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THE STATE.
ELEMENTS OF HISTORICAL AND PRACTICAL
POLITICS.
A SKETCH OF INSTITUTIONAL HISTOBY
AND ADMINISTRATION.
s
BT
WOODROW WILSON, Ph.D., LL.D.
AirrBOB OF ** CONOBSMIOVAL OOTSBNIUIIT.**
'^•C<
BOSTON, U.S.A.:
D. C. HEATH & CO.. PUBLISHERft.
1889.
55'0. ^
c
Copmaar, 1889,
Bt WOODEOW WILSON
m^
TTFtHIRAFMT IT J. B. Cl'VBlNll * Oo., BOSTOH.
fits Wiitt, y
Whoas Affectionate Sympathy
And Appreciative Inteiest
ave la Greatly Lightened tne Lab
Of Preparing
t^i'it aBoih,
It i* Gratefully Dedicated
by
THE AUTHOR.
TABLE OF CONTENTS.
Topical Analysis vl
Prefftc* zxxW
''I. The Piobable Origin of Government 1
J II. The Frob&ble Earl; DeTelopment of Government 17
III. The Governments of Greece and Bome 30
IV. Roman Dominion and Roman Law 129
V. Teatonic Polity and Government during tbe Middle Ages I4T
VI. The Government of France 176
VII. The Governments of German; 226
VIII. The Governments of Switzerland 301
IX. The Daal Monarchlea ; Austria- Hangar;, Sweden-Norway 33*
'i X. The Government of England ... 366 -
i, XI. The Government of the United SUtes U9
XII. Summary : Constttntlonal and Administrative Develop-
XIII. The Nature and Forms of Government 693
XIV. Law : Its Katnre and Development 610
XV. The Functions of Government 637
XVI. The Ends of Government 6B6
Index 689
TOPICAL ANALYSIS.
8«o.
I. The Probable Origin of Grovemment 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
Gref k 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 23
Conclusion 24
n. The Probable Early Development of Government. 26-46
The Beginnings of Government 25
The Family the Primal Unit 26
Persistence of the Idea of Kinship 27
Fictitious Kinship : Adoption 28
Kinship and Religion 29
TOPICAL ANALT8I8. vii
Sbc.
The Bonds of Rellgloii and Precedent 30
The Reign of Custom 81
Flxlt; of SjTBtem the Rule, Change tbe Exception 33
ChAnges of System ontrun Changes of Idea 33
How Did Change enter? 3*
DllTerences of Custom 36
Antagonism between Cnstoiug S6
Competition of Cnstoms 37
The Better Prevail 88
Isolation, Stagnation 39
Horement and Change tn the West 40
Hlgntlon UUt Cnnqnest 41
Inter-trlbal Imitation 42
Individual Initiative and Imitation 43
iDStltntional Cbsoges ; Choice of Rulers 44
Hereditary replaced by Political Magidtracy 46
m. The Governments of Greece and Rome 4T-1ST
The ETolntioo of Government 47
(l)The Goremmenta of Greece; 4S-110
The Patriarchal Presidencies: Legislation 48
Tribal Justice 49
Patriarch and Priest 50
Not Lord, but Chief 61
The Primitive A^^oi 52
The Antique ' City" 63
CoDfederate Growth of Family Groupa 64
The ' City ' a Confederacy of Gentes 56
The Elders 6T
Religion : the Priesthood 68
Primogeniture 60
The City's Religion 61
Decay of the Antiqne City 62
The City absorbs its Constituent Parts 6*
Decline of the Elders' Separate Powers 65
Political Disintegration of the Geru 66
Atiuhs 67-94
The City of Solon : Klogship gone 67
The Archonship 68
rm TOPICAL A3SALY9MS.
Vine ArdKMM €9
Solon Ardioii Epoojmiis : tbe Crisis 70
The Dnoooisii Code 71
Solon's Economic Befonns 72
Solon's Politicsl Befonns : the Four Propeity
Clssses 71
EUglbUitj sod Election to Office 75
The Assemblj sod the Senste 76
The Senate of the Areopsgas 77
The Jodicisry 78
The New Principles introdoced 79
Pisistratos and the Solonian Constitation 80
CUsthenes 81
The New Demes and the New Tribes 82
The Arrangement of the Demes 83
Religion and the Tribal Organization 84
Expansion of the Popular Jury Courts 85
The Ten Strategoi 86
Ostracism 87
Soccess of the CUsthenlan 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 MetoBci 93
The Athenian Slaves 94
Spamta 96-110
Fixity of the Spartan Constitution 95
The Spartans a Garrison of Conquerors 96
Slaves and Helots 97
Periojcl 98
The Spartiatoi : Property Laws and State Guardian-
ship 99
The Two Kings 100
The Council of Elders 101
The Assembly 102
Election of Elders 103
The Ephors 104
The Administration of Justice 106
TOPICAL AMALTBIS.
Tbe SUte DtaclpUne lOT
Principle of Growth In the Sputwi Coiutitntton 108
LycnrguB 108
Greek Administration 110
HXLLAS 1 11-143
Greece not Hellas Ill
Orlglnil Hlgratlona of the Oreeks 113
Tbe PhcenlcUn Influence 118
Later Hlgratlona of the Enropean Greeks lU
He-settlement of the Asiatic Coasts from Greece. . . llfi
Tbe Greek Hedlterxuiean US
Bace Dlstribntlon. . : IIT
The Greek Colonial System 118
Colonial Constitutions 1 19
Law of Constitntlonal Modification In Hellas. . ISl
Union and Nationality among Qie Greeks 122
Kellgloos Communltj: the Delphic Amphlctyony.. 123
The Delphic Oracle: Its InflneDcc 124
PollUcal Ag^egation : the Ach«an Supremacy 126
Cretan Power 126
Supremacy of Argos 127
Games and Festivals: the Hellenic Spirit 128
The Dellan Confederacy 129
Athenian Empire 130
The Peloponneslan War : Oligarchies v». De-
mocracies 181
Hacedon 138
The Hellenlxatlon of the East 184
The AchBan Leagae 138
The .aitollan League 140
Rome and the Western Greeks 142
After Roman Conqnest 143
(S) The Government of Rome 144-187
The Ancient Roman Kingdom 144
Leading Peculiarity of Roman Political Derelopment. . . 146
Reforms of Servlos 146
The Centuries 147
Beginnings of the Republic 148
The Senate 149
Composition of the Senate 160
TOPICAL AKALtSIS
8io.
Boman Conquests and their Constitutional Effects 151
The Plebeians 162
Secession of the Plebeians (b.c. 494) 153
The Tribunes 164
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 under Augustus 165
The Completed Imperial Power 169
The New Law-making 170
Judicial Powers of the Senate 171
Growth of New Offices 172
The Provinces 178
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 and Antagonism 187
Summary 188-196
The City the Centre of Ancient Politics 188
The Approaches to Modem 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 19S
Growth of Legislation 194
Empire 196
TOPIOAL ANALYSIS.
IT. Boman Dominion and Roman L&w 196-S20
Coirenc; of Homao Law 196
Character of Earl; Koman Law 197
Plebeian DlHcontent wltb the Law; the XII. Tables... 19S
The Growth of the Law: InterpretaUon 199
The Fnetors ; the PrKtor Urbanus 200
The Law and the Prtetor's Application of It 20 1
The FrjBtor's Edict 203
The Pretor Peregrinns 203
The Jus Gentium 204
The Jut Oentium not International Law. . . 206
Influence of the J>t$ Gentium upon the Jut
Civilt 20«
AdmlnlstratloD of Justice In the Provinces 207
The Law of Nature 208
Roman dtixenship and the Law 210
The JorUts 211
Inflnence of the Jniists 212
The JaiiBconsults ander the Empire 218
Imperial Legislation 211
The Codification of the Law 216
The Corpu* JurU Civitis 216
The Completed Roman Law 217
DUTliBion and Influence of Roman Private Law 218
Roman Legal DorainloD in the Fifth Century 219
Influence of Mosaic lostltutloas 220
V. Teutonic Polity and Government during the Middle Ages 221-2GT
Contact of the Teutonic Tribes with Home 221
Primitive Teutonic Institutions 222
Free, Dnf ree, and Noble 223
Inter-Communal Government 224
Military Leadership : The Comitatus 22.1
Contrasts between the Teutonic System and the Roman 226
Roman Allegiance to the State 227
Teutonic Personal Allegiance 228
Temporary Coeiietence of the Two Systeros 229
Relative Influence of the Two Systems 230
Roman Influence upon Private Law 231
Boman Towns 232
Xii TOPICAX ANALYSIS.
Sxc.
The Fusion of the Two Systems 233
Effects of MoYements of Conquest upon Teutonic Institu-
tions 234
(1) The New Kingship 235
(2) The Modified 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 246
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 266
Custom and Written Law 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 -Government 273
Rural Communes 274
Liberties of Towns : the Roman Municipalities 276
The Non-Roman Municipalities 277
TOPICAL ANALYSIS.
The Towns and the Crusades 2T9
Municipal PrlTileges 280
Forms of Town Goveriiment 281
Decay of Destruction of Municipal Self-Gov-
emment 282
The Pays (l'£:tate 283
Functions of Local Estates In Finance 384
Territorial Development of the Monarchy 285
The Cmsades and the Monarchy 286
iDStitnllonal Growth 287
Tlie 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 296
Growth of Centralized Local Administration : Louis
IX 296
8l«ps of Centralization 297
Personal GoTemment ; Louis XIV 298
The Completed Centralization : the Intendont. . 299
The Province 300
The Office of iDtendant 301
Judicial Centralization 302
The Royal Council and the Comptroller
General 303
Spirit of the Administration 304
The Revolution 306
Administrative Work of the Kevolutlon 306
The Reconstruction 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 316
In case of Usurpation 316
XIV TOPICAL ANALYSI&
The Natiomd Assemblj : its Functions 317
Revision of the Constitution 318
The President of the Republic 319
Inflaence of the President and Senate 321
The Cabinet and the Conncil of Ministers 322
The Ministries 323
The Cabinet 324
The Council of Ministers 325
Relations of the Ministers to the President 326
Ministerial Responsibilit j 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 l^epartmental Coumiission 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
Jurj- Courts 355
Tribunal of Conflicts 357
VII. The Governments of Germany S5ft-504
The Feudalization of Germany 3^
Official System of the Prankish Monarchy : the Grqfen. 359
The Magistracy of Office and the Magistracy of Pnv
prietorship ' ^^
TOPICAL ANALYSIS. XV
8so.
Hereditary Chiefs 361
Full Development of Territorial Sovereignty 862
The Markgraf 868
The Empire 864
The Saxon Emperors : Otto the Great 865
The Saltan Emperors : Henry III 867
The Hohenstaufen : Frederic Barbarossa 36S
The Interregnnm and the Electors 869
The First Habsbnrg Emperor 870
The Gk)lden Bull 871
Imperial Cities 372
The Swiss Confederation 878
Austria and the Empire 874
Maximilian 1 875
Maximilian's Reforms 876
The Habsburg Marriages 878
The Thirty Years* War 379
Until 1806 380
End of the Old Empire 381
Austria's Ulval, Prussia 882
The Mark Brandenburg 883
Independence of the Markgraf 385
Anarchy In Brandenburg 386
The HohenzoUem 887
The Dispositio Achillea 388
Joachim II 389
Prussia 390
The Great Elector 891
The Kingdom of Prussia 392
Frederick the Great 393
Napoleon : The Confederacy of the Rhine 394
The German Confederation 396
Period of Constitutional Reform 396
The North German Confederation 397
Austria out of Germany 398
The German Empire 899-437
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 , . 409
XVI TOPICAL ANALYSIS.
Sovereignty of the Empire in Legisbition i04
The BundUrath : its Composition and Churmcter. . . 405
Representation of the States in the Bundesrath. i06
Functions of the Bundurath 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
Coarse of Legislation 419
Election of Officers 420
Imperial Administration 421
The Imperial Chancellor 422
The Vice Chancellorship 426
Foreign 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 435
Justice 436
Citizenship 487
The Oovemment 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 Oovemment 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
Dlflfbrentlatlon of the Central Bureaux 451
Reforms of Stein and Hardenberg 452
Reform of Local Government before 1872 454
TOPICAL ANALYSIS. XVll
Sec.
Landgemeinde and Manors 455
Beform of 1872 456
The Execatiye Departments 457
The Council of State 468
The SttuUsminUterium 460
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
The King's Power of Adjournment and Disso-
lution 470
Local Goyemment 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 489
The City Commune 490
General Principles of Prussian City Government 491
The Administration of Justice 494
Administrative Courts 500
The Court of Conflicts 602
The Prussian Courts and Constitutional Questions. . 603
YIII. The Governments of Switzerland 505-577
Feudalism In Switzerland 605
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
xviii TOPICAL ANALYSIS.
8x0.
Nationality and State Sovereignty 512
Indefinite Constitational Grants 518
Guarantee of the Cantonal Constitutions. . 514
T?ie Cantonal Governments 515-526
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 620
The Referendum '. 521
History of the Referendum 522
The Executive Power. 623
Local Government : the Districts 624
The Gemeinde 525
The Federal Government 627-577
The Federal Executive 627
The Executive and the Legislature 633
The Executive Departments 634
Mixed Functions of the Executive 536
The Army 540
Preservation of Internal Order 541
Extradition 542
Appeal in Judicial Cases 643
The Federal Chancellor 646
The Federal Legislature 546
Composition of the Houses : I. The National Council 547
II. The Council of States 552
Functions of the Houses 555
Revision of the Constitution 556
The Federal l^ferendum 657
Functions of the Federal Assembly 558
Administration of Justice : I. The Cantonal Courts 669
II. The Federal Court 667
Criminal Jurisdiction of the Federal Court 669
Cases in Public Law 670
Civil Cases in Private Law 673
Criminal Cases 676
ni. The Federal Council : Administrative Cases. . . 676
Inter-Cantonal Judicial Comity 577
TOPICAL ANALYSIS.
IX. The Dnal Moaarchles : Anstris-Hungarj, Sweden- Nor way. .6T8--650
The Dual Monarchies 578
AuMlria-Huni/ary fl'fl-CU
ADBtrla'H Historical Positiou 37U
AcqaUitlon of IlangBry anil Bohemia. 580
Bohemia 681
Horavla EHS
HnDgsry 583
TranBylvftnla, SUvonla, Croatia. 684
Gallcla, DalmaUa. 586
Bosnia and IlerEegovioB 686
Anstria-Hangary : Natnre of the UnioD 687
Variety of Race fiSS
Home Bule : Bohemia, Hungary fi89
The Constitution of 1867 693
Dnat Character of the Monarchy 698
Th« Fundamental Laws 591
The Common Government: the Emperor-
King 695
Succession, Regency, etc 696
The Common Ministries 697
The Economic Relations of Anatria
and Hungary 600
Patents, Posts, and Telegraphs. ... 601
The Delegations 602
Citizenship 603
The (iovernntenl o/Auttria : The Executive 60(
TheMlnlBtry 605
Legislation ; The National and Provin-
cial Legislatures. 606
The SeiehtraA 607
The Landtagt 609
Loc^ Oovemvunt 610
The Govemmtnt of Hungary: The Execn-
tlve... 611
The Reichstag 612
Local GoverHmenC 613
Croatla-Slavonla 614
Sweden-Norway 616-660
Danes and Northmen 616
XX TOPICAL ANALYSIS.
8so.
Early Ingtitutions 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
Bemadotte and the Accession of Norway 620
Norway's Fight for Independence and her
New Constitution 621
Constitutional Contrast between Sweden
and Norway 628
The Fundamental Laws 624
The Common Goyemment : The King 625
The Throne 627
Foreign and Common AfKiirs 628
War 680
Legislative Control of Foreign Rela-
tions 682
Concurrent Legislation 688
The Joint Councils 634
atizenship 685
T?he Oovemment of Sweden 686
The Swedish Executive: The King and
Council 687
The Riksdag 640
Joint Legislation upon Financial Ques-
tions 641
Local G<}vernment 642
Changes in the Constitution : 643
The Oovernment of Norway: The Norwegian
Executive 644
The StoHhing 646
Local Government 648
Changes of Constitution 649
The Two Countries 650
X. The Government of England 661-812
I. Central Government 651-747
Origin of the Constitution Teutonic 661
Primitive Teutonic Institutions 652
Institutional Changes effected by Conquest 658
TonCAL ANALYSIS. Xxi
8xc.
The Hundred-moot and the Folk-moot 654
The English Kingdom and the English County 656
The Witenagemot 656
Powers of the Witenagemot 657
The Norman Fendallzation 658
The Great Council of the Norman Kings 659
The Feudal System in England 660
Character of English Institutional Growth 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 69 X
The Five Great Offices of State 692
The Admiralty, the Board of Trade, and
the Local Government Board 694
The Post Office 696
The Treasury 696
The Chancellor of the Exchequer 697
The Estimates 698
Administrative Departments of the Privy
Council 699
Other Executive Offices 700
XXll TOPICAL ANALYSIS.
Sbc.
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 and 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 780
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 736
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 746
PoUce 747
II. Local Government 748-812
Complex Character of Local Government in England. . > 748
TOPICAL ANALYSIS. XXlli
Bsc.
