealings with the Indians, a function which is exercised
through a special Commissioner of Indian Affairs in Washing-
ton and various agencies established in different parts of the
Indian country.
It is through this Indian Bureau, for example, that all laws concern-
ing the settlement, assistance, or supervision of the tribes are adminis-
tered, as well as all laws concerning the payment of claims made upon
the federal government for compensation for depredations committed
by the Indians, and laws touching the distribution and tenure of land
among the Indians.
(iv.) Of the paying of pensions and the distribution of bounty
lands, a function which it exercises through a special Commis-
sioner of Pensions ; (v.) Of the issuing and recording of patents
and the preservation of the models of all machines patented :
for the performance of these duties there is a Patent Office;
(vi.) Of the keeping and distribution of all public documents
{Superintendent of Public Documents') ; (vii.) Of the auditing
of the accounts of certain railway companies, to which the
United States government has granted loans or subsidies, and
the enforcing of the laws passed by Congress with reference to
such roads {Office of the Commissioner of Railroads) ; (viii.)
Of the collection of statistical and other information concern-
ing education, and the diffusion of the information so collected
for the purpose of aiding the advance and systematization of
education throughout the country ( TJie Office of Education) ;
(ix.) Of the superintendence of the government hospital for
the insane and the Columbia Asylum for the Deaf and Dumb.
Many of these subdivisions of the Interior, though in strictness sub-
ject to the oversight and control of the Secretary of the Interior, have
in reality a very considerable play of independent movement.
1119. (8) A Department of Agriculture, which is charged
with furthering in every possible way, by the collection of
information not only, but also by the prosecution of scientific
570 THE GOVERNMENT OF THE UNITED STATES.
investigation with reference to the diseases of plants, etc., the
agricultural interests of the country, and under which there is
maintained a special Forestry Division.
1120. Set apart to themselves, and therefore without repre-
sentation in the Cabinet, there are (1) The Department of
Labor, which is charged with the collection and publication
of statistical and other information touching the condition and
interests of laborers, — information, for instance, bearing upon
the relations of labor and capital, hours of labor, the hous-
ing of laborers, rates of wages and methods of payment, the
food and expenses of laborers, etc. (2) The Interstate Com-
merce Commission, a semi-judicial body by which the federal
statutes forbidding unjust discriminations in railway rates in
interstate freight or passenger traffic, prohibiting certain sorts
of combinations in railroad management, etc., are interpreted
and enforced. (3) The Civil Service Commission by which
the Act mentioned in sec. 1104 is administered. (4) The Gom-
mission of Fish and Fisheries, whose duty it is to make the
necessary investigations and prosecute the necessary measures
for the preservation, improvement, and increase of the stock
of fish in our rivers and lakes and on our coasts.
Some Repkbsbntative Authorities.
On the institutional development of the colonial period :
Hildreth, E., "History of the United States from the discovery of
America to the End of the Sixteenth Congress" (1821). First
Series. 3 vols. 8vo. New ed. N. Y., 1879.
Bancroft, George, " History of the United States," from the discovery
of America to the adoption of the federal Constitution. 6 vols.
8vo. N. Y.
Doyle, J. A., " English Colonies in America," to the end of the seven-
teenth century. 3 vols. 8vo. N.Y., 1882, 1888,
THE GOVEBNMENT OP THE UNITED STATES. 571
Lodge, H. C, "A Short History of the English Colonies in America."
N.Y., 1881.
Frothingham, " The Rise of the Republic of the United States." Bos-
ton, 1872.
Curtis, G. T., " History of the Origin, Formation, and Adoption of
the Constitution of the United States." 2 vols. N. Y., 1854, 1858.
In this connection only the first volume is pertinent.
Scott, E. G., " Development of Constitutional Liberty in the English
Colonies of America." N.Y., 1882.
On the formation of the Union :
Curtis, G. T., as above. Vol. II.
Bancroft, George, as above. Vol. VI.
Fiske, John, " The Critical Period of American History." Boston,
1888.
Johnston, Alexander, " The First Century of the Constitution," in the
New Princeton Review, September, 1887.
McMaster, J. B., "History of the People of the United States." Vol.
I. N. Y., 1883.
Pitkin, Timothy, " Political and Civil History of the United States of
America from their Commencement to the Close of the Adminis-
tration of Washington." 2 vols. 8vo. New Haven, 1828.
Adams, H. B., "Maryland's Influence upon Land Cessions to the
United States," in Johns Hopkins University Studies in Histori-
cal and Political Science. Third Series, N"o. I.
American Statesmen Series: volumes on John Adams and Thomas
Jefferson, by /. T. Morse, Jr. ; on Alexander Hamilton and on
George Washington by H. C. Lodge ; on Patrick Henry by M. C.
Tyler ; and on James Madison by S. H. Gay.
On institutional development under the Constitution :
Hildreth, R., as above. Second Series. 3 vols.
Schouler, James, " History of the United States of America under the
Constitution." 4 vols. Washington, 1880-1887.
V. Hoist, 11., " The Constitutional and Political History of the United
States." Translated from the German by A. B. Mason, J. J.
Lalor, and Paul Shorey. 5 vols. 8vo. Chicago, 1876-1887.
Johnston, Alexander, " History of American Politics." N. Y., revised
ed., 1882.
572 THE GOVERNMENT OE THE TJNITED STATES.
Adams, Heniy (editor), "Documents relating to New England Fed-
eralism." Boston, 1877.
Benton, T. H., "Thirty Years' View; or, A History of the Working
of the American Government for Thirty Years, 1820-1850." 2
vols. 8vo. N. Y., 1854-1856.
American Statesmen Series : volumes on J. Q. Adams by /. T. Morse,
Jr.; on T. H. Benton and on Gouverneur Morris by Theodore
Roosevelt; on J. C. Calhoun by H. v. Hoist; on li. Clay by Carl
Schurz; on A. Gallatin by /. A. Stevens; on A. Jackson by W.
G. Sumner ; on John Marshall by A. B. Magruder ; on J. Mon-
roe by D. C. Gdman; on J. Kandolph by H. Adams; on M.
Van Buren by E. M. Shepard ; and on D. Webster by H. C.
Lodge.
Roosevelt, Theodore, " The Winning of the West." 2 vols. N. Y.,
1889.
Winsor, Justin (editor), " Narrative and Critical History of America."
Vol. VII. Boston, 1888. Contains full bibliographical notes.
Sumner, W. G., "Politics in America, 1776-1876." A centennial
summary. North American Review, January, 1876, p. 47.
On the character of the federal government under the Constitution :
The controversial literature preceding and accompanying the War
of Secession may be found, representatively, in
Jefferson, Thomas, " Works."
Adams, John, "Works."
Calhoun, J. C, " Works."
Webster, Daniel, "Speeches."
Stephens, Alexander, "A Constitutional View of the War between the
States." 2 vols. 8vo. Philadelphia, 1868.
Cente, P. C. (B. J. Sage), "The Republic of Republics." Boston,
4 ed., 1881.
Hurd, J. C, " The Theory of Our National Existence." Boston, 1881.
Brownson, O. A., "The American Republic; its Constitution, Ten-
dencies, and Destiny." N. Y., 1866 and 1886.
Disassociated "with the issues of the Civil War are the following :
The Federalist, by Alexander Hamilton, James Madison, and John
Jay.
THE GOVERNMENT OF THE UNITED STATES. 573
Story, Joseph, " Commentaries on the Constitution." Edited by
T. M. Cooley.
Cooley, T. M., " Treatise on the Constitutional Limitations which rest
upon the Legislative Power of the States of the American T^nion."
Boston, 2 ed., 1871.
" The General Principles of Constitutional Law in the United
States of America." Boston, 1880.
c. Hoist, H., "Das Staatsrecht der Vereinigten Staaten von America"
in Marquardsen's " Handbuch des Oeffentlichen Reclits." Frei-
burg in B., 1885. Translated under the title, "The Constitu-
tional Law of the United States of America." By A. B. Mason.
Chicago, 1887.
de Tocqueville, A., " Democracy in America." Translated by Henry
Reeve. London, new ed., 1875.
Dicey, A. V., " Lectures Introductory to the Study of the Law of the
Constitution." London, 1886. This book, though a commentary
on the English Constitution, contains much excellent comment
also on our own.
Bryce, James, '• The American Commonwealth." , 2 vols. London,
1888.
Maine, Sir H. S., "Popular Government." N.Y., 1886, especially
Chap. IV.
Wilson, Woodrow, " Congressional Government, A Study in Ameri-
can Politics." Boston, 1885.
On the governments of the States and Local Government :
Jameson, J. F., "Introduction to the Constitutional and Political
History of the Individual States." In the Johns Hopkins I'ni-
versity Studies in Historical and Political Science. Fourth
Series, No. V.
Poore, Ben : P., " Federal and State Constitutions, Colonial Charters,
and other Organic Laws of the United States." 2 vols. Wash-
ington, 1877.
Sft'mson, F. J., "American Statute Law." A Digest. Boston, 1886.
Johns Hopkins University Studies in Historical and Political Science :
First Series: "An Introduction to American Institutional His-
tory," by E. A. Freeman; " The Germanic Origin of New Eng-
land Towns," by H. B. Adams; "Local Government in Illinois,"
574 THE GOVEKNMBNT OF THE UNITED STATES.
by .4. Shaw; "Saxon Tithingmen in America," and "jSTorman
Constables in America," by /f. B. Adams; "Local Government
in Michigan and the Northwest," by E. W. Bemis; "Parish In-
stitutions of Maryland," by E. Ingle; "Old Maryland Manors,"
by John Johnson ; " Village Communities of Cape Aune and Salem,"
by II. B. Adams; "The Genesis of a New England State," by
Alexander Johnston; "Local Government and Free Schools in
South Carolina," by B. J. llamage. Second Series : " Samuel
Adams, the Man of the Town Meeting," by /. K. Hosmer ; "In-
stitutional Beginnings in a Western State," by Jesse Macy ;
" Town and County Government in the English Colonies of
North America," by E. Channing. Third Series : " Virginia Local
Institutions," by E. Ingle; "Local Institutions of Maryland," by
X. W. Wilhelm; "Influence of the Proprietors in founding the
State of New Jersey," by Austin Scott; " American Constitutions,"
by Horace Davis. Fourth Series : " Town Government in Rhode
Island," by W. E. Foster; "The Narragansett Planters," by E.
Channing; "Pennsylvania Boroughs," by W. P. Holcovib ; "The
Piu'itan Colony at Annapolis, Maryland," by D. R. Randall;
" The Land System of the New England Colonies," by M. Egles-
ton.
Pari'cr, Joel, 'Jaffrey Address.' 1873. "Origin, Organization, and
Influence of the Towns of New England," in Proceedings Mass.
Hist. Soc, June, 1888.
Carter, C. H., "Connecticut Boroughs." New Haven Hist. Soc, Vol.
IV.
Spencer, D., "Local Government in Wisconsin." Wis. Hist. Soc'y's
Collections, Vol. II.
" Shires and Shire Towns in the South." Lippincott's Magazine.
August, 1882.
Ford, W. C, " The American Citizen's Manual." Part I. N. Y., 18S2.
Hosmer, J. K., " Samuel Adams," in American Statesmen Series. Bos-
ton, 1885.
XII.
SUMMARY: CONSTITUTIONAL AND ADMINIS-
TRATIVE DEVELOPMENTS.
1121. Continuity of Development. — From the dim morning
hours of history when the father was king and priest down to
this modern time of history's high noon when nations stand
forth full-grown and self-governed, the law of coherence and
continuity in political development has suffered no serious
breach. Human choice has in all stages of the great world-
processes of politics had its part in the shaping of institutions ;
but it has never been within its power to proceed by leaps and
bounds : it has been confined to adaptation, altogether shut out
from ra\f invention. Institutions, like morals, like all other
forms of life and condiict, have had to wait upon the slow, the
almost imperceptible formation of habit. The most absolute
monarchs have had to learn the moods, observe the traditions,
and respect the prejudices of their subjects ; the most ardent
reformers have had to learn that to outrun the sluggish masses
was to render themselves powerless. Revolution has always
been followed by reaction, by a return to even less- than the
normal speed of political movement. Political growth refuses
to be forced; and institutions have grown with the slow
growth of social relationships ; have changed in response, not
to new theories, but to new circumstances. The evolutions of
politics have been scarcely less orderly and coherent than those
of the physical world.
576 SUMMARY.
1122. The order discoverable in institutional develop-
ment is not of course the order of perfect uniformity : institu-
tions, like the races which have developed them, have varied
infinitely according to their environment. Climate, war, geo-
graphical situation have shaped them : the infinite play of
human thought, the infinite many-sidedness of human character
have been reflected in them. But the great stages of develop-
ment have remained throughout clear and almost free from
considerable irregularities. Tested by history's long measure-
ments, the lines of advance are seen to be singularly straight.
1123. Course of Development in the Ancient World. — If
the bond of kinship was at first clear and unmistakable, it
must ere long have become much less defined in the broadened
Family. When the Family became merged in the still wider
Community, solidarity remained and a strong sense of kinship,
but the reality of kinship had no doubt largely departed; and
law had begun to take on a public character, to bear the sanc-
tion of all rather than the sanction of a single supreme person.
Kinship was typified still in the hereditary character of the
kingship ; but the king was now the representative of the com-
munity rather than its master. The Community developed
into the city-state : and further than this the ancieijt peoples
did not go. In Rome and in the great city-states of Greece
the conception of citizenship supplants the idea of kinship : the
State becomes virtually personified in the thought of the
time: it is the centre of civic affection and the object of all
civic virtue : the public officer rules not in his own name but
in the name of the State. Around Rome at last there grows
up a vast Empire ; but it is Home's Empire, — the world has
fallen into the hands of a city, and the only citizenship that
Caracalla can bestow is the citizenship of Rome. This city-
statehood is the last word of the ancient world in politics.
1124. The Feudal System and the Modern Monarch. —
When the Germans emerge we have the State in a new aspect.
Nations are moving in arms, and the Host is now the State,
StJMMAEY. 6T7
Commanders of Hosts are the kings of the new order of things.
The Host settles on the lands of the old Roman dominions,
and that military tenure is developed which we have learned
to call the Feudal System. This Feudal System, when it has
worked its perfect work, in such countries as France and Ger-
many, brings forth still a third type of kingship : we presently
have the king who owns his kingdom as supresne feudal lord:
the king who, having absorbed fief after fief, at last possesses
his kingdom by a perfected legal title, whose realm is his
estate. This is the king who becomes the sole source of law
and of justice, the king who, in our day, grants out of his
abundant grace rights and- constitutions to his people.
1125. England's Contribution. — Wliere the Feudal System
fails of its full fruitage, as in England, where freehold estates
are not blotted out, where tenure of the king as overlord is a
theory but never a reality, and where local self-government ob-
tained a lasting rootage in the national habit, political devel-
opment takes another course. There political liberty abides
continually, in one form or another, with the people, and it is
their operative power which gives to liberty expansion, and
which finally creates the constitutional state, the limited mon-
archy, the free self-governing nation. Out of the fief grew the
kingdom ; out of the freehold and local self-government grew
the constitutional state ; out of the constitutional state grew
that greatest of political developments, the free, organic, self-
conscious, self-directing nation, with its great organs of popular
representation and its constitutional guarantees of liberty.
1126. The Romans and the English. — In this history of
development two nations stand forth pre-eminent for their
political capacity : the Roman nation, which welded the whole
ancient world together under one great organic system of gov-
ernment, and which has given to the modern world the ground-
work of its systems of law,- and the English nation, which
gave birth to America, which has " dotted over the whole sur-
face of the globe with her possessions and military posts," and
578 StTMMAE'e-.
from which all the great nations of our time have borrowed
much of their political thought and more of their political
practice. And what is most noteworthy is this, that these
two nations closely resemble each other, not only in the
mental peculiarities which constitute the chief element of
their political strength, but also in the institutional founda-
tions which they have successively laid for their political
achievements.
1127. Likenesses between the Two Imperial Nations. —
Both have been much stronger in creating and working insti-
tutions than in explaining them : both of them have framed
such a philosophy as they chose to «ntertain ' after the fact ' :
neither has been too curious in examining the causes of its
success or in working out logical sequences of practice. Above
all, neither has suffered any taint of thoroughness to attach
itself to its political methods. Slowly, and without much con-
cern for theories of government, each has made compromise
its method, adaptation its standing procedure. Illogical, unim-
aginative their mode of procedure must be said to have been
throughout, a mode for slow, practical men, without speed or
boldness. Eevolution has never fallen within their calcula-
tions ; even change they have seldom consciously undertaken.
If old institutions must perish, they must perish within the
Roman or English system by decay, by disuse, not by deliber-
ate destruction : if new institutions must be constructed, they
must be grafted on the old in such wise that they may at least
seem to be parts of the same stock, and may partake as largely
as may be of that one vitalizing sap, old custom. As the
Roman Senate, from being the chief motive power of the
state, came at last to exercise only such prerogatives as
the people and the people's ofiicers suffered it to retain, so
the English House of Lords, from being the single coadjutor
of the king in legislation, has been reduced to a subordinate
part which it plays only upon sufferance, and all without any
sudden or premeditated step of revolution. As the consular
SUMMAEY. 579
power in Rome was slowly pared down to be dealt out in parts
to plebeian officials, so has the royal power in England been
piece by piece transferred to the hands of ministers, the peo- ~
pie's representatives. The whole political method of the two
peoples, is the same ; the method of change so gradual, so tem-
pered with compromise and discretion, so retarded and moder-
ated by persistent habit that only under the most extraordinary
pressure is it ever hastened into actual revolution.
1128. Popular Initiative in Rome and England. — Doubt-
less much of this likeness of temperament and method is due
to the fact that both in Eome and in England it has been the
nation, and not merely a small governing class, which has
been behind political change. The motive power was popular
initiative : the process of change was the labored process of
legislation, the piece-meal construction which is to be com-
pounded out of the general thought. Measures have had in
both cases to be prepared for the general acceptance ; and
popular action, wherever it is the wont for the people to act,
is always conservative action. A king's law-making is apt to
be rapid, thorough, consistent; but a nation's law-making,
devised and struggled for piece by piece, cannot be. The ple-
beians in Kome, fighting inch by inch towards the privileges
which they coveted, the people in England making their way
by long-protracted efforts towards the control they desired to
exercise, have had to advance with painful slowness, and to be
content with one piece at a time of the power they strove for.
1129. Rome's Change of System under the Empire.—
With the full establishment of imperial forms of government
Rome lost the conservative habit of her republican period.
The methods of the first emperor, indeed, were slow and
cautious in the highest degree : Augustus avoided all show or
name of imperial power : carefully regardful of republican
sentiment and spirit, which he knew to be not yet extinct, he
simply accumulated to himself one by one every republican
ofB.ce, professing the while merely to exercise for somewhat
580 StJMMARY.
extended periods, — periods wliicli steadily lengtliened from
terms of ,years to tenure for life, — but by free gift of the
Senate and people, the old offices of self-government. But
later emperors were by no means so careful or so considerate
of popular prejudices : their power was open, bold, oftentimes
even wanton. And with these changes in the nature of the
government came of course radical changes in political method:
there came the wilful creation of new offices known to no
Roman custom, the constant breach of old practices hallowed
by immemorial Roman habit, — the whole familiar process, in
brief, of arbitrary power. What Rome gained thus in disci-
pline, in military efficiency, she lost of course in political
capacity. For that capacity so characteristic of the Romans
and the English, the capacity namely for political organization,
is beyond question inseparably connected with popular initia-
tive, with national self-direction, with self-government.'
1130. Fundamental Contrast between English and Roman
Political Method. — The most striking contrast between the
English and the Romans consists in a vital and far-reach-
ing difference in political organization. What I have said
touching the national action of the two peoples, the slow, con-
servative concert of the people as a whole in the origina.tion
and effectuation of policy (sees. 1127-8) must be understood
in different senses in the two cases. It was true of the Romans
only during the period of the Republic, and Avhile the Roman
people could take a direct part in affairs. The Teuton brought
into force, particularly in England, the principle of representa-
tion, that organization by representative assemblies which
enabled the people to act over wide areas through trusted men
elected to speak and act in their stead, and which thus enabled
the organization of the nation to extend without loss of
vitality. Of such methods the Roman knew nothing. Only
1 The student ought of course to test in detail this likeness between
Rome and England. I can here only indicate in the most rapid way the
line of study.
StJMMARY. 581
the people of the city of Rome backed and gave form to
"Roman legislation, for the Roman had conceived of no system
of action by a delegation of the law-making power. The equal
and concerted action of widely diffused populations through
the instrumentality of representation was utterly unknown to
the ancient world. The county court with its reeve and four
selected men from each township, the parliament with its
knights from the shire and its burgesses from the towns,
instrumentalities so familiar everywhere now that the world
has gone to school to the English in politics, were for a long
time peculiar to England in their best features. They were
the peculiar fruit of Teutonic political organization where that
organization had grown most apart from the Roman influence,
in England, not on the Continent, penetrated as the continental
lands were everywhere by the Roman example. Rome had
had no similar means of holding her vast populations together
in active political co-operation and living union. Therefore, as
her conquests spread, her system became more and more cen-
tralized and autocratic. The English could hold populations
together, however large they might be, by means of representa-
■ five assemblies ; but the Roman, who knew no method of
admitting scattered peoples to a part in the central govern-
ment, who knew no popular assemblies except those in which
all citizens should be actually present and vote, could hold an
extended empire together only by military force and the stern
discipline of subordination.
This has much to do with the next topic.
1131. The Development of Legislatures. — Perhaps the
most distinguishing feature of modern as compared with
ancient politics is the difference between the spherfe, the mode,
and the instrumentalities of legislation now, and the character
and methods of legislation among the classical nations. Repre-
sentative law-making bodies are among the commonplace
institutions of the political world as we know it : but no such
assembly, as I have already said, was ever dreamed of by any
582 StTMMAEY.
ancient politician. The ancient world was absolutely without
representative assemblies, and knew nothing of the principle
of representation. Every citizen either took direct part in
legislation or took no part in it at all : if he could attend the
assembly he could use his vote ; if he could not, his vote was
simply of no use to him. There was no thought of the possi-
bility of his acting by proxy. Aristotle believed, consequently,
that no free state could exist with a wide territory or a popu-
lation so scattered as to be unable to attend the assemblies.
The Roman citizen outside of Eome, away from her assemblies,
had privileges but had no operative powers.
What the Greeks and Romans did not know at all the
Teuton seems to have known almost from the first; represen-
tation is one of the most matter-of-course devices of his native
polity, and from him the modern world has received it.
1132. Our early colonial history furnishes at least two very curious
examples of a transition from primary to representative assemblies. The
earliest legislature of Maryland was a primary assembly composed of
all the freemen of the colony; to the next assembly some were allowed
to send proxies ; and before representation was finally established there
appeared the singular anomaly of a body partly representative, partly
primary, at least one freeman insisting upon attending in person (Doyle,
I., pp. 287-290). The other example is to be fotmd in the history of
Rhode Island, whose citizens for some time insisted upon meeting at
Newport in primary assembly for the purpose of electing the persons
who were to represent them in the colonial legislature, thus as it were
jointly inaugurating the session, to use Mr. Foster's words, and then
leaving the legislature " to run for itself for the remainder of the time "
(W. E. Foster, Town Government in Rhode Island, p. 26).
1133. The Powers of a Representative. —But only very
modern times have settled the theory of a representative's
power. The strong tendency among all vigorously political,
all self-reliant self-governing peoples has been to reduce their
representatives to the position and functions of mere delegates,
bound to act, not under the sole direction of their own judg-
ments, but upon instruction from their constituents. The
SUMMARY. 583
better thought of later tiiiK's lias, however, declared for a
far different view of the representative's oiiice, has claimed for
the representative the privilege of following his own judgment
upon public questions, of acting, not as the mouthpiece but
rather as the fully empowered substitute of his constituents.
1134. Scope of Modern Legislation. — The question is of
the greater importance because of the extraordinary scope of
legislation in the modern state, and of the extreme complexity
nowadays attaching to all legislative questions. Time was,
in the infancy of national representative bodies, when the rep-
resentatives of the people were called upon simply to give or
refuse their assent to laws prepared by a king or by a privi-
leged class in the state ; but that time is far passed. The
modern representative has to judge of the gravest affairs of
government, and has to judge as an originator of policies. It
is his duty to adjust every weighty plan, preside over every
important reform, provide for every passing need of the state.
All the motive power of government rests with him. His task,
therefore, is as complex as the task of governing, and the task
of governing is as complex as is the pluy of economic and social
forces over which it has to preside. Law-making now moves
with a freedom, now sweeps through a field unknown to any
ancient legislator ; it no longer provides for the simple needs
of small city-states, but for the necessities of vast nations,
numbering their tens of millions. If the representative be a
mere delegate, local interests must clash and contend in legis-
lation to the destruction of all unity and consistency in policy ;
if, however, the representative be not a mere delegate, but a
fully empowered member of the central government, coherence,
consistency, and power may be given to all national move-
ments of self-direction.
1135. The Making, Execution, and Interpretation of Law.
The question of the place, character, and functions of legis-
lation is in our days a very different question from any that
faced the ancient politician. The separation of legislative,
584 StJMMARi?.
judicial, and executive functions is a quite modern develop-
ment in politics, and we have questions to settle concerning
the integration of these three functions which could not have
arisen in any ancient state. In the early days when the family
was the state ; in the later days when the political organiza-
tion, although it had lost the father's omnipotent jurisdiction,
still rested upon the idea of kinship ; and even in still later
times when forms of government inherited from these primi-
tive conceptions still persisted, all the functions of government
were vested in a single individual or in a single body of indi-
viduals, in a father-king or in an assembly of elders. Even
in highly developed free states like Athens no adequate or
complete recognition of any essential difference in the charac-
ter of the several duties of the judge, the executive officer, and
the law-maker is discoverable. It was a very modern concep-
tion that governmental functions ought to be parcelled out
according to a careful classiiication. The ancient assembly
made laws, elected officers, passed judgment upon offenders
against the laws, and yet was conscious of no incongruity. It
was before the day when anyone could be shocked by such a
confusion of powers.
1136. Modern politicians are, however, greatly shocked by
such confusions of function. They insist, as of course, that
every constitution shall separate the three 'departments' of
government, and that these departments shall be in some real
sense independent of each other ; so that if one go wrong the
others may check it by refusing to co-operate with it. In no
enlightened modern system may the legislator force the judge,
or the judge interfere with the privileges of the legislator, or
judge or legislator wrongly control the executive officer.
1137. Charters and Constitutions. — This division of powers
between distinct branches of government has been greatly em-
phasized and developed by the written constitutions so charac-
teristic of modern political practice. These constitutions have by
no means all had the same history, and they differ as widely in
SUMMARY. 585
character as in origin ; but in every case they give sharp defi-
niteness to the organs and methods of government which illus-
trate the most salient points of modern political development.
Our own constitutions, as we have seen (sec. 860), originated in
grants from the English crown, for which were substituted, in
the days following the war for Independence, grants by the
people. Originally royal, they are now national charters : and
they have been kept close to the people, firmly based upon
their direct and explicit sanction. The constitutions of Switz-
erland bear a like character : proceeding from the people, they
rest in all points upon the people's continuing free choice.
1138. In France, on the contrary, the people have as yet
had no direct part in constitution-making. French constitu-
tions have in all cases been both made and adopted by con-
stituent assemblies : at no stage are the people called upon for
their opinion, — not even after the constitution has been for-
mulated : its adoption, like its construction, is a matter for the
constituent assembly alone : it is given to the people, not ac-
cepted by them. The present constitution of the Republic was
even framed and adopted by a convention which could show no
claim to have been elected as a constituent assembly (sec. 311).
