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Cornell University Law Library. 



November 27, 1915 


Cornell University Library 
JC 11.W75 


3 1924 024 903 050 

'^ a^^ 

Cornell University 

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. 






Author of " Congbessiohal Govbbnment." 








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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 


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 



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 



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 



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 



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 



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 



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 



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 



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 



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 



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 



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 



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 


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 



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 



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 



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 


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 



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 



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 



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 



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 



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 



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 



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 



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 



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 



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 


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- 


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 


historical. I need not explain or justify the purpose of this 
volume, therefore : I need only ask indulgence for its faults of 

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- 

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. 



August 8, 1889. 


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 


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 


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. 


(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 


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 


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 


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 


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, 


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 


■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." 


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. 


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. 


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 


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 


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- 

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. 


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., 


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." 



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 


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 


■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 


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. 


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 


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. 


■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 


■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. 


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- 


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 


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 

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 


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- 


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- 

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." 




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 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. 


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 


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.). 


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 

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. 


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. 


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 


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- 


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 


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 


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. 


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 


' 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 


(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 


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- 


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 


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 


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- 


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 


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- 

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. 


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. 


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 


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- 


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- 


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 


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 


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 

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 


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 


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, 


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- 


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 


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. 


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. 


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 


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 


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 


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 


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.. 


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. 


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 


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 

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 


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- 

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 


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 

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 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, 


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 


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- 


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- 


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 


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 


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 


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 


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 


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 

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. 


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 


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. 


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 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 : 


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- 


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 


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 


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- 


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 

134. The Hellenization of the East. — That Hellenization 
followed the conquests of Alexander the Great. Alexander 


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 


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 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 

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 


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 


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 


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 


(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 


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 

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- 


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. 


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 


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- 


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 

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 


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- 


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 


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 ; 


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, 


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 


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 


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- 


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 


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 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 


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 


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 


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 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 

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). 


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 

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. 


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. 


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 


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- 


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 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 


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. 


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,' 


" 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 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 


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 


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 


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. 


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. 


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 

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." 


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 

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 


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- 


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." 


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 


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 


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 


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 


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 


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 


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 

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. 


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 


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 


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. 


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. 


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 


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- 


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. 


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- 

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, 

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, 

Seeley, J. R., "Roman Imperialism." 
Bryce, Jas., " The Holy Roman Empire." 


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." 


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, to the historv of institutions. Hitherto they had lived 


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. 


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 


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 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. 


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 


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 


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. 


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 


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. 


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 


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 


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 


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 


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, 


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 


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 

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 


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 


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 


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 


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 

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, 


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- 

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- 


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. 


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 


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 


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 


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, 


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 


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 

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. 


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. 




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 


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- 

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- 


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- 

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 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. 


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 


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 


' 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 


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. 


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 


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. 

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- 


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, 


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- 


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- 


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 


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. 


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. 


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 


per force remain officials and not dream of following the example of 
dukes and counts, and becoming independent feudal lords on their own 

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 

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 


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 


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 

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. 


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- 


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 

1 Marquardsen's Handbuch, Lebon's monograph on Prance, p. 78. 


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 

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 


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 


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- 


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 


nine years. This process will in time, of course, do away with all life- 

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 


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 : 


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 


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 


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. 


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 


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 


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 


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 

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 


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- 


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 

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. 


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 

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, 


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 


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 

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. 


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 

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 


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 

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 

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 


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 


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, 


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. 


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 


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. 


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 

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, 


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- 

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. 


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. 


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 

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 


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- 

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- 


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 


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 


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- 


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 

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 


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 

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- 


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 

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. 


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- 

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. 


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. 


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- 


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) . 


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 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 

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 


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 


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- 

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. 


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 

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, 


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- 


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). 


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, 


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 


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 


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 

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 


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. 


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. 


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). 



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 

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- 


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 

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. 


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. 


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. 


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 


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. 


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 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. 


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. 


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 


I^rivate law has been left to the regulation of the several 

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 

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 


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 


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 

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. 


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. 


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. 


a part of their contribution to the support of the imperial govern- 

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- 

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 


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 


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 


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. 


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- 

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 


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 

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. 


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, 


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- 

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 


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 

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 

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 


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 


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. 


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 

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. 


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, 


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. 


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. 


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 

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 


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, 


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 



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 


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 


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 

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. 


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. 


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. 


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 


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 


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. 


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 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- 


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 


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 

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- 


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 

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. 


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 

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. 


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. 


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 


(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, 

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. 


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. 


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- 


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 


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 


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- 


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- 

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 


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- 


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- 

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 


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. 


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 

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, 


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, 


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. 


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. 


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 


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. 


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- 


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- 

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 


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 

1 Westminster Eeview, Vol. 129, p. 207, ^ jn^l. 


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. 


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. 


intimate servant and in part tlie authoritative guide of the 

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. 


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- 


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 

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. 


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 


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 


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. 


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. 


7. With, the concurrence of the people, they revise the federal 

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 

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. 


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 

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- 


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 


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 

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 

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. 


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 


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. 


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- 

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. 


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- 
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. 




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? 


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 


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- 

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. 


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 


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 


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. 


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 

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 


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 


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 


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- 

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 

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. 


(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- 

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- 


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 


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 

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 


measures in the BeichsratJi. They must attend both houses to 
defend the policy of the executive and to answer 'interpellar 

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, 


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 


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 


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. 


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 


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 


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- 


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. 


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- 


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- 


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 


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 


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 


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 

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 


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 


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- 


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 

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. 


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- 


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 


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 


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. 



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- 


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 

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 


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 

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 


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 


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- 


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 


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 


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 

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- 


sionally, but continuously ; not with a mere outside acquaint- 
ance with the posture of affairs, but witli an inside intimacy of 

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- 

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. 


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 

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- 


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. 


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 


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- 

674. Origin of the Cabinet. — Meanwhile, long before the 
parliamentary wars had come to a head, the same causes that 


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., 


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 

" (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 


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. 


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 

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 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, 


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, 


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 


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 


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 


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. 


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. 


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- 

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 


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 

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 

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. 


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 


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. 


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). 


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. 


exclusive of the towns. Thus the county of Derby was, for the pur- 
poses of parliamentary representation, the county of Derby minus its 

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 


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. 


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 

1 Lord Palmerston, for example, was an Irish peer. 


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 

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 


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 

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. 


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 


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). 


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. 


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, 


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. 


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- 

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 

" 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. 


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 


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 

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 


"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. 


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 


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, 


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 

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, 


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- 


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 

"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. 


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- 

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. 


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 

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 


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. 


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. 


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 


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. 


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 


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, 


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 

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, 



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 


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 

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 


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- 

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 


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 

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 


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. 


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 

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 


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 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 

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 


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. 


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. 


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. 


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. . 


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- 


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 


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 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 


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 


seen it extended to all the British colonies capable of self- 

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 


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 


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 


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 


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. 


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