Qeneral Characterization 750
The Coanty : its Historical Rootage 751
Early Evolutton 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. 762
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
Londoir. 807
School Districts 810
Central Control .'. 812
The Government of the English Colonies 813-83.1
XXiy TOPICAL ANALYSIS.
Sbo.
English Colonial Expansion 818
English Colonial Policy 814
Lord Dorham in Canada 81S
The Self-Goveming 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 ..889-1120
The English Occupation of America 832
Adaptation of English Institutions 833
The New England Colonies 835
The Separate Towns 887
Union of the Towns 888
Forms of Town Government 889
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 861
Direct Government by the Crown 853
Development of the Assemblies 854
Development of Constitutional Liberty in the Colonies. . 856
Political Sympathy of the Colonies 857
American as compared with English Constitutional
Development 858
Process of Growth in America Federation, in
England Consolidation 859
TOPICAL AJ^ALYSIS. TXV
8bo.
Conscious Deyelopment of Institations in
Americft 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 878
Early Sentiment towards the Union 874
Early Tolerance for Threats of Secession 875
Growth of the National Idea 876
Bailroads, Expansion, and War aid the
National Idea 878
Slavery stands in the Way of Nation-
ality 879
Civil War completes the Union 880
Present Character of the Union 881
Present Character of the Government
of the Union 882
The States not Administrative Di-
visions but Constituent Members
of the Union 884
Character, Organs, and Functions of the States 885-1044
The Law of the States : its Character 886
Functions of the State Courts with Regard to the
Interpretation of Federal Law 888
Scope of State Law 889
Legislative Powers of the Union 890
Powers withheld from the States 891
Powers left with the States 892
Non-Constitutional Provisions in State Constitu-
tions 894
Distrust of Legislation 895
Objections to the Practice 896
Constitutional Amendments 898
XXvi TOPICAL AKALirSlS.
In England, France, and Qennany 899
Preliminary Steps of Amendment 900
Proposal of Amendments 901
Conflict of Laws 904
Detrimental Efiiects 905
In the Matter of Taxation 906
In the Criminal Law 907
Bankruptcy 908
Proposals of Reform 909
Evils of the Case easily ezaggeraied 910
Louisiana and New Mexico 91 1
Interstate Law : Commerce 912
Posts and Telegraphs 918
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 928
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 981
Terms of Senators and Representatives. . . }fS2
Names of the Houses 988
Qualifications of Senatora and Representa-
tives 984
Legislative Procedure 985
Standing Committees 986
The Suflhige 987
The Stote Courts 940
Common Law Courts : (1) Justices of the Peace 944
(2) County or Municipal Courts 945
(8) Superior Courts 946
(4) Supreme Courts 948
(5) Supremest Courts 949
TOPICAL ANALYSIS. XXvii
Sic.
Courts of Equity 964
Fusion of Law and Equity 955
Probate Courts 967
Judges 969
Qualifications of Judges 961
Ministerial Officers of the State Courts 962
The State Executives 964
Terms of Office of Governor and Lieutenant
Governor 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 Difftision 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
XXVm TOPICAL ANALYSIS.
8sa
The Pennsylyania Township 1021
Origins of Local Government
in the Middle States 1022
The Township of the South 1023
The Virginia Townsliip 1024
The County 1026
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-offices, Custom-houses, etc 1053
Congress 1054
The Senate 1055
The Vice-President of the United Stotes 1060
Organization of the Senate 1061
Influence of the Standing Committees 1062
The Senate and the Executive 1063
The President pro Tempore 1064
The House of Representatives 1065
Apportionment of Representatives 1066
Elections to the House 1067
The Fourteenth Amendment 1070
Organization of the House 1071
Acts of Congress 1077
The Federal Judiciary : its Jurisdiction 1082
Power of Congress over the Judiciary 1084
The Existing Federal Courts 1085
TOPICAL ANALYSIS. XltlX
Sic.
The Division of Jurisdiction 1086
In Criminal Cases 1087
The Federal Jadges 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
The Federal Executive 1097
Election of a President 1098
Practical Operation of the Plan: the Party
Conventions 1099
Qualiflcatlons for the Office of President 1 100
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 Treasury 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 11 19
Department of Labor 1120
Interstate Commerce Commission 1120
Civil Service Commission 1120
Conmiisslon of Fish and Fisheries 1120
XII. Summary : Constitutional and Administrative Develop-
ments 1121-1153
Continuity of Development 1121
The Order Discoverable in Institutional Development. 1122
Course of Development in the Ancient World 1123
The Feudal System and the Modem Monarch 1124
England's Contribution 1125
The Romans and the English 1126
XXX TOPICAL ANALYSIS.
Sbo.
Likenesses between the Two Imperial Nations II 27
Popular Initiative in Rome and England 1 128
Rome's Change of System under the Empire 1129
Fundamental Contrast between English and Roman
Political Method 1130
The Development of Legislatures 1131
Powers of a Representative 1 133
Scope of Modern Legislation 1134
The Making, Execution, and Interpretation of Law 1135
Charters and Constitutions 1137
Creation vs. Confirmation of Lil>erties by Constitution 1139
The Modern Federal State contrasted with Confederations 1141
Distinguishing Marks of the Federal State 1 144
Existing Parallels and Contrasts in Organization 1147
Administrative Ihtegration: 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 Necessai'ily upon Obvious Force 1155
The Governing Force in Ancient and in Modem Society 1156
The Force of the Common Will in Ancient Society 1157
Public Opinion, Ancient and Modem 1158
The True Nature of Government 1159
Society an Organism, Government an Organ 1160
The Forms of Government : their Significance 1161
Aristotle's Analysis of the Forms of Government 1162
Cycle of Degeneracy and Revolution 1164
Modern Contrasts to the Aristotelian Forms of Govern-
ment 1165
The Modern Absolute Monarchy 1166
The Modem 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-
em Democracies 1172
TOPICAL ANALYSIS. XXxi
Sac.
Nature of Democracy, Ancient and Modem. . . 1173
Growth of tlie 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 Modem State 1178
Renaissance and Reformation 1179
The Modem Force of Majorities 1180
New Character of Society 1181
XLV. Law : its Nature and Development 1182-1229
What is Law? 1182
The Development of Law : its Sources 1183
1. Custom 1184
2. Religion 1186
8. 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 Character 1207
Germanic Law 1208
Sovereignty : Who gives Law ? 1209
Certain Legal Conceptions Universal 1212
Law and Ethics 1213
Mala Prohibita 1214
International Law 1216
Laws of Nature and Laws of the State 1218
Limitotions of Political Law 1219
Public Law 1220
Private Law 1221
Jurisprudence 1223
XXZU TOPICAL ANALYSIS.
Beo,
The Analytical Account of Law 1226
The Analjrttcal Account of Sovereignty 1227
Summary 1229
XV. The Functions of Oovernment 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: l^ovince of the
Ancient State 1236
Roman Conception of Private Rights 1288
Powers of Roman Senate 1240
Government the Embodiment of Society 1241
Feudalism : Functions of Government Functions
of Proprietorship 1242
The Feudal Monarchy 1243
Modem 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 1260
In Athens 1251
In Rome 1252
Under Modem Governments 1253
The SUte and Political Rights 1254
As regards the State's Mhiistrant Func-
tions 1256
The SUte in Relation to Trade 1266
The State in Relation to Labor 1267
Regulation of Corporations 1268
The SUte and Public Works 1269
Administration of the Conveniences of
Society 1960
SaniUtion 1261
TOPICAL ANALYSIS. XXXIU
Sbc.
Public Education ] 268
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 Modem Industrial Organization 1271
A Middle Ground 1272
The Objects of Society the Objects of Government. . . 1278
. Natural Monopolies 1276
Control not necessarily Administration 1277
Equalization of Competition 1278
Society Greater than Government 1279
Natural Limits to State Action 1280
The Family and the State 1284
The State and Education 1285
Historical Conditions of Governmental Action 1286
Summary 1287
PREFACE.
The scope and plan of this volume I need not explain; they
are, I trust, self-evident ; but a word or two of comment 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. Realizing 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
in 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 os 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-
PBEFACE. ^XXV
anoe of the teacher. Picking out governmental 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 sufficiently 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 I have relied upon that interest in comparative
politics which has been so much stimulated in the English-
speaking world in very recent years. I have meant that it
should be in time to enter the doors of instruction now in all
directions being opened wider and wider in American colleges
to a thorough study of political science. I believe that our
own institutions can be understood and appreciated only by
those who know somewhat familiarly other systems of govern-
ment and the main facts of general institutional history. By
the use of a thorough comparative and historical method, more-
over, a general clarification of views may be obtained. For
one thing, the wide correspondences of organization and method
in government — a unity in structure and procedure much
greater than the uninitiated student of institutions is at all
prepared to find — will appear, to the upsetting of many pet
theories as to the special excellences of some one government.
Such correspondences having been noted, it will be the easier
to trace the differences which disclose themselves to their true
sources in history and national character. The differences are
in many instances nation-marks; the correspondences speak
often of common experiences bringing common lessons, often
of universal rules of convenience, sometimes of imitation.
Certainly it does not now have to be argued that the only
thorough method of study in politics is the comparative and
XXXVl PREFACE.
historical. I need not explaiu or justify the purpose of this
volume, therefore : I need only ask indulgence for its faults of
execution.
The work upon which I have chiefly relied in describing
modern governments ia the great Handbuch des Oeffisntlidien
Sechts der Gegentcart now being edited by Professor Heiurich
Maiquardset) of the University of Erlangen. This invaluable
collection of monographs on the public law of modern atates
has been appearing in parts since 1883 and is now neai'ing nom-
pletion. In most ca^es it embodied the latest authoritative
expoaitioiis 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 yeurs 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, TTie
American Commonwealth. Only in one or two minor points,
therefore, have I been able to make use of his invaluable com-
mentary.
To some of my friends I am under special obligations, of
which I gladly make grateful acknowledgment, for that most
self-sacrificing of services, the critical reading of portiona of
my manuHcrijit. This kindness was extended to me by Pro-
fessor Herbert B. Adama and Mr. .T. M. Vinijent of Johns Hop-
kins University, Professor J. F. 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 inacciiracies
and for many of its excellences.
VFOODROW WILSrlN.
UiDDLrTowN, Conn.,
THE PROBABLE ORIGIN OF GOVERNMENT.
1. Nature of the Question. — The probable origin of gov-
ernment is a question of fact, to be settled, not by conjecture,
but by history. Its answer is to be sought amidst such traces
as remain to us of the history of primitive societies. Facts
have come down to us from that early time in fragments, many
of them having been revealed only by inference, and having
been built together by the sagacious ingenuity of scholars
much as complete skeletons have been reared by inspired natu-
ralists in the light of the meagre suggestions of only a fossil
joint or two. As those fragments of primitive animals have
been kept for us sealed up in the earth's rocks, so fragments
of primitive institutions have been preserved, embedded in the
rocks of surviving law or custom, mixed up with the rubbish
of accumulated tradition, crystallized in the organization of
still savage tribes, or kept curiously in the museum of fact
and rumor swept together by some ancient historian. Limited
and perplexing as such means of reconstructing history may
be, they repay patient comparison and analysis as richly as do
the materials of the archaeologist and the philologian. The
facts as to the origin and early history of government are at
least as available as the facts concerning the growth and kin-
ship of languages or the genesis and development of the arts
and sciences. At any rate, such light as we can get from the
knowledge of the infancy of society thus meagrely afforded us
is better than that which might be derived from any a priori
2 THE PROBABLB ORIGIN OF GOVERNMENT.
speculations founded upon our acquaintance with our modem
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 tra-
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 occupy only a secondary place in such
inquiries. The main stocks of modem European forms of
government are Aryan. The institutional liistory 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
THB l>ROBABLS ORIQIK OF GOVBRNMBNT. S
of deyelopment. Aryan^ Semitic, and Turanian races alike
aeem 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
Xn'nMtp. The original bond of imion and the original sanction
for magiBterial 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-
ning^ of the family unfortunately furnish matter for much
modem difference of opinion. This difference of opinion may
be definitely summed up in the two following contrasted
views : —
(1) That the pcUriarchcU 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
antbority of rule vesta in the eldest liTing male ascendant.
4 THE PROBABLE ORIGIN OF OOVERKMENT.
(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 relar
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-
dience 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
TUB PROBABLE OBIQIK OF QOVBBNMBNT. 5
there still suryive 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 compara-
tively modem evidences of survived law and custom, we have,
as clearer evidence still, the 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
they 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
least not impair, that theory.
6 THE PBOBABLB ORIGIN OF QOVBBKMBNT.
/ 10. The Non-Aryan Family. — All the really substantial
evidence of the absence from early society of anything like
definite 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 our own, we call a savage state, in which
there is good reason to believe that very early systems of social
order have been perpetuated. In such cases evidences abound
of the reckoning of kinship through mothers only, as if in
matter-of-course doubt as to paternity ; of consanguinity signi-
fied throughout the wide circle of a tribe, not by real or sup-
posed common descent from a human ancestor, but by means
of the fiction of common descent from some bird or beast, from
which the tribe takes its name, as if for lack of any better
means of determining common blood ; of marriages of brothers
with sisters, and of groups of men with groups of women, or
of groups of men with some one woman. In the case of some
of these tribes, moreover, among whom polygamy or even mo-
nogamy now exists, together with a patriarchal discipline, it is
thought to be possible to trace clear indications of an evolution
of these more civilized forms of family organization from ear-
lier practices of loose multiple marriages or even still earlier
promiscuity in the sexual relation.
It is thus that color of probability is given to the view that
the patriarchal family, in these cases almost certainly, has in
all cases possibly been developed from such originals.
11. Aryan Tradition. — These proofs, however, reach the
Aryan races only by doubtful inference, through rare and ob-
scure signs. No belief is more deeply fixed in the traditions
of these stronger races than the belief of direct common de-
scent, through males, from a common male ancestor, human or
divine ; and nothing could be more numerous or distinct than
the traces inhering in the very heart of their polity of an
THE PBOBABLS ORIGIN OF GOVSBNM£NT. 7
original patriarchal organization of the family as the arohetjpe
of their political order.
12. From the Patriarchal Family to the State. — The patri-
archal family being taken, then, as the original political unit
of these races, we have a sufficiently clear picture of the in-
fancy of government. First there is the family ruled by the
&ither 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.
IS. 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 legitimate 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
THE PROBABIvE ORIGIN OF GOVERNMENT.
fathers of the race were born ; and nothing but a moat 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 travdling
political organization, a state without territoria,! boundaries or
the need of them, composed of persona, but associated with no
fixed or certain habitat ? And yet such were the early states, —
nomadic groups, 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 regardii^
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 Koman em-
pire just because they had had no idea theretofore of lieing
confined to any particular Frank-innd. They left no France
behind them at the sources of the Ehine; 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 eon-
fining themselves to a single laud. Drawn by the processes
of feudalization (sees. 243, 253, 268, 269), sovereignty then 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 offi-
cially to assume the latter title, From the first, it is true,
THB PBOBABLB ORIGIN OF GOVERNMENT. 9
social organization has eyerywheFe tended to connect itself
more and more intimately with the land from which each
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-bom with the notion of government.
16. Modem definitions of a state always limit sovereignty .
to some definite land. " The State,'' says Bluntschli, " is the
p(^tically organized people ( VoUcperson) of a partUndar 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 disturbing 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 neoeesary to
modem thought than the idea of territoriality as connected
10 THB PROBABLE OBIQIN OF GOVBRNMENT.
/ 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 bom 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 ^atus. 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 the 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 status. Status had
to be broken through by some conscious or unconscious revolu-
tion before so much as the idea of contract coiQd arise ; and
when that idea did arise, change and variety were assured.
Change of the existing social order was the last thing of which
the primitive state dreamed ; and those races which allowed the
rule of status to harden about their lives still stand where they
stood a thousand years ago. " The leaving of men to have their
careers determined by their efficiencies," says Mr. Spencer,
'' we may call the principle of change in social organization."
THE PROBABLE ORIGIN OF GOVERNMENT. 11
18. Theories concerning the Origin of the State : the
Contract Theory. — Such views of primitive society furnish
OS with destructive dissolvents of certain theories once of ahnost
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 Dotable names coDnected with this theory as used to ac-
coant for the existence of political society are the names of Hooker,
Hobbes, Locke, and Rousseau. It is to be found developed in Hooker's
Ecdesiasiieal Polity, Hobbes' Leviathan, Locke's Civil Government, and
Boufsean's T%e 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,
^ For the natural history of this conception of a Law of Nature, see
Maine, Ancient Law, Chap. III. Also pott, sees. 208, 200.
12
THE PROBABLE OBrOnT OP GOVERNMENT.
amongst themselves what to do or not to do ; but forasmuob
as we are not by ourselves sufficient to furnish ourselves with
competent store of things needful for such a life as our Kature
doth desire, a life tit for the dignity of man, therefore to sup-
ply these defects and 'imperfections which ai-e 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
Wie 'state of nature,' in which that Law, and only that Law,
offered restraint to the selfish pa-saions, became pKuitically 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 he brought to an end without mutual extermination,
namely, by common consent, by men's " agreeing together mntu-
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 manj
the surrender on the part of each man of all rights antago-
nistic to the rights of others ; forbearance and co-operation.