1139. Creation vs. Confirmation of Liberties by Constitu-
tion. — This process, of the gift of a constitution to the people
by an assembly of their own choice, may be said to be interme-
diate between our own or the Swiss practice, on the one hand,
and the practice of the monarchical states of Europe, on the
other, whose constitutions are the gift of monarchs to their
people. In many cases they have been forced from reluctant
monarchs, as Magna Charta was wrung by the barons from
John : but whether created by stress of revolution, as in so
many states in 1848 (sec. 396), or framed later and at leisure,
as in Prussia (sec. 396), they have been in the form of royal
gifts of right, have not confirmed but created liberties and
privileges.
1140. Our own charters and constitutions have, on the con-
586 SUMMAEY.
trary, been little more than formal statements of rights and
immunities which had come to belong to Englishmen quite
independently of royal gift or favor. The Acts of Parliament
upon which the governments of such modern English colonies
as Canada and Australia rest do scarcely more, aside from their
outlining of forms of government, than extend to the colonists
the immemorial privileges of Englishmen in England. And so
our own colonial charters, besides providing for governors,
courts, and legislatures, simply granted the usual rights of
English freeman. Our constitutions have formulated our politi-
cal progress, but the progress came first. European constitu-
tions, on the other hand, have for the most part created the
rights and immunities, as .well as the popular institutions,
which they embody : they institute reform, instead of merely
confirming and crystallizing it.
1141. The Modern Federal State : Contrasted with Con-
federations. — In no part of modern political development have
written constitutions played a more important, a more indis-
pensable r61e than in the definite expression of the nice balance
of institutions and functions upon which the carefully adjusted
organism of the modern federal state depends. The federal
state, as we know it, is a creation of modern politics. Ancient
times afford many instances of confederated states, but none
of a federal state. . The mere confederations of ancient and of.
modern times, however long preserved, and of however distin-
guished history, were still not states in the proper sense of the
term.
The most prominent example of a confederation in ancient times
was the celebrated Achasan League. In modern times we have had the
early Swiss confederation, the several German confederacies, and our
own short-lived Confederation.
They were composed of states, and their only constituent
law was treaty : they were themselves, as confederacies, with-
out sovereign power : sovereignty remained unimpaired with
their component states. Their members did not iinite ; they
STJMMABY. 587
simply agreed to act in concert touching certain matters of
common interest.
1142. The modern federal state, on the contrary, is a single
and complete political personality among nations : it is not a
mere relationship existing between separate states, but is itself
a State. To use two expressive German terms, a confederation
is a Staatenbund merely, while a federal state is a Bundesstaat.
Confederation and federal state have this peculiarity in com-
mon, they are both constituted by the association of distinct,
independent communities ; but under a confederation these
communities practically remain distinct and independent, while
within a federal state they are practically welded together into
a single state, into one nation.
1143. Under both forms, however, it has proved possible to make
provision for the association upon the best terms of mutual help and
support of communities unlilce in almost every feature of local life,
and even of communities diverse in race, without any surrender of their
individuality or of their freedom to develop each its characteristic life.
Nothing could well be conceived more flexible than a system which can
hold together German, French, and Italian elements as the Swiss con-
stitution does.
1144. Distinguishing Marks of the Federal State. — The
federal state has, as contrasted with a confederation, these dis-
tinguishing features : (a) a permanent surrender on the part
" of the constituent communities of their right to act indepen-
dently of each other in matters which touch the common inter-
est, and the consequent fusion of these communities into what
is practically a single state. As regards other states they have
merged their individuality into one national whole : the lines
which separate them are none of them on the outside but all
on the inside of the new organism. (6) The federal state pos-
sesses a special body of federal law, a special federal jurispru-
dence in which is expressed the national authority of the com-
pound state. This is not a law agreed to by the constituent
communities : as regards the federal law there are no constituent
588 SUMMARY.
communities r it is the spoken will of the new community, the
Union, (c) There results a new conception of sovereignty.
There exists in the federal state- no completely sovereign body,
and the functions of sovereignty' are parcelled out among
authorities national and local. In certain spheres of state action
the authorities of the Union are entitled to speak the common
will, to utter laws which are the supreme law of the land ; in
other spheres of state action the constituent communities still
act with the full autonomy of completely independent states.
The one set of authorities is no more sovereign than the other ;
the attributes of sovereignty are, so to say, ' in commission.'
1146. All modern federal states have written constitutions ;
but a written constitution is not, of course, an essential char-
acteristic of federalism, it is only a feature of high convenience ;
such delicate co-ordinate rights and functions as are charac-
teristic of federalism must be carefully defined : each set of
avithorities must have its definite commission.
1146. It is not certain that the federal state, as thus described, is not
a merely temporary phenomenon of politics. It is plain from the
history of modern federal states, — a history a^ yet extremely brief, —
that the strong tendency of such organization is towards the transmuta-
tion of the federal into a unitary state. After union is once firmly
established, not in the interest only but also in the affections of the
people, the drift would seem to be in all cases towards consolidation.
1147. Existing Parallels and Contrasts in Organization. —
The differences which emerge most prominently upon a com-
parison of modern systems of government are differences of
administrative organization chiefly and differences in the rela-
tionship borne by Executives to Legislatures.
1148. Administrative Integration : Relation of Ministers
to the Head of the Executive. — One of the chief points of in-
terest and importance touching any system of administration
is the relations which the ministers of state bear to the head
of the Executive. Of course much of the consistency and
success of policy depends upon the presence or absence of a,
SUMMABY. 689
single guiding will : if ministers be without real leadership,
they are probably without energy or success in policy, if not
positively at odds with each other.
1149. Under our own system the heads of departments are
of course brought together into at least nominal unity by their
common subordination to the President. Although they are,
as we have seen (sec. 1097), rather the colleagues than the ser-
vants of the President, his authority is yet always in the last
resort final and decisive : the secretaries have had very few
powers conferred upon them by Congress in the exercise of
which they are not more or less subject to presidential over-
sight and control. The President is in a very real sense head
of the Executive. In France and England, on the contrary,
the nominal head of the Executive is not its real head. Not
the President or the sovereign but the Prime Minister speaks
the decisive word in administration and in the initiation of
policy, — and the Prime Minister only so far as he can carry
his colleagues with him. The headship of the President and
the sovereign is in large part formal merely, being real only in
proportion to the influence given them by their interior position
as regards affairs. The influence of the Prime Minister is the
vital integrating force. Perhaps it is safe to say that only in
Germany, among constitutional states, have we an example of
a supreme guiding will in administration. The Emperor's own
will or that of the vice-regent Chancellor is the real centre and
source of all policy : the heads of department are ministers
of that will. And there is of course under such a system an
energy and coherence of administrative action such as no other
system can secure. The grave objection to it is the absorption
of so much vitality by the head of the state that its outlying
parts, its great constituent members, the people, are drained
of their political life.
1150. Relations of the Administration as a Whole to the
Ministers as a Body. — Scarcely less important from an ad-
niinistrative point of view than the relations of the ministers
690 SUMMAEY.
to the head of the Executive is the relation of the administra-
tion as a whole, both central and local, to the ministers as a
body. "We have seen ( sees. 974, 993) that in the common-
wealths of our own Union there is in this regard practically
no administrative integration, that the central officers of ad-
ministration do not as a rule constitute a controlling but only
a superior sort of clerical body. In our federal organization
we have the President as supreme chief, but the cabinet as a
body does not usually exercise any concerted control over ad-
ministration taken as a whole. Its pounsellings are confined
for the most part to political questions : administrative ques-
tions are decided separately, by each department for itself,
the only real central authority in administrative matters being
the President's opinion, not the counsel of his ministers. As
regards points of administrative policy each department is a
law unto itself. In England we find a slightly greater degree
of administrative control exercised by the Cabinet as a body.
A " Treasury minute," for instance, is required for any redivis-
ion of business among the departments, and such redivisions
are presumably matters of agreement in Cabinet council. But
even in England the administrative control of the Cabinet is
rather the result of the political responsibility of the Cabinet
than of any conscious effort to integrate administration by
the constitution of a body which shall habitually regulate, by
semi-judicial processes, the main features and often even the
details of executive management. In France and Prussia, on
the contrary, such an effort is made, and is made with effect.
In France, besides a Cabinet of ministers whose function is
wholly political, there is a Council of ministers whose single
ofla.ce is systematic administrative oversight, the harmonizing
of methods, the proper distribution of business among the de-
partments, etc. (sec. 326) ; and above this Council of ministers,
again, there is a Council of State, a judicial body whose part it is
to accommodate all disputes and adjust all conflicts of jurisdic-
tion between the departments, as well as to act as the supreme
STTMMAEY. 591
administrative tribunal (sec. 353). In Prussia there is a like
system : a Stuatsministerium which to a certain extent combines
the duties given in France to the Council of Ministers and to
the Council of State, and also a Council of State which is by
degrees being elevated to high judicial functions (sec. 460).
1151. The Administration and the Legislature. — The re-
lations borne by the Administration, the branch which executes
the laws, to the Legislature, the branch which makes the laws, of
course touch the essence of a system of government. Legisla-
tion and administration ought under every well-devised system
to go hand in hand. Laws must receive test of their wisdom
and feasibility at the hands of administration : administration
must take its energy and its policy from legislation. Without
legislation administration must limp, and without administrar
tion legislation must fail of effect. The vital connection
between the two is well illustrated in the matter of money
appropriations for the support of administration. Legislators
hold, and properly hold, the purse-strings of the nation : only
with their consent can taxes be raised or expended. Wi|hout
the appropriations for which they ask administrators cannot
efficiently perform the tasks imposed upon them : but without
full explanation of the necessity for granting the sums asked and
of the modes in which it is proposed to spend them legislators
cannot in good conscience vote them. A perfect understanding
between Executive and Legislature is, therefore, indispensable,
and no such understanding can exist in the absence of rela-
tions of full confidence and intimacy between the two branches.
1152. The absence of such a co-operative understanding has
led in France to the gravest financial impotency on the part of
the government. The Chambers trust almost nothing concern-
ing appropriations to the authoritative suggestion of the min-
isters. The great Budget Committee (sec. 332) not only
examines and revises but also at pleasure annuls or utterly
reverses the financial proposals of the ministers : the ministers
are for the most part left entirely without power, and there-
592 SUMMARY.
fore entirely without responsibility, in the matter, and appro-
priations follow the whim of the Chambers rather than the
necessities of administration. In England the ministers are
allowed to insist upon the appropriation of the sums they ask
for, because they are held strictly responsible to Parliament
for the policy involved in every financial proposal : the means
of raising the money desired Parliament is to a certain extent
at liberty to suggest without implying distrust of the minis-
ters ; but the amounts the ministers ask for must be voted
unless Parliament wishes the ministers to resign. Confidence
and responsibility go hand in hand (sees. 686, 689) . Under our
own system there is practically no commerce between the heads
of departments and Congress : the administration sends in esti-
mates, but the Appropriations Committees of-the houses decide
without ministerial interference the amounts to be granted.
1163. Of course the relations existing between the Execu-
tive and the Legislature equally affect every other question of
policy, from mere administrative questions, such as the erec-
tion of new departments, increases of clerical force, or the re-
distribution of departmental business, to the gravest questions
of commerce, diplomacy, and war. The integration or sepa-
ration of the Executive and the Legislature may be made an
interesting and important criterion of the grade and character,
in this day of representative institutions, of political organiza-
tion in the case of existing governments. Thus in England we
have complete leadership in legislation entrusted to the minis-
ters, and to complete leadership is added complete responsibil-
ity (sees. 686, 689). In France we have partial leadership
(financial matters being excluded) with entire responsibility
(sec. 327). In Prussia, leadership without responsibility (sec.
422) ; and in Switzerland the same (sec. 633). Under our
own system we have isolation pZws irresponsibility, — isolation
and therefore irresponsibility. At this point more widely than
at any other our government differs from the other govern-
ments of the world. Other Executives lead ; ours obeys.
XIII.
NATURE AND FORMS OF GOVERNMENT. '
1154. Government Rests upon Authority and Force. —
The essential characteristic of all government, whatever its
form, is authority. There must in every instance be, on the
one hand, governors, and, on the other, those who are governed.
And the authority of governors, directly or indirectly, rests in
all cases ultimately on force. Government, in its last analysis,
is organized force. Not necessarily or invariably organized
armed force, but the will of one man, of many men, or of a
community prepared by organization to realize its own pur-
poses with reference to the common affairs of the community.
Organized, that is, to rule, to dominate. The machinery of
government necessary to such an organization consists of in-
strumentalities fitted to enforce in the conduct of the common
affairs of a community the will of the sovereign man, the
sovereign minority, or the sovereign majority.
1155. Not necessarily upon Obvious Force. — This analy-
sis of government, as consisting of authority resting on force,
is not, however, to be interpreted too literally, too narrowly.
The force behind authority must not be looked for as if it were
always to ,be seen or were always being exercised. That there
is authority lodged with ruler or magistrate is in every case
evident enough ; but that that authority rests upon force is not
always a fact upon the surface, and is therefore in one sense
not always practically significant. In the case of any particular
government, the force upon which the authority of its officers
6M NATtJKE AND FORMS Of GOVERKMENT.
rests may never once, for generations together, take the shape
of armed force. Happily there are in our own day many
governments, and those among the most prominent, which
seldom coerce their subjects, seeming in their tranquil noise-
less operations to run themselves. They in a sense operate
without the exercise of force. But there is force behind them
none the less because it never shows itself. The strongest
birds flap their wings the least. There are just as powerful
engines in the screw-propeller, for all she glides so noiselessly,
as in the side-wheeler that churns and splashes her way
through the water. The better governments of our day —
those which rest, not upon the armed strength of governors,
but upon the free consent of the governed — are without open
demonstration of force in their operations. They are founded
upon constitutions and laws whose source and sanction are the
will of the majority. The force which they embody is not the
force of a dominant dynasty nor of a prevalent minority, but
the force of an agreeing majority. And the overwhelming
nature of this force is evident in the fact that the minority
very seldom challenge its exercise. It is latent just because
it is understood to be omnipotent. There is force behind the
authority of the elected magistrate, no less than behind that
of the usurping despot, a much greater force behind the Presi-
dent of the United States, than behind the Czar of Russia.
The difference lies in the display of coercive power. Physical
force is the prop of both, though in the one it is the last, while
in the other it is the first resort.
1166. The Governing Force in Ancient and in Modern
Society. — These elements of authority and force in govern-
ment are thus quite plain to be seen in modern society, even
when the constitution of that society is democratic ; but they
are not so easily discoverable upon a first view in primitive
society. It is common nowadays when referring to the affairs
of the most progressive nations to speak of ' government by
public opinion, ' ' government by the popular voice ' ; and such
NATURE ANT) FORMS OF GOVEENMENT. 595
phrases possibly describe sufficiently well all full-grown demo-
cratic systems. But no one intends such expressions to conceal
the fact that the majority, which utters*' public opinion/ does
not prevail because the minority are convinced, but because
they are outnumbered and have against them not the ' popular
voice ' only, but the ' popular power ' as well — that it is the
potential might rather than the wisdom of the majority which
gives it its right to rule. When ouce majorities have learned
to have opinions and to organize themselves for enforcing
them, they rule by virtue of power no less than do despots
with standing armies or concerting minorities dominating un-
organized majorities. But, though it was clearly opinion
which ruled in primitive societies, this conception of the might
of majorities hardly seems to fit our ideas of primitive systems
of government. What shall we say of them in connection
with our present analysis of government ? They were neither
democracies in which the will of majorities chose the ways <if
government, nor despotisms, in which the will of an individual
controlled, nor oligarchies, in which the purposes of a minority
prevailed. Where shall we place the force which lay behind
the authority exercised under them ? Was the power of the
father in the patriarchal family power of arm, mere domineer-
ing strength of will ? What was the force that sustained the
authority of the tribal chieftain or of that chief of chiefs, the
king ? That authority was not independent of the consent of
those over whom it was exercised ; and yet it was not formu- .
lated by that consent. That consent may be said to have been
involuntary, inbred. It was born of the habit of the race. It
was congenital. It consisted of a custom and tradition, more-
over, which bound the chief no less than it bound his subjects.
He might no more transgress the unwritten law of the race
than might the humblest of his fellow-tribesmen. He was
governed scarcely less than they were. AH were under bondage
to strictly prescribed ways of life. Where then lay the force
which sanctioned the authority of chief and sub-chief and
596 NATTTEE AND FOEMS OP GOVERNMENT.
father in this society ? Not in the will of the ruler : that was
bound by the prescriptions of custom. Not in the popular
choice : over that too the law of custom reigned.
1157. The Force of the Common Will in Ancient Society.
— The real residence of force in such societies as these can be
most easily discovered if we look at them under other circum-
stances. Nations still under the dominion of customary law
have within historical times been conquered by alien conquer-
ors ; but in no such case did the will of the conqueror have
free sco^je in regulating the affairs of the conquered. Seldom
did it have any scope at all. The alien throne was maintained
by force of arms, and taxes were mercilessly wrung from the
subject populations ; but never did the despot venture to
change the customs of the conquered land. Its native laws
he no more dared to touch than would a prince of the dynasty
which he had displaced. He dared not play with the forces
latent in the prejudices, the fanaticism of his subjects. He
knew that those forces were volcanic, and that no prop of
armed men could save his throne from overthrow and destruc-
tion should they once break forth. He really had no author-
ity to govern, but only a power to despoil, — for the idea of
government is inseparable from the conception of legal regu-
lation. If, therefore, in the light of such eases, we conceive
the throne of such a society as occupied by some native prince
whose authority rested tipon the laws of his country, it is
plain to see that the real force upon which authority rests under
a government so constituted is after all the force of public opin-
ion, in a sense hardly less vividly real than if we spoke of a mod-
ern democracy. The law inheres in the common will : and it is
that law upon which the authority of the prince is founded.
He rules according to the common will : for that will is, that
immemorial custom be inviolably observed. The force latent
in that common will both backs and limits his authority.
1158. Public Opinion, Ancient and Modern. — The fact
that the public opinion of such societies made no choice of
NATUIIE AND FORMS OF GOVERNMENT. 697
laws or constitutions need not confuse for us the analogy
between that public opinion and our own. Our own approval
of the government under which we live, though doubtless
conscious and in a way voluntary, is largely hereditary — is
largely an inbred and inculcated approbation. There is a
large amount of mere drift in it. Conformity to what is estab-
lished is much the easiest habit in opinion. Our constructive
c;hoice even in our own governments, under which there is no
divine canon against change, is limited to modifications. The
generation that saw our federal system established may have
imagined themselves out-of-hand creators, originators, of gov-
ernment ; but we of this generation have taken what was given
us, and are not controlled by laws altogether of our own making.
Our constitutional life was made for us long ago. We are like
primitive men in the public opinion which preserves, though
unlike them in the public opinion which alters our institutions.
Their stationary common thought contained the generic forces
of government no less than does our own progressive public
thought.
1159. The True Nature of Government. — What, then, in
the last analysis, is the nature of government ? If it rests upon
authority and force, but upon authority which depends upon
the acquiescence of the general will and upon force suppressed,
latent, withheld except under extraordinary circumstances,
what principle lies behind these phenomena, at the heart of
govsrnment ? The answer is hidden in the nature of Society
itself. Society is in no sense artificial ; it is as truly natural
and organic as the individual man himself. As Aristotle said,
man is by nature a social animal ; his social function is as
normal with him as is his individual function. Since the
family was formed, he has not been without politics, without
political association. Society, therefore, is compounded of
the common habit, an evolution of experience, an interlaced
growth of tenacious relationships, a compact, living, organic
whole, structural, not mechanical.
598 NATURE AKD FORMS OF GOVERNMENT.
1160. Society an Organism, Government an Organ. — Gov-
ernment is merely the execiTtive organ of society, the organ
through which its habit acts, through which its will becomes
operative, through which it adapts itself to its environment
and works out for itself a more effective life. There is clear
reason, therefore, why the disciplinary action of society upon
the individual is exceptional ; clear reason also why the power
of the despot must recognize certain ultimate limits and
bounds ; and clear reason why sudden or violent changes of
government lead to equally violent and often fatal reaction and
revolution. It is only the exceptional individual who is not
held fast in his obedience to the common habit of social duty
and comity. The despot's power, like the potter's, is limited
by the characteristics of the materials in which he works, of
the society which he manipulates ; and change which roughly
breaks with the commoia thought will lack the symjiathy of
that thought, will provoke its opposition, /and will inevitably
be crushed by that opposition. Society, like other organisms,
can be changed only by evolution, and revolution is the antip-
ode of evolution. The public order is preserved because order
inheres in the character of society.
1161. The Forms of Government : Their Significance. —
The forms of government do not affect the essence of govern-
ment : the bayonets of the tyrant, the qiiick concert and supe-
rior force of an organized minority, the latent force of a self-
governed majority, — all these depend upon the organic char-
acter and development of the community. " The obedience of
the subject to the sovereign has its root not in contract but in
force, — the force of the sovereign to punish disobedience ; " ^
but that force must be backed'by the general habit (sees. 1200-
1206). The forms of government are, however, in every way
most important to be observed, for the very reason that they
express the character of government, and indicate its history.
1 John Morley, Rousseau, Vol. II., p, 184.
NATURE AND FORMS OF GOVERNMENT. 599
They exhibit the stages of political development, and make
clear the necessary constituents and ordinary purposes of gov-
ernment, historically considered. They illustrate, too, the
sanctions upon which it rests.
1162. Aristotle's Analysis of the Forms of Government. —
It has been common for writers on politics in speaking of the
several forms of government to rewrite Aristotle, and it is not
easy to depart from the practice. For, although Aristotle's
enumeration was not quite exhaustive, and although his de-
scriptions will not quite fit modern types of government, his
enumeration still serves as a most excellent frame on which
to hang an exposition of the forms of government, and his
descriptions at least furnish points of contrast between ancient
and modern governments by observing which we can the more
clearly understand the latter.
1163. Aristotle considered Monarchy, Aristocracy, and De-
mocracy (Ochlocracy) the three standard forms of government.
The first he defined as the rule of One, the second as the rule of
the Tew, the third as the rule of the Many.' Off against these
standard and, so to say, healthful forms he set their degenerate
shapes. Tyranny he conceived to be the degenerate shape of
Monarchy, Oligarchy the degenerate shape of Aristocracy, and
Anarchy (or mob-rule) the degenerate shape of Democracy.
His observation of the political world about him led him to
believe that there was in every case a strong, an inevitable
tendency for the pure forms to sink into the degenerate.
1164. The Cycle of Degeneracy and Revolution. — He out-
lined a cycle of degeneracies and revolutions through which,
as he conceived, every State of long life was apt to pass. His
idea was this. The natural first form of government for every
state would be the rule of a monarch, of the single strong man
with sovereign power given him because of his strength. This
monarch would usually hand on his kingdom to his children.
^ Not of the absolute majority, as we shall see presently when contrast-
ing ancient and modern democracy (sees. 1170, 1173).
600 NATtTEE AND FOBMS OB" GOVERNMENT.
They might confidently be expected to forget those pledges
and those views of the public good which had bound and
guided him. Their sovereignty would sink into tyranny. At
length their tyranny would meet its decisive check at some
Runnymede. There would be revolt ; and the princely lead-
ers of revolt, taking government into their own hands, would
set up an Aristocracy. But aristocracies, though often public-
spirited and just in their youth, always decline, in their later
years, into a dotage of selfish oligarchy. Oligarchy is even
more hateful to civil liberty, is even a graver hindrance to
healthful civil life than tyranny. A class bent upon subserv-
ing only their own interests can devise injustice in greater
variety than can a single despot : and their insolence is always
quick to goad the many to hot revolution. To this revolution
succeeds Democracy. But Democracy too has its old age of
degeneracy — an old age in which it loses its early respect for
law, its first amiability of mutual concession. It breaks out
into license and Anarchy, and none but a Ceesar can bring it
back to reason and order. The cycle is completed. The
throne is set up again, and a new series of deteriorations and
revolutions begins.
1165. Modern Contrasts to the Aristotelian Forms of Gov-
ernment.— The confirmations of this view furnished by the
history of Europe since the time of Aristotle have been striking
and numerous enough to render it still oftentimes convenient
as a scheme by which to observe the course of political history
even in our own days. But it is still more instructive to con-
trast the later facts of political development with this ancient
exposition of the laws of politics. Observe, then, the differ-
ences between modern and ancient types of government, and the
likelihood that the historian of the future, if not of the present
and the immediate past, will have to record more divergencies
from the cycle of Aristotle than correspondences with it.
1166. The Modern Absolute Monarchy. — Taking the Eus-
sian government of to-day as a type of the vast absolute Mon-
NATUEB AND FOKMS OF GOVERNMENT. 601
archies wMch have grown up in Europe since the death of
Aristotle, it is evident that the modern monarch, if he be in-
deed monarch, has a much deeper and wider reach of power
than had the ancient monarch. The monarch of our day is a
Legislator; the ancient monarch was not. Ancient society
may be said hardly to have known what legislation was. Cus-
tom was for it the law of public as well as of private life : and
custom could not be enacted. At any rate ancient monarchies
were not legislative. The despot issued edicts — imperative
commands covering particular cases or affecting particular
individuals : the Roman emperors were among the first to
promulgate ' constitutions,' — general rules of law to be ap-
plied universally. The modern desj)ot can do more even than
that. He can regulate by his command public affairs not only
but private as well — can even upset local custom and bring
all his subjects under uniform legislative control. Nor is he
in the least bound to observe his own laws. A word — and
that his own word — will set them aside : a word will abolish,
a word restore, them. He is absolute over his subjects not
only — ancient despots were that — but over all laws also —
which no ancient despot was.
1167. Of course these statements are meant to be taken with certain
important limitations. The modern despot as well as the ancient is bound
by the habit of his people.^ He may change laws, but he may not change
life as easily ; and the national traditions and national character, tlie
rural and commercial habit of his Itingdom, bind him very absolutely.
The limitation is not often felt by the monarch, simply because he has
himself been bred in the atmosphere of the national life and uncon-
sciously conforms to it (sees. 1200-1206).
1168. The Modern Monarchy usually ' Limited.' — But the
present government of Russia is abnormal in the Europe of
to-day, as abnormal as that of. the Turk — a belated example
of those crude forms of politics which the rest of Europe has
outgrown. Turning to the other monarchies of to-day, it is at
once plain that they present the strongest contrast possible to .
602 NATURE AND FORMS OP GOVERNMENT.
any absolute monarehy ancient or modern. Almost without
exception in Europe, they are ' limited ' by the resolutions of
a popular parliament. The people have a distinct and often
an imperative voice in the conduct of public affairs.
1169. Is Monarchy now succeeded by Aristocracy? — And
what is to be said of Aristotle's cycle in connection ■ with
modern monarchies ? Does any one suppose it possible that
when the despotism of the Czar falls it will be succeeded by
an aristocracy ; or that when the modified authority of the
emperors of Austria and Germany or the king of Italy still
further exchanges substance for shadow, a limited class will
succeed to the reality of power ? Is there any longer any place
between Monarchy and Democracy for Aristocracy? Has it
not been crowded out ?