Locke confidently aflfirmed " 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 (-hoiee, in the
presence of the possible alternative of continuing in this state
of nature, that common wealths, 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 laws
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
I KceUmiutieal Polity, Book I., mc. 10.
THE PROBABLE ORIGIN OF GOVERNMENT. 18
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 ; Eome her Numa ; England her
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 modem idea which attributes human govern-
ment to the immediate institution of Grod himself, — to the
direct mandate of the Creator. This theory has tak(»n 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
coimted for nothing ; society — the family, the tribe —
coimted for everything. Government came, so to say, before
the individual. There was, consequently, no place for con-
tract, and yet this theory makes contract the first fact of social
14 TUB PROBABLE ORIGIN OF OOVERNMENT.
life. Such a contract aa it imagines could not have stood
unless supported by that reverence for ' law ' which is an
altogether modem principle of action. The times in which
goveriiinent 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 kinehip,
that groups widened into states — not by contract, but by
adoption. Not deliberate and reasoned respect for law, but
habitual and instinctive respect for authority, held men to-
gether; and authority did not rest ujion 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 origiuate 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-maile by God, nor was it, on
the other hand, a human contrivance. lu its origin it was spon-
taneous, natural, twin-bom 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 waa
affected, and profoundly affected, by man's choice; only that
choice entered, not to originate, but to modify government.
24. Conclusion. — Viewed in the light of "the observed and
recorded experience of mankind," "the ground and origin of
THE PROBABLE OBIGIN OF GOVERNMENT. 15
society is not a compact; that never existed in any known case,
and never was a condition of obligation either in primitive or
developed societies, either between subjects and sovereign, or
between the equal members of a sovereign body. The true
ground is the acceptance of conditions which came into exist-
ence by the sociability inherent in man, and were developed by
man's spontaneous search after convenience. The statement
that while the constitution of man is the work of nature, that
of the state is the work of art, is as misleading as the opposite
statement that governments are not made, but grow. The
truth lies between them, in such propositions as that institu-
tions owe their existence and development to deliberate human
eftort, working in accordance with circumstances naturally
fixed both in human character and in the external field of its
activity." *
Some Representative Authorities.
Maine, Sir H. S., "Ancient Law," and "Early Law and Custom,"
especially Chap. VII.
Lnhboekj Sir Jno., "Prehistoric Times," and "Origin of Civiliza-
tion."
Spencer, H., "Principles of Sociology," Vol. I., Part III.
Heam, Wm. E., " The Aryan Household."
Fnstel de Coulanges, " The Ancient City."
Lyall, Sir A. C, " Asiatic Studies."
With more especial reference 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).
> John Morley, Rousseau, Vol. 11., pp. 183-4.
16 THE PROBABLE ORIGIN OF GOVERNMENT.
Smith, W. Robertson, ^' Kinship and Marriage in Early Arabia."
Lang, A. Article ^Family' in the Encyclopaedia Britannica, and
article * Early History of the Family/ Contemporary Rev,, Sept.,
1883.
With reference to the contract theory of the origin of government :
Hooker, " Ecclesiastical Polity.'
Ifobbes, " Leviathan.'
Locke, Jno., " Essays on Civil Government.'
Rousseau, J. J., "The Social Contract.'
n.
THE PROBABLE EARLY DEVELOPMENT OF
GOVERNMENT.
>:»«<H) —
25. The Beginnings of Government. — Government must
have had substantially the same early history amongst all
progressiye 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 organiza- '
tion of these families, whether singly or in groups, furnished
the ideas in which political society took its root. We have
already seen what the nature of that organization was. The
members of each family were bound together by kinship. The
father's authority bore the single sanction of his being the
18 EABLT DEVELOPMENT OF OOVEBNMENT.
fountain-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 efficacious 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
EAbly dbvelopment of ooversmekt.
19
I
I
which, to the thinking of early men, there could be no cora-
mimion, and therefore no community, at alL
29. Kinship and Religion. — In this development kinship
and rell^on ojierated as the two chief formative influences.'
Religion seems in most instances to have been at first only the
expression of kinship. The central and moat sacred worship
of each group of men, whether family or tribe, was the
TOTship of ancestors. At the family or communal altar the
worshipper came into the presence of the shades of the groat
dead of his family or race. To them he did homage ; from
them he craved protection and guidance. The atlopted man,
therefore, received into this hallowed communion wltli the
goda of the family, was accepting its fathers as his own, was
taking upon himself the most solemn duties and acquiring the
most sacred privileges of kinship. So, too, of the family
adopted into the getia, or the gens received Into the tribe. The
new group accepted the ancestry by accepting the worship of
the adopting house or community.
Religion 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 oneuess, 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. Hia 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
pTCCedent, 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
We have ouiselvea in a measure canonized oui
20 EABLY DEVELOPMEKT OF GOVSBNM&NX.
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 whicli 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.
EABL7 DEVELOPMENT OF GOVEBKMENT. 21
The tendency, of course, was for custom to become fixed in a
crust too solid ever to be broken through. In the majority of
cases, indeed, this tendency was fulfilled. Many races have
never come out of this tutelage of inexorable custom. Many
others have advanced only so far beyond it as those caste sys-
tems in which the law of status and the supremacy of imme-
morial custom have worked out their logical result in an
unchanging balance of hereditary classes. The majority of
mankind have remained stationary in one or another of the
earliest stages of political development, their laws now consti-
tuting as it were ancient records out of which the learned may
rewrite the early history of those other races whom primitive
custom did not stagnate, but whose systems both of govern-
ment and of thought still retain many traces (illegible with-
out illumination from the facts of modern savage life) of a
similar infancy. Stagnation has been the rule, progress the
exception. The greater part of the world illustrates in its
laws and institutions what the rest of the world has escaped ;
this rest of the world illustrates what favorable change was
capable of making out of the primitive practices with which
the greater part of the world has remained per force content.
33. Changes of System outrun Changes of Idea. — The
original likeness of the progressive races to those which have
stood still is witnessed by that persistency of idea of which I
have already spoken. Progress has brought nations out of the
primitive practices vastly more rapidly than it has brought
them out of the primitive ideas of political society. Practical
reform has now and again attained a speed that has never been
possible to thought. Instances of this truth so abound in the
daily history of the most progressive nations of the world of
to-day that it ought not to be difficult for us to realize its
validity in the world of the first days of society. Our own
guilds and unions and orders, merely voluntary and conven-
tional organizations as they are, retain in their still vivid sense
of the brotherJiood of their members at least a reminiscence of
22 BABLY DSVKLOPMliKT OF GOVBRKHKNtT.
the ideas of that early time when kinship was the only oooi^
ceivable basis of association between man and man, when
<'each assemblage of men seems to have been conoeived 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 oar
courts under the semblance of a simple application of old roles
(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 modem world. In a thousand ways we are
more advanced than we think we are.
84. 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 proba-
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
^ Maine, Earijf Hiitory of ItutitutioM, p. 232.
BABLY DSVELOPMBNT OF GOVERNMENT. 23
would become the natural result of differences of life and be-
lief. A family or tribe which had taken itself apart and built
up a practice and opinion peculiar to itself would thereby have
made itself irrevocably a stranger to its one-time kinsmen of
other tribes. When its life did touch their life, it would
touch to dash, and not to harmonize or unite. There would
be a Trojan war. The Greeks had themselves come from these
very £gean coasts of Asia Minor, and these Trojans were
doubtless their forgotten and now alien kinsmen. Greeks,
Romans, 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. For 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
24 EABLT DEVELOPMENT OF GOVBRNHENT.
wherever or whenever it could be discovered. That was a time
of war^ and war meant a competition of customs. The oon^
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. Isolationi Stagnation. — Absolute isolation for any of
these early groups would of course have meant stagnation;
just as surely as contact with other groups meant 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 coujrse, only by a figure of speech that we
^ For the best deyelopment of the whole idea of this paragraph and
others in this connection, see Bagehot, Physics and Politics, Chap. II.
SABLT DEVELOPMENT OP GOVERNMENT. 26
can speak of vast peoples like those of China and India as
isolated, though it is scarcely a figure of speech to say that
they are stagnated. Still in a very real sense even these popu-
lous nations were isolated. We may say, from what we dis-
cern of the movements of the nations from their original seats
in Asia, that the races of China and India were the ^ back-water '
from the great streams of migration. Those great streams
turned towards Europe and left these outlying waters to sub-
side at their leisure. In subsiding there was no little commo-
tion amongst them. There were doubtless as many inter-tribal
wars in the early history of China before the amalgamation of
the vast kingdom as there have been in the history of India.
That same competition of custom with custom which took place
elsewhere, also took place there. But the tribes which pressed
into China were probably from the first much of a kind, with
differing but not too widely contrasted customs which made it
possible for them to assume at a now very remote period a
uniformity of religion and of social organization never known
amongst the peoples that had gone to the West ; so that, before
the history that the rest of the world remembers had begun,
China's wall had shut her in to a safe stagnation of monoto-
nous uniformity. The great Indian castes were similarly set
apart in their vast peninsula by the gigantic mountains which
piled themselves between them and the rest of the continent.
The later conquests which China and India suffered at the
hands of Oriental invaders resulted in mere overlordships, which
changed the destination of taxes, but did not touch the forms
of local custom.
40. Movement and Change in the West. — It is easy to
imagine a rapid death-rate, or at least an incessant transforma-
tion, amongst the customs of those races which migrated and
competed in the West. There was not only the contact with
each other which precipitated war and settled the question of
predominance between custom and custom ; there was also the
slow but potent leaven of shifting scene and changing circum-
26 SABLT DEVELOPMENT OF GOVEBNMSNT.
stance. The movement of the peoples was not the march of
a host. It was only the slow progress of advancing mees, 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 skilly their
minds open to greater enthusiasms and enriched with wanner
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 Graecia. 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. Norman does not merge with Saxon without
getting Saxon blood into his own veins, and Saxon thoughts
1
KARLY DEVELOPMENT OF GOVERNMENT.
27
into his head ; neither had Saxon overcome Celt without being
himself more or leas taken captive by Celtic superstition. And
these are but historicd instances of what must have been more
01 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 pf the Old Testa-
ment, frequent instances 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, powerful as betww^n 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 ami 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 imitatora.
New types would find acceptance in the national life; and so a
new leaven would be introduced. Individual initiative would
at last be permitted a voice, even as against immemorial
custom.
44. Institutional Changes: Choice of Rulers. — It is easy
to see bow, under the bracing influences of race competition,
such forces of change would operate to initiate and hasten a
profrress towards the perfecting of institutions and the final
J
28 EARLY DEVELOPMENT OF GOYBBNMENT.
abolition of slavery to habit. And it is no less plain to see
how such forces of change would affect the constitntion 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.
45. Hereditary replaced by Political Magistracy. — Of
course mere growth had much to do with these transfor-
mations. As tribes grew into nations, by all the' processes
of natural and artificial increase, all distinctness of mutual
blood-relationship faded away. Direct common lines of de-
scent became hopelessly obscured. Cross-kinships fell into
inextricable confusion. Family government and race govern-
ment became necessarily divorced, — differentiated. The state
continued to be conceived as a Family ; but the headship of
this vast and complex family ceased to be natural and became
political. So soon as hereditary title was broken in upon, the
family no longer dominated the state; the state at last
dominated the family. It often fell out that a son, absolutely
subject to his father in the family, was by election made mas
EARLY DEVELOPMENT OP GOVERNMENT. 29
ter of his father outside the family, in the state. Political
had at least beg^n to grow away from domestic authority.
46. Summary. — It will be possible to set forth the nature
of these changes more distinc-.tly when discussing Greek and
Boman institutions at length ii 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 Applica-
tion of the Principles of Natural Selection and Inheritance to
Political Society.**
Spencer, Herbert, " Ceremonial Institutions," and " Political Institu-
tions."
Tyfor, E. G., •* Early History of Mankind," and " Primitive Culture."
Mttine, Sir H. S., " Early History of Institutions," and " Village Com-
munities in the East and West."
m.
THE G0\T:RNMENTS of GREECE AND ROME.
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 Roman political practice. We can-
not speak of the governments of Greece and Kome 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 government-s 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 Governments of Greece.
48. The Patriarchal Presidencies : Legislation. — We get
our earliest glimpse of Greek governments from Homer. When
the Iliad and Odyssey were written, monarchy was universal
throughout the Greek world. But not such monarchy as grew
lip 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-
trn meaning of words to describe it as a Patriarchal Presidency.
THE GOVERNMENTS OP GREECE AND ROME. 31
The kings of Homer's songs were not supreme rulers who gave
law and singly administered justice to their subjects. They
were chief nobles, * the first among equals/ presidents of coun-
cils of peers. The early monarchies of Greece were not con-
stituted of single cities, like the later republics, but probably
of groups of communities acknowledging a common govern*
ment. The centre of that government was the council of
Elders (OerorUes), heads of the noble families. That council
was the " king's council " only because it convened at the king's
summons. He called his peers to a feast. To speak modernly,
the dinner-table was the council-board. State affairs were dis-
cussed over the wine and the viands : after an informal manner
which suggests to the reader of to-day Friedrich Wilhelm's
'* Tobacco Parliament," where imperial business shaped itself
as it might through the laconic speech of king and councillors
uttered amidst the dense smoke of busy fuming pipes. Here
the purposes and plans of government originated. Prussian
plans, however, were seldom formally announced : Greek plans
were almost always made publicly known. The king summoned
an assembly of the people (assemblies, that is, of the gentes,
the members of the recognized immemorial kinship) to hear
the decrees of the elders. The presidency of this assembly,
like the presidency of the council, belonged to the king ; or,
rather, the council itself, as it were, presided, under the head-
ship of the king. The elders sat, that is, before the assembled
tribesmen about the person of the king. The king made known
the business to be considered, and the elders, if they chose,
addressed the people concerning it. No vote was taken. The
assembly freely made known its sentiments concerning the
utterances of the noble orators by noisy demonstrations of agree-
ment or disagreement, and on critical occasions its feelings
no doubt counted for something ; but it had no choice but to
acquiesce in the decisions of the council, previously fixed upon
at dinner.
49. Tribal Justice. — Such was ancient Greek legislation.
32 THE GOVERNMENTS OF 6BEBGE ASTD BOME.
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. But 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 fomily
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 preroga-
tives ended. These i)residential and representative functions
of the early Greek king contained the sum of his powers.
Aside from his presidency in legislation and in adjudication,
his high priesthood, and his command in war, he had little
power. There was no distinct idea as yet of personal alle-
giance to the monarch on the part of the people at large. He
received gifts from the people and had the usufruct of the pub-
lic domain for his support ; but these were accorded him rather
as father and typical head of his nation than as master. The
THE GOVERNMENTS OF GREECE AND ROME. 33
services rendered him were largely voluntary. He was not
lord, but chief of his people.
62. The Primitive A^fu>s. — In one sense the king was not
chief of a people at all. The Homeric ^fw^ (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 gentea, 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.
63. 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, T*he Ancient City^ p. 137 (Am. ed.).
34
THE GOVERNMENTS OF GREECE AND ROME.
over by an hereditary phief who was priest, judge, and militar}?
rammander of his house — its king, a chief among the heads
of its branches. Throughout the gens there was the eloaeet
brotherhood. It had its common family worship, its religious
festivals, its common burying-place. Its merabers could in-
herit from each other, and were ultimately responsible for
each other's conduct and debts. They could not accuse one
another before any tribunal but that of their own kindred.
They stood together as one family under a complete family
government.
64. Confederate Growth of Family Groups. — The mo-
narchical city had not originated directly from a fonfede ration
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. Qentes
had first of all united, for the celebration of some common
worship, into Phratriea or (in Latin term) curies. Phratriea
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
worsliip 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.
50. The ' City ' a Confederacy of Gentes. — But though
the city was the next step of confederation after the tribe, it
was not tribes, nor yet phratriea, but gentes which were repre-
sented in the council of the king. There was, ao to say, a
subsidence of politi.^1 organization upon this older foundation
of the famUy. In the city the tribe continued to be a unit of
worship, the phToiry a unit of worship and of military organi-
zation; but only the gena was a unit of civil organization.
The army was grouped by phratriea, but government was con-
stituted by families.
THE GOVERNMENTS OF GREEXK ASH KUMIC
Ml "Tbe citj vmi nol an ■oemblagc of iiidi>idD*l* i it ■•• • coa-
fcdentioa of witnl group*, vbich «en nUblithed before it, anJ
vhk'h >t pennilteil lo renuin. We ■««, id ihe Allicnian oralon, tliil
ttttj AtlieaiaD furnwd ■ ponioD of four ilialinci »ocietiei it IIk imiiM
titnc i he wu K member of i fkniily, of a phralry, uf a tribe, anil of ■ I
dlj. He did not ent«r at the tame lime and tiie ume daj into all IImw;
foor," like an American, who al the moment of hii birlh belongs al
oooe to a familj, a couDly, a itale, and a nation. " The ptmlrf auo
tbe tribe are not adminUtraliTe diTisioiu. A man enlera at iliflereDt
time* into theie foar socieliei, and ascends, eo (o epeak. from on« lo
the otlier. Finl, tbe child i* admitted into Ihe famil; by the rrligiau^
ceremony, nhich take* place *\x dayi after hii birth. Some jrean later
he cnten tbe phratry by a new ceremony. . . . finally, at the age
of aixicen or eighteen, be is presenteil for admiHion into the rit}'.
On that day. in tbe prvsence of an altar, and before the siiinking lleali
of a ■ictim. lie pronouncei an oath, by which he binds liinisclf. amonf
oUier things, always to respect the religion of the I'ity. From tliat day
be is initiated into the public wonhip. and becomes a citizen. If we
obsene this young Athenian rising, step by ilcp. fmni worahip to war>
ship, we have a lyinbol of the degrees through which liunian assocta*
tion has passed. The ciiune which ihii young nian is cuuttrained lo
follow is that wbidi society first followed." '
The Elders. — The real inner life of goveniiuebt dwelt,
refore, uot in the authority of the king, but in the power
I in (UR'h NieialN;r of his CounciL As head of a gtuty
ich Elder exercised those prerogatives uf die fiitlier-sove reign
wut which, as about a suppurt, society had attiuned all its
t growth. As a Council, the Elders were eonfedcruted
veia, representing each a little family sovereignty. It ia
, perhaps, a too far-fetched fancy to liken them to the
era of our own fedenJ Senate. Just as our own Senators
lent self-governing states, cun federated for certain pur-
so did these Elders represent aelf-goveming family
B joined in the jmrsuit of certain common objects. Of
rse the likeness disappears the moment wc look outside
e Council, away from its internal organization. Our S«na-
I Colllang
I, 7'*. Akc,
< CiVj. pp. Iflll. 170.
36 THE GOVERNMENTS OF GRBBCB AND BOMB.
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 &mily,
])hratry, 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. Religion 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 eac.'h 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 i)hratry or city. Gods were in that day
private, not common, property, and were owned inalienably.
Kach higli-priest of the series, therefore, had a peculiarly sacred
and distinctive (jharacter within the group over whose worship
lie presided, and in that character were contained the seeds of
all his other prerogatives. He was chief of the religion of his
grouj) ; 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
THB GOVERNMENTS OF GREECE AND ROME. 87
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 function3 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 civil 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 i)olitical 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 becanie the Senate) always convened in a temple.
Politics was a religion.
62. Decay of the Antique City. — Such seems to have been
the universal first model of completed political society in the
Greek world. When it comes within our view in the Homeric
songs, however, it is already old and near its end. It was the
complete and singularly logical result of that widening from
family to tribe which had filled the ages of human life which
had gone before it. It was the true offspring of its long an-
38 THE GOVERNMENTS OF GBEECE AND BOMB.
cestry : a greater family descended from a long line of families.
But wLen we catch our first glimpse of it, the end of the pure
family state is at haml. 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
development 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 oities
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 goverimieut 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 comjKJund 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
THB GOVERNMENTS OF QREBGE AND ROME. 39
and wherefore of this notable transformation in political order ;
but we can see dimly some of the causes which must have
brought it about. By coming together under the early city
organization the aforetime sovereign family governments neces-
sarily lost much of their former importance. Confederation
inevitably lessens the individual importance of the confederates.
They have no longer their accustomed separate prominence ;
that has been swallowed up in their aggregate weight. How-
ever small might have been the power of each family group
when it was dissociated from its neighbors, its complete inde-
pendence gave it a dignity, a cohesiveness, an individuality,
and a self-sufficiency 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 both of social thought and of social practice would at
length take place. Relegated to a subordinate rank in the
political order and no longer obliged to preserve that constitu-
tion which had been essential to it while it continued itself an
independent government, the gens would by degrees lose its
close integration and compact organic structure. A kingdom
within a kingdom is a difficult thing to keep alive. Its mem-
bers are confused by a service of two masters, and end by really
serving only one, — and that the stronger.
66. Political Disintegration of the Gens. — The family
died, therefore, as a political organization, for lack of suffi-
ciently important functions to keep it interested in itself. It
40 THE GOVERNMENTS OF GBEBOB AND BOMB.
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-
bom 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, bat
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 gOY-
emment of the city. That larger government had superseded
it in all the g^eat functions of social control. Its private
interests and prerogatives were no longer sufficient to hold it
together. Its members had become citizens^ and their citizen-
ship had eclipsed their membership of the family. The only
politics worth competing in was the politics of the city. The
cantons no longer constituted but depended upon the city.
Athens.
67. The City of Solon : Kingship gone. — The first dis-
tinct view we get of Athenian affairs reveals the changes
already described in large part accomplished. We may be
said to get that first distinct view in the time of Solon, to
whom Athens attributed her first great reform code. The
Solonian constitution is by no means so well known as histo-
rians wish that it were ; but several of its main features may
be said to be beyond dispute, and these features speak very
plainly of a society quite unlike that of the prehistoric Greek
* city ' which we have been considering. Homer would hardly
have recognized the city for which Solon legislated.
Solon was put in charge of the city's affairs by being chosen
THB GOVERNMENTS OF GREECE AND ROME. 41
' Aichon.' 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 gerUes, 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 hei
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 Basileua
(king), was succeeded by his son under the title Archon
THE GOVEENMENTS OF GREECE AND KOME.
(ruler). That waa ail. And tbe office of arrhon was held
by descendants of Codnis in strict hereditary succeBsion for
about three hundred and sixteeu years. It is evident, bowever,
tliat 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 Codnis 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
bad been made a limited monarchy. The archon was respon-
flible 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 ton years, the archon being chosen, doubtless, by
the Council, though atill always chosen — so tenacious was the
idea of the hereditary character, the fatbership, 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
Ei'palrids (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 Ei>onymns, because from him
tbe year took its name in all official records ; tbe second of
the nine was called Archon Basileua, because he was the city's
high-priest, and thus successor to the most typical of the old
kingly functions ; the third was Archon Polemarckua, having
received the military command once belonging to royalty i the
other six were TfteswtofAete, judges. Kingship had been 'pot
into commission.' It was paroelled out among the members
of what we should call a 'board' of archons. The whole
executive direction of the state was doubtless in the bands of
this board, but their most prominent functions were judicial.
They were all judges. Upon the chief archon devolved the
I
THE GOVERNMENTS OF GREECE AND HOME. 43
weighty duty of determiuing cases of family law and inheri-
tance ; the kiug-arehoii adjudicated the. tlien nuraberlesa cases
which religious law nontrolied; the archon [lolemareh heard
■11 cases between foreigners; tho six ThesmothetiB decided
■ucb cases as belonged to the jurisdiction of none of the three
principal archona — all cases not otherwise assigned. There
veie, moreover, certain judicial functions which the nine
uchons exercised jointly, such as the punishment of L)aniahed
persons who had broken their banishment, the oversight of the
balloting for certain miii'ir judgeships, the presidency of cer-
tain meetings of the [K'opli.', eti.'.
70. Solon Archon Eponymus : the Crisis. — Such was the
changed magistracy of Solon's time. Solon was chosen Archon
Eponymus, but with powers such as no archon ever regularly
possessed. He was chosen at a crisis, — a crisis which by its
Tery existence reveals a society radically unlike the society of
kinship described by Homer. There are three contending
pcirtiesinthe state, — the men of the mouutain, the men of the
shore, and the men of the plain. Neither the men of the
moantain nor the men of the shore would have been so much
as cflunted in the Homeric state. They were not of the im-
memorial kinship at all. They were the tillers of the soil,
)Kolding their lands of the noble famihes who lived in and
•bout Athens, and who constituteil the third party, of the
jiain. They were outsiders to the state. The noble families
were the state; these men of tin- mountain and the shore were
their subjects, for the most part their slaves, bearing every
burden, and sliaring not a siugle privilege. Every movement
which they had made towards even a jiartial independence had
compeUed 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 huids which stretched across
the southernmost portion of the Attic peninsula to famous
Snnium, were much better off than the meu of the mountain,
who had both the uxclusiveness of the law and the niggardli-
44 THE GOVERNMENTS OF GRBBGB AND BOMB.
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 other would not, any longer abide content with
a lot which forbade them all independence and all 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 Draco ; but he had
failed through too great conservatism. 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
l^'.gislation had V>een followed by the explosion of an attempted
revolution ; Solon's must be followed by satisfat^tion 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 futoze
of the state. We are concerned here with bia economic aa
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, hrst of all, the chains of debt which bound them,
not in property only, hut in person as well, to the moneyed
Eupatrids, their landloitls and creditors. Their debts were
remitted aiid 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
hia curious narrative and didactic verses, that he freed also the
f land itself hy removing certain stone pillars from it. There is
k controversy amongst historians as to the meaning of this
»ment, as there is as to so many of the other events of
i£t remote time. We must either believe that the pillars
Wmoved bore rceord of mortgages, or — failing to credit so
irly a developinent of a seemingly rather modem system
' of mortgaging — we must conclude that these pillars were
boundary stones sacred to those most revered gods, the gods
of boundaries, and that 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 jiillars
which marked, with sacred signs hallowed by superstition, the
immemorial proprietorship of the Kupatrid families, would be
to make a division of estates possible, and eventual peasant
roprietorship, when prescription was no longer disproved by
B witnessing pillars, at least a thing to be hoi)ed for. The
) measure would free the laud nidy for a term ; the other
uld free it, possibly, ' for good and all.' But either would
; it; and, whichever may be within Solon's meaning, it is
»r that his whole scheme of economical reform was iutended
9 better the condition of the classes hitherto not reckoned of
46 THB GOVERNMENTS OF OREBGE AND ROME.
the state at all. Industry was at least put in the way of earn-
ing its just reward. Even men not of the noble blood were to
be given leave to thrive and, mayhap, grow rich.
73. Solon's Political Reforms : the Pour 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 com or measures of
oil or wine from their estates. The members of this class,
therefore, were to be called Pentacosiomedimni (five-hundred-
medivini-men). The second class were to be three-hundred-
wiedimnt-nien ; 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 HijtpeiSy or knights, because upon them
devolved cavalry service in the army; the members of the
third, Zeugitcey because they had proi>erty 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
Kome. 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 jxart 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-
i-'
THE GOVBRNMENTS OF GREECE AND ROME. 47
cal weight. The Eupatrids were of coarse 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 Eupairid 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 SLpro-bouleiUic (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 perhaps from
the elections, was to be submitted to that subordinate body.
The four hundred members of this Senate were to be chosen
(one hundred out of each of the four tribes into which the
people were from of old divided) from the first three of the
property classes. This Senate probably succeeded, in general,
to the political place formerly occupied by the ancient Council
of Elders. It could, in its discretion, dispose of most matters
finally, without consulting the popular Assembly. The Archons
doubtless had presiding seats in it, as they must previously
have had, as successors to the kings, in the ancient Council.
The election of senators, like that of archons and all other
magistrates, took place every year, the Senate's authority being
as brief as it was great. The popular Assembly, on the other
48 THE GOVERNMENTS OF GBEECB AND BOMB.
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 comx)osition. It always included all citi-
zens.
77. The Senate of the Areopagus. — At the top of the state
stood a still higher tribunal, the Senate of the Areopagus. The
origination of this council is sometimes attributed to Solon.
He did not originate it; he only gave it new form and an
altered jurisdiction. He constituted it " a supreme supervisory
authority, whose duty it was at once to watch over the collec-
tive administration, the behavior of the magistrates in office,
the proceedings of the popular Assembly, and, in cases where
it was required, to interpose ; while at the same time it was
bound to deal with the public discipline and the regulation of
conduct in the most general sense of those terms, and in con-
sequence possessed the right of bringing private individuals to
give an account of objectional behavior on their part.*' * Not all
of these functions were new. Possibly no one of them was. It
may be that the only Solonian feature in the powers of the
Areopagitic Senate was their limitation. For there is good
reason to believe that this council which sat on the Areopagus
was the ancient Council of Elders. Solon stripped it of its
legislative functions, its immemorial initiative in state afi^rs,
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-
^ Schumann, p. 332.
THE GOVBRNMBNT8 OF GBEBGE AND BOME. 49
going aichons 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. But their judgments were made to be subject
to revision by a higher and more popular tribunal, the Helicea,
The HeluBa 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 Helicea, In hearing
criminal cases, moreover, the Helicea 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. Great 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 profoimd 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 offices, but only those
among them were to be eligible who possessed the further
qualification of abimdant incomes. The next step, which he
^ Schumann, p. 332.
50 THE GOVERNMENTS OF GREECE AND ROMB.
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 Coiistitatlon. — 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 forgotteUi had not
Pisistratus, willing to preserve so much of its machinery as
suited his own purposes, upheld it by his own despotic power.
Its forms were more popular than those of the constitution it
had been meant to supersede ; he was, professedly, the cham-
pion of the popular cause ; it was politic that he should retain
the most liberal institutions at hand. He therefore affected
only to preside, with certain supreme and extraordinary powers,
over the constitution set up by his uncle. Solon lived to wit-
ness his nephew's unlawful triumph and to utter an intrepid
protest against such mockery of his aims. But Pisistratus
kept his usurped powers to the end of his long life and handed
them on to his sons, preserving, even if in mockery, at least
the hull of the institutions created by Solon ; and when his
THE GOVERNMENTS OF ORBECB AND EOME.
6t
■fttoi
forgetting hia prudence and failing to imitate his wisdom
moderation, were driven from the throne he had established
them, enough of the Solonian constitution remained to serve
•B a basis and model for l^isting 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 hia career in
.thens by defeating those who, under the leadership of Isago-
attempted, after the expulsioa of the Piaistratida', to re-
!ttore the old-time domination of the Eupatrid families. The
next step was to secure the penuanency of his success by es-
tablishing a constitution which should be genuinely a consti-
tution for all the peojile.
82. The New Demes and the New Tribes. — It wa^ plain
that the tii'st thing to do was to contrast the policy of Solon
by refusing all special privileges to Eupatrius as Eupatrids.
They must take their chances of political preferment in com-
petition with all other citizens. St)lou had reserved the chief
offices for them aud had constituted the Senate of Four Hun-
id of representatives of those four tribes of immemorial
igin which, being aggregations of the sacred gentes and pki-a-
whieh were the strongholds of Eupatrid kiiwhip, were
'themselves, in a sense, exclusive aristocratic associations.
Clisthenes admitted to ofKce all who belonged to the first three
property classes and altogether ignored the old tribes in mak-
ing up the Senate. The four tribes continued to exist, as re-
l^oos, ecclesiastical organizations ; but they ceased to count
tor aught in the poUtical structure of the state. They lost all
tlitical signiticance. Clisthenes first increased the number of
iizeos by admitting many, some of whom were manumitted
kves, 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 tho
.aaine of the greatest units of Eupatrid organization, super.
^died
Wti
■Att
i
52 THE GOYJBRNMENTS OF GBEBGE AND ROICE.
9eded 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 new significance. The territory
of Attica had already for a long time been divided into small
districts centring in villages and hamlets and bearing this
name of Demes. Clisthenes only limited their number to one
hundred, probably not very materially altering existing boun-
daries or very often merging small demes into one of proper
size, and made them the constituent units of his "new tribes.
One of the most curious and most characteristic features of his
scheme was, that the ten demes which went to make up a tribe
were never ten contiguous demes. Neighboring demes were
separated in political function by being assigned to different
tribes. The demes lying within Athens itself, for instance,
belonged to no less than- five of the tribes. Each tribe had its
demes scattered here and there in separated portions of Attica.
The object of this singular arrangement was to break the backs
of the old factions of the plain, the mountain, and the shore
by joining in interest and in political action the demes of the
various sections. Sectional feeling was to be thus weakened
by bringing the sections into constant and intimate co-opera-
tion, and sectional action impeded by depriving the sections of
political cohesiveness.
84 Religion and the Tribal Organization.—The plan was
quite artificial, though the materials out of which the new tribes
were made were old and familiar materials ; but it could not
well have been otherwise than artificial Eeligion and its im-
perative prejudices forbade any dilution of the genuine Attic
gentes, which were the core of the old tribes, by the introduc-
THE GOVERNMENTS OK GREECE AND ROME.
tion of new citizens of no birth at all. The old organizations
could not be jxypularited 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 obaer-
: 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, waa to put aside the old family unions altogetlier
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
diapensation. 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 l)een slaves, this
expansion of the popular jury-systera must of course have
Ibften 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 Arehon Pole-
marchus, whose functions Solon had left untouched, to ten
iStrategoi (generals), to be annually elected, one out of each of
I the new tribes, by the Assembly. Or, rather, these generals
^B were associated with the War Arehon, overshadowing him, if
I
I
54 THE GOVERNMENTS OF GBEEGE AND HOME.
not in dignity, certainly in power, and destined afterwards to
oust him, and indeed others of the nine arehons, from many
<)ther 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 Marathon was fought, though the others
are said to hare 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-
em times, when democracies are too strong and self-possessed
to fear the wiles of demagogues ; but there can be no question
amongst those who understand the times and the state for
which Clisthenes was legislating, about the wisdom of estab-
lishing such a law in Athens. Its provisions were not harsh.