1170. English and Ancient Aristocracy contrasted. — In-
deed, since the extension of the franchise in England to the
working classes, no example of a real Aristocracy is left in the
modern world. At the beginning of this century the govern-
m.ent of England, called a 'limited monarchy,' was in reality
an Aristocracy. Parliament and the entire administration of
the kingdom were in the hands of the classes having wealth
or nobility. The members of the House of Lords and the
crown together controlled a majority of the seats in the House
of Commons. England was ' represented ' by her upper classes
almost exclusively. That Aristocracy has been set aside by
the Reform Bills of 1832, 1867, and 1886; but it is worth
while looking back to it, in order to contrast a modern type of
Aristocracy with those ancient aristocracies which were pres-
ent to the mind of Aristotle. An ancient Aristocracy consti-
tuted the state ; the English aristocracy merely controlled the
state. Under the widest citizenship known even to ancient
democracy less than half the adult male subjects of the state
shared the franchise. The ancient Democracy itself was a
government by a minority. The atfcient Aristocracy was a
government by a still narrower minority; and this narrow
NATUilE AND FORMS OF GOVERNMENT. 603
minority monopolized oflB.ce and power not only, but citizenship
as well. There were no citizens but they. They were the
State. Every one else existed for the state, only they were
part of it. In England the case was very different. There
the franchise was not confined to the aristocrats ; it was only
controlled by them. Nor did the aristocrats of England con-
sider themselves the whole of the State. They were quite
conscious — and quite content — that they had the State vir-
tually in their possession ; but they looked upon themselves
as holding it in trust for the people of Great Britain. Their
legislation was, in fact, class legislation, after a very narrow
sort; but they did not think that it was. They regarded
their rule as eminently advantageous to the kingdom; and
they unquestionably had, or tried to have, the real interests
of the kingdom at heart. They led the state, but did not
constitute it.
1171. Present and Future Prevalence of Democracy. — If
Aristocracy seems about to disappear, Democracy seems about
universally to prevail. Ever since the rise of popular educa-
tion in the last century and its vast development since have
assured a thinking weight to the masses of the people every-
where, the advance of democratic opinion and the spread of
democratic institutions have been most marked and most sig-
nificant. They have destroyed almost all pure forms of Mon-
archy and Aristocracy by introducing into •them imperative
forces of popular thought and the concrete institutions of
popular representation ; and they promise to reduce politics to
a single pure form by excluding all other governing forces and
institutions but those of a wide suffrage and a democratic rep-
resentation, — by reducing all forms of government to Democ-
racy.
1172. Differences of Form between Ancient and Modern
Democracies. — The differences of form to be observed between
ancient and modern Democracies are wide and important.
Ancient Democracies were ' immediate ' ; ours are ' mediate,'
604 NATURE AND FORMS OF GOVERNMENT.
that is to say, representative. Every citizen of the Athenian
State — to take that as a type — had a right to appear and
vote in proper person in the popular assembly, and in those
committees of that assembly which acted as criminal courts ; the
modern voter votes for a representative who is to sit for him in
the popular chamber — he himself has not even the right of
entrance there. This idea of representation — even the idea of
a vote by proxy — was hardly known to the ancients ; among us
it is all-pervading. Even the elected magistrate of an ancient
Democracy was not looked upon as a representative of his fellow-
citizens. He was the State, so far as his functions went, and so
long as his term of office lasted. He could break through all law
or custom, if he dared. It was only when his term had expired
and he was again a private citizen that he could be called to
account. There was no impeachment while in office. To our
thought all elected to office — whether Presidents, ministers,
or legislators ■ — ■ are representatives. The limitations as to the
size of the state involved in the absence from ancient concep-
tion of the principle of representation is obvious. A State in
which all citizens were also legislators must of necessity be
small. The modern representative state has no such limitar
tion. It may cover a continent.
1173. Nature of Democracy, Ancient and Modern. — The
differences of nature to be observed between ancient and mod-
ern Democracies are no less wide and important. The ancient
Democracy was a class government. As already pointed out,
it was only a broader Aristocracy. Its franchise was at
widest an exclusive privilege, extending only to a minority.
There were slaves under its heel ; there were even freedmen
who could never hope to enter its citizenship. Class subordina-
tion was of the essence of its constitution. From the modern
Democratic State, on the other hand, both slavery and class
subordination are excluded as inconsistent with its theory, not
only, but, more than that, as antagonistic to its very being.
Its citizenship is as wide as its native population ; its suffrage
NATURE AND FORMS OF GOVERNMENT. 605
as wide as its qualified citizenship, — it knows no non-citizen
class. And there is still another difference between the Democ-
racy of Aristotle and the Democracy of de Tocqueville and
Benthani. The citizens of the former lived for the State ; the
citizen of the latter lives for himself, and the State is for him.
The modern Democratic State exists for the sake of the indi-
\idual ; the individual, in Greek conception, lived for the State.
The ancient State recognized no personal rights — all rights
were State rights ; the modern State recognizes no State rights
which are independent of personal rights.
1174. Growth of the Democratic Idea. — In making the last
statement embrace ' the ancient State ' irrespective of kind and
' the modern State,' of whatever form, I have pointed out what
I conceive to be the cardinal difference between all the ancient
forms of government and all the modern. It is a difference
which I have already stated in another way. The democratic
idea has penetrated more or less deeply all the advanced
systems of government, and has penetrated them in conse-
quence of that change of thought which has given to the
individual an importance quite independent of his member-
ship of a State. I can here only indicate the historical steps
of that change of thotight ; I cannot go at any length into its
causes.
1176. Subordination of the Individual in the Ancient State.
— We have seen that, in the history of political society, if
we have read that history aright, the rights of government —
the magistracies and Subordinations of kinship — antedate
what we now call the rights of the individual. A man was at
first nobody in himself ; he was only the kinsman of somebody
else. The father himself, or the chief, commanded only
because of priority in kinship : to that all rights of all men
were relative. Society was the unit ; the individual the frac-
tion. Man existed for society. He was all his life long in
tutelage ; only society was old enough to take charge of itself.
The state was the only Individual.
606 NATURE AND FOEMS OF GOVERNMENT.
1176. Individualism of Christianity and Teutonic Institu-
tions. — There was no essential change in this idea for centu-
ries. Through all the developments of government down to
the time of the rise of the Roman Empire the State continued,
in the conception of the western nations at least, to eclipse the
individual Private rights had no standing as against the
State. Subsequently many influences combined to break in
upon this immemorial conception. Chief among these influ-
ences were Christianity and the institutions of the German
conquerors of the fifth century. Christianity gave each man
a magistracy over himself by insisting upon his personal,' indi-
vidual responsibility to God. Tor right living, at any rate,
each man was to have only his own conscience as a guide. In
these deepest matters there must be for the Christian an indi-
viduality which no claim of his State upon him could right-
fully be suffered to infringe. The German nations brought
into the Romanized and partially Christianized world of the
iif th century ah individuality of another sort, — the idea of
allegiance to individuals (sec. 228). Perhaps their idea that
each man had a money-value which must be paid by aiay one
who might slay him also contributed to the process of making
men units instead of state-fractions ; but their idea of personal
allegiance played the more prominent part in the transforma-
tion of society which resulted from their western conquests.
The Koman knew no allegiance save allegiance to his State.
He swore fealty to his imperator as to a representative of that
State, not as to an individual. The Teuton, on the other hand,
bound himself to his leader by a bond of personal service which
the Roman either could not understand or understood only to
despise. There were, therefore, individuals in the German
State : great chifefs or warriors with a following (comitatus) of
devoted volunteers ready to die for them in frays not directed
by the state, but of their own provoking (sees. 226-228).
There was with all German tribes freedom of individual move-
ment and combination within the ranks, — a wide play of indi-
KATUKE AND POKMS OF GOVERNMENT. 607
vidual initiative. When the German settled down as master
amongst the Romanized populations of western and southern
Europe, his thought was led captive by the conceptions of the
Roman law, as all subsequent thought that has known it has
been, and his habits were much modified by those of his new
subjects ; but this strong element of individualism was not
destroyed by the contact. It lived to constitute one of the
chief features of the Feudal System.
1177. The Transitional Feudal System. — The Feudal
System was made up of elaborate gradations of personal alle-
giance. The only State possible under that system was a
disintegrate state embracing not a unified people, but a nation
atomized into its individual elements. A king there might be,
but he was lord, not of his people, but of his barons. He was
himself baron also, and as such had many a direct subject pledged
to serve him ; but as king the barons were his only direct sub-
jects ; and the barons were heedful of their allegiance to him
only when he could make it to their interest to be so, or their
peril not to be. They were the kings of the people, who owed
direct allegiance to them alone, and to the king only through
them. Kingdoms were only greater baronies, baronies lesser
kingdoms. One small part of the people served one baron,
another part served another baron. As a whole they served
no one master. They were not a whole : they were jarring,
disconnected segments of a nation. Every man had his own
lord, and antagonized every one who had not the same lord as
he (sees. 238-243).
1178. Rise of the Modern State. — Such a system was, of
course, fatal to peace and good government, but it cleared the
way for the rise of the modern State by utterly destroying the
old conception of the State. The State of the ancients had
been an entity in itself — an entity to which the entity of the
individual was altogether subordinate. The Feudal State was
merely an aggregation of individuals, — a loose bundle of sepa-
rated series of men knowing no common aim or action. It not
608 NATTJEE AND FOKMS OF GOVERNMENT.
only had no actual unity : it had no thought of unity. National
unity came at last, — in France, for instance, by the subjuga-
tion of the barons by the king (sec. 253) ; in England by the
joint effort of people and barons against the throne, — but
when it came it was the ancient unity with a difference. Men
were no longer State fractions ; they had become State inte-
gers. The State seemed less like a natural organism and more
like a deliberately organized association. Personal allegiance
to kings had everywhere taken the place of native membership
of a body politic. Men were now subjects, not citizens.
1179. Renaissance and Reformation. — Presently came the
thirteenth century with its wonders of personal adventure and
individual enterprise in discovery, piracy, and trade.' Follow-
ing hard upon these, the Renaissance woke men to a philo-
sophical study of their surroundings — and above all of their
long-time unquestioned systems of thought. Then arose
Luther to reiterate the almost forgotten truths of the indi-
viduality of men's consciences, the right of individual judg-
ment. Ere long the new thoughts had penetrated to the
masses of the people. Eeformers had begun to east aside
their scholastic weapons and come down to the common folk
about them, talking their own vulgar tongue and craving their
acquiescence in the new doctrines of deliverance from mental
and spiritual bondage to Pope or Schoolman. National litera-
tures were born. Thought had broken away from its exclu-
sion in cloisters and universities and had gone out to challenge
the people to a use of their own minds. By using their minds,
the people gradually put away the childish things of their days
of ignorance, and began to claim a part in affairs. Finally,
systematized popular education has completed the story. Nor
tions are growing up into manhood. Peoples are becoming old
enough to govern themselves.
1180. The Modern Force of Majorities. — It is thus' no ac-
cident, but the outcome of great permanent causes, that there
is no more to be found among the civilized races of Europe
NATURE AND FORMS OP GOVERNMENT. 609
any satisfactory example of Aristotle's Monarchies and Aris-
tocracies. The force of modern governments is not now often
the force of minorities. It is getting to be more and more the
force of majorities. The sanction of every rule not founded
upon sheer 'military despotism is the consent of a thinking
people. Military despotisms are now seen to be necessarily
ephemeral. Only monarehs who are revered as seeking to
serve their subjects are any longer safe upon their thrones.
Monarchies exist only by democratic consent.
1181. New Character of Society. — And, more than that,
the result has been to give to society a new integration. The
common habit is now operative again, not in acquiescence and
submission merely, but in initiative and progress as well. So-
ciety is not the organism it once was, — its members are given
freer play, fuller opportunity for origination ; but its organic
character is again prominent. It is the Whole which has
emerged from the disintegration of feudalism and the speciali-
zation of absolute monarchy. The Whole, too, has become
self-conscious, and by becoming self-directive has set out upon
a new course of development.
XIV.
.LAW: ITS NATURE AND DEVELOPMENT.
1182. What Is Law ? — In the nature and development of
Law three things stand revealed; namely, the nature, the
functions, and the history of government. Law is the will of
the State concerning the civic conduct of those under its au-
thority. This will may be more or less formally expressed : it
may speak either in custom or in specific enactment. Law
may, moreover, be the will either of a primitive family-com-
munity such as we see in the earliest periods of history, or of
a highly organized, fully self-conscious State such as those of
our own day. But for the existence of Law there is needed
in all cases alike (1) an organic community capable of having
a will of its own, and (2) some clearly recognized body of rules
to which that community has, whether by custom or enactment,
given life, character, and effectiveness. The nature of each
State, therefore, will be reflected in its law ; in its law, too,
will appear the functions with which it charges itself ; and in
its law will it be possible to read its history.
1183. The Development of Law : its Sources. — Law thus
follows in its development, with slow, sometimes with uneven,
but generally with quite distinct steps, the evolution of the
character, the purposes, and the will of the organized com-
munity whose creation it is. The sources whence it springs,
therefore, are as various as the means by which an organic
community can shape and express its will as a body politic.
LAW : ITS NATURE AND DEVELOPMENT. 611
1184. 1. Custom.' — Of course the earliest source of Law is
custom, and custom is formed, no one can say definitely how,
except that it is shaped by the co-operative action of the whole
community, and not by any kingly or legislative command.
■ It is not formed always in the same way ; but it always rests
upon the same foundation, upon the general acceptance of a
certain course of action, that is, as best or most convenient.
Whether custom originate in the well-nigh accidental formation
of certain habits of action or in a conscious effort on the part
of a community to adjust its practices more perfectly to its
social and political objects, it becomes, when once it has been
formed and accepted by the public. authority, a central part of
Law. It is difficult, if not impossible, to discover the exact
point at which custom passes from the early inchoate state in
which it is merely tending to become the express and determi-
nate purpose of a community into the later stage in which it
becomes Law ; but we can say^with assurance that it becomes
Law only when it wins the support of a definite authority
within the community. It is not Law if men feel free to
depart from it.
1186. Under the reign of customary law that state of things actually
did exist which modern law still finds it convenient to take for granted :
everybody knew what the law was. The Teutonic hundred-moots, for
example (sec. 654), the popular assemblies which tried cases under tlie
early polity of our own ancestors, declared the law by the public voice ;
the people themselves determined what it was and liow it should be
applied. Custom grew up in the habits of the people ; they consciously
or unconsciously originated it ; to them it was known and by them it
was declared.
1186. 2. Religion. — In the earliest times Custom and Ee-
ligion are almost indistinguishable; a people's customs bear
on every lineament the likeness of its religion. And in later
stages of development Religion is still a prolific source of Cus-
1 I adopt here the classification usual in English writings on Jurispru-
dence. See, e.g., T. E. Holland, Jurisprudence, pp. 48 et seq.
612 LAW: ITS NATtTEE AND DEVELOPMENT.
torn. No primitive community contained any critic wlio could^
even in his secret thought, separate Law from Religion. All
rules of life bore for the antique mind the same sanction (sec.
30). There were hot in its conception rules moral and rules
political : morals and religion were indistinguishable parts of
one great indivisible Law of Conduct. Religion and Politics
soon, indeed, came to have different ministers. In name often,'
if not always in fact, the priest was distinct from the magis-
trate. But throughout a very long development, as we have
seen (sees. 50, 58, 69, 197), the magistrate either retained
priestly functions or was dominated by rules which the j)riest
declared and of which the priest was the custodian.
Thus the early law of Rome was little more than a body of technical
religious rules, a system of means for obtaining individual rights
through the proper carrying out of certain religious formulae (sec. 197) ;
and it marked the beginning of the movement of Roman law towards
a broad and equitable system of justice when these rules of procedure
were changed from sacerdotal secrets into public law by the publica-
tion of the Twelve Tables.
1187. 3. Adjudication. — One of the busiest and one of the
most useful, because watchful, open-minded, and yet conserva-
tive, makers of Law under all systems has been the magistrate,
the Judge. It is he who in his decisions recognizes and adopts
Custom, and so gives it the decisive support of the public
power ; it is he who shapes written enactments into suitability
to individual cases and thus gives them due flexibility and a
free development. He is the authoritative voice of the com-
munity in giving specific application to its Law : and in doing
this he necessarily becomes, because an interpreter, also a
maker of Law. Whether deliberately or unconsciously, in
expounding and applying he moulds and expands the Law. It
is his legitimate function to read Law in the light of his own
sober and conscientious judgment as to what' is reasonable
and just in custom, what practicable, rational, or equitable in
legislation.
LAW : ITS KATURE AND DEVELOPMENT. 613
1188. It is this ' judge-made ' law whicli is to be found, and is there-
fore so diligently sought for, in the innumerable law Reports cited in
our courts. Except under extraordinary circumstances, our courts and
those of England will always follow decisions rendered in similar cases
by courts of equal jurisdiction in the same state. A forticn-i do they
follow the decisions of the highest courts : by these they are in a
sense bound. In the courts of the continent of Europe, on the other
hand, decisions are listened to as important expressions of opinion, but
not as conclusive authority : are heard much as our own courts or those
of England hear the decisions of courts of other states acting under
like laws or similar circumstances.
1189. 4. Equity. — Equity too is judge-made Law; but it
is made, not in interpretation of, but in addition to, the laws
wbich already exist. The most conspicuous types of such
Law are the decisions of the Eoman Prsetor (sees. 201, 202)
and those of the English Chancellor (sec. 666). These decis-
ions were meant to give relief where existing law aiforded
none. The Praetor declared, for instance, that he would allow
certain less formal processes than had hitherto been permitted
to secure rights of property or of contract, of marriage or
of control, etc. The English Chancellor, in like manner, as
keeper of the king's judicial conscience, supplied remedies in
cases for which the Common Law had no adequate processes,
and thus relieved suitors of any hardships they might other-
wise suffer from the fixity or excessive formality of the Com-
mon Law, and enabled them in many things to obtain their
substantial rights without technical difficulty.
1190. After the official decrees of the Praetors had been codified by
the Prsetor Salvius lulianus, in the time of the Emperor Hadrian, and
still more after they had been embodied in the Code of Justinian, the
Cm-pus Juris Oivilis, the Praetor's ' equity ' became as rigid and deter-
minate as the law which it had been its fimction to mend and ameliorate.
In the same manner, our own State codes, many of which have fused
law and equity in the same courts and under common forms of proced-
ure (sec. 955), have given equity the sanction and consequently the
fixity of written law. The English Judicature Act. also, of 1873, merg-
ing, as it does, the Common-law and Eqiiity courts into a single homo-
614 LAW : ITS NATURE AND DEVELOPMENT.
geneous system (sec. 732), sliows at least a strong tendency in the
same direction to exist in England. The adjustments of Equity are
less needed now that legislation is ever active in mending old and
creating new law and, when necessary, new procedure.
In the same case with Equity must be classed the numerous so-called
' fictitious actions ' which were the invention of the Common-law courts
and which, by means of imaginary suitors or imaginary transactions,
duly recorded as if real, enabled things to be done and rights acquired
which would have been impossible under any genuine process of the
Common Law.
1191. 5. Scientific Discussion. — The carefully formed opin-
ions of learned text-writers have often been accepted as decis-
ive of the Law: more often under the Roman system, however,
than under our own (sees. 211-213), though even we have our
Cokes, our Blackstones, our Storys, and our Kents, whom our
courts hear with the greatest possible respect.
1192. 6. Legislation. — That deliberate formulation of new
Law to which the name Legislation is given is for us of the
modern time, of course, the most familiar as well as the most
prolific source of Law. For us Legislation is the work of rep-
resentative bodies almost exclusively ; but of course representa-
tion is no part of the essential character of the legislative act.
Absolute magistrates or kings have in all stages of history
been, under one system or another, plenipotent makers of laws.
Whether acting under the sanction of Custom or under the
more artificial arrangements of highly developed constitutions,
father or praetor, king or archon has been a law-giver. So, too,
the assemblies of free men which, alike in Greece and in Rome,
constituted the legislative authority were not representative,
but primary bodies, like the Landsgemeinden of the smaller
Swiss cantons.
1193. Representation came in with the Germans ; and with
the critical development of institutions which the modern
world has seen many new phases of Legislation have appeared.
Modern Law has brought forth those great private corporations
whose by-laws are produced by what may very fitly be called
LAW : ITS NATtJRE AND DEVELOPMENT. 615
private legislative action. We have, too, on the same model,
chartered governments, with legislatures acting under special
grants of law-making power (sees. 826, 886, 887, 890, 1137).
Legislation has had and is having a notable development,
and is now the almost exclusive means of the formulation of
new Law. Custom of the older sort, which gave us the great
Common Law, has been in large part superseded by acts of
legislatures ; Eeligion stands apart, giving law only to the
conscience ; Adjudication is being more and more restricted by
codification ; Equity is being merged in the main body of the
Law by enactment; Scientific Discussion now does hardly
more than collate cases : all means of formulating Law tend
to be swallowed up in the one great, deep, and broadening
source, Legislation.
1194. Custom Again. — Custom now enters with a new
aspect and a new method. After judges have become the
acknowledged and authoritative mouthpieces of Equity and
of the interpretative adaptation of customary or enacted Law ;
after scientific writers have been admitted to power in the
systematic elucidation and development of legal principles;
even after the major part of all law-making has fallen to the
deliberate action of legislatures, given liberal commission to act
for the community. Custom still maintains a presiding and
even an imperative part in legal history. It is Custom, the
silent and unconcerted but none the less prevalent movement,
that is, of the common thought and action of a community,
which recognizes changes of circumstance which judges would
not, without its sanction, feel, or be, at liberty to regard in
the application of old enactments, and which legislators have
failed to give effect to, by repeal or new enactments. Laws
become obsolete because silent but observant and imperative
Custom makes evident the deadness of their letter, the inap-
plicability of their provisions. Custom, too, never ceases to
build up gractiees legal in their character and yet wholly out-
side formal Law, constructing even, in its action on Congresses
616 LAW: ITS NATURE AND DEVELOPMENT.
and Parliaments, great parts of great constitutions (sees. 688,
1099, 1107). It constantly maintains the great forces of prec-
edent and opinion which daily work their will, under every
form of government, upon both the contents and the adminis-
tration of Law. Custom is Habit under another name ; and
Habit in its growth continually adjusts itself, indeed, to the
standard tixed in formal Law, but also compels formal Law to
conform to its abiding influences. Habit may be said to be
the great Law within which laws spring up. Laws can extend
but a very little way beyond its limits. They may help it to
gradual extensions of its sphere and to slow modifications of
its practices, but they cannot force it abruptly or disregard it
at all with impunity.
1195. The history of France during the present century affords a
noteworthy example of these principles in the field of constitutional law.
There we hare witnessed this singular and instructive spectacle : a people
made democratic in thought by the operation of a speculative political
philosophy has adopted constitution after constitution created in the
exact image of that thought. But they had, to hegin with, absolutely
no democratic habit — no democratic custom. Gradually that habit
has grown, fostered amidst the developments of local self-direction ;
and the democratic thought has penetrated, wearing the body of prac-
tice, its only vehicle to such minds, to the rural populace. Constitu-
tions and custom have thus advanced to meet one another — constitu-
tions compelled to adopt precedent rather than doctrine as their basis,
thought, practical experience rather than the abstract conceptions of
philosophy ; and habit constrained to receive the suggestions of written
law. Now, therefore, in the language of one of her own writers, France
has " a constitution the most summary in its text " (leaving most room,
that is, for adjustments), "the most customari/ in its application, the most
natural outcome of our manners and of the force of circumstances "
that she has yet possessed.i Institutions too theoretical in their basis
to live at first, have nevertheless furnished an atmosphere for the French
mind and habit : that atmosphere has affected the life of France, — that
life the atmosphere. The result some day to be reached will be normal
liberty, political vitality and vigor, civil virility.
1 Albert Sorel, Montesquieu (Am. trans.), pp. 200, 201.
LAW: ITS NATTJEE AND DEVELOPMENT. 617
1196. Typical Character of Roman and English Law. —
Roman law and English law are peculiar among the legal
systems of western Europe for the freedom and individuality
of their development. Rome's jus civile was, indeed, deeply
modified through the influence of the jus gentium ; it received
its philosophy from Greece, and took slight color from a hun-
dred sources ; and English law, despite the isolation of its
island home, received its jury system and many another sug-
gestion from the continent, and has been much, even if uncon-
sciously, affected in its development by the all-powerful law
of Rome. But English and Roman law alike have been much
less touched and colored than other systems by outside influ-
ences, and have, each in its turn, presented to the world what
may be taken as a picture of the natural, the normal, untram-
melled evolution of law.
1197. The Order of Legal Development. — As tested by
the history of these systems, the order in which I have placed
the Sources of Law is seen to be by no means a fixed order of
historical sequence. Custom is, indeed, the earliest fountain
of Law, but Religion is a contemporary, an equally prolific,
and in some stages of national development an almost identical
source ; Adjudication comes almost as early as authority itself,
and from a very antique time goes hand in hand with Equity.
Only Legislation, the conscious and deliberate origination of
Law, and Scientific Discussion, the reasoned development of
its principles, await an advanced stage of growth in the body
politic to assert their influence in law-making. In Rome,
Custom was hardly separable from Religion, and hid the
knowledge of its principles in the breasts of a privileged sac-
erdotal class ; among the English, on the contrary. Custom
was declared in folk-moot by the voice of the people, — as pos-
sibly it had been among the ancestors of the Romans. In
both Rome and England there was added to the influence of
the magistrate who adopted and expanded Custom in his judg-
ments the influence of the magistrate (Praetor or Chancellor)
618 LAW : ITS NATTJEE AND DEVELOPMENT.
who gave to Law the flexible principles and practices of Equity.
And in both, Legislation eventually became the only source of
Law.
1198. But in Eome Legislation grew up under circumstances
entirely Roman, to which English history can afford no par-
allel. Rome gave a prominence to scientific discussion such
as never gladdened the hearts of philosophical lawyers in Eng-
land. The opinions of distinguished lawyers were given high,
almost conclusive, authority in the courts ; and when the days
of codification came, great texts as well as great statutes and
decrees were embodied in the codes of the Empire. The leg-
islation of the popular assemblies, which Englishmen might
very easily have recognized, was superseded in the days of the
Empire by imperial edicts and imperial codes such as the his-
tory of English legislation nowhere shows ; and over the
formulation of these codes and edicts great jurists presided.
The only thing in English legal practice that affords a parallel
to the influence of lawyers in Eome is the cumulative author-
ity of judicial opinions. That extraordinary body of prece-
dent, which has become as much a part of the substance of
English law as are the statutes of the realm, may be considered
the contribution of the legal profession to the law of England.
1199. Savigny would hare us seek in the history of every people for
a childhood in which law is full of picturesque complexities, a period
of form for form's sake and of symbols possessed of mystic significance ;
a period of adolescence in which a, special class of practical jurists
make their appearance and law begins to receive a conscious develop-
ment; a full young manhood in which legislation plays a busy work of
legal expansion and improvement; and an old age amusing itself with
external and arbitrary changes in legal systems, and finally killed by the
letter of the law.i
1200. The Forces Operative in the Development of Law.
— The forces that create and develop law are thus seen to be
' Bluntschli, Gesckichte der neueren Staatsivissenschqft, ed. 1881, pp. 627
628.
LAW: ITS NATURE AND DEVELOPMENT. 619
the same as those which are operative in national and political
development. If that development bring forth monarchical
forms of government, if the circumstances amidst which a
people's life is cast eradicate habits of local self-rule and es-
tablish habits of submission to a single central authority set
over a compacted state, that central authority alone will formu.-
late and give voice to Law. If, on the other hand, the na^
tional development be so favorably cast that habits of self-
reliance and self-rule are fostered and confirnied among the
people, along with an active jealousy of any too great concen-
tration of only .partially responsible power. Law will more
naturally proceed, through one instrumentality or another,
from out the nation : vox legis, vox populi. But in the one
case hardly less than in the other Law will express not the
arbitrary, self-originative will of the man or body of men by
whom it is formulated, but such rules as the body of the nation
is prepared by reason of its habits and fixed preferences to
accept. The function of the framers of Law is a function of
formulation rather than of origination : no step that they can
take successfully can lie far apart from the lines along which
the national life has run. Law is the creation, not of indi-
viduals, but of the special needs, the special opportunities, the
special perils or misfortunes of communities. No ' law-maker '
may force upon a people Law which has not in some sense
been suggested to him by the circumstances or opinions of the
nation for whom he acts. Eulers, in all states alike, exercise
the sovereignty of the community, but cannot exercise any
other. The community may supinely acquiesce in the power
arrogated to himself by the magistrate, but it can in no case
make him independent of itself.