It enacted that whenever it appeared that some one statesman
was gaining such an ascendency over the people that he might,
if he chose, use it unlawfully for his own advantage, as
Pisistratus had done, or employ it to raise his rivalry with
some opponent to a dangerous pitch of bitterness, the Senate
might call upon the people to declare their opinion as to
whether any one should be temporarily banished from the
state. When the Senate called for the vote, no names were
sent down to the people. There were no forced candidates for
ostracism. The question was simply. Is there any one in
Athens of whom it would be to the advantage of her peace and
tranquillity to be rid for a season ? Each voter made up his
own ballot. If six thousand ballots contained the name of
the same man, that man must leave Attica and her possessions
for ten years. Six thousand votes were probably more than a
third of the total vote of Athens. Although a minority, there-
fore, could compel the retirement of any public man, it must
THE OOVEBNMSNTS OF GBEEGB AND ROBiB. 55
have reqoiied a very strong and well-grounded movement of
public opinion to bring about this concerted 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 afiforded the people an opportunity to acquire 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 atW^k:
and when one has learned to handle foes within the gates, the
defence of the outer walls has become a matter of assured
success.
88. Success of the Clisthenian Constitution. -— The suc-
cess of the reforms of Clisthenes is beyond question. Their
quality was put to an early and severe test — the test of the
fiery days of Persian invasion and of the exaltation of the
56 THE QOVERNMBNTS OF GREECE AND ROME.
years that followed, when Athens was 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
Gephisus 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 gained 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 Platseae, led Aristides to
propose, and the city to consent, that eligibility to office should
be extended to all classes of the people, irrespective of any ine-
qualities of wealth.
90. The Policy of Pericles. — When Pericles came to the
front of affairs in Athens, therefore, the constitution wore the
features of a complete democracy. The influence of Pericles,
although permanent beyond the example of the politics of
THE GOVBBNMENTS OF GREECE AND ROME. 57
most democratic states, rested, not upon usurpation, but upon
his commanding influence with the people ; and the whole of
his policy was directed, by intention at least, towards the edu-
cation of the people in the tasks of government and the
standards of conduct which belonged to Athens as the leading
state of Greece not only, but of Hellas as well. It was under
his inspiration that Athens was filled with the splendid monu-
ments of art and architecture which have given a special
distinction to the ' Age of Pericles.' It was at his suggestion
that the people were voted small payments for their attend-
ance at the jury courts and the assemblies, besides a largess to
enable them to attend the exhibitions in the theatre. The
theatre played a large part in Pericles' plans for the education
of the populace : no means were to be neglected which might
serve to quicken the judicial and political activities of the
people, or strengthen Pericles in their favor.
The policy of thus paying the people to perform their duties
and to be amused was, nevertheless, in the end a fatal one.
So long as a Pericles dominated, all went well ; but so soon as
the city lost Pericles and forgot the fashion of statesmanship
which he had set, much began to go ill. The majority of the
citizens soon came to prefer paid service in civil offices to the
necessary service in the field of battle. They were not long
in becoming mere lethargic pensioners of the state.
91. Constitutional Reforms of Ephialtes. — The final steps
in revising the republican constitution of Athens were taken
by Ephialtes. At his suggestion all offices except those of the
strategoij who had absorbed the most important executive
functions of the state, were filled, not by election as thereto-
fore, but by lot ; * 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 Gnechitchen Staat-
9alttrthUMer, pp. 146, 147, and authorities there cited.
68 THE GOVERNMENTS OF GREECE AND ROME.
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 338 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 metcecL
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 {meUxci) which was, in pros-
THE GOVERNSfENTS OF GREECE AND ROME.
59
I
peroQS periods, about half as great (45,000). The cliuia ol
metceci 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 ot her situation and policy, though many man-
nmitted slaves were also reckoned of their number. It was
irom the ranks of the melKci 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 metixci their disabilities were many. With-
oat a special vote of permission they cuuld not acquire prop-
el^ in land in Attica. They wore obliged, under pain of
a criminal prosecution, followed on conviction by possible
slavery, to choose a patron (Prosratfi) from among the citi-
tens 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, beaidee
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
:ketB of Delos, Chios, and Byzantium. The vast majority
bought slaves. They not only served as domestics, but
also constituted the bulk of the agricultural laborers, miners,
Htisans, factory hands, overseers, and day-laborers. They
also often carried on retail trade, and were sometimes superin-
itendenta of larger undertakings, money-changers, etc. Their
domestic service often included private secretaryships and the
60 THE GOVERNMENTS OF GREECE AND ROME.
like. The state itself owned slaves whom it employed as
armed police, and even as soldiers. " Further, the lower ser-
vants of the public officials — accountants, clerks, criers, bailiffs,
prison-attendants, executioners, and the like, were for the most
part, the latter invariably, public slaves, as also the workmen
in the mint." ^ Slaves and metceci supported, the citizens con-
ducted, the state.
Sparta.
95. Fixity of the Spartan Constittttion. — 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, namely, 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-
^ ^chomann, 362?
THE GOVERNMENTS OP GREECE AND ROME. 61
ons than themselves ; and they had, consequently, to maintain
their supremacy rather as a garrison than as hereditary heads
of a natural hody 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 tlie 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 property to
which they were attached. They passed with it, as part of it,
and could not pass otherwise without special legislative war-
rant. Neither could they be killed or misused by their masters
without public authority, or at least some colorable pretext of
the public safety. And, inasmuch as they were thus a part of
62 THE GOVERNMENTS OF GREECE AND ROME.
the real estate of the country, — its motive part, its machinery
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 supreme 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 PerioBci. — 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 Perioeci
are as little to be compared with the Athenian metoed as
Spartan Helots with Athenian slaves. Metceci were, for the
most part, resident aliens engaged in trade (sec. 93) ; Perioeci
were, so to say, captives of the Spartan state, representatives
of those older possessors of Laconia who had escaped Helotage
by being more submissive than the men of Helus, and who, by
acquiescence in the Dorian mastery, had been admitted to
what might have been called an alliance with the Dorian
invaders, had it not been entered into through sheer compul
sion and continued by mere coercion. They were the traders
and mechanics of the community; but they followed these
occupations, which every Spartan despised, with no such liberty
and consideration as the metic might enjoy at Athens, but by
the sufferance of their overlords. They owned real estate, but
under laws and restrictions not of their own making. They
formed separate communes in some of the best districts of
Laconia, with their own municipal organizations, but their
municipal privileges possibly consisted rather in an opportu-
nity to determine by election which of the Spartans, sent to
THE GOVRBKMENTS OF GREECE AND ROME. 68
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 |>er-
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 government. 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 Ferioed on the one hand,
and the supreme SpartiataB 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 Spartiatse : Property Laws and State Guardian-
ship.— The SparticUoe 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 SpartiatcSy 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 complete ownership. The purpose of the early legislation
64 THE GOVERNMENTS OF GREECE AND ROME.
was to make the division of the land amongst the Spartan fami-
lies as equal as possible; and the state frequently resumed
its proprietary rights and reapportioned estates when grave
inequalities had crept in, without a suspicion in any quarter of
confiscation. It was a primary care of the state to keep its
citizens rich in 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
Athene bad not been entirely unlike it in principle, previous
THE GOVBRKMEKtS OF GBBEkl^E AND KOME. 65
to the contests of the factions and the legislation of Solon
(sec. 70). Fortune had given Sparta two kings. Tradition held
that the Dorian invaders had, upon entering the Peloponnesus,
allotted its various districts to their several Heraclid leaders ;
that Aristodemus, to whom Laconia had been assigned, died
before conquering his kingdom, leaving twin sons, Eurysthenes
and Procles; that the mother of the boys declared herself
ignorant which of the two was bom first; that the Delphic
oiacle, 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 Roman 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 Geru»ia (yepovaui), or Council of Elders.
The members of the Oenisiay 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 office
for life. As a court of justice, the Oenma 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 Schomannt p* 227,
66 THE GOVERNMENTS OF GREECE AND HOME.
ereign, in part probouletUic : 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 Gferontes
(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 ChrorUes
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 probsr
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. Then, after the
Assembly had conyened, 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.
THB GOVBBKMENTS OF GREECE AND ROME. 67
104. The Ephors. — The most notable and powerful office
known to the constitution of Sparta was the office of Ephor.
It was an office^ there is reason to believe, of great antiquity ;
but development had hurried it very rapidly away from its
early form and character. The five Ephors (or Overseers, for
such is the meaning of the title) were originally mere deputies
of the kings, appointed to assist them in the performance of
their judicial duties, to act as vice-regents in the absence of
their royal principals, to supervise in the name of the kings
the other magistrates of the state, to superintend, under the
same authority, the public discipline, and to summon, by royal
warrant, the Genisia 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 te this
supreme board of five to exercise their prerogatives according
to the laws ; the ephors, on their part, undertaking, on behalf
of the people, that so long as this oath should be observed the
68 THE GOVERNMENTS OF GREECE AND ROME.
kings' power should pass unchallenged. Every nine years the
ephors asked of the gods a sign from the heavens as to
whether anything had been done amiss by the kings, and if
the heavens revealed any sinister omen, the conduct of the
kings was, upon the initiative of the ephors, investigated by
the Oenma, 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
Oenisia,
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 Genma 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 Ephnr
Eponymus, giving his name to the civil year.
106. The Administration of Justice. — With reference to
the administration of justice in Sparta we are not able to say
much more than that the law was interpreted and applied by
the kings in cases relating to the family, to inheritances, or to
the redistribution of property by marriages between rich and
poor (the kings being, so to say. Chancellors, and families
wards in Chancery) ; that cases affecting the kings themselves
THE OOVBBKMENTS OF GREECE AND ROME. 69
or involying the highest sort of crimes were heaxd by the
Oerusia; and that all other cases were determined by the
ephors or by lesser magistrates. There were no popular jury-
oourts.
107. The State Discipline. — But the feature of their con-
stitution which chiefly preserved the supremacy of the Spar-
tiaUB over the subject population of Helots and Periceciy 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 modem 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 subordinur
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 (SysaUia). 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 Syssttia, that de-
graded Spartiatce from ' Equals ' to * Inferiors ' (sec. 09).
This discipline included the women only during their youth ;
girls had to ' take ' gymnastics as the boys did ; but they did
70 THE GOVERNMENTS OF GREECE AND ROME.
not go on into the 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^ any more than is that of Athens
or of any other Hellenic city ; and the mind must not be mis-
led (by the fact that in describing it we are under the necessity
of taking it at some one moment of complete crystallization)
into supposing that such was exactly its form at every period
of its history. It was, like every other constitution, a slowly
developed organism. It early took a peculiar form, and long
preserved it, because of the peculiar situation of the Spartans,
who were few and had to hold their power against a hostile
subject population greatly superior to them in numbers. They
could not venture to relax for a moment their internal disci-
pline ; and so it happened that throughout the period during
which history is most concerned with Sparta her constitution
remained fixed in this single form. But afterwards it passed
through the same stages of tyranny and democracy that had
come to Athens so much earlier. The non-citizen classes even-
tually broke their way in large numbers into the constitution,
and the Romans found Sparta not unlike the other cities of
Greece.
109. Lycurgus. — The Spartans themselves, however, as I
have said in a previous chapter (sec. 19), regarded their constitu-
tion as a creation, the creation of one man, Lycurgus (b.c. 820).
To him was ascribed a rearrangement of the three tribes which
constituted the state, a division of land between Spartiatce and
PeritBci, the institution of the Gerusia, a provision that there
should be monthly meetings of the Assembly, and, above all,
THB GOVERNMENTS OF GKEECE AND liOME. 71
the creation of the celebrated system of state discipline ; and
it is probable that he was very largely instrumental in giving
to the constitution the particular form in which we have seen
it But it is extremely improbable^ if not intrinsically impos-
sible, that he can have done much more in the way of effecting
actual fundamental changes than did Solon or Clisthenes at
Athens. The Spartan constitution had probably made no
leaps or bounds ; Lycurgus, doubtless, only guided its course
at a very critical, because consciously formative, period,
Gbeek 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 officers saddled
with a multiplicity 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,
officers 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,
1 Schdmann, p. 138; Aristotle, Politics.
72 THE GOVERNMENTS OP GREECE AND ROM^
jailers, etc. Besides these officials, there were the officers of
the naval and military administration, at whose head stood
such dignitaries as the Athenian Archon Polemarchus or the
later Athenian Strategoi; 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 Syssitiaj and her superintendents of the public
messes.
Hellas.
111. Greece not Hellas. — Although typical of much in
larger Hellenic history, the political development of 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-
I
THE QOVERSMENT8 OF GKKECE ANT> ROME,
selves in independence, setting up their own civilization and
characteristic forms of government, tliere was a piece of Hellas;
wherever tliere was an Hellenic peoplo there was a portion of
the Hellenic land, The Greeks never formed and maintained
» common political organization, never knew national political
anion : ' Hellas,' therefore, has no organic or national signifi-
cance. It means a region, not a nn.tion.
112. Original Migrations of the Greeks. — The Greeks long
consorted, as we havt' seen (sees. 35, 41), with their cousin
w Celts and Latins in the great movement of the Aryan peoples
■into Western Europe ; but an eventual separation of these three
ranches of the single parent stock resulted in the widest diver-
^nces both of fortune and of character aniung them. The
Jelts pressed on into the body of the continent without con-
■fact with the sea ; the Latins slowly penetrated by land into
the spacious peninsula of Italy ; but the Greeks tarried in the
Imountains of Phrygia, thence to issue forth to their contact
I Vith the £gean and their association with the sea-faring Fh(B-
■fiicians. First, it would seem, they poured a numerous popu-
Ution over the Hellespont into Europe, a population which
s to twscupy in time, not only Greece proper and the Pelopon-
Bsus, but also all the coasts and islands of the ^gean. At
k later tim.e smaller companies, single tribes, issued forth to tlie
lonquest of special tracts of the inviting coasts of Asia Minor
r followed the earlier emigrants into the peninsula. Thus the
Bancestors of the lonians are said to have effected in that 'pre-
istoric' time their settlements upon the Asiatic shores of the
K^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).
1113. The PhteniciBn Influence. — It was the lonians, thus
tnade neighlKira tu the great sea, who received for the Greeks
tie deep and lastiut; imprint of the Fhtenician inflnence. The
Phcenicianii were then already old in civilization and in com-
74 THE GOVERNMENTS OF ORBBOE AND BOMB.
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 alphar
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 -^olians already settled there
into new homes further south, in Bceotia ; the Dorians made
their great conquering movement southward into Peloponnesus,
displacing there the iEolian Achaeans, 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, Achaia; 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 Achaeans. Many, therefore,
passed on from Attica to found new Ionian settlements on the
central ^gean coasts of Asia Minor. Yet earlier, bodies of
THE GOVERNMENTS OF GREECE AND ROME.
I
Achieaiis, 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 eoaat. Even the Do-
rians passed on into Asia fruin Peloponnesus, taking posses-
sion of the southwestern lioasts of Asia Minor and establishing
themselves in the islands of Crete, Cos, and Khodes, The Do-
rians, indeed, had become supreme only in the southern and
eastern portions of the Peloponnesus, only in Messenia, Laconia,
and Argolia. The settlements in the southern islands of the
Mgttaa archipelago and on the southwestern coasts of Asia
Minor symmetrically completed their geographical position as
a sort of southern fringe to classical Hellas.
It ii, doQbtles*, to tliit period o( the reiettleraent of Asia Minor b;
thr European Greeks, thus relurning upon ttic original linei of Greek
fnoTement. thiit we owe The legend of Ihe Trojan war. Renllj kinsiDcn
of the Trojans, the Europenn Greeka went against this power of oldest
OrHce as against an alien and a slmngc people.
116. The Greek Hediteiraueaii. — 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 j^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, iu Eubcea. Miletus became the
mother of more than eighty colonies, sending companies of her
people to found Naucratis on the Nile delta, Cyzicus and Sinojie,
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 Etixine. Chalcis contribnteil
thriving Greek communities to Sicily, created the 'Chalcidici,'
and founded Rhegium in Italy. Others were scarcely less busy
in colonization. Spartans created the notable city of Tarentuni,
in Southern Italy ; Achieans built upon the same coast the rival
cities of Sybaris and Crotou; Corintliians established Corcyra
76 THE GOVERNMENTS OP OBEEGE AND ROME.
off the coast of Epinis, and lusty Syracuse in Sicily. The
Ionian Phocaeans 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 jEgean is circled, east, north, west, and south, by Ionian settlements,
only Thessaly and the JEoWsin colonies on the northwestern coast of
Asia Minor breaking their continuity from Euboea round by the Chalet-
dici and Thrace, down the eastern coast of the .£gean, through the
islands of Samos, Icaria, Nazos, Paros, Tenos, and Andros, to Eubcsa
THE GOVERNMENTS OF OBEEGE AND ROME. 77
again. South of this Ionian circle is the Dorian semicircle, which runs
through Crete, Carpathus, and Rhodes to the islands and coasts of
Southwestern Asia Minor. Italy is occupied, for tiie most part, by
.£olian settlers, though a Dorian cfty stands at one end, an Ionian city
at the other, of the line of .^olian colonies tliere. Sicily is shared by
Dorians and lonians.
Erery where, 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. No common system of government bound the towns
of any coast together ; everywhere, on the contrary, tlioy stood
aloof from each other, organically separate and self-directive.