1201. Here again France furnishes our best ilhistration. We have
a vivid confirmation of the truths stated in such an event as the estab-
lishment of the Second Empire. The French people were not duped
by Louis Napoleon. The facts were simply these. They were keenly
conscious that they were making a failure of the self-government which
620 law: its nature and development.
they were just then attempting ; they wanted order and settled rule in
place of fears of revolution and the existing certainty of turbulent
politics ; and they took the simplest, most straightforward and evident
means of getting what they wanted. The laws of Napoleon were in
a very real sense their own creation.
1202. The Power of the Community must be behind Law.
— The law of some particular state may seem to be the copi-
mand of a minority only of those who compose the state : it
may even in form utter only the will of a single despot ; but
in reality laws which issue from the arbitrary or despotic au-
thority of the few who occupy the central seats of the state can
never be given full effect unless in one form or another the
power of the community be behind them. Whether it be an
active power organized to move and make itself prevalent or
a mere inert power lying passive as a vast immovable buttress
to the great structure of absolute authority, the power of the
community must support law or the law must be without effect.
The bayonets of a minority cannot long successfully seek out
the persistent disobediences of the majority. The majority
must acquiesce or the law must be null.
1203. This principle is strikingly illustrated in the inefficacy of the
English repressive laws in Ireland. The consent of the Ii'ish community
is not behind them, though the strength of England is, and they fail
utterly, as all laws must which lack at least the passive acquiescence of
those whom they concern.
1204. There can be no reasonable doubt that the power of Russia's
Czar, vast and arbitrary as it seems, derives its strength from the Rus-
sian people. It is not the Czar's personal power ; it is his power as head
of the national church, as semi-sacred representative of the race and
its historical development and organization. Its roots run deep into
the tenacious, nourishing soil of immemorial habit. The Czar repre-
sents a history, not a caprice.
Temporary, fleeting despots, like the first Napoleon, lead nations with
them by the ears, playing to their love of glory, to their sense of dignity
and honor, to their ardor for achievement and tlieir desire for order.
1206. Roman Law an Example. — The law of Eome
affords in this respect an admirable example of the normal
LAW : ITS NATURE AND DEVELOPMENT. 621
character of law. It was the fundamental thought of Roman
law that it was the will of the Roman people. The political
liberty of the Roman consisted in his membership of the state
and his consequent participation, either direct or indirect, in
the utterance of law. As an individual he was subordinated
to the will of the state ; but his own will as a free burgess was
a part of the state's will : the state spoke his sovereignty. He
was an integral part of the organic community, his own power
found its realization in the absolute potestas et majestas popuU.
This giant will of the people, speaking through the organs of
the state, constituted a very absolute power, by which the
individual was completely dominated; but individual rights
were recognized in the equality of the law, in its purpose to
deal equally with high and low, with strong and weak ; and
this was the Roman recognition of individual liberty.
1206. The Power of Habit. — Much of the truth with
reference to the character and sanctions of law may be obscured
by a failure to make just analysis of the part played by Habit
in giving efficacy to enactment. Legislators, those who exer-
cise the sovereignty of a community, build upon the habit of
their so-called 'subjects.' If they be of the same race and
sharers of the same history as those whom they rule, their
accommodation of their acts to the national habit will be in
large part unconscious : that habit runs in their veins as in the
veins of the people. If they be invaders or usurpers, they
avoid crossing the prejudices or the long-abiding practices of
the nation out of caution or prudence. In any case their
activity skims but the surface, avoids the sullen depths of the
popular life. They work arbitrary decrees upon individuals,
but they are balked of power to turn about the life of the
mass : that they can effect only by slow and insidious meas-
ures which almost insensibly deflect the habits of the people
into channels which lead away from old into new and different
methods and purposes. The habit of the nation is the material
on which the legislator works ; and its qualities constitute the
622 law: its natubb and development.
limitations of his power. It is stubborn material, and danger-
ous. If be venture to despise it, it forces bim to regard and
bumor it ; if be would put it to unaccustomed uses, it balks
bim ; if be seek to force it, it will explode in his hands and
destroy him. The sovereignty is not bis, but only the leader-
ship.
1207. Law's Utterance of National Character. — Law thus
normally speaks the character, the historical habit and devel-
opment of each nation. There is no universal law, but for
each nation a law of its own which bears evident marks of
having been developed along with the national character,
which mirrors the special life of the particular people whose
political and social judgments it embodies (sec. 1196). The
despot may be grossly arbitrary ; he may violate every princi-
ple of right in his application of the law to individuals ; he
may even suspend all justice in individual cases ; but the law,
the principles which be violates or follows at pleasure, he
takes from the people whom he governs, extracts from their
habit and history. What be changes is the application merely,
not the principles, of justice ; and he changes that application
only with reference to a comparatively small number of indi-
viduals whom be specially picks out for his enmity or dis-
pleasure. He cannot violently turn about the normal processes
of the national habit.
1208. Germanic Law. — We have in Germanic law an
example of the influence of national character upon legal
systems as conspicuous as that afforded by Roman law itself,
and the example is all the more instructive when put alongside
of the Roman because of the sharpness of the contrnsts
between Roman and G-ermanic legal conceptions. Although
so like the Romans in practical political sagacity and common-
sense legal capacity, the Germans had quite other conceptions
as to the basis and nature of law. Their law spoke no such
exaltation of the public power, and consequently no such
intense realization of organic unity. The individual German
LAW: ITS NATURE AND DEVELOPMENT. 623
was, so to say, given play outside the law ; his rights were not
relative, but absolute, ^elf-centred. It was the object of th^
public polity rather to give effect to individual worth and lib-
erty than to build together a compact, dominant community.
German law, therefore, took no thought for systematic equal-
ity, but did take careful thought to leave room for the fullest
possible assertion of that individuality which must inevitably
issue in inequality. It was a flexible framework for the play
of individual forces. It lacked th& organic energy, the united,
triumphant strength of the Roman system ; but it contained
untold treasures of variety and of individual achievement. It,
no less than Roman law, rested broadly upon national charac-
ter ; and it was to supply in general European history what
the Roman system could not contribute.
1209. Sovereignty : Who gives Law ? — If, then, law be a
product of national character, if the power of the community
must be behind it to give it efficacy, and the habit of the com-
munity in it to give it reality, where is the seat of sovereignty?
Whereabouts and in whom does sovereignty reside, and what
is Sovereignty ? These, manifestly, are questions of great scope
and complexity, and yet questions central to a right under-
standing of the nature and genesis of law. It will be best to
approach our answers to them by way of illustrations.
In England, sovereignty is said to rest with the legislative
power : with Parliament acting with the approval of the Crown,
or, not to disuse an honored legal fiction, with the Crown act-
ing with the assent of Parliament. Whatever an Act of Par-
liament prescribes is law, even though it contravene every
principle, constitutional or only of private right, recognized
before the passage of the Act as inviolable. Such is the
theory. The well-known fact is, that Parliament dare do
nothing that will even seem to contravene principles held to
be sacred in the sphere either of constitutional privilege or
private right. Should Parliament violate such principles, their
action would be repudiated by the nation, their will, failing
624 LAW : ITS NATTJEE AND DEVELOPMENT.
to become indeed law, would pass immediately into the limbo
*f things repealed ; Parliament itself would be purged of its
offending members. Parliament, then, is master, is an utterer
of valid commands, only so far as it interprets, or at least does
not cross, the wishes of the people. Whether or not, therefore,
it be possible to say with the approval of those who insist upon
maintaining the rules of a strict abstract logic that the sov-
ereignty of Parliament is limited de jure, that is, in law, it is
manifestly the main significant truth of the case that parlia-
mentary sovereignty is most imperatively limited de facto, in
fact. Its actual power is not a whit broader for liaTving a free
field in law, that is, above the fences, so long as the field in
which it really moves is fenced high about by firm facts.
1210. Again, it is said, apparently with a quite close regard
for the facts, that in Russia sovereignty is lodged with the
Czar, the supreme master " of all the Eussias." That his will
is law Siberia attests and Nihilism recognizes. But is there
no de facto limitation to his supremacy ? How far could he go
iu the direction of institutional construction ? How far could
he succeed in giving Eussia at once and out of hand the insti-
tutions, and Russians the liberties, of the United States and its
people ? How far would such a gift be law ? Only so far as
life answered to its word of command. Only so far as Rus-
sian habit, schooled by centuries of obedience to a bureau-
cracy, could and would respond to its invitation. Only so far,
in a word, as the new institutions were accepted. The meas-
ure of the Czar's sovereignty is the habit of his people ; and
not their habit only, but their humor also, and the humor of
his of&cials. His concessions to the restless spirit of his army,
to the prejudices of his court, and to the temper of the mass
of his subjects, his means of keeping this side assassination or
revolution, nicely mark the boundaries of his sovereignty.
1211. Sovereignty, therefore, as ideally conceived in legal
theory, nowhere actually exists. The sovereignty which does
exist is something much more vital, though, like most living
LAW: ITS NATUKE AND DEVELOPMENT. 625
things, much less easily conceived. It is the will of an organ-
ized independent community, whether that will speak in acqui-
escence merely, or in active creation of the forces and'conditions
of politics. The kings or parliaments who serve as its vehicles
utter it, but they do not possess it. Sovereignty resides in
the community ; but its organs, whether those organs be
supreme magistrates, busy legislatures, or subtle privileged
classes, are as various as the conditions of historical growth
have commanded.
1212. Certain Legal Conceptions Universal. — The corre-
spondence of law with national character, its basis in national
habit, does not deprive it of all universal characteristics.
Many common features it does wear among all civilized peo-
ples. As the Romans found it possible to construct from the
diversified systems of law existing among the subject peoples
of the Mediterranean basin, a certain number of general max-
ims of justice out of -jvhich to construct the foundation of their
jus gentium, so may jurists to-day discover in all systems of
law alike certain common moral judgments, a certain evidence
of unity of thought regarding the greater principles of equity.
There is a common legal conscience in mankind.
Thus, for example, the sacredness of human life; among all Aryan
nations at least, the sanctity of the nearer family relationships ; in all
systems at all developed, the plainer principles of ' mine ' and ' thine ' ;
the obligation of promises ; many obvious duties of man to man sug-
gested by the universal moral consciousness of the race, receive recog-
nition under all systems alike. Sometimes resemblances between
systems the most widely separated in time and space run even into
ceremonial details, such as the emblematic transfer of property, and into
many details of personal right and obligation.
1213. Law and Ethics. — It by no means follows, however,
that because law thus embodies moral judgments of the race
on many points of personal relation and individual conduct, it
is to be considered a sort of positive concrete Ethics, — Ethics
crystallized into definite commands towards which the branch.
626 LAW : ITS NATURE AND DEVELOPMENT.
of culture which we call ' Ethics ' stands related as theory to
practice. Ethics concerns the whole walk and conversation
of the individual, it touches the rectitude of each man's life,
the truth of his dealings with his own conscience, the whole
substance of character and conduct, righteousness both of act
and of mental habit. Law, on the other hand, concerns only
man's life in society. It not only confines itself to controlling
the outward acts of men ; it limits itself to those particular
acts of man to man which can be regulated by the public
authority, and which can be regulated in accordance with uni-
form rules applicable to all alike and in an equal degree. It
does not essay to punish untruthfulness as such, it only annuls
contracts obtained by fraudulent misrepresentation and makes
good such pecuniary damage as ' the deceit may have entailed ;
it does not censure ingratitude or any of the subtler forms of
faithlessness, it only denounces its penalties against open and
tangible acts of dishonesty ; it does not assume to be the
guardian of men's character, it only stands with a whip for
those who give overt proof of bad character in their dealings
with their fellow-men. Its limitations are thus limitations
both of kind and of degree. It addresses itself to the regular
tion of outward conduct only : that is its limitation of kind ;
and it regulates outward conduct only so far as workable and
uniform rules can be found for its regulation : that is its limi-
tation of degree.
1214. Mala Prohibita. — Law thus plays the r61e neither
of conscience nor of Providence. More than this, it follows
standards of policy only, not absolute standards of right and
wrong. Many things that are wrong, even within the sphere
of social conduct, it does not prohibit ; many things not
wrong in themselves it does prohibit. It thus creates, as it
were, a new class of wrongs, relative to itself alone : mcda pro-
hibita, things wrong because forbidden. In keeping the com-
mands of the state regarding things fairly to be called indif-
ferent in themselves men are guided by their legal conscience.
LAAV : ITS NATURE AND DEVELOPMENT. 627
Society rests upon obedience to the laws : laws determine the
rules of social convenience as well as of social right and wrong ;
and it is as necessary for the perfecting of social relationships
that the rules of convenience be obeyed as it is that obedience
be rendered to those which touch more vital matters of conduct.
Thus it cannot be said to be inherently wrong for a man to marry
his deceased wife's sister ; but if the laws, seeking what is esteemed to
be a purer order of family relationships, forbid such a marriage, it be-
comes malum prohibitum : it is wrong because illegal.
It would certainly not be wrong for a trustee to buy the trust estate
under his control if he did so in gpod faith and on terms manifestly ad-
vantageous to the persons in whose interest he held it ; but it is contrary
to wise public policy that such purchases should be allowed, because
a trustee would have too many opportunities for unfair dealing in such
transactions. The law will under no circumstances hold the sale of a
trust estate to the trustee valid. Such purchases, however good the
faith in which they are made, are mala prohiUta.
Or take, as another example, police regulations whose only object is
to serve the convenience of society in crowded cities. A street parade,
with bands and banners and men in uniform is quite harmless and is
immensely pleasing to those who love the glitter of epaulettes and brass
buttons and the blare of trumpets ; but police regulations must see to it
that city streets are kept clear for the ordinary daily movements of the
busy city population, and to parade without license is malum prohibitum.
1215. In all civilized states law has long since abandoned
all attempts to regulate conscience or opinion; it would find
it, too, both fruitless and unwise to essay any regulation of
conduct, however reprehensible in itself, which did not issue
in definite and tangible acts of injury to others; but it does
seek to command the outward conduct of men in their palpar
ble dealings with each other in society. Law is the mirror of
active, organic political life. It may be and is instructed by
the ethical judgments of the community, but its own prov-
ince is not distinctively ethical ; it may regard religious prin-
ciple, but it is not a code of religion. Ethics has been called
the science of the well-being of man, law the science of his
right civil conduct. Ethics concerns the development of
628 LAW: ITS NATTTEE AND DEVELOPMENT.
character; religion, the development of man's relations with
God ; law, the development of men's relations to each other in
society. Ethics, says Mr. Sidgwick, "is connected with poli-
tics so far as the well-being of any individual man is bound
tip with the well-being of his society."
1216. International Law. — The province of international
law may be described as a province half way between the
province of morals and the province of positive law. It is law
without a forceful sanction. There is no earthly power of
which all nations are subjects ; there is no power, therefore,
to enforce obedience to rules of conduct as between nation
and nation. International law is, moreover, a law which rests
upon those uncodified, unenacted principles of right action, of
justice, and of consideration which have so universally ob-
tained the assent of men's consciences, which have so univer-
sal an acceptance in the moral judgments of men everywhere,
that they have been styled Laws of Nature (sees. 208-9), but
which have a nearer kinship to ethical maxims than to posi-
tive law. "The law of nations," says Bluntschli, "is that
recognized universal Law of Nature which binds different
states together in a humane jural society, and which also
secures to the members of different states a common pro-
tection of law for their general human and international
rights." ^ Its only formal and definite foundations aside from
the conclusions of those writers who, like Grotius and Vattel,
have given to it distinct statements of what they conceived to
be the leading, the almost self-evident principles of the Law
of Nature, are to be found in the treaties by which states,
.acting in pairs or in groups, have agreed to be bound in their
relations with each other, and in such principles of internar
tional action as have found their way into the statutes or the
established judicial precedents of enlightened individual states.
More and more, international conventions come to recognize
1 Das VBlkerrecht, sec. I.
LAW: ITS NATURE AND DEVELOPMENT. 629
in their treaties certain elements of right, of equity, and of
comity as settled, as always to be accepted in transactions
between nations. The very jealousies of European nations
have contributed to swell the body of accepted treaty princi-
ples. As the practice of concerted action by the states of the
continent of Europe concerning all questions of large interest,
the practice of holding great Congresses like those of Vienna
in 1815, of Paris in 1866, and of Berlin in 1878 has grown
into the features of a custom, so has the body of principles
which are practically of universal recognition increased. In-
ternational law, says Dr. Bulmerincq^ " is the totality of legal
rules and institutions which .have developed themselves touch-
ing the relations of states to one another." ^
1217. International law is, therefore, not law at all in the
strict sense of the term. It is not, as a whole, the will of any
state : there is no authority set above the nations whose com-
mand it is. In one aspect, the aspect of Bluntschli's defini-
tion, it is simply the body of rules, developed out of the
common moral judgments of the race, which ought to govern
nations in their dealings with each other. Looked at from
another, from Dr. Bulmerincq's, point of view, it is nothing
more than a generalized statement of the rules which nations
have actually recognized in their treaties with one another,
made from time to time, and which by reason of such prece-
dents are coming more and more into matter-of-course accept-
ance.
These rules concern the conduct of war, diplomatic intercourse, the
rights of citizens of one country living under the dominion of another,
jurisdiction at sea, etc. Extradition principles are settled almost always
by specific agreement between country and country, as are also, of course,
commercial arrangements, fishing rights, and all similar matters not of
universal bearing. But even in such matters example added to example
is turning nations in the direction of uniform principles, such, for in-
1 Das VSlkerrecht (in Marquardsen's Handbuch, Vol. I.), sec. 1. of the
monograph,
630 LAW: ITS NATURE AND DEVELOPMENT.
stance, as this, that political offences shall not be included among ex-
traditable crimes, unless they involve ordinary crimes of a very heinous
nature, such as murder.
1218. Laws of Nature and Laws of the State. —The
analogy between political laws, the laws which speak the will
of the state, and natural laws, the laws which express the
orderly succession of events in nature, has often been dwelt
upon, and is not without instructive significance. In the one
set of laws as in the other, there is, it would seem, a uniform
prescription as to the operation of the forces that make for life.
The analogy is most instructive, however, where it fails : it is
more instructive, that is, to note the contrasts between the
laws of nature and laws of the state than to note such like-
ness as exists between them. The contrasts rather than the
resemblances serve to make evident the real nature of politi-
cal regulation. " Whenever we have made out by careful
and repeated observation," says Professor Huxley, "that
something is always the cause of a certain effect, or that cer-
tain events always take place in the same order, we speak of
the truth thus discovered as a law of nature. Thus it is a
law of nature that anything heavy falls to the ground if it is
unsupported. . . . But the laws of nature are not the causes
of the order of nature, but only our way of stating as much
as we have made out of that order. Stones do not fall to the
-ground in consequence of the law just stated, as people some-
times carelessly say ; but the law is a way of asserting that
which invariably happens when heavy bodies at the surface of
the earth, stones among the rest, are free to move." What-
ever analogies may exist between such generalized statements
of physical fact and the rules in accordance with which men
are constrained to act in organized civil society it may be
profitable for the curious carefully to inquire into. What it
is most profitable for the student of politics to observe is the
wide difference between the two, which Professor Huxley very
admirably states as follows : " Human law consists of com-
LAW : ITS NATURE AST) DEVELOPMENT. 631
mands addressed to voluntary agents, which they may obey or
disobey ; and the law is not rendered null and void by being
broken. Natural laws, on the other hand, are not commands,
but assertions respecting the invariable order of nature ; and
they remain law only so long as they can be shown to exjDress
that order. To speak of the violation or suspension of a law
of nature is an absurdity. All that the phrase can really
mean is that, under certain circumstances, the assertion con-
tained in the law is not true ; and the just conclusion is, not
that the order of nature is interrupted, but that we have made
a mistake in stating that order. A true natural law is a uni-
versal rule, and, as such, admits of no exception." ' In brief,
human choice enters into the laws of the state, whereas from
natural laws that choice is altogether excluded: they are
dominated by fixed necessity. Human choice, indeed, enters
every part of political law to modify it. It is the element of
change; and it has given to the growth of law a variety, a
variability, and an irregularity which no other power could
have imparted.
1219. Limitations of Political Law. — We have thus laid
bare to our view some of the most instructive characteristics
of political law. The laws of nature state effects invariably
produced by forces of course adequate to produce them ; but
behind political laws there is not always a force adequate to
produce the effects which they are designed to produce. The
force, the sanction, as jurists say, which lies behind the laws
of the state is the organized armed power of the community :
-eompulsion raises its arm against the man who refuses to obey
(sec. 1154). But the public power may sleep, may be inatten-
tive to breaches of law, may suffer itself to be bribed, may be
outwitted or thwarted : laws are not always ' enforced.' This
element of weakness it is which opens up to us one aspect at
least of the nature of Law : Law is no more efficient than the
1 These passages are takeu from Professor Huxley's Science Primer .
Introductory.
632 LAW : ITS NATURE AND DEVELOPMENT.
state whose will it utters. The law of Turkey shares all the
imperfections of the Turkish power ; the laws of England be-
speak in their enforcement the efB.cacy of English government.
Good laws are of no avail under a bad government; a weak,
decadent state may speak the highest purposes in its statutes
and yet do the worst things in its actual administration. Com-
monly, however, law embodies the real purposes of the state,
and its enforcement is a matter of administrative capacity or
of concerted power simply.
1220. Public Law. — The two great divisions under which
law may best be studied are these : (1) Public Law, (2) Pri-
vate Law. Public law is that which immediately concerns the
being, the structure, the functions, and the methods of the
state. Taken in its full scope, it includes not only what we
familiarly know as constitutional law, but also what is known
as administrative law, and all that part of criminal law which
affects crimes against the state itself, against the community
as a wliole. In brief, it is that portion of law which deter-
mines a state's own character and its relations to its citizens.
1221. Private Law. — Private law, on the other hand, is
that portion of positive law which secures to the citizen his
rights as against the other citizens of the state. It seeks to
effect justice between individual and individual ; its sphere is
the sphere of individual right and duty.
1222. It is to the Romans that we are indebted for a first partial
recdgnition of this important division in the province of Law, though
later times have given a different basis to this distinction. I say ' in-
debted because the distinction between public and private law has the
most immediate connections with individual liberty. Without it, we
have the state of affairs that existed in Greece, where there was no
sphere which was not the state's (sec. 1236) ; and where the sphere of
the state's relations to the individual was as wide as the sphere of the
law itself. Individual liberty can exist only where it is recognized that
there are rights which the state does not create, but only secures.
1223. Jurisprudence. — Jurisprudence is a term of much
latitude, but must be taken strictly to mean the Science of
LAW : ITS NATURE AND DEVELOPMENT. 633
Law. The science of law, of course, is complete only when it
has laid bare both the nature and the genesis of law : the na-
ture of law must be obscure until its genesis and the genesis
of the conceptions upon which it is based have been explored ;
and that genesis is a matter, not of logical analysis, but of his-
tory. Many writers upon jurisprudence, therefore, have in-
sisted upon the historical method of study as the only proper
method. They have sought in the history of society and of
institutions the birth and development of jural conceptions,
the growths of practice which have expanded into the law of
property or of torts, the influences which have contributed to
the orderly regulation of man's conduct in society.
1224. In the hands of another school of writers, however,
jurisprudence has been narrowed to the dimensions of a science
of law in its modern aspects only. They seek to discover, by
an analysis of law in its present full development, the rights
which habitually receive legal recognition and the methods by
which states secure to their citizens their rights, and enforce
upon them their duties, by positive rules backed by the abun-
dant sanction of the public power. In their view, not only is
the history of law not jurisprudence, but, except to a very
limited extent, it is not even the material of jurisprudence.
Its material is law as it presently exists : the history of that
law is only a convenient light in which the real content and
purpose of existing law may be made plainer to the analyst.
The conclusions of these writers are subject to an evident lim-
itation, therefore ; their analysis of law, being based upon
existing legal systems alone and taking the fully developed
law for granted, applies to law in the earlier stages of society
only by careful modification, only by more or less subtle and
ingenious accommodation of the meaning of its terms.
1225. Historical jurisprudence alone, — a science of law,
that is, constructed by means of the historical analysis of law
and always squaring its conclusions with the history of society,
— can serve the student of politics. The processes of analyti-
634 LAW: ITS NATURE AND DEVELOPMENT.
cal jurisprudence, however, having been conducted by minds
of the greatest subtlety and acuteness, serve a very useful
purpose in supplying a logical structure of thought touching
full-grown systems of law.
1226. The Analytical Account of Law. — In the thought
of the analytical school every law is a command, "an order
issued by a superior to an inferior." "Every positive law is
'set by a sovereign person, or sovereign body of persons, to
a member or members of the independent political society
wherein that person or body of persons is sovereign or supe-
rior.' " In its terms, manifestly, such an analysis applies only
to times when the will of the state is always spoken by a defi-
nite authority ; not with the voice of custom, which proceeds
no one knows whence ; not with the voice of religion, which
speaks to the conscience as well as to the outward life, and
Avhose sanctions are derived from the unseen power of a super-
natural being ; nor yet with the voice of scientific discussion,
whose authors have no authority except that of clear thought ;
but with the district accents of command, with the voice of
the judge and the legislator.
1227. The Analytical Account of Sovereignty. — The analytical
account of sovereignty is equally clear-cut and positive. Laws, " being
commands, emanate from a determinate source," from a sovereign au-
tliority; and analytical jurisprudence is very strict and formal in its
definition of sovereignty. A sovereign "is a determinate person, or
body of persons, to wliom the bullc of the members of an organized
community are in the habit of rendering obedience and who are them-
selves not in the habit of rendering obedience to any human superior."
It follows, of course, that no organic community which is not in-
dependent can have a law of its own. The law of the more fully
developed English colonies, for example, though it is made by the
enactment of their own parliaments, is not law by virtue of such enact-
ment, because those parliaments are in the habit of being obedient to
the authorities in London and are not themselves sovereign, therefore.
The sovereignty which lies back of all law in the colonies is said to be
the sovereignty of the parliament of England.
1228. It would seem to follow that our own federal authorities are
LAW : ITS NATURE AND DEVELOPMENT. 635
sovereign. They are a determinate body of persons to whom the bulk
of the nation is habitually obedient and who are themselves obedient
to no human superior. But then what of the authority of the states in
that great sphere of action which is altogether and beyond dispute their
own (sec. 889), which the federal authorities do not and cannot enter,
within which their own people are habitually obedient to them, and in
which they are not subject to any earthly superior 1 It has been the
habit of all our greater writers and statesmen to say that with us
sovereignty is divided ; but the abstract sovereignty of which the legal
analyst speaks is held to be indivisible : it must be whole. Analysis,
therefore, is driven to say that with us sovereignty rests in its entirety
with that not very determinate body of persons, the people of the
United States, the powers of sovereignty resting with tine state and federal
authorities by delegation from the people.
The difficulty of applying the analytical account of sovereignty to
our own law is in large part avoided if law be defined as " the command
of an authorized public organ, acting within the sphere of its compe-
tence. What organs are authorized, and what is the sphere of their
competence, is of course determined by the organic law of the state ;
and this law is the direct command of the sovereign." ^ The only diffi-
culty left by this solution is that of making room in our system for both
a sovereign people of the single state and a sovereign people of the Union.
1229. Summary. — Law, then, is the determinate will of
the state concerning the civic conduct of those under its
authority. Spoken first in the slow and general voice of cus-
tom, it speaks at last in the clear, the multifarious, the active
tongues of legislation. It grows with the growth of the com-
munity : it cannot outrun the conscience of the community and
be real, it cannot outlast its judgments and retain its force.
It mirrors social advance : if it anticipate the development of
the public thought, it must wait until the common judgment
and conscience grow up to its standards before it can have
life ; if it lag behind the comnion judgment and conscience, it
must become obsolete, and will come to be more honored in
the breach than in the observance.
1 This definition I have taken the liberty of extracting from some
very valuable notes on this chapter kindly furnished me by a friend
who upon this subject speaks authoritatively.
636 law: its natuee and development.
Sbvekal Kbpresentative Authorities.
Robertson, E., Article 'Law,' Encyclopcedia Britannica. 9th ed.
Saimjmj, " Beruf unserer Zeit fur Gesetzgebung und Rechtswissen-
sohaft."'
Ihering, v., " Geist des Ebmisohen Rechts."
HMand, T. E., " Elements of Jurisprudence." 4tli ed- Oxford, 1888.
Austin, John, " Lectures on Jurisprudence, the Philosophy of Positive
Law." 2 vols.
Maine, Sir H. S., "Ancient Law," and "Early History of Institutions,"
Lectures XII., XIII.
Heron, D. C, "Introduction to the History of Jurisprudence." Lon-
don, 1880.
Bluntschli, J. C, " AUegemeines Staatsrecht." 6th ed. Stuttgart,
1885.
Hoilzendorff, F. v., " Enoyklopadie der Rechtswissenschaft." Leipzig,
1882.
Jellinek, Georg, " Gesetz und Verordnung," Freiburg in B. 1887.
XV.
THE FUNCTIONS OF GOVEENMENT.
1230. What are the Functions of Government ? — The ques-
tion has its own difficulties and complexities : it cannot be
ansiveied out of hand and in the lump, as the physiologist
might answer the question, What are the functions of the
heart ? In- its nature government is one, but in its life it is
many : there are governments and governments. When asked,
therefore. What are the functions of government ? we must ask
in return, Of what government ? Different states have differ-
ent conceptions of their duty, and so undertake different
things. They have had their own peculiar origins, their own
characteristic histories ; circumstance has moulded them ; neces-
sity, interest, or caprice has variously guided them. Some
have lingered near those primitive institutions which all once
knew and upheld together ; others have quite forgotten that
man ever had a political childhood and are now old in complex
practices of national self-government.
1231. The Nature of the Question. — It is important to
notice at the outset a single general point touching the nature
of this question. It is in one aspect obviously a simple
question of fact; and yet there is another phase of it, in which
it becomes as evidently a question of opinion.
The distinction is important because over and over again the
question of fact has been confounded with that very widely
different question. What ought the functions oj government to
be ? The two questions should be kept entirely separate in
638 THE PTTNCTIONS OF GOVERNMENT.
treatment. Under no circumstances may we instructively or
safely begin with the question of opinion : the answer to the
question of fact is the indispensable foundation to all sound
reasoning concerning government, which is at all points based
upon experience rather than upon theory.' The facts of gov-
ernment mirror the principles of government in operation.
What government does must arise from what government is :
and what government is must determine what government
ought to do. The present chapter, therefore, will confine it-
self to the question of fact : the question of opinion will be
broached and partially answered in Chapter XVI.
1232. Classification. — It will contribute to clearness of
thought to observe the functions of government in two groups,
I. The Constituent Functions, II. The Ministrant. Under the
Constituent I would place that usual category of governmental
function, the protection of life, liberty, and property, together
with all other functions that are necessary to the civic organ-
ization of society, — functions which are not optional with
governments, even in the eyes of strictest laissez faire, — which
are indeed the very bonds of society. Under the Ministrant 1
would range those other functions (such as education, posts
and telegraphs, and the care/say, of forests) which are under-
taken, not by way of governing, but by way of advancing the
general interests of society, — functions which are optional,
being necessary only according to standards of convenience or
^.^[jediency, and not according to standards of existence ; func-
tions which assist without constituting social organization.
Of course this classification is based primarily upon objective and
practical distinctions and cannot claim philosophic completeness.
There may be room for question, too, as to whether some of the
functions which I class as Ministr.ir.t might not quite as properly have
been considered Constituent; but I must here, of course, simply act
upon my own conclusions without rearguing them, acknowledging by
the way that the line of demarcation is not always perfectly clear.
"The admitted functions of government," said Mr. Mill, "embrace
a much wider field than can easily be included within the ring-fence of
THE FUNCTIONS OP GOVERNMENT. 639
any restrictive definition, and it is hardly possible to find any ground
of justification common to them all, except the comprehensive one of
general expediency."
1233. I. The Constituent Functions :
(1) The keeping of order and providing for the protection of
persons and property from violence and robbery.
(2) The fixing of the legal relations between man and wife
and between parents and children.
(3) The regulation of the holding, transmission, and inter-
change of property, and the determination of its liabili-
ties for debt or for crime.
(4) The determination of contract rights between individuals.
(5) The definition and punishment of crime.
(6) The administration of justice in civil causes.
(7) The determination of the political duties, privileges, and
relations of citizens.
(8) Dealings of the state with foreign powers : the preservar
tion of the state from external danger or encroachment
and the advancement of its international interests.
These will all be recognized as functions which are obnoxious
not even to the principles of Mr. Spencer,' and which of course
persist under every form of government.
1234. II. The Ministrant Functions. — It is hardly possible
to give a complete list of those functions which I have called
Ministrant, so various are they under different systems of gov-
ernment; the following partial list will suifice, however, for
the purposes of the present discussion :
(1) The regulation of trade and industry. Under this head I
would include the coinage of money and the establish-
ment of standard weights and measures, laws against
forestalling, engrossing, the licensing of trades, etc., as
well as the great matters of tariffs, navigation laws, and
the like.
1 As set forth in his pamphlet, Man versus the State.
640 THE FUNCTIONS OF GOVEENMENT.
(2) The regulation of labor.
(3) The maintenance of thoroughfares, — including state man-
agement of railways and that great group of undertak-
ings which we embrace within the comprehensive terms
' Internal Improvements ' or ' The Development of the
Country.'
(4) The maintenance of postal and telegraph systems, which
is very similar in principle to (3).
(6) The manufacture and distribution of gas, the maintenance
of water-works, etc.
(6) Sanitation, including the regulation of trades for sanitary
purposes.
(7) Education.
( 8) Care of the poor and incapable.
(9) Care and cultivation of forests and like matters, such as
the stocking of rivers with fish.
(10) Sumptuary laws, such as 'prohibition' laws, for ex-
ample.
These are all functions which, in one shape or another, all
governments alike have undertaken. Changed conceptions of
the nature and duty of the state have arisen, isruing from
changed historical conditions, deeply altered historical circum-
stance, and part of the change which has thus affected the idea
of the state has been a change in the method and extent of the
exercise of governmental functions ; but changed conceptions
have left the functions of government in land the same.
Diversities of conception are very much more marked than
diversities of practice.
1235. The following may be mentioned among ministrant functions
not Included under any of the foregoing heads, and yet undertaken by
more than one modern government : the maintenance of savings-banks,
especially for small sums {e.g., the English postal savings-bank), the
issuance of loans to farmers, and the maintenance of agricultural in-
stitutes (as in France), and the establishment of insurance for working-
men (as in Germany).
THE FtTNCTIOKS OF GOVERKMENT. 641
1236. History of Governmental Function : Province of the
Ancient State. — Notable contrasts both of theory and of
practice separate governments of the ancient omnipotent from
governments of the modern constitutional type. The ancient
state, standing very near, as it did, in its thought, to that time,
still more remote, when the State was the Kin, knew nothing
of individual rights as contrasted with the rights of the state.
" The nations of Italy," says Mommsen, " did not merge into
that of Rome more completely than the single Eoman bur-
gess merged in the Eoman community." And Greece was
not a whit behind Rome in the absoluteness with which she
held the subordination of the individual to the state.
1237. This thought is strikingly visible in the writings of Plato and
Aristotle, not only in what they say, but also, and even more, in what
they do not say. The ideal Republic of which Plato dreams is to pre-
scribe the whole life of its citizens ; but there is no suggestion that it
is to be set up under cover of any new conception as to what the state
may legitimately do, — it is only to make novel experiments in legisla-
tion under the old conception. And Aristotle's objection to the Utopian
projects of his master is not that they would be socialistic (as we should
say), but merely that they would be unwise. He does not fear that in
such a republic the public power would prove to have been exalted too
high ; but, speaking to the policy of the thing, he foresees that the
citizens would be poor and unhappy. The state may do what it will,
but let it be wise in what it does. There is no one among the Greeks
to deny that it is the duty of the state to make its citizens happy and
prosperous; nay, to legislate them happy, if legislation may create fair
skies and kind fortune ; the only serious quarrel concerns the question,
What laws are to be tried to this end ?
1238. Roman Conception of Private Rights. — Roman
principles, though equally extreme, were in some respects dif-
ferently cast. That superior capacity for the development of
law, which made the Romans singular among the nations of
antiquity, showed itself in respect of the functions of govern-
ment in a more distinct division between public and private
rights than obtained in the polity of the Greek cities. An ex-
642 THE FUNCTIONS OP GOVERNMENT.
amination of the conception of the state held in Rome reveals
the singular framework of her society. The Roman family-
did not suffer that complete absorption into the City which so
early overtook the Greek family. Private rights were not in-
dividual rights, but family rights : and family rights did not
so much curtail as supplement the powers of the community.
The family was an indestructible organ of the state. The father
of a family, or the head of a gens, was in a sense a member of
the ofBcial hierarchy of the City, — as the king, or his counter-
part the consul, was a greater father : there was no distinction
of principle between the power of king or consul and the
power of a father ; it was a mere difference of sphere, a divis-
ion of functions.
A son was, for instance, in some things exempt from the authority
of the City only because he was in those things still subject, because his
father still lived, to the dominion of that original state, the family.
There was not in Rome that separation of the son from the family at
majority which characterizes the Greek polity, as it now characterizes
our own. The father continued to be a ruler, an hereditary state officer,
within the original sphere of the family life, the large sphere of indi-
vidual privilege and property.
1239. This essential unity of state and family furnishes us
with the theoretic measure of state functions in Rome. The
Roman burgess was subordinated, not to the public authority
exactly, but rather to the public order, to the conservative in-
tegrity of the community. He was subject to a law which
embodied the steady, unbroken habit of the State-family. He
was not dominated, but merged.
1240. Powers of the Roman Senate. — The range of state power
in ancient times, as a range broken only by limits of habit and conven-
ience, is well illustrated in the elastic functions of the Roman Senate
during the period of the Republic. With an unbroken life which kept
it conscious of every tradition and familiar with every precedent; with
established standards of tested experience and cautious expediency, it
was able to direct the movements of the compact society at whose sum-
THE FTTNCTIONS OF GOVERNMENT. 643
mit it sat, as the brain and consciousness direct tiie movements of the
Imman body ; and it is evident from the freedom of its discussions and
the frequency of its actions upon interests of every kind, whether of
public or of private import, that the Roman state, as typified in its
Senate, was in its several branches of family, tribe, and City, a single
undivided whole, and that its prerogatives were limited by nothing save
religious observance and fixed habit. Of that individual liberty which
we cherish it knew nothing.
1241. Government the Embodiment of Society. — As little
was there in Greek politics any seed of the thought which
would limit the sphere of governmental action by principles
of inalienable individual rights. Both in Greek and in Roman
conception government was as old as society, — was indeed
nothing less than the express image and embodiment of soci-
ety. In government society lived and moved and had its
being. Society and government were one, in some such sense
as the spirit and body of man are one : it was through govern-
ment, as through mouth and eyes and limbs, that society real-
ized and gave effect to its life. Society's prejudices, habits,
superstitions did indeed command the actions of government ;
but only because society and government were one and the
same, not because they were distinct and the one subordinate
to the other. In plain terms, then, the functions of govern-
ment had no limits of principle, but only certain limits of
wont and convenience, and the object of administration was
nothing less than to help society on to all its ends : to speed
and facilitate all social undertakings. So far as full citizens
of the state were concerned, Greek and Roman alike was what
we should call a socialist; though he was too much in the
world of affairs and had too keen an appreciation of experi-
ence, too keen a sense of the sane and possible, to attempt the
Utopias of which the modern socialist dreams, and with which
the ancient citizen's own writers sometimes amused him. He
bounded his politics by common sense, and so dispensed with
' the rights of man.'
644 THE FtTNCTIONS OF GOVERNMENT.
1242. Feudalism: Functions of Government Functions
of Proprietorship. — Individual rights, after having been first
heralded in the religious -world by the great voice of Christi-
anity, broke into the ancient political world in the person of
the Teuton. But the new politics which the invader brought
with him was not destined to establish at once democratic
equality : that was a work reserved for the transformations of
the modern world. Meantime, during the Middle Ages, gov-
ernment, as we conceive government, may be said to have suf-
fered eclipse. In the Feudal System the constituent elements
of government fell away from each other. Society was drawn
back to something like its original family groups. Conceptions
of government narrowed themselves to small territorial connec-
tions. Men became sovereigns in their own right by virtue of
owning land in their own right. There was no longer any con-
ception of nations or societies as wholes : union there was none,
but only interdependence. Allegiance bowed, not to law or to
fatherhood, but to ownership. The functions of government
under such a system were simply the functions of proprietor-
ship, of command and obedience : " I say unto one, Go, and he
goeth; and to another, Come, and he cometh; and to my servant.
Do this, and he doeth it." The public function of the baron was
to keep peace among his liegemen, to see that their properties
were enjoyed according to the custom of the manor (if the
manor had been suffered to acquire custom on any point), and
to exact fines of them for all privileges, whether of marrying,
of coming of age, or of making a will. The baronial con-
science, bred in cruel, hardening times was the only standard
of justice ; the baronial power the only conclusive test of pre-
rogative.
This was between baron and vassal. Between baron and
baron the only bond was a nominal' common allegiance to a
distant king, who was himself only a great baron. For the
rest there was no government, but only diplomacy and war-
fare. Government lived where it could and as it could, and
THE FtTNCTIONS OF GOVERNMENT. 645
was for the most part divided out piecemeal to a thousand
petty holders. Feuds were the usual processes of justice.
1243. The Feudal Monarchy. — The monarchy which grew
out of the ruins of this disintegrate system concentrated au-
thority without much changing its character. The old idea,
born of family origins, that government was but the active
authority of society, the magistrate but society's organ, bound
by society's immemorial laws, had passed utterly away, and
government had become the personal possession of one man.
The ruler did not any longer belong to the state ; the state be-
longed to him : he was himself the state, as the rich man may
be said to be his possessions. The Greek or Eoman official
was wielded by the community. Not so the king who had
swept together into his own lap the powers once broadcast in
the feudal system : he wielded the community. Government
breathed with his breath, and it was its function to please him.
The state had become, by the processes of the feudal develop-
ment, his private estate.
1244. Modern De-socialization of the State. — The reac-
tion from such conceptions, slow and for the most part orderly
in England, sudden and violent, because long forcibly delayed,
on the Continent, was of course natural, and indeed inevitable.
When it came it was radical ; but it did not swing the political
world back to its old-time ideas ; it turned it aside rather to
new. It became the object of the revolutionist and the demo-
crat of the new order of things to live his own life : the
ancient man had had no thought but to live loyally the life of
society. The antique citizen's virtues were not individual in
their point of view, but social ; whereas our virtues are almost
entirely individual in their motive, social only in some of their
results.
In brief, the modern State has been largely de-socialized.
The modern idea is this : the state no longer absorbs the indi-
vidual ; it only serves him : the state, a,^ it appears in its
organ, the government, is the representative of the individual,
646 THE FUNCTIONS OF GOVEENMENT.
and not his representative even except witliin the definite
commission of constitutions ; while for tlie rest each man
makes his own social relations. ' The individual for the
State' has been reversed and made to read, 'The State for
the individual. '
1245. More Changes of Conception than of Practice. —
Such are the divergencies of conception separating modern from
ancient politics, divergencies at once deep and far-reaching.
How far have such changes of thought been accompanied by
changes of function ? By no means so far as might be ex-
pected. Apparently the new ideas given prevalence in politics
from time to time have not been able to translate themselves
into altered functions but only into somewhat curtailed func-
tions, breeding rather a difference of degree than a difference
of kind. Even under the most liberal of our modern constitu-
tions we still meet government in every field of social endeavor.
Our modern life is so infinitely wide and complex, indeed, that
we may go great distances in any field of enterprise without
receiving either direct aid or direct check from government ;
but that is only because every field of enterprise is vastly big
nowadays, not because government is not somewhere in it : and
we know that the tendency is for governments to make them-
selves everywhere more and more conspicuously present. We
are conscious that we are by no means in the same case with
the Greek or Eoman : the state is ours, not we the state's.
But we know- at the same time that the tasks of the state have
not been much diminished. Perhaps we may say that the
matter stands thus : what is changed is not the activities of
government but only the morals, the conscience of government.
Grovernmeut may still be doing substantially the same things
as of old ; but an altered conception of its responsibility deeply
modifies the way in which it does them. Social convenience and
advancement are still its ultimate standard of conduct, just as
if it were still itself the omnipotent impersonation of society,
the master of the individual ; but it has adopted new ideas as
THE FUNCTIONS OF GOVERNMENT. 647
to what constitutes social convenience and advancement. Its
aim is to aid the individual to the fullest and best possible
realization of his individuality, instead of merely to the full
realization of his sociality. Its plan is to create the best and
fairest opportunities for the individual ; and it has discovered
that the way to do this is by no means itself to undertake the
administration of the individual by old-time futile methods of
guardianship.
1246. Functions of Government much the Same now as
always. — This is indeed a great and profound change ; but it
is none the less important to emphasize the fact that the
functions of government are still, when catalogued, found to
be much the same both in number and magnitude that they
always were. Government does not stop with the protection
of life, liberty, and property, as some have supposed ; it goes
on to serve every convenience of society. Its sphere is limited
only by its own wisdom, alike where republican and where
absolutist principles prevail.
1247. The State's Relation to Property. — A very brief
examination of the facts suffices to confirm thia view. Take,
for example, the state's relation to property, its performance
of one of the chief of those functions which I have called
Constituent. It is in connection with this function that one
of the most decided contrasts exists between ancient and
modern political practice ; and yet we shall not find ourselves
embarrassed to recognize as natural the practice of most ancient
states touching the right of private property. Their theory was
extreme, but, outside of Sparta, their practice was moderate.
1248. In Sparta. — Consistent, logical Sparta may serve as
the point of departure for our observation : she is the standing
classical type of exaggerated state functions and furnishes the
most extreme example of the antique conception of the rela-
tions of the state to property. In the early periods of her
history at least, besides being censor, pedagogue, drill sergeant,
and housekeeper to her citizens, she was also universal land-
648 THE FtTNCTIONS OP GOVERNMENT.
lord. There was a distinct reminiscence in her practice of the
time when the state was the family, and as such the sole owner
of property. She was regarded as the original proprietor of
all the land in Laconia, and individual tenure was looked upon
as rather of the nature of a usufruct held of the state and at
the state's pleasure than as resting upon any complete or inde-
feasible private title.
1249. Peculiar Situation of the Spartans. — There were in Sparta
special reasons for the persistence of such a system. The Spartans had
come into Laconia as conquerors, and the land had first of all been
tribal booty. It had been booty of which the Spartan host as a whole,
as a State, had had the dividing, and it had been the purpose of the
early arrangement to make the division of the land among the Spartan
families as equal as possible. Nor did the state resign the right of dis-
position in making this first distribution. . It remained its primary care
to keep its citizens, the favored Spartiat*, upon an equal footing of
fortune to the end that they might remain rich in leisure, and so be the
better able to live entirely for the service of the state, which was honor-
able, to the avoidance of that pursuit of wealth which was dishonorable.
The state, accordingly, undertook to administer the wealth of the
country for the benefit of its citizens. When grave inequalities mani-
fested themselves in the distribution of estates it did not hesitate to
resume its proprietary rights and effect a reapportionment: no one
dreaming, the while, of calling its action confiscation. . It took various
means for accomplishing its ends. It compelled rich heiresses to marry
men without patrimony ; and it grafted the poor citizen upon a good
estate by means of prescribed adoption. No landed estate could be
alienated either by sale or testament from the family to which the state
had assigned it unless express legislative leave were given. In brief, in
respect of his property the citizen was both ward and tenant of the state.
1250. Decay of the System. — As the Spartan state de-
cayed this whole system was sapped. Estates became grossly
unequal, as did also political privileges even among the favored
Spartiatae. But these changes were due to the decadence of
Spartan power and to the degeneration of her political fibre in
days of waning fortune, not to any conscious. or deliberate sur-
render by the state of her prerogatives as owner, guardian,
THE PTJNCTIONS OP GOVERNMENT. 649
and trustee. She had grown old and lax simply ; she had not
changed her mind.
1261. In Athens. — When we turn to Athens we experience
a marked change in the political atmosphere, though the Athe-
nians hold much the same abstract conception of the state.
Here men breathe more freely and enjoy the fruits of their
labor, where labor is without reproach, with less restraint.
Even in Athens there remain distinct traces, however, of the
family duties of the state. She too, like Sparta, felt bound to
dispose properly of eligible heiresses. She did not hesitate to
punish with heavy forfeiture of right (atimia) those who
squandered their property in dissolute living. There was as
little limit in Athens as in Sparta to the theoretical preroga-
tives of the public authority. The freedom of the citizen was
a freedom of indulgence rather than of right : he was free be-
cause the state refrained, as a privileged child, not as a sov-
ereign under Rousseau's Law of Nature.
1252. In Rome. — When we shift our view to republican
Rome we do not find a simple city omnipotence like that of
Greece, in which all private rights are sunk. The primal con-
stituents of the city yet abide, in shapes something like their
original. Roman society consists of a series of interdependent
links : the family, the gens, the city. The aggregate, not the
fusion, of these makes up what we should call the state. But
the state, so made up, was omnipotent, through one or other
of its organs, over the individual. Property was not private
in the sense of being individual ; it vested in the family, which
was, in this as in other respects, an organ of the state. Prop-
erty was not conceived of as state property, because it had
remained the undivided property of the family. The father,
as a ruler in the immemorial hierarchy of the government, was
all-powerful trustee of the family estates. Individual owner-
ship there was none.
1263. Under Modern Governments. — We with some jus-
tice felicitate ourselves that to this omnipotence of the ancient
650 THE FUNCTIONS OF GOVERNMENT.
state in its relations to property the practice of our own gov-
ernments offers tlie most pronounced contrasts. But the point
of greatest interest for us in the present connection is this,
that these contrasts are contrasts of policy, not of power. To
what lengths it will go in regulating property rights is for
each government a question of principle, which it must put to
" its own conscience, and which, if it be wise, it will debate in
the light of political history: but every government must
regulate property in one way or another. If the ancient state
was regarded as the ultimate owner, the modern state is re-
garded as the ultimate heir of all estates. Failing other claim-
ants, property escheats to the state. If the modern state does
not assume, like the ancient, to administer their property upon
occasion for competent adults, it does administer their prop-
erty upon occasion for lunatics and minors. The ancient state
controlled slaves and slavery ; the modern state has been quite
as absolute : it has abolished slaves and slavery. The modern
state, no less than the ancient, sets rules and limitations to
inheritance and bequest. Most of the more extreme and hurt-
ful interferences with rights of private ownership government
has abandoned, one may suspect, rather because of difficulties
of administration than because of difficulties of conscience.
It is of the nature of the state to regulate property rights ;
it is of the policy of the state to regulate them more or less.
Administrators must regard this as one of the Constituent
functions of political society.
1254. The State and Political Rights. — Similar conclu-
sions may be drawn from a consideration of the contrasts which
exist in the field of that other Constituent function which con-
cerns the determination of political rights, — the contrasts
between the status of the citizen in the ancient state and the
status of the citizen in the modern state. Here also the contrast,
as between state and state, is not one of power, but one of
principle and habit rather. Modern states have often limited
as narrowly as did the ancient the enjoyment of those political
THE FXJNCTIOKS OP GOVERNMENT. 651
privileges -which we group under the word Franchise. They
too, as well as the ancient states, have admitted slavery into
their systems ; they too have commanded their subjects with-
out moderation and fleeced them without compunction. But
for all they have been so omnipotent, and when they chose so
tyrannical, they have seldom insisted upon so complete and
unreserved a service of the state by the citizen as was habitual
to the political practice of both the Greek and the Roman
worlds. The Greek and the Roman belonged each to his state
in a quite absolute sense. He was his own jn nothing as
against the claims of his city upon him: he freely acknowl-
edged all his privileges to be but concessions from his mother,
the commonwealth. Those privileges accrued to him through
law, as do ours ; but law was to him simply the will of the
organic community, never, as we know it in our constitutions,
a restraint upon 'the will of the organic community. He knew
no principles of liberty save only those which custom had built
up : which inhered, not in the nature of things, not in abstract
individuality, but in the history of affairs, in concrete practice.
His principles were all precedents. Nevertheless, however
radically different its doctrines, the ancient state was not a
whit more completely master touching laws of citizenship than
is the state of to-day.
1256. As regards the State's Ministrant Functions. — Of
the Ministrant, no less than of these Constituent functions
which I have taken merely as examples of their kind, the same
statement may be made, that practically the state has been
relieved of very little duty by alterations of political theory.
In this field of the Ministrant functions one would expect the
state to be less active now than formerly : it is natural enough
that in the field of the Constituent functions the state should
serve society now as always. But there is in fact no such dif-
ference : government does now whatever experience permits or the
times demand; and though it does not do exactly the same
things it still does substantially the same kind of things that
v.j2 the functions of government.
tliG ancient state did. It will conduce to clearness if I set
furtli my illustrations of this in the order of the list of Minis-
trant functions which I have given (see. 1234).
1266. The State in Relation to Trade. — (1) All nations
have habitually regulated trade and commerce. In the most
remote periods of which history has retained any recollection
the regulation of trade and commerce was necessary to the
existence of government. The only way in which communities
which were then seeking to build up a dominant power could
preserve an independent existence and work out an individual
development was to draw apart to an absolutely separate life.
Commerce meant contact ; contact meant contamination : the
only way in which to develop character and achieve cohesion
was to avoid intercourse. In the classical states this stage is
of course passed and trade and commerce are regulated for
much the same reasons that induce modern states to regulate
them, in order, that is, to secure commercial advantage as
against competitors or in order to serve the fiscal needs of the
state. Athens and Sparta and Rome, too, regulated the corn
trade for the purpose of securing for their citizens full store of
food. In the Middle Ages the feuds and highway brigandage
of petty lords loaded commerce with fetters of the most haras-
sing sort, except where the free cities could by militant com-
bination keep open to it an unhindered passage to and fro
between the great marts of North and South. As the medise-
val states emerge into modern times we find trade and com-
merce handled by statesmen as freely as ever, but according
to the reasoned policy of the mercantilist thinkers ; and in our
own days according to still other conceptions of national advan-
tage.