Greek colonization was radically different from the coloniza-
tion which the modem world has seen, and even from that
which the Roman 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 witli the sacred
flame kept alive from of old in the religious rites of their
kinsmen ; the mother city supplied them witli a leader whom
the colonists recognized as their founder; tlie approval of the
Delphic oracle was often sought by the emigrants, and they
generally awaited, too, the consent of the city's gods. If, more-
over, in after times, a colony contemplated sending out from
its own midst another colony, it commonly sought a leader and
founder at the hands of its own mother city. Many ties of
sentiment and tradition bound it to the community from which
78 THE GOVERNMENTS OF GREECE AND ROME.
it had sprung. But none the less did it become, immediately
upon its birth, a sovereignly separate state, no less it^ 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 gf iEolian, 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
f
I
THE GOVERNMENTS OF GREECE AND ROME. 79
of change that were afterwards to characterize the revolu-
tions and reforms of Athens which we have already exam-
ined. Democnu;y was generally approiivbed through Tiuioc-
raiiy, through arrangements, that Is, such as Solon introduced
in Athens, by whii^h political privilege was graded according
to wealth (sees.' 73, 74). Often, too, changes of this nature
were accompanied in tlie 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
Pisistratiis in Athens (sec. 80), erected as a bulwark against
aristocratic reaction. Either some man of the [wople 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 bi himself. In either case the
tyranny answered a useful purpose. It generally compacted
and fticilitated resistance to outside aggressions upon the inde-
pendence of the city ; it usually advanced, by the mainteuance
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 tirmly
built.
131. Law of Conatltational Modillcatlon In HaUas. ~ We hare.
Chut, the t^iae forct'i »[ conatitutiuniil uhani^u cverywtiero upuratire in
the Greek worlJ ; everywhere aubatniitinUy the lanie chnnges Ikke plnce
in •dbsifintHllr the gaine order. Monaruhf in all cases give* plai:e -
\o mrittocrwcy ; urUtncracy very often shadea off into timocrscy; all
eiclusive privilegea iu (he long run give way before (he forces of de-
mocmcy ; but democriiey ia aeliloiii aecured ita flnnl iriumph without the
in terpen lion of the tyrant, the man who rules without the warrant of
the law. In lotne of the greater Hellenic cities the period o( tyranny
is the period of highest power nniE pniaperity, and demacrncy cornea
aflerwirda only to tiiark decline and loaa of separate independeDce,
80 THE GOVERNMBNTS OF GREECE AKD ROME.
Many Peloponnesian 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-oentred 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 puriK)se of worthily maintaining and enriching the
worship of the divinity and of defending his shrines against
pollution 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, abnost
THK Q0VERNMEXT3 OF GREECE ASD RUME, 81
all the tribes, small as well as great, of Central Greece, and in
its later developmeut admitted to membership Dorian states
aJdo uf 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 bad regular
assemblies composed of delegates from the several states in
the league, a permanent official organization, ti.'ced rules of pro-
cedure, an ancient prestige.
At the lemi-iiiiiiual meelings of Cbe league, held spring and autamn
botli at Tliermopylse and at Delplii, tbsC concourses of Greeks snarmed
from all parts of tlie i-entral slates of Hellas to lake pari in tlic fi-sti-
vaU held in honor of Ilio god, and to gel gain out of Itie opportunities
(or trade thereby afforded.
But the equal voice accorded to large and small tribes alike
in the votes of the Aniphictyonic Council speetlily robbed its
conclusions of binding force in even the international politics
of the states concerned. The jwwerful members of the Am-
phictyony naturally would not heed the dictation of its insig-
nificant members. Rules there were by which each state in
the league was Iwund under oath not to destroy any Amphie-
tyouic town, not to turn away from it at any time its running
waters, to join heartily in every duty wliich 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-
opetatioQ in all matters touching the worship of the divinity
I 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-
ity and morality. But these germs were never developed.
82 THE GOVEBNMBNTS OF GRSEGE AND ROME.
The disintegrating forces of Greek politics were too strong to
be stayed by the forces of religion.
The Amphictyonic bond waa never, perhaps, a close one. Daring the
central, most celebrated period of Hellenic histoiy 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 Amphictyony is flagrantly neglected.
124. The Delphic Oracle: its Influence. — None the less, the
oracle at Delphi, whose 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 Romans —
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 cases 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 hy community of religious feeling, hut 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 GOVEIINMEKTS OF OREECE AND ROME.
I
I
the Greeks againat Troy liecauae Mycena; was the leading state
«f Greece. Myceuas, lying Inland in the northwestern portion
of the great peninaula plain of Argolis, and Tiryna, placed
just at the bead of the Argolic Gulf, wtire the seats of the
dominant forces of Greek polities 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 Acbieans of the Feloponnesua. Ho controlling is the
part played by Acbsans in the Trojan expedition that Homer
again and again uses ' Achrean' as synonymous with 'Greek.'
Tribes from every quarter of tlie central Greek lands recog-
nized the king of Mycenas as their natural leailer: forMyceuEe
dominated Sparta, Argoa, Coriiiti, and every other Peloponne-
sian community, and these Acbieau eommunities of Pelopon-
nesus were the prevalent powers of Greece.
— Of a like pallern wai Ihe lupremiicy laid to
1 Crete by the mythical king nud lttw-|fi»er,
UlDoa. At aonic lime in tijal heroic period to whose cventn nu definite
•Imhn can be asBigned, MinoB, ruler of Cnonnii! in Crete, waa tliought
by Ihe Greeks, not only l« Imve brought within hia power niitny of the
other Hellenic ciliei of the iatand, but nlao to hare uonilructed some-
tbing like an empire out of the nmnerous islnnd stales of the louthern
.£gean. ettnbliabing a nnml force nhi(;h awcpt the aea of piratea, and
^vlDg to the uitiea under his evay a system of Iswg wbich wai a proto-
type of the later and more famous laws of Spnrta.
127. The Supremacy of Argos. — Later, Argos gained a like
temporary ascendency in tin- IVloponnesus. Under Phidou, a
lineal successor of the Her^uiiiila-, and therefore a rightful
representative of Dorian supremacy, a man of imperative ini-
I tiative and commanding ability, Argoa dominated the cities of
[ Argolis, and even led for a time the whole of the Peloponne-
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 Olynipia was to preside, for the nonce, over all Hellas :
84 THB GOVERNMENTS OF GRKECB AND ROME.
for nowhere did the pan-Hellenie spirit speak with so plain and
HO inipreHHive a voice as at Olympia. There every four years
Gr(>(}ks gathered from all quarters of the Hellenic world to
hohl gaiiu's in honor of Zeus, their national deity. With
v(\\iiil f r(Hiu(?ncy the Greek world sent its crowds of spectators,
itH ])icked athletes, its poets, historians, and musicians to the
great I'ythian festivals, in honor of Apollo, at DelphL Every
third year the Ionian Poseidon was celebrated with almost
e(|ual H])l(aid<)r in tlie Isthmian games, held under Corinth's
presidency. Zeus had his famous games and rites every third
year at Nemoa also, in Argolis. But no festivals had quite the
celebrity and influence enjoyed by those which every fifth year
witn(^HHe<l at Olympia, in Elis. The Greeks reckoned time by
M)lyni|)ijulH,' by the four-year periods, that is, which elapsed
bciwiM'ii fPHtival and festival at Olympia. To win a prize in
tin* Olympian gami's was to win immortality. Thither poets
went U) publish tlu'ir poems to all who would listen. Embas-
sies cjiine from cvrry (Jroek city of consequence, on the main-
land of (inM'crc at any rate, to take solemn part in the ceremo-
u'u^H by Nvhirli tin* religious motives of the gathering were pro-
elainied. Tlidse who wen^ not Greeks could be present as
Hpec^taiors ; \)\i\. no ont^ who could not prove himself of pure
Mellenict blood and free from all taint of sacrilegious crime
could t;ik<' part in any (contest. The period of the games was
niadc^ a period of peace, of truce: war stood still while the
Greeks thus gave tok(»n of their common national spirit, of
tli(»ir ract» unity in rcdigion and in standards of achievement.
It is scarcely ]M)»sibl(; to exaggerate the influence, both ix)lit-
ical and moral, of these festivals. The persistency and enthu-
siasm with which they were celebrated throughout fully a thou-
sand yc^ars gives impressive evidence of their significance in
(rreek national history.
Still, although they sjKjke a national spirit, they did not se-
cure ])olitical unity. Nothing but strength, nothing but arms
or self-interest, furnished means sufticient for even those tern-
THE GOVERNMENTS OF GltEECE AND ROME. 85
porary, ephemeral unions of Greek cities which once and again
seemed for a mtiment to he bringing sections at least of the
Hellenic world into possession of better, because more national,
political methods.
129. The Delion Confederacy. — The most celebrated, and
in ita 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. 4% and 480 the cities of £uroi>ean Greece had looked to
Sparta as their leader. But the two campaigns resulted in
bringing Atliens 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 Platiba
had thrust the invaders out of Greece, made Athens the only
possible leader. Immediately after these victories the Hellenic
states of the ^gean joined the states of the mainland in fol-
lowing up the military advanti^es already gained and in driv-
ing the Persians back from Asiatic as well as from European
Helios; 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 j^gean 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 embrae«d most of the Ionian states
of the archipelago and of the Asiatic const. Delos was chosen
aa the seat of its treasury and the meeting-place of its assem-
blies, not only because of its convenient central location, but
also because it possessed one of the most ancient and revered
86 TH£ GOVERNMENTS OF GBEECE AND BOME.
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 filled 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 (HeUenotamice) 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. From the first Athens
had had, not the presidency only, but also the control, of the
league. Her citizens administered its treasury ; she commanded
the confederate fleet ; both in material power and in political
capacity she immeasurably excelled all the other confederates.
Many of the confederate states, too, played into her hands.
They preferred to pay money into the treasury rather than be
at the trouble of supplying men and ships — and Athens made
no objection to the change. Presently she transferred the funds
to her own coffers, and did not scruple to use them to pay for the
magnificent buildings and the matchless works of art with which,
Pericles being master of her policy, she adorned herself. In
every way, indeed, the money of the confederacy was made to
simplify Athenian finance. When members of the league tried
to withdraw from it, they found themselves coerced by Athens
into remaining, being obliged either to pay a heavy tribute for
their recalcitrancy or to submit to be ruled direct from Athens.
The later days of the league saw Athenian officers of oversight
established in many of the towns once equal members with
THE GOVEaNMBNTB OP GHEECK AMD ROME. 87
Athens in the confederacy, and in some Athenian garrisons.
When necessary or expedient, Athens strengtliened her control
by new and separate treaties with the stronger towns under
her hegemony. The Delian Coniederacy had become an Athe-
nian Empire.
It wBi the resoureee wrung from thii empire Ihit rendered Ihe finance)
of Atlieni BO eiij ot manaf^ement in the time of Periclet; and it wdb
tlie aOKCen of the financea, proba.bly, vhich gsined for hU polic-j of
making money paymenls to the people (set, 90) the tolerance of the
richer ctaaaes of the citizena, and prevented Ihe tntal consequenuea of
that policy from making themselveB at once manifeBt.
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, l>eaides, had oligarchic or aristocratic
constitutions, and Athens was the representative and embodi-
ment of democracy. That Peloponnesus, with Sparta at its
I head, should strike at Athenian supremacy wau 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 {humioats) in every
uity convicted or suspeuted of disaffection towards her. It
was imiwsaible 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 tlifi
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 Eubcean commonwealths not a few, and even,
for a time, Macedonian and Thessalian princes ) conducted her-
88 THE GOVERNMENTS OF GREECE AND ROME.
self with an unwonted moderation, dictated by sad experiences ;
and had the satisfaction of seeing Peloponnesian fleets again
and again driven from the JEgesji, Sparta was forced to be
content to be the chief among oligarchies and to leave the
principal r6le in Greece 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 could do
proved effectual in uniting the Greeks : confederacies and hege-
monies alike were ephemeral. It remained for Macedon and
Rome to do for them what they could not do for themselves.
The Macedonians were cousins to the Greeks, 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
assumption 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 which Greece was torn, and won a place in the
Amphictyony itself, as a Greek power ; and then, turning to
the completion of his designs, he crushed Athens (Chseronea,
338), reduced the power of Sparta, and, establishing himself
in the presidency of the Amphictyony, brought the states of
European Greece together into a nominal league which was in
reality a Macedonian empire. Central Greece was at last com-
pacted for a national undertaking, — the Hellenization of the
East.
134. The Hellenization of the East. — That Hellenization
followed the conquests of Alexander the Great. Alexander
THT5 GOVERNMENTS OF GBEKCE AND HOME.
89
moved agaiust Persia as the leafier and representative, because
the irmster, of the European G-reeks. His armies were Greek,
in large part pure Greek, auri the regions which he «!oiiquered
were regions opened thereby tc the Greeks. Alesander him-
self did not live long enough to do much more for the perma-
nent alteration of eastern civilization than clear away oliatat^les
to the spread and predominance of western arts and ideas, and
nreate the highways of politicjil organiitatiou ujion which Greek
influences wpre to advance into Syria and Egypt. The great
changes which were to make the East Hellenii: took plat^e
under his successors, the IKadochi, amiilst the wars by which
tliey sought to establisli upon firm foundations their series
of independent Gra^co- barbarian kingdoms. Tlie process waa
easiest, of course, in Asia Minor, and most nearly resulted
there in a veritable Hellenizatioii ; but even in Syria and Egypt
it made notable strides, leaving Greek cities like AntJoch and
Alexandria to attest its vigor, ajid subduing to Greek influences
muoh important Mediterranean coast country.
135. The East wan by no means, however, wade Greek in
any such sense as that in which the j^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
Olyrapia. 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 civilization, which knew little of the old Greek liberty or
variety, — an orientalized Greek civilization. It was not stiflly
retentive of exclusive cliaractt-ri sties, like the pure Hellenic ;
it was receptive of outside influences, open to compromise, sub-
missive to rulers.
136. The Macedonian kingdom.^ amalgamated the East and
90 THE GOVERNMENTS OF GREECE AND ROME.
gave it that individuality which, after Roman dominion had
spread to it^ was to enable it still to occupy a place apart in the
Roman system, and was to cause it ultimately to emerge from
that system a distinct, separate, self-sufficing whole, the East-
em Empire (sees. 186, 187).
When CoDstantine transferred the capital from Rome to Bjsantium,
he of course shifted the centre of g^^avity from the Latin-Teutonic to
the Greek side of the Empire. In the time of Jostinian Greek was the
prevailing language and the chief imperial officials were Greeks.
137. The older Greek cities of the uSgean 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 Achsean 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
Achseans, who ever since that heroic age of the Trojan expe-
dition when they had been leaders of all Greece (sec. 125) had
stood in the background of Hellenic history, working out their
own quiet developments in comparative peace and prosperity
in secluded Aehaia, now again, in the closing age of Greek his-
tory, stepped forward to a new leaderehip and initiative. The
cities of Aehaia 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
Achaean towns took heart to cast out their Macedonian mas-
tors, and, having liberated themselves, drew together for
mutual assistance^ making a common cause of their liberty.
THE GOVERNMENTS OF GREECE AND ROME. 91
The spirit of other towns kindled at the example, and the
moYement spread. Presently all the Achaean towns had be-
come free, and the league sprang into importance. Sicyon,
which was not an Achaean 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 and
other neighbors from their tyrants. Year by year saw fresh
accessions to its membership till it included Megara, Troezen,
Epidaums, Megalopolis, and even Argos. For half a century
it served as an admirable organ for the national spirit of the
Oreeks ; 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 ()9ovXi7, 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
(ypafifMaTm, grammateiis) ] and a permanent executive com-
mittee of ten known as DemiurgL The board of executive
officers, it is believed, presided over the sessions of the
Assembly.
Here, certainly, was a better framework than the Greeks
had ever known before for concerted national action. Its
chief defects lay in the composition and procedure pf the
92 THE GOVERNMENTS OF GREECE AND ROME.
Assembly. That body was composed, in theory, of every
freeman of the cities of the league who had reached the age
of thirty years. In fact, of course, it consisted of the whole
body of the freemen of the town where it met (usually iEgium,
or, in later days, Corinth) and of such citizens of the other
towns as had the leisure or the means to attend. The ancient
worhl knew nothing of the device of representation which has
solved so many problems of jx)litical 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 ^tolian League. — The same period saw another
league spring into rivalry with Macedonia on the one hand and
with the Aoh»an 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
iEtolian League, like the AchaEjan, had its general assembly of
freemen; the business of tluit assembly was prepared by a
committee whose functions resemble those of the Achsean
Council; the chief executive officer 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
-.'Etolian League than of that of the Achaean, and what we do
know reveals certain important differences between the two
associations. The iEtolian League was not a confederation of
cities, but a confederation of tribes. Nor was the leadership
which the .^tolians acquired through their league like the
THE GOVERNMENTS OF GREECE AND ROSfE. 98
» leadership wliifh fell to the Achiean towns. T\w .^toliana
faihabited 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 Bureessful piracy. Their power and tbetr energetic initia-
tJTe created for them a sort of empire : at one time all of
Southern Epirus, Western Acarnania, Thessaly, Locris, Phocis,
and BflBotia were included in the league, and it even had alliea
in Asia Minor and on the Propontis. It " assumed entire con-
trol of the Delphio oracle and of the Amphictyonio assembly,"
Its leadership was a purely milit:iry leadership, presenting
^HBslient [loints of contrast to the association by means of which
^■tbe Achaean Confederates sought to secure themselves in the
^Binjoyment of their liberties.