1257. The State in Relation to Labor. — (2) Labor, too,
has always been regulated by the state. By Greek and Roman
the labor of the handicrafts and of agriculture, all manual
toil indeed, was for the most part given to slaves to do ; and
of course law regulated the slave. In the Middle Ages the
THE FUNCTIONS OF GOVERNMENT. 653
labor which was not agricultural and held in bondage to feu-
dal masters was in the cities, where it was rigidly ordered by
the complex rules of the guild system, as was trade also and
almost all other like forms of making a livelihood. Whor,', a«
in England, labor in part escaped from the hard service of
the feudal tenure the state stepped -in with its persistent
" statutes of laborers " and sought to tie the workman to one
habitation and to one rate of wages. ' The rustic must stay
where he is. and must receive only so much pay,' was its
command. Apparently, however, all past regulation of labor
was but timid and elementary as compared with the labor
legislation about to be tried by the governments of our own
day. The birth and development of the modern industrial
system has changed every aspect of the matter ; and this fact
it is which reveals the true character of the part which the
state plays in the case. The rule would seem to be that in
proportion as the world's industries grow must the state ad-
vance in its efforts to assist the industrious to advantageous
relations with each other. The tendency to regulate labor
rigorously and minutely is as strong in England, where the
state is considered the agent of the citizen, as it was in Athens,
where the citizen was deemed the child and tool of the state,
and where the workman was a slave.
1268. (3) Regulation of Corporations. — The regulation of
corporations is but one side of the modern regulation of the in-
dustrial system, and is a function added to the antique list of
governmental tasks.
1259. (4) The State and Public Works. — The maintenance
of thoroughfares may be said to have begun with permanent
empire, that is to say, for Europe, with the Romans. For the
Eomans, indeed, it was first a matter of moving armies, only
secondarily a means of serving commerce ; whereas with us
the highway is above all things else an artery of trade, and
armies use it only when commerce stands still at the sound of
drum and trumpet. The building of roads may therefore be
654 THE FUNCTIONS OP GOVKENMENT.
said to have begun by being a Constituent function and to have
ended by becoming a Ministrant function of government. But
the same is not true of other public works, of the Eoman aque-
ducts and theatres and baths, and of modern internal improve-
ments. They, as much as the Roman tax on old bachelors, are
parts, not of a scheme -of governing, but of plans for the ad-
vancement of other social aims, — for the administration of
society. Because in her conception the community as a whole
was the only individual, Rome thrust out as of course her
magnificent roads to every quarter of her vast territory, con-
sidered no distances too great to be traversed by her towering
aqueducts, deemed it her duty to clear river courses and facili-
tate by every means both her commerce and her arms. And
the modern state, though holding a deeply modified conception
of the relations of government to society, still follows no very
different practice. If in most instances our great iron high-
ways are left to private management, it is oftener for reasons
of convenience than for reasons of conscience.
1260. (5) Administration of the Conveniences of Society.
— Similar considerations of course apply in the case of that
modern instrumentality, the public letter-post, in the case of
the still more modern manufacture of gas, and in the case of the
most modern telegraph. The modern no less than the ancient
government unhesitatingly takes a hand in adminstering the
conveniences of society.
1261. (6) Sanitation. — Modern governments, like the gov-
ernment of Rome, maintain sanitation by means of police in-
spection of baths, taverns, and houses -of ill fame, as well as
by drainage ; and to these they add hospital relief, water sup-
ply, quarantine, and a score of other means.
1262. (7) Public Education. — (;)ur modern systems of pub-
lic education are more thorough than the ancient, notwithstand-
ing the fact that we regard the individual as something other
than a mere servant of the state, and educate him first of all
for himself,
THE FUNCTIONS OF GOVERNMENT. 655
1263. (8) Sumptuary Laws. — In sumptuary laws ancient
states of course far outran modern practice. Modern states
have of course foregone most attempts to make citizens vir-
tuous or frugal by law. But even we have our prohibition
enactments ; and we have had our fines for swearing.
1264. Summary. — Apparently it is safe to say with regard
to the functions of government taken as a whole that, even as
between ancient and modern states, uniformities of- practice
far outnumber diversities of practice. One may justly con-
clude, not indeed that the restraints which modern states put
upon themselves are of little consequence, or that altered
political conceptions are not of the greatest moment in deter-
mining important questions of government and even the whole
advance of the race ; but that it is rather by gaining practical
wisdom, rather by long processes of historical experience, that
states modify their practices ; new theories are subsequent to
new experiences.
XVI.
THE OBJECTS OF GOVERNMENT.
1266. Character of the Subject. — Political interest and
controversy centre nowhere more acutely than in the question,
What are the proper objects of government ? This is one of
those difficult questions upon which it is possible for many
sharply opposed views to be held apparently with almost equal
weight of reason. Its central difficulty is this, that it is a
question which can be answered, if answered at all, only by
the aid of a broad and careful wisdom whose conclusions are
based upon the widest possible inductions from the facts of
political experience in all its phases. Such wisdom is of
course quite beyond the capacity of most thinkers and actors
in the field of politics ; and the consequence has been that this
question, perhaps more than any other in the whole scope of
political science, has provoked great wars of doctrine.
1266. The Extreme Views Held. —What part shall gov-
ernment play in the affairs of society ? — that is the question
which has been the gauge of controversial battle. Stated in
another way, it is the very question which I postponed when
discussing the functions of government (sec. 1231), 'Wliat,^
namely, ' ought the functions of government to be?' On the one
hand there are extremists who cry constantly to government,
'Hands off,' 'laissezfaire,' 'laissez passer' ! who look upon every
act of government which is jiot merely an act of police with
jealousy, who regard government as necessary ,but as a necessary
evil, and who would have government hold back from every-
THE OBJECTS OF GOVEBKMENT. 667
thing which could by any possibility be accomplished by indi-
vidual initiative and endeavor. On the other hand, there are
those who, with equal extremeness of view in the opposite
direction, would have society lean fondly upon government for
guidance and assistance in every affair of life, who, captivated
by some glimpse of public power and beneficence caught in the
pages of ancient or mediaeval historian or by some dream of co-
operative endeavor cunningly imagined by the great fathers of
Socialism, believe that the state can be made a wise foster-
mother to every member of the family politic. Between these
two extremes, again, there are all grades, all shades and colors,
all degrees of enmity or of partiality to state action.
1267. Historical Foundation for Opposite Views. — Enmity
to exaggerated state action, even a keen desire to keep that
action down to its lowest possible terms, is easily furnished
with impressive justification. It must unreservedly be admit-
ted that history abounds with warnings of no uncertain sound
against indulging the state with a too great liberty of inter-
ference with the life and work of its citizens. Much as there
is that is attractive in the political life of the city states of
Greece and Rome, in which the public power was suffered to
be omnipotent, — their splendid public spirit, their incompara-
ble organic wholeness, their fine play of rival talents, serving
both the common thought and the common action, their variety,
their conception of public virtue, there is also much to blame, —
their too wanton invasion of that privacy of the individual life
in which alone family virtue can dwell secure, their callous
tyranny over minorities in matters which might have been left
to individual choice, their sacrifice of personal independence
for the sake of public solidarity, their hasty average judg-
ments, their too confident trust in the public voice. They, it
is true, could not have had the individual liberty which we
cherish without breaking violently with their own history, with
the necessary order of their development ; but neither can we,
on the other hand, imitate them, without an equally violent
658 THE OBJECTS OF GOVERNMENT.
departure from our own normal development and a reversion
to the now too primitive methods of their pocket republics.
1268. Unquestionable as it is, too, that mediaeval history
affords many seductive examples of an absence of grinding,
heartless competition and a strength of mutual interdependence,
confidence, and helpfulness between class and class such as
the modern economist may be pardoned for wishing to see re-
vived ; and true though it be that the history of Prussia under
some of the greater HohenzoUern gives at least colorable justi-
fication to the opinion that state interference may under many
circumstances be full of benefit for the industrial upbuilding of
a state, it must, on the other hand, be remembered that neither
the feudal system, nor the mediseval guild system, nor the
paternalism of Frederic the Great can be rehabilitated now
that the nineteenth century has wrought its revolutions in
industry, in church, and in state ; and that, even if these great
systems of the past could be revived, we would be sorely puz-
zled to reinstate their blessings without restoring at the same
time their acknowledged evils. No student of history can
wisely censure those who protest against state paternalism.
1269. The State a Beneficent and Indispensable Organ of
Society. — It by no means follows, however, that because the
state may unwisely interfere in the life of the individual, it
must be pronounced in itself and by nature a necessary evil.
It is no more an evil than is society itself. It is the organic
body of society : without it society would be hardly more than
a mere abstraction. If the name had not been restricted to a
single, narrow, extreme, and radically mistaken class of thinkers,
we ought all to regard ourselves and to act as socialists, believers
in the wholesomeness and beneficence of the body politic. If
the history of society proves anything, it proves the absolute
naturalness of government, its rootage in the nature of man,
its origin in kinship, and its identification with all that makes
man superior to the brute creation. Individually man is but
poorly equipped to dominate other animals : his lordship comes
THE OBJECTS OF GOVERNMENT. 659
by combination, his strength is concerted strength, his sover-
eignty is the sovereignty of union. Outside of society man's
mind can avail him little as an instrument of supremacy, and
government is the visible form of society : if society itself be
not an evil, neither surely is government an evil, for govern-
ment is the indispensable organ of society.
1270. Every means, therefore, by which society may be per-
fected through the instrumentality of government, every means
by which individual rights can be fitly adjusted and harmonized
with public duties, by which individual self-development may
be made at once to serve and to supplement social develop-
ment, ought certainly to be diligently sought, and, when found,
sedulously fostered by every friend of society. Such is the
socialism to which every true lover of his kind ought to adhere
with the full grip of every noble affection that is in him.
1271. Socialism and the Modern Industrial Organization.
— It is possible indeed, to understand, and even in a measure
to sympathize with, the enthusiasm of those special classes of
agitators whom we have dubbed with the too great name of
'Socialists.' The schemes of social reform and regeneration
which they support with so much ardor, however mistaken they
may be, — and surely most of them are mistaken enough to
provoke the laughter of children, — have the right end in view :
they seek to bring the individual with his special interests,
personal to himself, into complete harmony with society with
its general interests, common to all. Their method is always
some sort of co-operation, meant to perfect mutual helpfulness.
They speak, too, a revolt from selfish, misguided individual-
ism; and certainly modern individualism has much about it
that is hateful, too hateful to last. The modern industrial
organization has so distorted competition as to put it into the
power of some to tyrannize over many, as to enable the rich
and the strong to combine against the poor and the weak. It
has given a woeful material meaning to that spiritual law that
" to him that hath shall be given, and from him that hath not
660 THE OBJECTS OF GOVERNMENT.
shall be taken away even the little that he seemeth to have." '
It has magnified that self-interest -which is grasping selfishness
and has thrust ont love and compassion not only, but free com-
petition in part, as well. Surely it would be better, exclaims
the Socialist, altogether to stamp out competition by making all
men equally subject tcJ the public order, to an imperative law
of social co-operation ! But the Socialist mistakes : it is not
competition that kills, but unfair competition, the pretence and
form of it where the substance and reality of it cannot exist.
1272. A Middle Ground. — But there is a middle ground.
The schemes which Socialists have proposed society assuredly
cannot accept, and no scheme which involves the complete con-
trol of the individual by government can be devised which dif-
fers from theirs very much for the better. A truer doctrine
must be found, which gives wide freedom to the individual for
his self-development and yet guards that freedom against the
competition that kills, and reduces the antagonism between
self-development and social development to a minimum. And
such a doctrine can be formulated, surely, without too great
vagueness.
1273. The Objects of Society the Objects of Govern-
ment.— Government, as I have said, is the organ of society,
its only potent and universal instrument : its objects must be
the objects of society. What, then, are the objects of society ?
What is society ? It is an organic association of individuals
for mutual aid. Mutual aid to what ? To self-development.
The hope of society lies in an infinite individual variety, in the
freest possible play of individual forces : only in that can it
find that wealth of resource which constitutes civilization,
with all its appliances for satisfying human wants and mitigat-
ing human sufferings, all its incitements to thought and spurs
to action. It should be the end of government to accomplish
the objects of organized society : there must be constant adjust-
1 F. A. Walker's Political Economy ( Advanced Course ), sec. 346.
THE OBJECTS OF GOVERNMENT. 661
ments of governmental assistance to the needs of a changing
social and industrial organization. Not license of interference'
on the part of government, only strength and adaptation of
regulation. The regulation that I mean is not interference : it
is the equalization of conditions, so far as possible, in all
branches of endeavor; and the equalization of conditions is
the very opposite of interference.
1274. Every rule of development is a rule of adaptation, a
rule for meeting ' the circumstances of the case ' ; but the cir-
cumstances of the case, it must be remembered, are not, so far
as government is concerned, the circumstances of any individ-
ual case, but the circumstances of society's case, the general
conditions of social organization. The case for society stands
thus : the individual must be assured the best means, the best
and fullest opportunities, for complete self-development : in no
other way can society itself gain variety and strength. But
one of the most indispensable conditions of opportunity for
self-development government alone, society's controlling organ,
can supply. All combination which necessarily creates monop-
oly, which necessarily puts and keeps indispensable means of
industrial or social development in the hands of a few, and
those few, not the few selected by society itself but the few
selected by arbitrary fortune, must be under either the direct or
the indirect control of society. To society alone can the power
of dominating combination belong : and society cannot suffer
any of its members to enjoy such a power for their own private
gain independently of its own strict regulation or oversight.
1275. Natural Monopolies. — It is quite possible to distin-
guish natural monopolies from other classes of undertakings ;
their distinctive marks are thus enumerated by Mr. T. H.
Farrer in his excellent little volume on The State in its rela-
tion to Trade which forms one of the well-known English
Citizen series : ^
1 P. 71. Mr. Farrer is Permanent Secretary of the English Board of
Trade (sec. 694).
662 THE OBJECTS OF GOVERNMENT.
" 1. What they supply is a necessary," a necessary, that is,
to life, like water, or a necessary to industrial action, like rail-
road transportation.
" 2. They occupy peculiarly favored spots or lines of land."
Here again the best illustration is afforded by railroads or by
telegraph lines, by water-works, etc.
" 3. The article or convenience they supply is used at the
place and in connection with the plant or machinery by which
it is supplied ; " that is to say, at the favored spots or along
the favored lines of land.
" 4. This article or convenience can in general be largely, if
not indefinitely increased, without proportionate increase in
plant and capital ; " that is to say, the initial outlay having
been made, the favored spot or 4ine of land having been occu-
pied, every subsequent increase of business will increase
profits because it will not proportionately, or anything like
proportionately, increase the outlay for services or machinery
needed. Those who are outside of the established business,
therefore, are upon an equality of competition neither as re-
gards available spots or lines of land nor as regards opportuni-
ties to secure business in a competition of rates.
"5. Certain and harmonious arrangement, which can only
be attained by unity, are paramount considerations." Wide
and systematic organization is necessary.
1276. Such enterprises invariably give to a limited number of per-
sons the opportunity to command certain necessaries of life, of comfort,
or of industrial success against their fellow countrymen and for their
own advantage. Once established in any field, there can be no real com-
petition between them and those who would afterwards enter that field.
No agency should be suffered to have such control except a public agency
which may be compelled by public opinion to act without selfish narrow-
ness, upon perfectly equal conditions as towards all, or some agency
upon which the government may keep a strong hold of regulation.
1277. Control not necessarily Administration. — Society
can by no means afford to allow the use for private gain and
THE OBJECTS OF GOVERNMENT. 663
without regulation of undertakings necessary to its own health-
ful and efficient operation and yet of a sort to exclude equality
in competition. Experience has proved that the self-interest
of those who have controlled such undertakings for private gain
is not coincident with the public interest: even enlightened
self-interest may often discover means of illicit pecuniary ad-
vantage in unjust discriminations between individuals in the
use of such instrumentalities. But the proposition that the
government should control such dominating organizations of
capital may by no means be wrested to mean by any necessary
implication that the government should itself administer those
instrumentalities of economic action which cannot be used ex-
cept as monopolies. In such cases, as Mr. Farrer says, " there
are two great alternatives. (1) Ownership and management
by private enterprise and capital under regulation by the state.
(2) Ownership and management by Grovernment, central or
local." Government regulation may in most eases suffice. In-
deed, such are the difficulties in the way of establishing and
maintaining careful business management on the part of gov-
ernment, that control ought to be preferred to direct adminis-
tration in as many cases as possible, — in every case in which
control without administration can be made effectual.
1278. Equalization of Competition. — There are some things
outside the field of natural monopolies in which individual action
cannot secure equalization of the conditions of competition ; and
in these also, as in the regulation of monopolies, the practice of
governments, of our own as well as of others, has been decisively
on the side of governmental regulation. By forbidding child
labor, by supervising the sanitary conditions of factories, by
limiting the employment of women in occupations hurtful to
their health, by 'instituting 'official tests of the purity or the
quality of goods sold, by limiting hours of labor in certain
trades, by a hundred and one limitations of the power of un-
scrupulous or heartless men to out-do the scrupulous and merci-
ful in trade or industry, government has assisted equity. Those
664 THE OBJECTS OP GOVERNMENT.
wlio would act in moderation and good conscience in cases
where moderation and good conscience, to be indulged, require
an increased outlay of money, in better ventilated buildings, in
greater care as to the quality of goods, etc., cannot act upon
their principles so long as more grinding conditions for labor
or more unscrupulous use of the opportunities of trade secure
to the unconscientioiis an unquestionable and sometimes even
a permanent advantage ; they have only the choice of denying
their consciences or retiring from business. In scores of such
cases government has intervened and will intervene ; but by
way, not of interference, by way, rather, of making competition
equal between those who would rightfully conduct enterprise
and those who basely conduct it. It is in this way that
society protects itself against permanent injury and deteriora-
tion, and secures healthful equality of opportunity for self-
development.
1279. Society greater than Government. — Society, it must
always be remembered, is vastly bigger and more important
than its instrument. Government. Government should serve
Society, by no means rule or dominate it. Government should
not be made an end in itself ; it is a means only, — a means to
be freely adapted to advance the best interests of the social
organism. The State exists for the sake of Society, not Society
for the sake of the State.
1280. Natural Limits to State Action.*— And that there
are natural and imperative limits to state action no one who
seriously studies the structure of society can doubt. The limit
of state functions is the limit of necessary, co-operation on the
part of Society as a whole, the limit beyond which such com-
bination ceases to be imperative for the public good and be-
comes merely convenient for indilstrial or social enterprise.
Co-operation is necessary in the sense here intended when it
is indispensable to the equalization of the conditions of en-
deavor, indispensable to the maintenance of uniform rules of
individual rights and relationships, indispensable because to
THE OBJECTS OF GOVERNMENT. 665
omit it would inevitably be to hamper or degrade some for
the advancement of others in the scale of wealth and social
standing.
1281. There are relations in which men invariably have
need of each other, in which universal co-operation is the indis-
pensable condition of even tolerable existence. Only some
universal authority can make opportunities equal as between
man and man. The divisions of labor and the combinations
of commerce may for the most part be left to contract, to free
individual arrangement, but the equalization of the conditions
which affect all alike may no more be left to individual initia-
tive than may the organization of government itself. Churches,
clubs, corporations, fraternities, guilds, partnerships, unions
have for their ends one or another special enterprise for the
development of man's spiritual or material well-being: they
are all more or less advisable. But the family and the state
have as their end a general enterprise for the betterment and
equalization of the conditions of individual development : they
are indispensable.
1282. The point at which public combination ceases to be
imperative is of course not Susceptible of clear indication in
general terms ; but it is not on that account indistinct. The
bounds of family associatioxi are not indistinct because they
are marked only by the immaturity of the young and by the
parental and filial affections, — things not all of which are
deiined in the law. The rule that the state should do nothing
which is equally possible under equitable conditions to optional
associations is a sufficiently clear line of distinction between
governments and corporations. Those who regard the state as
an optional, conventional union simply, a mere partnership,
open wide the doors to the -?vorst forms of socialism. Unless
the state has a nature which is quite clearly defined by that
invariable, universal, immutable mutual interdependence which
runs beyond the family relations and cannot be satisfied by
family ties, we have absolutely no criterion by which we cau
666 THE OBJECTS OF GOVERNMENT.
limit, except arbitrarily, the activities of the state. The cri-
terion supplied by the native necessity of state relations, on
the other hand, banishes such license of state action.
1283. The state, foT instance, ougKt not to supervise private morals
because tliey belong to the sphere of separate individual responsibility,
not to the sphere of mutual dependence. Thought and conscience are
private. Opinion is optional. The state may intervene only where
common action, uniform law are indispensable. Whatever is merely
convenient is optional, and therefore not an affair for the state.
Churches are spiritually convenient; joint-stock companies are capi-
talistically convenient ; but when the state constitutes itself a church
or a mere business association it institutes a monopoly no better than
others. It should do nothing which is not in any case both indispensa-
ble to social or industrial life and necessarily monopolistic.
1284. The Family and the State. — It is the proper object
of the family to- mould the individual, to form him in the
period of immaturity in the practice of morality and obedience.
This period of subordination over, he is called out into an
independent, self-directive activity. The ties of family affec-
tion still bind him, but they bind him with silken, not with
iron bonds. He has left his ' minority ' and reached his
' majority.' It is the proper object of the state to give leave
to his individuality, in order that that individuality may add
its quota of variety to the sum of national activity. Family
discipline is variable, selective, formative : it must lead the
individual. But the state must not lead. It must create con-
ditions, but not mould individuals. Its discipline must be
invariable, uniform, impersonal. Family methods rest upon
individual inequality, state methods upon individual equality.
Family order rests upon tutelage, state order upon franchise,
upon privilege.
1285. The State and Education. — In one field the s"tate
would seem at first sight to usurp the family function, the
field, namely, of education. But such is not in reality the
case. Education is the proper office of the state for two rea-
THE OBJECTS OF GOVERNMENT. 667
sons, both of which come within the principles we have been
discussing. Popular education is necessary for the preserva-
tion of those conditions, of freedom, political and social, which
are indispensable to free individual development. And, in the
second place, no instrumentality less universal in its power and
authority than government can secure popular education. In
brief, in order to secure popular education the action of society
as a whole is necessary ; and popular education is indispensa-
ble to that equalization of the conditions of personal develop-
ment which we have taken to be the proper object of society.
Without popular education, moreover, no government that rests
upon popular action can long endure: the people must be
schooled in the knowledge, and if possible in the virtues, upon
which the maintenance and success of free institutions depend.
No free government can last in health if it lose hold of the
traditions of its history, and in the public schools these tra-
ditions may be and should be sedulously preserved, carefully
replanted in the thought and consciousness of each successive
generation.
1286. Historical Conditions of Governmental Action. —
Whatever view be taken in each particular case of the right-
fulness or advisability of state regulation and control, one rule
there is which may not be departed from under any circum-
stances, and that is the rule of historical continuity. In poli-
tics nothing radically novel may safely be attempted. No
result of value can ever be reached in politics except through
slow and gradual development, the careful adaptations and nice
modifications of growth. Nothing may be done by leaps.
More than that, each people, each nation, must live upon the
lines of its own experience. Nations are no more capable of
borrowing experience than individuals are. The histories of
other peoples may furnish us with light, but they cannot fur-
nish us with conditions of action. Every nation must con-
stantly keep in touch with its past : it cannot run towards its
ends around sharp corners.
668 THE OBJECTS OF GOVEENMENT.
1287. Summary. — This, then, is the sum of the whole
matter : the end of government is the facilitation of the objects
of society. The rule of governmental action is necessary co-
operation ; the method of political development is conservative
adaptation, shaping old habits into new ones, modifying old
means to accomplish new ends.
INDEX.
SUPPLEMENTARY TO THE t5pI&4L ANALYSIS.
[The references are to Bections.J
Aooounts, French Chamber of, origi-
nated, 292 ; Prussian Supreme Cham-
ber of, 461.
Achaeans, supremacy of, in Homeric
times, 125.
■ Adaptation the rule of political action,
1200 et seq., 1209-1211, 1286.
Adjudication as a source of Law, 1187,
1188.
Administration, organization of Greek,
110 ; sphere of imperial, in Germany,
421, 427-436.
Administration and legislation, under
modern systems, 1151-1153.
'Administration,' the, of the Prussian
Government District, 481-483; its
President, 483 ; Its methods of work,
482.
Administrative Courts, French, 353,
354; Prussian, 500-502; Swiss, 576.
Administrative system of the Frank-
ish monarchy, 359 et seq.
Agriculture, Department, of (U.S.),
■ 1119.
Albert the Bear, 383.
Alexander, Hellenization of the East
by, 134.
Amendment of French constitution
313, 317, 318 ; of the German consti-
tution, 404; of the Swiss federal,
556; of the Swedish constitution,
643; of the Norwegian constitution,
649 ; of American state constitutions,
898-903; of the American federal,
1045.
America, the English occupation of,
832.
Amphiotyony, the Delphic, 123.
Amtsgericht, the Prussian, 494,- 495,
499.
Ancestors, primitive worship of, 29, 30.
Appeal, French Courts of, 355; the
English Court of, 734.
Archon, creation of the olHce of, in
Athens, 68; number of archons in-
creased to nine, 69 ; the, JSponymus,
09; the, £usilens,ti9 ; the, Polemar-
chus, 69 ; the, Theamothetse, 69.
Areopagus, the Senate of the, relations
of Solon to, 77 ; powers of, curtailed
by Ephialtes, 91.
Argos, supremacy of, 127.
Aristides extends eligibility to office
to all classes of the people in Athens,
89.
Aristocracy, English and ancient con-
trasted, 1170.
Aristotle's analysis of the forms of
government, 1162, 1163 ; his cycle of
degeneracy and revolution, 1164; in
the light of the modern facts of
politics, 1165 et seq.
Army, reform of Roman, by Servius,
146, 147 ; place and power of Roman,
under the Empire, 176; administra-
tion of German, 434 ; Swiss federal,
540; the Austro-Hungarian, 597; in
Sweden and Norway, 631.
Arrondissement, the French, 347 ; scru-
tin d', 315, 347.
Arrondissemental Council, French,
347.
Arsenals and dockyards of the United
States, 1051.
670
INDEX.
Articles of Confederation, tlie, 866.
Aryan, the, family, 6-8; a doubt as
to the, family, 9; tradition as to
descent and family relationship, 11.
Aryan Kaces, the, their significance
in the history of government, 2, 3 ;
ancient Irish law, 7 ; relation of In-
dia to Aryan development, 6; doubt
about the early family among, 9.
Asia Minor, settlement of the coasts
of, by the Greeks, 115.
Assemblies, the colonial, in Virginia,
845 ; their development, 854, 855.
Assembly, the Athenian popular, insti-
tuted by Solon, 75, 76; payment for
attendance upon the Athenian, 90;
the Spartan, 102; summoned by the
Ephors, 104; relations of, to Lycnr-
gus, 109 ; the French Constituent, of
the Revolution, 305, 306, 308 ; French
constituent, of 1871-76, 311; the
French National, 313, 317-820.
Athens, see Topical Analysis; tenure
of property in, 1251.
Audit, Court of, French, 354.
Auditor, The, of an American state,
989, 991.
Augustus, transmutation of republican
into imperial institutions by, 165-
170.
Australia, the governments of, 825.
Austria, originated in Ostmark, 363;
becomes duchy, 368; won by RudoljA
of Habsburg, 370; and tlie Empire,
374 et seq. ; in the German Confed-
eration, 395; out of Germany, 398;
see Topical Analysis.
Authority, government rests upon,
1154.
Baden, relations of, to other German
States, 394, 397, 3-)9, 401.
Bailli, use and development of office
of, in France, 29(), 297.
Bankruptcy, laws of, in U.S., 908.
Basileus, the archou, 69.