Siery freenian of thirty jears of n^ wai enUtled to memberehip nt
the Aoembly of the LeaguL'. Tli^it asueiubiy met, not twiue, but once
a yenr, in the autumn, nt Tliermum, and was alleniled, of couree, only
■ by tlime who could afford to Attend ; tiint ia, by the dominant few.
TheAuembly did not select the Slritlegna of the League, hut a list of
itominecs for the nfflce — from which n StrAlcgui was piukiTd out by lot.
The Strategns, not a board of magialrates aa in A^iaia, preiided orer
the meetlngii of the Confederate Aaietnbly ; and to bim nerti enlruated,
besidel hia military, certain general civil and rcpreaentalive fuDCtiont.
The .Kloiian, like the Aclman League, was eventually, of coutm,
F iwept into the Roman vortex.
1)42. Soma and tha 'WMtam Cheeks. — Weatem Hellas, after
baring been at aonie jiointa touilied by Carthage, had been ttbsorbcd
by Rome, of tom»e, before the imjierial eily had tvM her armies to in-
terrene in the fai:tlDiiAl Bghta of Greece proper. The citica of Magna
Gnccia Rome acquired wlien she completed her conqneat of the Italiall
peninsula, b.c. 27!. Sicily, with its Givek and Carthaginian aelllemetits,
■he acquired in B.C. 311, and organized aa a province in b.c. 227, The
other western liomt's of the Greeks sh-e made her own along with Spain
Itnd the coaalt of Gaul.
143
)rk
143. After Roman Conquest. — Kome neither undid the
ork of the Macedonian princes in Asia Minor and Syrisj nor
94 THE OOVEHNMENT3 OF GREECK AND ROME.
thoroughly Romanized there the systems of government. The
vitality and self-direction of the semi-Greek municipalities of
the East in large measure weathered Roman rule, as did also
the Greek speech and partially Helleoized 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 hecome the imperial capital,
Constantinople, may be best discussed in direct connection with
Roman political development (sees. 181-187).
The Greek settlements of Sicily, Italy, Gaul, and Spain were
much more completely swallowed and assimilated by Roman
organization.
(II,) The Government of Rome.
144. The Ancient Roman Kingdom. — At no period before
that of the Empire 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 aa 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 leas
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,
however, 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 beads of families; for the Roman state, like
the Greek, was a confederation of gentea, 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
I
I
THE GOVERNMENTS OF GREECE AND ROME.
all in Greece (sees. 48-57), — except the method of sucoession
to the throne. Upon the death of a king, a council of all the
Fathers %f the gentes chose an interrex, who was to hold office
for one day ; the itUerrex named a successor, the successor,
taking counsel with the Fathers, nametl a king; and the Comi-
tta confirmed the choice.
145. I.eading Peculiarity of Roman CoDstitutional Devel-
opment. — This primitive constitution completed its i
blance to those of Greece, by lie^nning 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 fa«e and acknowledged it to be revo-
lution. They pared their constitution down, or grafted upon
it, 90 that no change was sudden, but all alteration apparently
mere normal growth, induced by tboughtfid 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
diatinguiah now very clearly as beginnings of sluggish changes
which were to be entirely accomplished only in the fulness of
time.
146. Reforms of Servlus. — Thus a change such as Solon
brought about in Athens was prepared in Rome by the mili-
tary and eivit policy of Servius Tullius, one of the latest and
greatest kings of the ancient city. The Roman Senate in its
youth resembled in one particular the English House of Ijords
U it was long ago (sec. 659) ; it consisted of such leaders
of the nation as were summoned by the king, and Servius
■tretched his prerogative by summoning to it the heads of cer-
plebeian families of consideration. Here wa^ a notable
ih made in patriciau privilege ; but made under the forms
the constitution and destined to bi-ar fruit but slowly,
[ore significant was the organiz3.tion which Servius, still act-
ling within constitutional warrant, this time as coinmander-in-
96
chief, gave lu the army. For the purposes of military aduiinis-
tration he divided the jieople into five property classes, to aach
of which were aasigued military duties, proportioned to the
meaiiB availahle to it for self-equipment for the field; und the
host thus made up and classified lie formed into an Assembly
of Centuries {Comitia Centuriata). This assembly waa simply
the army in council. In it e^ch of the hundreds (centuriea)
into which the army was divided had one vote. All matters
of foreign policy in which the army as such might natuntUy
he most interested to have a voice were submitted to this Army
Counnil. Suoh prerogatives given to the new property classefl
contained promise of grave constitutional cJianges, 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 aa hati
never been dreamed of in the plans of Servius, Of this we
shall see something later (sees. 154-155).
147. Tile CsDtuiJes. — The cinsiiflcMinn of the people effected hj
Servini whb baaed upon > census of properly which reiuindi o[ the polit-
ical reforms of Solon in Albena (^lev. 73). Like Cliatlienes, liowerer,
Servius nJdecl a new divieioD into tribes (sec. 82], and Jiis propcrtjr
ctasaei were not four but Are in nunibcr. Ererj' one nho was subject
to iniiitar/ aervice, and who owned not leit than twn juyrr-i (a little
more than an ai.-re) of land, was to contribute to the defence of the
state uniler the new claisiflcation : and the new cliLsies were to be dis-
posed into tour tribes. The flnt clasa, consiBting of those wortli 100,000
anu ($2000), was to contribute eifchty centuries of footmen and tigit-
teen centuries of liorienien to the army; the second, third, and foQIIll
classes, representing respectirely individual properties worth TB.OOO,
GO.OOO, and 25,000 attei. were each to aupply twenty centuries of in-
fantry: nnd the Bflh class, representing a oeaaua of 11,000 aun, mM
to furnish thirty. One-half of the crnluriea of footmen supplied iy
each cUxa cnnsialed of seniors, men from forty-five to sixty ; whiJe Ihe
other c
In II
e made up nf rr
ri CenTir
■a the VI
ebj
n forty-flve.
the vole of
■acb i-ealuiy being decided upon by ■ majonty vote within the oenltujr.
THE GOVERNMENTS OF GREECE AND ROME. 97
Evidentlj Ibe result of the nrmnKemeul takpn us n whole was lo give
prepondennce in (lie canc^lueiciio nf the Contiria lo wenltb and age.
There were added lo Uie»o centurieB of the cIsbspb one century
dravn from tlio«e wlio were shown by ilie censu! to hnve less tliaii
11,000 iiMri : and four ccnturifa of niugJL-ians and workmen drawn from
Ihe inasseB not reckoned in Ibe census at nil. The toMl number uf i-en-
tariei WAS. therefore, one hundred and ninety-tbree.
148. Beginniiigs of the Republic. — The line of Roman
kings came to au end, and the Kt'ijublic 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
Kome 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 titan was the uhange effected in Athens aome two cen-
turies earlier by substituting annual archons for life archons.
Two Consuls, to be chosen aiumally by the Comilia Centunata,
were substituted for the kings, who had grown insolent in the
person of Tarquin ; and a newly created high-priest, dubbed
Btx Sacrorum, received the religious prerogatives of supplanted
royalty — that was all. The regal functions (jiiietly 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 kiud in having liad no clearly defined prov-
ince. From the time when consuls were first chosen till the
end of the second Punic war {n.c. 509-201) it was virtually.
BO far as the conception of policy went, the government of
Rome. Its counsels determined the whole action of the state.
But not by uny very tangible legal right. It remained till the
98 THB GOVBBHHaSra OF OBSECB AHD ROMK.
last wliat it had been from the first, — only a. conaultative body
whose advice any magistrate might ask, but wkoae advice no
magistrate was bound to take unless he chose. It wati asso-
ciated with the consuls as it had been with the kings, — to
give them such counsel aa they should call ujiou 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
oreated 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 incapable as
any other advisory debating club of managing foreign con-
quests, it had many distinct advant^ea over any other authority
that might have felt inclined to compete with it. Ma^trates
held their olSces only for on« year, and were generally drawn
from the classes strongest ia the Senate; the various assem-
blies of the people (sees. 154, 155) had no permanent organi-
zation, and met only occasionally, when the proiier 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, &ad
soldiers of the state, it had a knowle<lge 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 aerioimly challenged, it could iiuiotly dis-
claim it, — to take it up again when the challenger had passed
on. The consuls and other raagistrates could ignore its deter-
^
THE GOVERNMENTS OP GREECE AND ROME.
99
I
miDations at will and follow their own independent purposes
or the wishes of the popular assemblies. The Senate waa only
their servant, to speak when bidden. But the Senate's advice
was commonly indispensable ; nowhere else were such coherent
views or such informeil purposes to be found, nowhere else so
much experience, wealth, influence. It was too serviceable to
be decisively quarrelled with : aad in all seasons of quiet in
home affairs it accordingly had its own way with undisturbed
regularity.
150. Composition of the Senate. — Tlie number of lanators naa,
throughoDt moit at Romnii liintory, limited lo lliree huadred. TliEiir
tenure was tor life, provided \hey nere not deprived of llieir rank b; tli«
censor. In tlie regal period tiiey wer« chosen b; the king. Iiii Eumnioni
conitiluting tlieni membera (leo. I4U) ; ind when consuli aacceeded to
the kinglj'' functiona, they, like the kinga. filled ricincipa in the Senate.
A law of about b.c. 361, however, gave the right to a lent in the Senate
10 every one who hud been conaul, prslor, orcurule-iedile; and vacan-
cie* over and above the number which auL'h ex^offidala aufflced to fill,
««re thereafter filled by appointment of the ccnior.
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-
taUed, the conquests of the Komau anuies, which the Senate
at first did so much to advance by supplying both wise plans
vad 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 whs denied the exclu-
ively municipal life for which her forms of government fitted
and which waa permitted to Athens, Sparta, and the other
ities snugly ensconced in their little valley nests among the
[jDOUntains of Greece. Bhe had no pent-up Attka in which to
.ve a separate life. There were rival towns all about her on
le plains of Latium and beyond the Tiber in Etniria. When
'tiiey had been Sirnught under her supremacy, she had but
100 TIIE GOVERNMENTS OF GREECE AND HOMK.
gained new hostik neighbors, to whom her territory was equally
open. She seemed rumiielled tor the sake of her own pe>aoe to
conquer alt of Italy. Italy subdued, site found herself sejiur
rated by only a narrow strait from Sicily. Drawn into that
tempting island by policy and ambition, she came face to tMV
with the power of Carthage. In subduing Cartliage she y
led to occupy Spain. She had been caught in a tremendoua
drift of compelling fortune. Not until she had circled the
Mediterranean with her conquests, and had sent her anuieg
deep into the three continents that touch its international
waters, did she pause in the momentous undertaking of bring-
ing the whole worid to the feet of 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. Borne liiatorians believe that
they were a non-cittzen class such as we have seen in the
met(eci at Athens (sec. 93) ; others have satisfied themselves that
they were at least suh-citizens, members even of the exclusive
curies which contained the original lloman genle». hut that si
how they were not themselves within the patrician geiilea, and,
consequently, not of the classes which were eligible for office.
I'ossibly neither view is either quite right or quite wrong.
Whether or not it l>e true that Rome, because seated in a dis-
trict which was neither fertile nor liealthful enough to have
liecn chosen for any other puq»se, was at first an asylum fov
the outlawed and desperate characters of Italy, it is reason*
ably certain that her population had from the hef;inning areryi
miscellaneous, heterogeneous cnm]X)sitioiL Possibly the g\
which claimed to be the only yevte» that had fathers (patrta, in
other words, long and honorable descent), and conaequentljT
the only patricians, were tbeinselves of rather artificial makft^
THE GOVKIINMENTS OF OltKKCE AND 1
1
OME. 101
Qp; and it is quite conceivable that those who came later into
the Roman circle, although not less naturally but only more
recently formed into families of the orthcxlux pattern, were
relegated to a rank of inferior dignity in the state, even if not
nxcluded from a place in the curieM alongside of the patricians.
But there were also many, doubtless, who had come to Borne
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 nun-citizen
I, which had forgotten its alien extraction and had l>ecome
b-identilied with the city, but which had made no advance be-
ftyond the threshold of the state. Probably tliese, too, were
. Doubtless the same name included also those who,
f whether aub-citizens or non-citizena, had attached themselves to
I- noble patrons in the half-servile capacity of clients.
153. Secession of the Plebeians (b.c. 494). — Whoever the
I Jilebeians may have been, they were indispensable to Rome in
I ier struggle for supremacy. They came year by year into a
■ greater military importance, constituting more and more esclu-
I'Sively the rank and file of the Roman armies : and they em-
■Jlloyed their usefulness to the state as a lever by whieh to raise
ismselvea to complete political equality with the senatorial
Their first decisive step demonstrated their strength,
I— to themselves, possibly, as well as to the {tatricians. In the
('midst of war, and with their arms in their hands, they seceded
from the city and threatened to establish a separate govem-
meat of their own. Their grievance was, that they were at
the mercy of the patrioiau mt^istrates ; they had not as yet
I any greater demands upon which to insist seriously than pro-
Ptection agiiiiist magisterial tyranny.
164. The Tribunes They were heeded, of course. A seed
|of revolution was sown, as usual, without any one's seeing the
romise of innovation it contained. Tnbitiiea of the people
were appointed : at first two, afterwards five, in the last days
They were officers chosen from the ranks of tlie plebeians
102 TBE OOVBRNMESra OP GREECE AKD ROMS.
and invested with the right to suspend the judgment of aay
magistrate upon a plebeian by peremptory veto. The persona
of the tribunes were made inviolable by a compact (the lejt ao-
crata) between patricians and plebeians whii;L rlenounced ft
curse upon any one who should interfere with them in the di»-
chai^e of their functions. The concession seemed a small one,
— especially in view of the fact that the tribunes, though p]»
beians, were (till b.c. 471) elected, not by their own order, but
by the ComiCia Curiata, the exeJusive assembly of the patri-
cian curies. But the creation of the tribunate 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 pUbs/
they called plebeian meetings {cmicilia 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 Idliati, B.o. 493) which visited with the
extreme penalty of death ajiy interruption of a tribune while
addressing the people.
loo. Progress of Plebeian Predominance. — In b.c. 471 the
election of triltunes was transferred by law to a newly cortati-
tnted plebeian assembly of tribes, which was known as the
Concilium tributum plebis. Step by step the resolutions of the
strictly popular assemblies grew in importance. Ultimately k
Comilia 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
counsel.s 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 Cnriata still survived
and exercised a small residuum of function, — for the Romaui
never willingly abolished a superseded institution ; the Comitia
Cettltiriata continued to elect and legislate on a reduced scale ;
THK GOVEkSMENTS OF GREECE AND HOME, 103
I and the Seuate still gut its adioinistrative suggestions heeded
when it Ptiuld, aa of old ; but the Comitia Tributa had virtually
absorbed the sovereignty. It was the assembly of the whole
people ; till? others were weakened houses ot lords.
156. The Plebeians and the Hagistracies. — Tht: plebeians
Were not satisfied, however, with a growth of legislative power
and the interveution of the tribunes between themselves and
the m^istrates. They were not slow to use their waxing po^
litical strength to open the magistraeiea to their order. With
■ • true instinct for strategy, they attacked first the consulship
teelf ; they would gain all by gaining that. But the fight was
along and stubborn one about this stronghold ; the consulship
I the key to the constitution, and the patricians contrived
o delay the complete triumph of the plebeians in their attack
I it for a century and a half. The method of resistance
■hieh they adopted was at once astute, lx>ld, and successful,
s the plebeians approached complete possession of the coveted
, the patricians steadily curtailed its imjiortance by par-
big away its prerogatives and giving them to officers newly
Dated for the purpose and kept carefully within the patrician
At the beginning of the contest, when it first became
irideut that the plebeian right to high office must be recog-
;, the plebeians were offered consular ]iowers hi the field
r the title of 'military tribunes.' The tribunician veto
I not hitherto been able to protect plebeians outside the
Mty, and the powers which the consuls exercised despoti-
illy in the field were those of which the plebeians were most
alous. Still the gift of a share in these extraordinary powers
nnder a new title did not satisfy the commons. They must be
admitted to the consulship itself, with its dignities and its
poirers 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 C«7tr
a'iaia; and, for fear some plebeian might somehow creep in,
104 THE GOVERNMENTS OF OBE£CB AKD ROME.
the office of Quw^or was createil. and tlio consukr privilege
of acting as treasurer of the state was given intg the hands
of two patrician quiestors. The plebeians of coarse saw that
they had suffered a virtual defeat, and piLshed 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 )»itri-
cians 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 prerogati^-e,
hitherto appertaining to the consular office, of taking the census
and revising the roll of the Senate; and then Praiors were
created and vested with the judicial functions which the con-
suls had inherited from the kings. Both these ofBces were
denied to plebeian candidaten.
s uftcrwarda called
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 sa«red priest-
hoods and to the augural college, swung open to tike jAebit, and
tlie uld-timu 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 Republic had begun to become manifest. Rome
had been attempting the impossible task of administering b
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 Romans
never invented anything new ; they simply adapted old forma
THE GOVERNMENTS OF GIIEEC^E
105
I
and institutions as best they might to new neeils and circum-
They hati, therefore, merely streU-hed the tentacles
of their city conatitiition out over the world, and that conati-
tution showed yearly i-learer Jind clearer signs of being about
to be torn asunder by the strain.