Bavaria, relations of, to other German
states, 394, 397, 399,401,; independent
administration of railways, 431; in-
dependent postal and telegraph ser-
vice, 432; and military administra-
tion, 434.
Benefice, the feudal, 238; in England
and France, 239.
Berlin, government of, 492.
Bernadotte, 620.
Bluntschli, Dr. J. C, definition of a
state, 16.
Board of Trade, the English, 694.
Bohemia, acquisition of, by Austria,
580, 581; history of, 589-591.
Bonapartists, French, 311.
Boroughs, English, representation of,
in House of Commons, 667, 669, 708;
geographical relations of, to counties
in parliamentary representation, 709 ;
' County ' boroughs, 762, 797 ; crea-
tion and constitution of, 794, 795;.
judicial status of, 796; classes and
powers of, 797-801 ; American, 1030
et seq.
Bosnia, 586, 598.
Bourgeoisie, gift of, by French kings,
278.
Brandenburg, the Mark, .363, 383 et
seq. ; early organization of, 441-445 ;
process of centralization in, 440 ; see
Prussia, Topical Analysis.
Budget, the national, in England, 697;
the county, 774r-776.
Budget Committee, the French,. 332.
Bull, the Golden, names electors of
Holy Roman Empire, 371.
Biindesgericht, the Swiss. See Fed-
eral Court.
Bundesrath, the German, its compo^
sition and character, 405 ; representa-
tion of tlie states in, 406; functions
of, 407-410; its organization, 411,
412.
Bundesrath, the Swiss. See Federal
Council.
Burggraf, the, 442, 443.
Burke, Edmund, on the development
of the colonial assemblies in America,
854.
Cabinet, the French, 322, .324; the
French departmental, 334; the Eng-
lish, its origin, 674; stages of its
INDEX.
671
development, 675 ; history of minis-
terial responsibility, 676, 677; as
Executive. 678, 706; the Sovereign
not a member of, 079; position of,
680 ; appointment of, 681 ; its compo-
sition, 682-685; its parliamentary
responsibility, 686, 687; its legal
status, 688; its function in legislEt-
tion, 689.
Caesar, Julius, place in Roman consti-
tutional history, 164.
Canada, the Government of, 818-824.
Cantonal Legislatures, the Swiss, 517,
518; Executives, in Switzerland, 523.
Cantons, the French, 348; the Swiss,
governments of, see Topical Analy-
sis.
Capets, concentration of feudal power
by the,, 253, 269, 285, 286.
Carolingians, rise and influence of, 252.
Cassation Court, the French, 355;
courts of the Swiss cantons, 560;
chamber of the Swiss federal court,
575.
Censor, Roman, 156.
Centuries created by Servius, 146, 147;
participate in the choice of consuls,
148, 158 ; later civil functions of, 155.
Chambers, French, sovereignty of, 313 ;
as National Assembly, 317-320 ; gov-
ernment by the, 333; in case of un-
lawful dissolution of, '316.
Chancellor, the Imperial, in Germany,
422^24 ; in the Btmdesrath, 411, 425;
and the Vice Chancellor, 426; the
Swiss federal, 545.
Chancellor, the Lord, in England, 705,
737.
Chancery, English Court of, its origin,
666'; division of the High Court, 732,
733.
Change, principles of, in primitive so-
ciety, 34, 30-45 ; effected by competi-
tion of customs, 37, 38; by migration
and conquest, 40, 41; by imitation
and by individual initiative, 42, 43.
Charles the Great promulgates version
of the Roman Law, 231, 251 ; estab-
lishes ' Holy Roman Empire, ' 250.
Charters, American colonial, 848-850;
and constitutions, role of, in modern
political development, 1137 et seq.
Choice in the development of institu-
tions, 24 ; of rulers a step of develop-
ment in primitive society, 44.
Church, the Roman Catholic as a unify-
ing force in the Middle Ages, 248, 24!l.
Circle (County) , the Prussian, 485-487 ;
its Committee, 486, 501; its Diet,
487 ; the Austrian financial, 610.
Cities, Imperial, of Holy Roman Em-
pire, 372 ; Prussian, government of,
490-493; English, government of.
See Boroughs ; American, 1030 et
seq. ; their organization, 1035-1037.
Citizen, approach of the ancient Greek
or Roman, to complete membership
of the state, 56.
Citizenship, begins to be dissociated
with kinship, 190; Roman, and the
law, 210; in the German Empire,
437, 919; in Switzerland, 525, 919;
in Austria-Hungary, 603 ; in Sioedsn-
Norway, 035; in tlie U.S., 915, 916;
elements of confusion touching, 917 ;
naturalization, 918; under a con-
federation, 920.
' City,' the ancient, at first a confeder-
ate centre, 53-^6; contrasted with
modern centres of population, 53; a.
confederacy of 'houses,' 55; religion
of the, 61 ; decay of the antique, 62;
absorbs its constituent parts, 64-66 ;
the, of Solon, 67 ; the, the centre of
ancient politics, 188.
Civil Service Reform, 1103-1105 ; Com-
mission, 1120.
Classes, the lour property, created by
Solon, 73; the five property, created
by Servius, 146, 147 ; non-citizen, in
Athens, 93; in Sparta, 98; in Rome,
152; constitutional influence of, in
Rome, 153-156 ; in general in ancient
■politics, 191.
Cllsthenes, reforms of, in Athens, 81-
87; success of constitutional meas-
ures of, 88.
Code, the, of Draco, 71 ; the first Roman,
the XII. Tables, 198; the, of Theo-
dosius, 215, 256; of Justinian, 215;
672
INDEX.
of Alaric, 231, 256; of Sigismimd,
231; of Napoleon, 261.
Codras, the last king of Athens, 67;
family of, in the archonship, 68.
I olonial Expansion, English, 813;
policy, 814-816; courts, powers of,
826; governors, powers of, 828; or-
ganization in Ntiw England, 840;
expansion without separation in the
South, 842 ; society in the South, 843.
Colonies, English, government of, see
Topical Analysis ; in New England,
835, 836, 837-840; in the South, 841-
846; the Middle, in America, 847;
development of constitutional liberty
in the American, 854r-856; their po-
litical sympathy, 857; separateness
of their governments, 864.
Colonies, the Greek, and the Greek
colonial system, 118 ; constitutions of
Greek, 119, 120 ; law of constitutional
modification among Greek, 121.
Columbia, District of, 1048, 1050; the
courts of, 1093, 1094.
Comitatus, the Teutonic, 225, 228 ; and
the feudal relations, 239.
Comitia curiata, 144 ; elects Tribunes,
154; survives changes, 155; eenturi-
ata, creation and character, 146, 147 ;
chooses consuls, 148, 156 ; later pow-
ers of, 155 ; tributa absorbs legisla-
tive sovereignty, 155.
Commendation, feudal, 240.
Commerce, Interstate, regulation of,
in U.S., 912.
Commission, the French Departmen-
tal, 345.
Committees, French legislative, 330-
332; of German JS«n(ies7'att, 412; of
German Reichstag, 418;
Committees, Standing, in American
state legislatures, 936; of the fed-
eral Senate (U.S.), 1061-1063; of the
federal House of Representatives
(U.S.), 1071-1076.
Common Law courts, in American
states, 944-953.
Common Pleas, English Court of, its
origin, 666.
Commons, House of, its origin, 671 ; its
original character, 707 ; county and
borough representatives in, 708; re-
form of representation in, 710-715;
election and term of, 716-719 ; sum-
mons, electoral writ, prorogation,
720-723; organization of, 724; hall.
and seating of, 725.
Communes, mediaeval rural, in France,
274; the modern French, their or-
ganization, functions, etc., 349-352 ;
the Prussian rural, 489 ; the Prussian
city, 490-493; the Swiss, 525, 526;
the Austrian, 610; the Hungarian,
613; the Swedish, 642; the Norwe-
gian, 648.
Competition, Equalization of, 1278.
Comptroller, the, of an American state,
989, 991.
Comptroller-General, position and
power of, in pre-revolutionary
France, 303.
Conceptions, certain legal, universal,
1212.
Confederacy of the Rhine, 394, 401.
Confederation, principle of, in primi-
tive society, 52-57 ; a, contrasted
with a modern federal state, 1141-
1143.
Confederation, the Swiss, its emer-
gence in Germany, 373 ; the German,
of 1815, 395 ; the North German, 397 ;
the American, of 1781, 865; its con-
stitution, 866 ; its weakness, 867 ; citi-
zenship under a, 920.
Conflict of Laws in the U.S., 904-910.
Conflicts, French Tribunal of, 357;
Prussian Court of, 502; Swiss Fed-
eral Assembly as a court of, 558.
Congress, the, of the Confederation,
865-867; of the U.S., 1054 et seq.;
Acts of, 1077-1081 ; and the Execu-
tive, 10B3, 1076, 1107, 1108.
Connecticut, Charter of, 849.
Conquest, effect of, on race habits and
institutions, 41 ; effects of, on Roman
constitution, 151, 157-160; effects of,
upon Teutonic institutions, 234-237 ;
effects of, upon Teutonic institutions
in England, 653.
Oonsiliaplebis, 154.
INDEX.
673
Consilium tributum plebis elects Trib-
unes, 155.
Constantine, governmental reforms of,
181-184; separation of civil from
military command by, 181 ; territo-
rial division of the Empire by, 181-
182; civil provincial ofi&cers under,
181, 182 ; military provincial oiificers
under, 188; household offices estab-
lished by, 184.
Constituent functions of government,
1233, 1247-1254.
Constitution, the French, framing of,
311; character of, 312; amendment
of, 313, 317, 318 ; the Swiss, 510 ; its
character, 511, 512; its indefinite
grants, 513 ; its guarantee of canto-
nal constitutions, 514; its amend-
ment, 556; Aiistro-Hvngarian , of
1867, 692, 594; the Swedish, oscil-
lating development of, 619; its
amendment, 643; the Norwegian,
621, 622; its amendment, 649; the
Enr/lish, 730 ; of the U. S., and col-
onial precedents, 869-871 ; charac-
ter of the government formed by
it, 872 et seg. ; powers granted hy it
to the federal government, 890;
powers withheld by it from the
states, 891; powers left by it to
states, 892, 893; its general charac-
ter, 1045 ; its amendment, 1045.
Constitutional development, English,
as compared with American, 858 et
seq.
Constitutions, American state, non-
constitutional provisions in, 894-897,
925 ; amendment of, 898-903.
Consuls, Roman, creation of office of,
148 ; chosen by Comitia Ceniuriata,
148, 156 ; relations of, to Senate, 149,
150 ; steps towards the admission of
plebeians to office of, 166; under the
Empire, 166, 167, 170, n. ; of Italian
towns, 276.
Contract, absence of the idea of, from
primitive society, 17 ; the, theory of
the origin of government, 18.
Control, Central, over local adminis-
trative bodies in France, 346, 347,
351, 352; in England, 800, 801, 805,
812 ; in American state governments,
973-977, 993, 994.
Control not necessarily administration,
1277.
Conveniences of society, the, adminis-
tration of, by the state; 1260.
Corporations, law-making by, 1193;
regulation of, by the state, 1258.
Corpus Juris Civilis, 215-Z17; study
of, in the Middle Ages, 216, 258; sub-
sidiary authority in Germany, 266.
Council of Elders under patriarchal
presidencies, 48, 49; representative
confederate character of, 57; the
Spartan, 101; election to Spartan,
103; probouleutic legislative func-
tions of Spartan, 101 ; judicial func-
tions of Spartan, 101, 104, 106; asso-
ciated with early Roman kings, 144.
Council of Ministers, French, 322, 325 ;
Prussian, 460.
Council of State, the French, origi-
nates in Feudal Court, 291, 292; its
development and differentiation, 292 ;
its composition and functions, 353;
the Prussian, 458, 459 ; the Norwe-
gian, 644, 646.
Council of States {Standerath) , The
Swiss, its composition, 552, 653; its
functions, 555, 556.
Councils, the English County, their
constitution, 764-768; their powers,
770-777.
County, the English, and the Saxon
Kingdom, 655 ; representation of, in
House of Commons, 708 ; geographi-
cal relations of, to boroughs in par-
liamentary representation, 670, 709 ;
its historical rootage, 751; early
evolution of its organs, 762; see
Topical Analysis ; the, in the U. S.,
1025-1027; in the South, 844, 1028;
where the township exists, 1029.
County Courts, the English, at present,
739-741 ; the ancient, 751, 752.
Courts, the English law, their deriva-
tion, 666; their present composition
and jurisdiction, 731 et seq.; powers
of English colonial, 826 ; interpreta-
674
INDEX.
tion of federal law by American
state, 888, 1096; the, of American
states, !)40-9(>2; of the U.S., 1085
et seq. ; their procedure, 1095.
Crete, power and institutions of, 12G.
Criminallaw, diversities of, in U.S., 907.
Croatia, Slavonic village-communities
in, 7 ; acquired by Austria, 584.
Croatia-Slavonia, government of, 614.
Crown Colonies, government of the
present English, 827; in America,
853.
Crusades, the, and the mediaeval towns,
279 ; and the mediaeval French mon-
archy, 286.
Curies, the Roman, confederate part
in early politics, 144; exclusive As-
sembly of (Comitia citriata) , elects
Tribunes, 154 ; survives change, 155.
Custom, the reign of, in primitive
society, 31, 32; and written law in
France, 257; local, and Roman law
in France, 261-265; as a source of
law, 1184, 1185, 1194, 1195.
Customs, differences of, in primitive
.society, 35; antagonism between,
36; competition of, 37; prevalence
of superior, 38.
Czar, the, of Russia, nature of his power,
1204, 1210.
Dalmatia, Slavonic village-communi-
ties in, 7 ; acquired by Austria, 585.
Danes, The, 615.
Decemvirs, The, 198.
Delegations, the Austro-Hungarian,
602.
Delos, the Confederacy of, and its in-
iiuence upon the position of Athens,
129; transmuted into Athenian em-
pire, 130.
Delphi, centre of an amphictyony, 123 ;
influence of the Oracle at, 124 ; seat
of religious games, 128.
Demes, new arrangement and combina-
tion of, by Clisthenes, 82, 83.
A^.uos (people), the primitive Greek,
composition and character of, 52.
Democracy, its present and future
prevalence, 1171; the modern, dif-
ferent in form from the ancient,
1172; and also in nature, 1173;
growth of the democratic idea, 1174.
Denmark, union of, with Sweden and
Norway, 617.
Departments of Administration,
French central, temp. Louis XIV. 294,
295; organization of French, 334;
functions of French, 335; the Ger-
man imperial, 421-435 ; XliePnissian,
457, 463 ; the Swiss federal, 534, 535 ;
the Common, of Austria-Hunyary,
597; and the Delegations, 602; the
Austrian, 605 ; the Swedish, 639 ; the
Norwegian, 645; the English, 691
et seq. ; American federal, 1109-1120.
Departments, the French, organized
by Napoleon, 308 ; their present or-
ganization, 338-346.
Deputies, French Chamber of, compo-
sition, etc., of, 315; dissolution of,
by President, 315, 320, 321.
De-socialization, modern, of the state,
1244.
Development of government, probable
early, see Topical Analysis ; con-
tinuity of, 1121 ; order discoverable
in, 1123; course of, in the ancient
world, 1123 ; England's contributions
to, 1125 et seq. ; contributions of the
Romans to, 1126 et seq.
Diocletian, division of Empire by, 179,
180.
Discipline, the Spartan state, 107, 109.
Discussion begins to determine insti-
tutions, 192; Scientific, as a source
of Law, 1191.
Bispositio Achillea, the, 388.
Dissolution of French Chamber of Dep-
uties by the President, 315, 320, 321.
District, Prussian Government, 480-
484 ;_ its Committee, 484, 501; the
Prussian Magisterial, 488; Courts,
Prussian, 494 et seq. ; Courts, Prus-
sian Superior, 494 et seq. ; the Swiss,
524.
District Attorney, the U. S., 1091.
Divorce, conflict of laws touching, in
U. S., 905.
Domains, Prussian Chamber for War
IKDEX.
675
and, 448 et seq., 481 ; fusion of the
administration of War and Domains
in Prussia, 450 ; Chianibers, Prussian,
449.
Draco, his code, 71.
Durham, Lord, in Canada, 816.
East, Hellenization of, by Alexander,
134 ; character of Greek civilization
in the, 135, 136.
Economic Council, the Prussian, 462.
' Economic laws,' in Sweden, 625.
Economic relations of Austria and
Hungary, 600.
Edict, the Praetor's, 202; of the Ro-
man provincial governors, 207.
Education Department of the English
Privy Council, 699, 810.
Education, Public, plan of, in England,
811; a function of the state, 1262,
1285.
Elders, Council of, under patriarchal
presidencies, 48, 49; confederated
family chiefs in the primitive coun-
cil, 57 ; loss of separate powers,. 65 ;
the Spartan Council of, 101 ; election
of Spartan, 103; judicial functions
of the Spartan Council of, 101, 104,
106; probouleutic legislative func-
tions of, 101 ; loss of importance by,
190.
Elector, the Great, of Brandenburg,
391.
Electors, the German, 369, 371.
Elgin, Lord, on the powers of English
colonial governors, 828.
Emperor, the Austrian, as Emperor-
King, 595, 596 ; as monarch of Aus-
tria, 604, 607 ; power of, to legislate
in recess of Keichsrath, 608 ; as King
of Hungary, 611.
Emperor, the German, 402, 403; shares
sovereignty of the Empire only as
King of Prussia, 405.
Emperor, the . Roman, creation of
office and powers of, 165-169; na-
tionality of later incumbents of
office of, 175.
Empire, Athenian, 130.
Empire, the German, origination of
present, 399, 401; government of,
see Topical Analysis.
Empire, ' Holy Roman,' establishment
and influence of, in Middle Ages,
250, 251 ; influence of, on spread of
Roman law in Germany, 266 ; history
of, 364 et seq. ; becomes exclusively
German, 375 ; in eighteenth century,
380; end of, 381.
Empire, Roman, establishment of, 160,
164^169; causes which led to, 159-
163; growth of new offices under,
172, 177, 178, 181-185; division of
Roman into Eastern and Western,
136, 143, 186, 187; effect of, upon
politics, 193; unifying influence of
the Holy Roman, in the Middle Ages,
250, 251.
England, entrance of Roman law into,
267.
English, the, and the Romans com-
pared, 1126-1128; contrasted, 1129,
1130.
English institutions, adaptation of, in
America, 833, 834, 858 et seq. ; grew
by consolidation, 859.
Ephialtes, constitutional reforms of, in
Athens, 91.
Ephors, the Spartan, 104, 105.
Eponymus, the Archon,, 69.
Equity, courts of, in American states,
954-956; fusion of, with common
law, 955; as a source of law, 1189,
1190.
Estates, Prussian Communal, 479.
Estimates, the, in England, 698.
Ethics, Law and, 1213.
Eupatrids, the Athenian, and the early
arohonship, 69 ; and the party of the
plain, 70 ; as landlords and creditors,
72; preferred- for office under the
Solonian constitution, 75; shut out
from exclusive privilege by Clis-
thenes, 82, 84, 85.
Exchequer, English Court of, its origin,
666 ; the Chancellor of the, 697.
Executive, the Swiss cantonal, 623;
the Swiss federal, 527 et seq. ; of an
American state, 964r-971 ; contrasted
with federal, 972; its real character.
676
INDEX.
974r-977 ; several officers of, 978-992 ;
constitutional diffusion of, 993; no
hierarchy, 994; the federal (U. S.),
1097 et seq. ; relations of, to Congress,
1063, 1076, 1107, 1108.
Extradition, in Swiss cantons, 542.
Family, the, its origin : was it patri-
archal, 5; the Greek and Roman,
8; the non-Aryan, its organization,
10; development of the state from
the patriarchal, 12 ; the primal unit
of political organization, 26 ; and the
state, 1284.
Father, the, authority of, necessary to
perfected government in primitive
society, 25 ; early sanction of author-
ity of, 26; primitive priesthood of
the, 58, 59.
Federal Assembly, the Swiss, 546-
558.
Federal Council, the Swiss, 528-538;
its mixed functions, 536-539; as an
administrative court, 576.
Federal Court, the Swiss, its origin,
511, 544, 567; its composition, 568;
its jurisdiction, 569-575.
Federal State, the modern, contrasted
with Confederations, 1141-1143 ; dis-
tinguishing ■ marks of the modern,
1144-1146.
Federation the process of growth in
America, 859.
Fendalism, a fusion of Germanic with
Roman institutions and conceptions,
233;' defined, 238; local differences
in methods of, 239; results of, 241-
244; unifying influences checking,
247-251 ; centralizing forces result-
ing from, 252-254 ; and sovereignty,
243; and the towns, 244; effects of,
in France, 268, 270-272; and the
Crusades, 279, 286 ; in Germany con-
trasted with feudalism in France,
358 et seq. ; in Switzerland, 505 ; the
Norman, in England, 658 ; the feudal
system in England, 660; and the
modern monarch, 1124; and the
functions of government, 1242, 1243.
Finance, administration of, in Prussia
down to time of Frederic the Great,
449.
Folk-moot, the English, 654.
Force at the basis of government, 1154
et seq. ; in ancient and in modern
systems, 1156, 1157.
Foreign Affairs, in the German Empire,
427.
Forms of government, 1161 et seq.;
see Topical Analysis.
France, entrance of Roman law into,
260-265.
Franchise, the parliamentary, in Prus-
sia, 467, 468 ; parliamentary, iu Aus-
tria, 607; Hungarian, 612; Norwe-
gian, 646; in England, 708, 710-712;
the English county, 769 ; in the Eng-
lish parish, 784; in the English
Unions, 791 ; in the English boroughs,
795; in the American states, 917,
937-939; in federal elections (U.S.),
1069, 1070.
Frederic the Great, 380, 393.
Frederic Barbarossa, 368.
Functions of Government, see Topical
Analysis.
Galicia, 585.
Games, the various sacred, 128 ; infiu-
.ence of, in Greece, 128.
Gemeinde, the Swiss, see Communes.
General Council, the, of the French
Department, 316, 341-344.
'Generality,' the French, 300; gives
place to modern Department, 308.
Gens, see ' House.'
Germany, entrance of Roman law into,
266.
Gneist, Professor, influence of, upon
Prussian administration, 453.
Gods, private family and city, in primi-
tive times, 59.
Government, its origin in kinship, 4;
choice in the development of, 24 ; its
beginnings in the discipline of tlie
patriarchal family, 25 ; an organ of
society, 1160, 1269, 1273, 1279; see
Topical Analysis.
Governors, powers of English colonial,
828; of American states, 964; their
INBEX.
677
term of oflace, 967; their qualifica-
tions, 968; their relations to other
state officials, 972-976, 993; their
duties and powers, 978-981,
Gracchi, the, measures and fate of, 163.
Graf, the, as an official under the
Prankish monarchy, 359, 360, 362.
Great Council, the, of the Norman
kings, 659; evolution from it of Par-
liament, the Cabinet, and the courts
of law, 662 et seq.
Greater Britain, 831.
Greece, Governments of, see Topical
Analysis.
Greeks, original migrations of, 112;
influence of the Phoenicians upon
the, 113; remigrations and settle-
ment of the Mediterranean, 114^117 ;
colonial system of the, 118-121 ; union
and nationality among, 122 ; religious
community among, 123, 124 ; political
aggregations of, 125-127 ; games and
festivals among, 128; eastern and
western, 135, 142; .subjection of the,
to Rome, 143.
Guilds, the mediseval trade, 245.
Gustaf Adolf, 619.
Gustaf Eriksson, 618.
Habit conditions legal development,
1200-1208.
Habsburg, first emperor of House of,
370 ; the, marriages, 378.
Hardenberg, Count, 452.
Heliaea, institution of the, in Athens,
and character and functions of, 78;
expansion of, by Clisthenes, 85.
'Hellas,' meaning of the term. 111;
law of constitutional modification
in, 121 ; see Topical Analysis.
Hellenotamise, officers of the Dalian
Confederacy, 129.
Helots, the Spartan, 97.
Helvetic Republic, the, 508.
Henry III., of the Holy Roman Empire,
367.
Herzegovina, 686, 598.
High Court of Justlcct^the^ English,
732, 733, 738, 740, 743)
Hobbes, Thomas, the Leviathan of, 18 ;
views o"n the origin of political so-
ciety, 18 ; theory of a Law of Nature,
18 ; idea of an original state of war,
18.
Hohenstaufen, the, 368.
HohenzoUern, the, acquire Branden-
burg, 387.
Home Office, the English, 692.
Home Rule in Bohemia and Hungary,
589, 590.
Hooker, Richard, Ecclesiastical Polity,
18 ; on the law of Nature in Its con-
nection with the origin of society, 18.
' House,' the, or r/ens, 12; a complete
organism within the ancient ' city, '
53; its junction withdi, phratry,5i;
a constituent member of the ' city,'
55 ; political disintegration of, 65, 66.
House of Representatives, see Repre-
sentatives, House of.
Household Officers, under the Roman
Empire, 177, 184; In the French
Monarchy, 291.
Houses, reasons for two legislative, in
England, 671; in U. S., 028-931;
names of two legislative, in Ameri-
can states, 933.
Hundred, the English, and its ' moot,'
654.
Hungary, acquisition of, by Austria,
580, 583; relations of, to Austria,
587 ; see Topical Analysis.
Imitation, tribal and individual, a
force of change in primitive society,
42, 43,
Impeachment, history of ministerial,
in England, 676; disappearance of,
in England, 677.
India, contains evidence of old Aryan
habit and organization, 6; govern-
ment of British, 829, 830.
Individualism, unknown in ancient
politics, 1175; introduced with
Christianity and the prevalence of
Teutonic institutions, 1176 ; relative
under feudal system, 1177; destroyed
by the modern monarchy In Its first
forms, 1178 ; revived by Renaissance
and Reformation, 1179.
678
INDEX.
Initiative, individual, entrance and
influence of, in primitive society, 43.
Instruction, Superior Council of Pub-
lic, French, 354.
Intendant, the French, 299; origin
and development of the oflice, 301 ;
and the Comptroller-General, 303.
Inter-Cantonal j ndicial comityin Switz-
erland, 577.
Interior, Department of the (U. S.),
1118.
International Law, 1216, 1217.
Interpellations in the French Cham-
bers, 328.
Interpretation, growth of Eoman law
by, 199, 201, 202, 212, 213 ; as a source
of law, 1187, 1188.
Interregnum, the, in Holy Roman Em-
pire, 369.
Interrex, The Roman, 144.
Inter-state Commerce, regulation of,
in U. S., 912 ; the, Commission, 1120.
Ireland, the administration of, 704.
Irish Law, ancient, its significance, 7.
Joachim II., of HohenzoUern, 389.
Joint Councils, the, of Sweden and
Norway, 034.
Judges, election of American state, 959,
960; and qualifications required of
them, 961 ; appointment and tenure
of federal, 1088; their relations to
each other, 1089 ; and their salaries,
1090.
Judices, the Roman, 200.
Juries, in England in civil oases, 742.
Jurisconsults, the Eoman, under the
Empire,213-216.
Jurisdiction (judicial) of the U. S.,
1082, 1083; of existing federal courts,
1085-1087.
Jurisprudence, 1223 et seq. ; analytical
school of, 1224, 1226-1228.
Jurists, the Eoman, 211; their influ-
ence, 212 ; as jurisconsults, 213-216.
Jury-courts, expansion of the Athenian
popular, by Cllsthenes, 85 ; payment
for service in the Athenian, 90; in-
creased, 92 ; Roman, 200 ; the French,
356 ; Prussian (Schvourgerichte) , 497.
Jus civile, 203; affected by the jus
yentium, 206, 209, 210, 212.
Jus ffentium, originates with the Prse-
torperegrimis, its character, 2M ; not
international law, 205 ; influence of,
upon the jus cioile, 206, 209, 210, 212 ;
grows in the Provinces, 207 ; receives
sanction from the ' Law of Nature,'
208, 209; influence of the juriscon-
sults upon the, 211, 212.
Jus respondendi, the, 213.
Justice, tribal, under patriarchal presi-
dencies, 49; administration of, in
Athens, 69, 77, 78, 85, 90, 91 ; admin-
istration of, in Sparta, 101, 104, 106 ;
administration of rural, in mediaeval
France, 275; centralization of the
administration of, in France, 260-
265, 296, 302, 353-357 ; administration
of, in Germany, 410, 436 ; in Prussia,
449, 494r-503; in Switzerland, 538,
543; in the cantonal courts, 559-^566;
in the Federal Court, 567-575; admin-
istrative cases, 576 ; in England, 731-
740; in the states of the American
Union, 940-962; under the federal
government (U. S.), 1082-1096.
Justice, Department of (U. S.), lllfi.
Justices of the Peace, French, 348,
355; English, criminal jurisdiction
of, 743; in Quarter and Petty Ses-
sions, 744; character and repute,
745, 757 ; history of oface of, 754,
755; administrative functions of,
before 1888, 766.
Kalmar, union of Denmark, Sweden
and Norway at, 617.
King, the Homeric Greek, 48-51; his
part in legislation, 48; in tribal jus-
tice, 49 ; his priesthood, 50 ; charac-
ter of his headship, 51; representa-
tive position of, 50 ; likeness of early
Eoman, to early Greek, and differ-
ence, 144; method of electing early
Roman, 144 ; Eoman, gives place to
consuls, 148 ; of Sweden-Norway, as
king of Sweden, 625, 637, 638; as
king of Norway, 626, 644 ; selection
of, in case of vacancy, 627 ; as joint
INDEX.
679
king of Sweden and Norway, 628-
631 ; of England a sort of permanent
minister, 678 ; not a member of the
Cabinet, 679; and the appointment
of ministers, 681, 684.
Kings, the two Spartan, their origin,
100; their subordination to the
Ephors, 104; their judicial function,
106.
King's Bench, English Court of, Its
origin, 666; division of the High
Court, 732, 733.
Kingship, abolition of the, in Athens,
67 ; the new Teutonic, 235.
Kinship, the first bond of society, 4,
21; persistence of the idea of, 27;
fictitious, adoption, 28 ; and religion
in primitive society, 29; survivals
of the idea of, 33 ; dissociated from
citizenship, ISK).
Labor, Department of (U.S.) , 1120 ; the
state in relation to, 1257.
Lagthing, the Norwegian, 646, 647.
Land, the primitive state related to
no particular, 14-l{i; manner in
whifih the relationship was devel-
oped, 14 ; identification of the mod-
ern state with some particular, 16;
tenure of, in Sparta, 99, 1248; in
Athens, 1251 ; tenure of, among the
Teutons, 222 ; modified by conquest,
236, 237.
Landammann, the Swiss, 523.
Landeshauptmunn (or Landesdirek-
tor), Prussian, 476-478.
Landesherren, 362.
Landgemeinde, Prussian, 455.
Landrath, the German sheriff, 448,
450, 454, 456, 486, 487, 501.
Landsgememde, of the Swiss cantons,
517.
Landtag, the Prussian, 465-470; the
Prussian Provincial, 476, 477; the
Austrian Provincial, 606, 609; of
Oroatia-Slavonia, 614.
Law, the making, execution, and inter-
pretation of, 1135, 1136; its nature
and development, see Topical Analy-
Law of the American states, its char-
acter, 886, 887 ; its scope, 889 et seq. ;
its conflicts, 904-910.
Law-giver, theory of an original, as
creator of the state, 19..
Law, international, 1216, 1217.
Law, ' personal,' in Gaul, 231 ; in Italy,
256.
Law, political, limitations of, 1219.
Law, private, effect of Roman upon
Teutonic, 231 ; content of, 1221, 121^2.
Law, public, effect of Roman upon
Teutonic, 230 ; content of, 1220, 1222.
Law, Roman, entrance of, into modern
legal systems, 255-267; see Topical
Analysis; its typical character,
11S6; spoke the will of the Roman
community and the Roman charac-
ter, 1205.
League, the Achaean, its history, 138;
its constitution, 139; the .ffitolian,
its character and constitution, 140,
141.
Leagues, the Hanseatic and Rhenish,
246.
Legislation in the Homeric patriarchal
presidency, 48; in Athens, 76; in
Sparta, 101, 102 ; in Rome, 144, 146,
149, 154, 155; under the Empire, 170 ;
growth of, in ancient city-states,
194; character of Roman imperial,
214; its codification, 215 ; course of ,
. in the French Chambers, 330-332 ;
in German i2eicAsta.5f, 419; in Swiss
cantons, 516-522; joint, in Austria
and Hungary, 597, 600; in Sweden
and Norway, 633; in England, 689,
729; distrust of, in American states,
895; course of, in American states,
935, 936 ; course of in U.S. Congress,
1001-1063, 1071-1081; scope of mod-
ern, 1134 ; and administration under
modern systems, 1151-1153; as a
source of Law, 1192-1193.
Legislatures, Swiss cantonal, 516-518;
of the American states, 923-936 ; not
sovereign bodies, 927; development
of, 1131-1134.
Legitimists, French, 311.
Lex Visigothorum, the, 256.
680
INDEX.
Liberties, their creation vs. their con-
firmation by constitution, 1139, 1140.
Liberty, development of constitution-
al, in tlie American colonies, 854,
856.
Limits, natural, to state action, 1280-
1283.
Local government in France, 273-284,
2!)6, 207, 299, 336 et seq. ; in Prussia,
440-450, 454r456, 471 etseq.; In Switz-
erland, 524 et seq. ; in Austria, 610 ;
in Hungary, 613; in Sweden, 616,
642 ; in Norway, 316, M8 ; in England,
748 et seq. ; in the U. S., 973-977, 993
et seq.
Local Government Board, The English,
694.
Locke, John, Civil Government, 18;
on the origin oi the body politic", 18.
London, the government of, 807-809.
Lord Lieutenant, the Englisli, 758.
Lords, House of, the Prussian, 465-469 ;
the Austrian, 607; the English, its
composition, 726; function of, in
legislation, 727 ; as a supreme court,
728, 735.
Lot, election by, introduced in Athens
by Ephialtes, 91.
Louis IX., translation of Roman law
and judicial reforms under, 260, 296;
centralization of local administra-
tion by, 296, 297; Louis XIV., per-
sonal government of, 208.
Louisiana, peculiar character of the
laws of, 911.
Lycurgus, part of, in the development
of Spartan institutions, 109.
Macedon, mastery of, in Greece, 133;
conquests and influence in the East,
134-136.
McMahon, Marshal, 311.
Magistrate, the political, replaces the
hereditary, 45.
Magnates, House of, the Hungarian,
012.
Majorities, force of, in modern poli-
tics, 1180.
Mala Prohibita, 1214.
Manors, Prussian, 455.
Marius, 164.
Markgraf, the Frankish, 363 ; indepen-
dence of, in Brandenburg, 385.
Marshal, the U. S., 1091, 1092.
Massachusetts, charter of, 848.
Maximilian I. of Holy Roman Empire,
375 ; reforms of, 376, 377.
Mayor of the Palace, the Austrasian,
252.
Mayor, of the French Communes, 349,
350.
Mediterranean, the Greek, 116.
Metceri, the Athenian, 93.
Middle Ages, government during the,
see Topical Analysis.
Migration of communities, effect of,
on customs and institutions, 40, 41.
Military leadership among the Teu-
tons, 225.
Ministerial System, the French, 291,
295; at present, 322-329; the Prus-
sian, 457, 460, 463.
Ministers, French Council of, 322, 325 ;
relations of French to legislature,
327-329 ; Prussian do., 460 ; relations
of Prussian to legislature, 464 ; the
Swiss, 528, 534, 535; their relations
to the federal legislature, 533; the
Austrian, 605; the Hungarian, 611;
the Swedish, 638; the Norwegian,
644, 645; the Enfflish, see Cabinet,
The English ; relations of American
federal, to Congress, 1063, 1076 ; rela-
tion of, to head of the executive in
modern governments, 1148, 1149;
relations of, to administration as a
whole, 1150 ; relations of, to modern
legislatures, 1151-1153.
Ministrant functions of government,
1234, 1255-1263.
Ministries, the French, 323, 334, 3.S5;
development of the Prussian, 451,
457; present Prussian, 457, 463;
Swiss federal, 534, 535 ; the common,
of Austria and Hungary, 597 ; and
the Delegations, 602; the Austrian,
605; the Swedish, 639; the Norwe-
gian, 645 ; the English, 691 et seq. ;
under the federal system of the U.S.,
1109-1120.
INDEX.
681
Ministry of State {Staatsministerium) ,
the Prussian, 460.
Monarchy, character of primitive
Greek, 48-52; the modern absolute,
1166, 1167 ; the modern, usually ' lim-
ited,' 1168; not now succeeded by
aristocracy, 1169; the feudal, its
character, 1243.
Monopolies, natural, 1275, 1276.
Moravia, 582.
Morley, John, quoted as to the origin
of government, 24.
Mosaic institutions, influence of, on
European development, 220.
Municipal Council, the French, 350,
351; the Prussian, 491, 492; the
English, 795 ; the American, 1036,
1037.
Municipalities, English, 793-805.
Napoleon, codification of French law
by, 261; reconstruction of French
administration by, 307, 308 ; in Ger-
many, 381, 394.
National Assembly, the French, 317-
320.
National Character spoken in Law, 1207
et seq.
National Council, the Swiss, its com-
position, 547-551 ; its functions,
555, 556.
National Idea, the, in U. S. growth of,
876 ct seq.
Nationality among the Greeks, 122;
and state sovereignty in Switzer-
land, 512.
Nature, Law of, received by Roman
lawyers from the Greek Stoics, 208 ;
laws of, and laws of the state, 1218,
1219.
Nature and forms of government, see
Topical Analysis.
Navy, Department of the (U.S.), 1115.
New Mexico, law of, 911.
Nomophylaces (guardians of the law),
instituted in Athens by Ephialtes,
91.
Northmen, the, 615.
Norway, see Topical Analysis, Swe-
den-Norway,
Objects of government, the, see Topi-
cal Analysis.
Octavius, see Augustas.
Odelsthing, the Norwegian, 646, 647.
Opinion, effects of, upon character of
the government of the U. S., 873 et
seq.
Opinion, public, ancient compared with
modern, 1158.
Organization of government (admin-
istrative), existing parallels and
contrasts in, 1147 et seq.
Origin of government, probable, see
Topical Analysis.
Orleanists, French, 311.
Ostmark, the (Austria), 363, 368.
Ostracism, instituted in Athens by
Clisthenes, its nature and operation,
87.
Otto, the Great, 365.
Parish, the English, Its history, 780;
the Poor-law, 781-784 ; the Highway,
786.
Parliament, the English, its early evo-
lution, 667-670; genesis of the two
houses of, 671; and the ministers,
676, 677, 686, 687, 689; see House of
Commons and House of Lords.
Parliament of Paris, 260, 265, 293, 298.
Parliamentary Reform in England,
710-715.
Parliamentary Responsibility in
France, 327; in Germany, 422; in
Switzerland, 533; in Austria-Hun-
gary, 602 ; in Austria, 605 ; in Hun-
gary, 611; in Sweden, 638; in Nor-
way, 644; in England, history of,
676, 677 ; at present, 686, 687 ; under
the various modern systems of gov-
ernment, 1151-1153.
Patronage of office in France, 326, 340.
Pays de contume, and de droit icrit,
257; d'Stats, French, self-govern-
ment in, 283, 284 ; functions of their
Estates, 284.
Peloponnesian War, the, significance
■ of, in Greek politics, 131.
PericleSj influence and constitutional
reforms of, in Athens, 90.
682
INDEX.
Perioeci, the Spartan, different from
Athenian Metoeci, 98.
Permanent Council, tlie, in England,
663; its composition, 664; Its pow-
ers, 665.
Persia, wars between Athens and,
their effects upon the Athenian con-
stitution, 89.
Petition, imperative, in the Swiss can-
tons, 519.
Phoenicians, influence of, upon the
Greeks, 113.
Phratry, a union of 'houses,' 54; a
unit of worship and of military or-
ganization, 65.
Pisistratus, supremacy of, and rela-
tions to the Soloniau constitution,
80.
Plebeians, the Roman, who were they ?
152 ; secession of, 153 ; granted Trib-
unes, 154; admitted to share in the
legislati-ve function, 155; admitted
to the magistracies, 156 ; discontent
of, with the uncodified law, 198.
Polem,archus, the archon, 69 ; a typical
officer, 110.
Police, the, in England, 747 ; powers
of English county councils, 777.
Post-office, the English, 695 ; the Ameri-
can, 1117.
Posts and telegraphs, administration
of, in German Empire, 432; in the
U. S., 913, 914.
Prsstor, office of, created, 156; the,
urbamis as judge, 200 ; as interpreter
of law, 201, 202; edict of, 202; the,
peregrimis, 200; functions of, 203;
originates ^'?;s (jentium, Wi; provin-
cial governors as prsetors, 207.
Prefect, the French, 338, 339 ; control
over local authorities, 346, 347, 350,
351; and the Prefectural Council,
354.
Presidency, the patriarchal Greek, 48,
BO, 61 ; creation of, 189.
President, the, of France, 319-321;
relations of, to the body of ministers,
326.
President, the, of the U.S., 1097 ; consti-
tutional plan of his election, 1098 ; act-
ual plan,. 1099; qualifications, 1100;
salary, 1101 ; duties and powers,
1102; his appointing power, 1103-
1105; succession to office of, 1106;
relation of, to Congress, 1107, 1108 ;
his message, 1108.
President, the ' Superior ' of the Prus-
sian Province, 473, 476.
Privot, office of, in mediaeval French
towns, 277 ; under Louis IX., 296-7.
Priesthood of heads of family and state
in primitive society, 50, 58-60.
Primoggniture, its connections with
religion in primitive society, 60.
Privy Council, the English, its deri-
vation from the Permanent Coun-
cil, 672; its assumption of judicial
powers, 673; administrative depart-
ments of the, 699; the judicial com-
mittee of, 736.
Property, given representation by So-
lon, 73; personal, made basis of
franchise in Athens after Persian
wars, 89; guardianship of, by the
state in Sparta, 99 ; given represen-
tation in comitia centuriata by Ser-
vius, 146, 147; relation of the state
to, 1247. ei seq.
Proprietary colonial governments, 851.
Provinces, administration of Roman,
under the Republic, 158; under the
Empire, 173, 174, 178, 181-183; medi-
aeval self-government of the French,
see Pays d'&tats ; the French, mili-
tary, not civil, districts, 300; give
place to modern Departments, 308;
the Prussian, administration of, 473-
478; government of the Austrian,
609, 610.
Provinzialrath, the Prussian, 476-478.
Prussia, the rival of Austria, 382 ; de-
velopment of, from the Mark Bran-
denburg, 383-393; origin of Prussia
proper, 390; becomes a kingdom,
392 ; history of local government in,
440^47, 454-456.
Qussstor, office of, created in Rome,
156.
INDEX.
683
Race, variety of, in Austria-Hungary,
588.
Kailways, administration of, in Ger-
many, 431; effects of, in U. S. in
aiding the national idea, 878.
Referendum, the, in the Swiss cantons,
521 ; its history, 522 ; the Swiss fed-
eral, 557; practices of the Swiss, in
U. S., 895, 897.
Reform, period of constitutional, in
Gerinany, 396.
Seichsgericht, the German, 436, 494.
Reichsrath, the Austrian, 607, 608.
Reiiihstar/, the Hungarian, 612.
Reichstag, the German, its character
and competence, 413; its composi-
tion, 414, 415; sessions of, 417; or-
ganization of, 418; election of offi-
cers in, 420.
Religion, its connection with kinship
in primitive society, 28, 29; connec-
tions with precedent, 30 ; the priest-
hood of ancient family and com-
munal heads, 58; private gods and
the representative character of the
priesthood, 59; its connections with
primogeniture, 60 ; of the city, 61 ;
and tribal organization (temp. Clis-
thenes), 84; community of, among
the Greeks, 123, 124; politics sepa-
rated from, 193; as a source of Law,
1186.
Representation, introduction of the
principle of, into politics, 1130; its
operation, 1131, 1132.
Representative, power of a, 1133.
Representatives,' in American state
legislatures, their terms, 932, and
qualifications, 934 ; apportionment
of, in Federal House of Representa-
tives, 1066.
Representatives, House of, Prussian,
466-470; Austrian, 607; Hungarian,
612.
Representatives, House of, U. S., 1065
et seq. ; apportionment of represen-
tatives, 1066 ; elections to, 1067, 1069,
1070; its organization, 1071-1076;
must originate bills raising revenue,
1081.
Republic, establishment of the Roman,
148; effects of conquests upon the
Roman, 151; its breakdown, 157-160
provincial administration under, 158
causes of failure of, 159, 161-164
economic decay, 162; the third
French, proclaimed, 310.
Responsibility, ministerial, see Parlia-
mentary Responsibility.
Revenue, sources of, in German Em-
pire, 435; the common, in Austria-
Hungary, 599.
Revision, the Court of, French admin-
istrative, 354.
Revolution, the French, governmental
effects of, 305-307.
Rhode Island, charter of, 850.
Rights, private, Roman conception of,
1238 et seq. ; the state and political,
1254.
Riksdaij, the unreformed Swedish,
representation and separate action
of the four orders in, 619; the pres-
ent, 640, 641.
Roman Law, see Law, Ruman.
Romans, the, and the English com-
pared, 1126-1128; contrasted, 1129,
1130.
Rome, government of, see Topical
Analysis; tenure of property in,
1252.
Rotation in office, 970.
Rousseau, J. J., The Social Contract,
18.
Russia, Slavonic village-communities
in, 7; power of the Czar of, 1204,
1210.
Salian emperors, the, in Holy Roman
Empire, 367.
Sauitary Districts, Rural, in England,
789 ; Urban, in England, 802-804.
Sanitation, a function of the state,
1261.
Savigny, on the stages of legal devel-
opment, 1199.
Saxon emperors of the Holy Roman
Empire, .365, 366.
Schoffengerichte, the Prussian, 497.
School Districts, English, 810.
684
INDEX.
Schools, administration of, in U. S.,
1038-1041.
Schulze, tlie, 442, 443, 455, 456.
Scotland, the administration of, 704.
Secession, early tolerance for threats
of, from the Union, 875.
Secretary of State, the, in an American
state, 982-088, 991.
Self-government, local, in France, in
Middle Ages, 273-284.
Semitic Races, their comparative in-
significance in this study, 3.
Senate, the Athenian proboule^dic, of
Four Hundred instituted by Solon,
76 ; of the Areopagus, 77.
Senate, the French, composition, etc.,
of, 314; influence of President and,
321 ; as a court of justice, 355.
Senate, the Roman, constitution of,
under the kings, and change effected
by Servius, 146; its character and
composition under the Republic, 149,
150 ; censors revise roll of, 156 ; centre
of oligarchic^ower, 163, 164 ; reform
of, by Augustus, 166; certain prov-
inces left to, under Augustus, 167;
relations of Augustus to, 167; posi-
tion and powers of, under the Em-
pire, 167, 169-171, 179, 214; provin-
cials gain admission to, 173; powers
of, all-inclusive, 1240.
Senate, the, of the U. S., its character
and composition, 1055-1059; its pre-
siding officers, 1060, 1064; its organ-
ization, 1061, 1062 ; its dealings with
the Executive, 1053; its part in ap-
pointments to office, 1102-1104.
Senators, American state, their terms,
932 ; and qualifications, 934.
Servius, reforms of, 146.
Session, limitation of length of, in
American states, 924, 926. "
Sheriff, the English, 751-753, 758; of
colonial Massachusetts, 840 ; of colo-
nial Virginia, 844 ; in the American
states, his election and relation to
the courts, 962 ; contrasted with U. S.
marshal, 963.
Slavery in the way of nationality in
the U. S., 879.
Slaves, the Athenian, 94 ; the Spartan,
97.
Slavonia, 584.
Slavonic village-communities in Rus-
sia, Dalmatia, and Croatia, 7.
Socialism and the modern Industrial
organization, 1271.
Society an organism, government an
organ, 1160, 1269, 1273, 1279; new
character of political, 1181; objects
of, 12T3.
Solon, position of, in Athenian tradi-
tion, 19 ; political changes preceding
his appearance in Athenian politics,
67-69; majie archon eponymus at a
crisis, 70 ; his economic reforms, 72 ;
his political reforms, 73-79 ; relations
of Pisistratus to reforms of , 80 ; new
principles introduced by, in Athenian
constitution, 79.
Sonderhund, the, 509.
Sovereignty, the feudal conception of,
243; state, in Switzferland, 512; na-
ture of, 1209 et seg. ; the analytical
account of, 1227, 1228.
Sparta, see Topical Analysis ; prop-
erty system in, 99, 1248-1250.
Spartans, their conquest of the valley
of the Eurotas, 96 ; relations to the
subjected population of Laconia, 96;
relations to the state and to each
other, 99; and the state discipline,
107.
Speaker, the, of the American House
of Representatives, his powers! 1071 ;
his election, 1072 ; his name, 1073.
State, the, its origin in kinship and
the family, 4; development out of
the patriarchal family, 12; primi-
tive, disconnected with a particular
territory, 14 ; modern, identified with
land, 16; contract theory as to ori-
gin of, 18 ; traditions of an original
law-giver as creator of, 19; theory
of the divine origin of, 20 ; criticism
of theories as to origin of, 21-23;
emergence of, from the family stage,
63; guardianship of property by, in
Sparta, 99; Roman allegiance to,
1 227.
INDEX.
685
State, Department of (U. S.), 1111.
States, the, of the Union, constituent
members, not administrative divis-
ions, 884; their character, organs,
and functions, see Topiml Anuli/sis.
States-General, the French, origina-
tion of, 288; character and powers
of, 289.
status, the law of, in primitive society,
17, 21, 32.
Stein, liaron vom, refbrms of, 452, 457,
471. 473, 4!)0, 500.
Storthinr/, the Norwegian, '646, 647.
Strategoi (generals), ten, created in
Athens by Clisthenes, SO; their rela^
tions to the archon polemarchus and
to each other in the field, 86 ; typical
oflScers, 110.
Suffrage, see Franchise.
Sulla, 164.
Sumptuary Laws, 1263.
Superintendent of Education, the, in
an American state, 992.
Sweden, see Tupical Analysis, Sweden-
I^orway.
Switzerland, emergence of, from Ger-
many, 373; see Topical Analysis.
Syssitia, the Spartan, 107, 110.
Tables, the XII., prepared, 198; ex-
panded by interpretation, 199; ap-
plied by the Prajtor, 201.
Taxation, variety of laws touching, in
IT. S., 906; local and state, in U. S.,
1042, 1043.
Telegraphs, see Posts and Telegraphs.
Territorial sovereignty, development,
of, in (iermany, o59-.S62.
Territories, the. of the U. S., 1052;
courts of the, 1093, WxA.
Territory, the federal, in U. S., 1047
et secj.
Teutonic Customs, Ancient, their evi-
dence as to social organization, 7;
institutions in Sweden and Norway,
(ilii; origin of tlie English constitu-
tion, (r)]-'>n4: Law spoke national
character, 1208.
Teutons, and Roman legal iiistitntions,
219; contact of, with Kome, 221;
primitive institutions of the, 222-
228; communal government among,
222 ; free, unl'ree, and noble among
the, 223; inter-uommnnal govern-
ment, 224; military leadership, the
comitatiis, 225 ; principle of personal
allegiance among the, 225, 227, 228,
235 ; easterns of, affected by Roman
law, 22;'--ri; institutions of, in
Sweden and Norway, 616; the, in
England, 652-054.
Theatre, largess to enable the com-
mons to attend the, in Athens, 90,
increased, 02. ,^
Thebes, brief supremacy of, 132.
Thexmothetse, the, their judicial func-
tions, 69.
Town-meeting, American, 999, 1003,
et seq., passim.
Towns, Roman law in the, of the Mid-
dle Ages, 217 ; of Middle Ages per-
petuate and transmit Roman princi-
ples, 232; feudalism and the, 244;
guilds in the mediaeval, 245 ; leagues
of the Hanse and Rhenish, 240; lib-
erties of, in mediaeval France, 276;
non-Roman mediaeval French, 277,
278; mediaeval, and the CrusadeS)
279; privileges of, in mediaeval
France, 280; and forms of govern-
ment, 281; decay of independence
of, in France, 2S2; subjection of,
to the king in France, 287; of Bran-
denburg, 441-444; the New Eng-
land, their separate foundation at
first, 837, their union, 838, their
forms of government, 839.
Township, the American, its historical
origin, 999; absorbed into larger
units of government, 1001 ; partial
decay of, 1002; its orsr.Tiiization in
New England, 100;",-10U5; of the
Nortliwest, 1006-1008 ; its origin theres,
10C9; its spread in U. S., 1010, 1011;
its organization outside of New Eng-
land, 1012-1017 ; of the Middle Atlan-
tic States 1019, 1022: of Npw York,
1020; of Pennsylvania. 1021 : in the
South, 1023; in Virginia, 1024.
Trade, the state in relation to, 1256.
686
INDEX.
Transylvania, 584.
Treasurer, the, of an American state,
9i)0, !J91.
Treasury Department, the English,
696-898; of the U. tf., 1112.
' Tribe, ' the, 12 ; a union of phratries,
54 ; a unit of worship, 55.
Tribes, new Athenian, created by Clis-
theues, 82; religion and the tribal
organization, 84.
Tribunes of the people, 154, 155 ; mili-
tary, 156.
Triumvirates, second and third, 166.
, Trojan war, significance of, 35, 115, 125.
Turanian Races, their comparative in-
significance in this study, 3.
Union, preliminary steps towards the
American, 863; the Confederation,
865-867; need for a better, 868;
character of the present, 872-884;
early sentiments towards, 874 ; early
tolerance for threats of secession
from, 875 ; completed by Civil War,
880.
'Union,' the English Poor-law, 787,
788, 790-792.
United States, government of the, see
Topical Analysis.
Universities, created by study of the
Roman law in the Middle Ages, 258.
Veto, the popular, in Swiss cantons,
520 ; of the governors of the Ameri-
can states, 978, 981 ; of the President
of the U. S., 1077.
Vice Chancellor, the German Imperial,
42B.
Vice President of the U. S., 1060, 1097,
1099.
Villages, government of American,
1030 et seq.
Virginia, colonial, government of, 844,
845.
Vogt, the, 443.
War, Department of (U. S.), 1114.
War, the Civil, in U. S., completes the
Union, 880.
War and Domains Chambers, 448 et
seq., 481; fusion of the administra-
tion of War and of Domains in Prus-
• sia, 450; Commissariats, Prussian,
449.
War, the Thirty Years', 379; the Son-
derbund, 509.
Witenagemot, the English, its origin,
656 ; its powers, 657 ; merged- into
the Great Council of the Norman
kings, 659.
Works, public, and the state, 1259.
Wurttemberg, relations of, to other
German states, 394, 397, 399, 401;
independence of, in administration
of posts and telegraphs, 432 ; in mili-
tary administration, 434.
Zollverein, the, 396.
3Q 11 ^5
Vol.
p^ „ -Moodrow
h|ilson>J'*5rr^
Title
.jhe state
CopV