158. Provincial Administration. — The consuls and prEetors
of the city goveniiueut were uontinued, as pro-consuls and
pro-prBBtors, and sent out to govern provinces. But, onoe away
from the sui«rvision of the tribunes and the criticism of
assemblies and Renate, they were absolutely irres]»unsible :
save only that they were liable to trial for malfeasance in
office, after the expiration of their terms of servioe, by jury-
courts at Rome, which were of course out of sympathy with
provincials and notoriously open to be briljed. In the city
itself consul and prator were theoretically inilependent of the
conclusions of Senate or people ; out of the city, commissioned
as pro-consuls or pro-praitors, 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 ap[>eal in all cases which were not in the first in-
stance heard in jury-courts, and well-known law governed alt
decisions. But in his province the pro-magistrate was a final
judge restrained by no law but bis own edict, issued on enter-
ing ujKm 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. Thpre being no way known to
Boman municipal method of bringing local government in the
jm>vinces into any sort of systematic co-operation with the
general administration, towns and districts were often suffered
to retain their own local organization, but subject to the con-
stant harassment of Roman interference. Force cured the
106 THE GOVEBHMENTS OF GREECE AKD ROME.
want of system ; arrogant domination served instead of ade-
quate maJ'liinery ; a genius for intrigue and for open subjuga-
tion took the place of wise legislation, The world was made
use of rather thiui administered .
159. Causes of Failure. — This attempt to make a city
vnnstitutiou serve for the government of a whole empire failed,
therefore, for the double reason that it was impossible to
provide masters for tlie 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 kuew nothing of representative assem-
blies, and consequently nothing of citizenship save in the shape
of privileges which could bo exercised only in Rome itself.
The provinces could not be invit^id to Rome to vote and sit in
the assemblies and the jury-coiirts- And it was not citizenship
in Rome 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 t!ie spot.
160. EstabUsIiment 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 ia what
Ctesar attempted, and what the overthrow of the Republic and
the establishment of the Empire acoomplished. Under the
consuls and the Senate the provinces had been administered
aa Rome's property, as the estate of the Roman people; uuder
the emperors, who combmed in their single persona consalac
and pro-consular, prstorian and pro-pnetorian, tribunician and
qutestorian powers, the provinces very soon came to bo admin-
istered as integral i>arts of R-ome. The Senate still stood, and
many provincial officers were still formally elected by the
people of the city ; but the city became, scarcely less than the
provinces, bound to perfect obedience to the emperor ; provin-
THE QOVKENMBKTS OF QHBECE AND HOME.
107
cial officers, and even city officers, were recognized as only lus
deputies ; the Empire was nnifiod and provincials biouglit up
to an equality with their former masters by a servitude com-
mon to all. Caracalla's act of uuiversal enfranchisement,
whatever its immediate purpose (a.d. 212), was a logical
outcome of the imperial system. All were citizens where all
were subjects.
Evolutions of Government unbeb the Empire.
161. Genesis of the Empire. — It is not possible to undei^
stand either the processes oi' the sigoificiijice 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 Roman, degenerate though he
had become by reason of the dissipations of comiuest and the
growth of military spirit, would not have brofjked any sudden
change. That habit yielded only to influences of almost one
hundred and fifty years standing; the changes which trans-
muted the Republic 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, pre-
ceded the time of the Gracchan legislation. The strength of
the Republic had lain in the boily of free, well-to-do citizens,
in a race of free peasants as well as of i>atriotic patricians, in
a yeomanry of small farmers rather than in a nobility of great
land-holders. But the growth of the Roman dominion had
radically altered all the conditions of Rome's economic life.
She had not only spent the lives of her yeomen in foreign
wars, but had also allowed them to be displaced at home by
108 THE GOVERNMENTS OF GREECE AND ROMS.
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 u|)on 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 Rome, the economic ruin of the home state be-
came painfully evident, the necessity for reform painfidly press-
ing. The i)oor 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 wjus this state of affairs that Tiberius Gracchus
essayed to remedy, by reviving the laws (the Licinian of b.c.
36(\) in violation of which the rich senatorial families had
absorlx»d the i)ul)lic lands. By enactments which he proposed
as Tribune in 13^3 k.<'., the public lands illegally occupied
wen* reclaimed for distribution by a retroactive enforcement
of the old limitations as to the amount of public land which
each i)ersou should be allowed to hold, and, although the senar
torial party accomplished the murder of Tiberius and the
temporary defeat of his iKirty, 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
T
THK GOVERNMENTS OF GREECE AND HOME. 109
the same policy. He forced to enactment lawa 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 St-nate
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 fado ascendency in
the state.
164. It was the rule of the oligarchy which produced Maiius
and Sulla and the cruel civil wars between the respective par-
ties of these rival leaders. Botli 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
wluch turned the constitution 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 poliLy of the
oligarchs produced reaction ; but reaction did not strengthen
the people ; it only developed factions : the time of healthful
reaction liad passed, and the jjeriod of destroying civil war had
I oome. Civil war opened the doors to Ceesar and the several
I triumvirates, and finally Rome saw her first emperor in Octa^
viaa. 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 tht many to the few ; (2) the
consolidation of oligarchic power in the Senate ; (3) reactions
and factional wars; (4) the interference of Ccesar, fresh from
1 great successes in Gaul and backed by a devoted army ; (5)
I the formal investiture of a single man with controlling author-
j ity in the state. Disorder and civil war had become chronic
i
110 THE GOVERNMENTS OF GREECE AND ROME.
in the degenerate state, and had been cured in the only feasi
ble way.
165. Transmutation of Republican into Imperial Institu-
tions under Augustus. — But even in the final stage of the
great change all appearance of radical alteration in time-
honored institutions was studiously and circumspectly avoided.
The imperial office 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 function, 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 Antonius
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 another term of the same length. This
second period of the triumvirate witnessed the steady advance
of Octavius in power and influence at the expense of his col'
leases. His own powers survived the expiration of the five
THE CJOVERNMENTS OP GBBBCE AND ROME.
■ years (b.c. 33). In n.c. 31, exereiaing the military imperium
I oonferred upon him in 32, he met ami defeated Antouiiia at
I Actium, pretending tu meet him, not as a rivikl, but as a leader
I of the revulted East; and after A4;tium he was supreme. But
I he still made no open show of any power outside the laws.
I The years 28 and 29 b.c. saw him consul, with his cloae friend
lAgrippa as colleague. By virtue of the eensorial powers
■ ffiiginally belonging to the consular office, and now speiuuUy
K.eonferred 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-
■inent for the accomplishment of his further purposes. In b.c,
[28 he formally resigned the irregular powers which he had re-
Pitained since 33 by virt\ie of his membership of the triumvirate,
' declaring the steps which 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 ])rocess began which was
I 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
Bibjrthe senators to retain the military commaiid for the sake of
VBaintaining order and authority in the less settled provinces,
■Kid over these provinces he assumed a very absolute control,
pinpointing for the administration of their affairs permanent
Jpreniors who acted as his lieutenants, and himself keeping
iate command of the forces quartered in them. The
ler provinces, however, remained ' senatorial,' their affairs
Kcted. by the Senate's decrees, their pro-consuls or jiro-
tors appointed by the Senate, as of old. Avoiding the older
ties, which might excite jealousy, Octavius consented to be
lied by the new title, sufficiently vague in its suggestions, of
^.Augustus.' Presently, iu 23 n.c. and the years immediately
jKlllowing, he was successively invested with tribunician, with
Kionaular, and with consular powers, accepting these powers
Vlor life. In 19 B.C. he was formally entrusted with supervision
112 THE GOVERNMENTS OF GREECK AND HOME.
of the law3j and in 12 b.c. he became Pontifex Maximus, His
powers were at length romplete. But his assumption of these
powers did not mean that the old republican offices had been
Bet 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, witU 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 course dictator of every step of importance,
the recognizedTensor upon whose will the comjKtsition of the
Senate depended, the patron to whose favor senators looked
for the employment which gave them honor or secured them
fortune. Long life brought Augustus into the possession of
an undisputed supremacy of power, in the exercise of which
he was hampered not at all by the re]iublican forms under
which he forced himself to act, He even found it safe at
length to surround himself with a private cabinet of advisers
to whom was entrusted the Brst and real determination of all
measures whether of administration or of legislation. The
transmutatiou of republican into imj^erial institutions had
been sucoessfully effected; subsequent emperors could be open
and even wanton in their exercise of authority.
lOS. No nation not redicall}' aJeficient in & icnic of humor could hare
looked upoo thlR maBquernde wiUi perfect gnivitj, ki the Roman* did.
One constantly expei^li in reading of it to learn o[ its having been tod-
denly broken up bj a burat of laughter.
Of course It must be remembered how welcome the order secured bj
the new r^i'me must have been after lo long a period of ciril strife and
anarcliy ; and that the men of -conrBBe and initiative who would have
orRsnizeri reeisCance or spoken open exposure of the designs of Augus-
tus had perished in the wars and proicriptions of previous revoluliou.
THE OOVEKNMENT3 OF OitEECE AND ROME. 113
ten and order and Jacked leaden who would have
rriiited [tip purchase of order ur rest at loo jtriiat a coiit Id liberty.
Ocuciua had. morcoTcr. lince Actium, been at the head oC about
I legioiu, "conecioiu of thdr atrength, and of the
weak.netB of the tonililulion, hnbilualed, during twenty yearn of civil
t of blood and violence, aiii) paBiionBtely devoted lo
of Cesar."' It might have been dangerous to laugh at the
169. The Completed Imperial Power. — The emperor, thua
e a multiple magistrate and supreme leiider in
all affairs of state, though nominally clothed with many dis-
tinct powers, in reality occupied an office of perfect utiity 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 hut with
aathority ; he never wished but with power to execute. The
magistrates put into the old offices by jiopular choice were
mpletely dwarfed in their routine of piece-meal functions by
the high-statured ijerfection of his power, rounded at all points
and entire. Such minor powers as were needed to complete
the symmetry of his office were readily granted by the pliant
Senate. A tdtizen in dress, life, and bearing, he was in reality
a monarch such as the world had not before seen.
170. The New Law-making. — The only open breach with
old republican method was eitVcted 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, Cliap. HI. (Vol. I., p. 36, of Harper's edition, 1840).
114 THE GOVBBNMEllTS OF QBSECB AND BOHB«
the emperor is virtually the sole source of law, for all the
authorities quoted in the courts are embodiments 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 SenaJtus con-
suUa took the place of the forms of the republican legislar
tion." '
The electiTe prerogatiTes of the popular assombliet soTTiTed only
the first imperial reign. During the reign of Tiberius the right to elect
officers followed the legislatiTe 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 ciTic 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
Republic had known and delighted in, but which could live
only in the atmosphere of real liberty, still made themselves
felt in the debate of the great cases pleaded in the patrician
chamber.
172. Growth of New Offices. — As the imperial office grew
and the constitution accommodated itself to that growth, a new
official organization sprang up round about it Praefects (prce-
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.
r
■ ■ to Derfo
THE OOVERNMBNTB OF QREECE AXD HOME.
115
I
to perform some special magisterial function ; biit now there
i^ame into existence a permanent oiBce of Prsefect of the City, and
the incumbent of the office was nothing less than the Emperor's
vice-regent in his absence. PrEetorian cohorts were organized,
under their own Pnefeet, as the Emperor's special body-guard.
The city, too, waa 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 regulatecl
subordinates, came presently into very sinister prominence.
And the Privy Council of the monarch more 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 Re-
public had 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 bad ruled
the provinces in the name of the Uepublic 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 situatiou was very
different. His flnaucial interests were identifieil with the
prosperity of the provinces not only, but also with the pecuni-
ary honesty and administnitive fidelity of the imperial officers
throu^out the Empire ; with him it was success to keep his
subordinates in discipliue, failure to lose his grip upon them.
That province e3teeme<l itself fortunate, therefore, which
passed from senatorial control and became an imperial prov-
ince, directly under tlie sovereign's eye (sec. 167) ; but even
in the senatorial provinces the emperor's will worked for
order, subordination, discipline, for regular, rigid control,
116 THB GOVERNMSNT8 OF 6REBCB AND ROME.
Under the emperors, moreover, the Senate gained a new
interest in the provinces, for its membership became largely
provincial. The notables of the provinces, men of prominent
station, either for wealth or for political service, in the prov-
inces, gained admission to the Senate. There were at last
champions 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
Kero) figured as of the Julian line, the line of Csesar, and
under them the Empire was first of all Roman, — was Rome'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. Gradually 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 r^yime of military revolution, were some of them
not even of Roman blood. Klagabalus was a sun-priest from Syria;
THK GOVBRNMENTS OF GRGUOE AND EOME.
Blaximin wu a ThrscUn peasanl ; Diuclctian, with whom liie pcHud of
military rcTolulJop n>»y be gaid to tiaie cla«ed, and who was the reorgan-
iwr o( the Empire, was born of a humble Dalmntinn fnniil;. Uence-
fortli Latin blood wai to tetl for little or nnlhing. Tlie centre of
graTily hid ahifted away from Rome. After the ■euond century eTeii
the Latin language fell into de<^ay. and Greek became the language of
nairenal acceptance and of elegant me.
176. The Army. — The elevation of the provinces to their
proper status within the Empire meant, however, most unhap-
pily, tlie elevation of the provincial armies to political promi-
nence. Very early in the history of Rome's conquests her
armies bad come to be made up largely of provincial levies,
and as the Empire grew, the armies hy which it was at once
extended and held together, became less and less Soman in
blood, though they remained always Roman in discipline, and
long remained Roman in spirit. Gauls, Germans, Scythians,
men from almost every barbarian people with which Rome 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, and the consent of the soldiers." Galba,
Otho, and Vit^llius were the creatures of the military mob in
Borne. Even the great Flavian emperors came to the throne
upon the nomination and support of their legions. And then,
when the best ilays 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 CiEsars.
177. Changes in the System of GoTemment. — It was in
part the violence of this disease of the body politic that sug-
J
lis TOE GOVKRXAIENXS OF GBfiECli; AUD BOMB.
gi'sted to the stronger emperors those changes of government
which made the Empire of Couatantine so dJfEerent from the
Empire of Augustus, aiid which exhibited the operation of
forces wliich were to bring tlie government very near to mod-
ern patterns of absolute monarchical role. But before military
revolutions had compelled radical alterations of structure in
the government, the slow developments of the earlier periods
of tlie Empire had created a civil service quite unlike that
which had served the purposes of the Kepublic. Noble RomaJis
had time out of mind been assisted in the administration of
their extensive private estates and their large domestic estab-
lishments by a numerous sta^ of educated slaves ; and it was
such a domestic and private machinery which the first em-
perors employed to assist them in public aSalis. One domestic
served as treasurer, another as secretary, a third as clerk of
j>etitions, a fourth as chamberlain. It required many a decade
of slow change to reveal to the eye of the free Koman that any
honor lay in this nlose personal service of a sovereign master.
The free Roman of the days of the Republic had served the
state >vith alacrity and pride, but would have ejiteemed 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.
226-228), compatible with honor; much less could it seem to
him a source of distinction. But the ministerial offices cluster-
ing about the throne and by degrees associated with great in-
fluence and power at last came to attract all ambitions. Ftom
the first, too, patricians had stood close about the person of the
Emperor as bis privy councillors. These councillors became
the central figures of the monarch's court: they were his
'companions' (his comitet, the woi-d from which we get the
modem title coutU). The later day when all service of tha
Emperor had become honorable to free men saw the name of
comiles transferred to the chief permauent functionaries of tha
imperial service.
THB GOVBBNMENTS OF GREECE AND HOME.
BUM
i
The domeitic miniiterial lervicc oC llie earl; Empire was of courie
tlie mme in germ M thai organization of stewarJa, chariibcrlainB, bai-
lers, iikI the rest to bo found in the courta of mediicrRl Kurope, out of
which our modem miaiilriei aad cabineta have been evolved. It wai
to come very near to ita modern derelopmenl, at we ihsll tee, under
CanaMDline (see. l&f),
178. Of course, as the imperial system grew, offices multi-
plied in the provinces also. Frovincial goveraora 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 ateadily 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.
ivincial governors were liefore very long surrounded by a
lumerous staff of ministers ; a great judicial system sprang up
aboutthem, presided overgften by distinguished jurists: Koman
Jaw penetrated, with Eoman jurisdiction and interference, into
almost eveiy affair both of public and of private concern. Cen-
tralizatiou was not long in breeding its necessary, Its legitimate,
hieiaxchy. The final fruit of the development was a civil ser-
vitse, an official caste, constituted and directed from the capital
uhI regulated by a semi-military discipliue.
179. Constitutional Measures of Diocletian. — The period
revolution and transition, the period which witnessed the
lUtiDOus ascendency of the half-lxirbaric soldiery of the prov-
iacea, lasted from the year ISO 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 barbariana
within the Empire : the Empire, indeed, was more barbarian
^^m WttUlU lUH
120 THE GOVERNMENTS OF GREECE AND BOMB.
than Roman : tte mixed provincial armies had bruken down
all walls of partition between nationalities. With the acces-
sion of Diocletian the Empire emerges in its new charactei' of
a pure military despotism. The Senate and all the old repuV
lican offices have disapj>eared, except as shows and sliadows,
contributing to the pageantry, but not to the machinery of th«
government. The government assumes a. new vigor, but d)»-
penaes 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 experimental, 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 eaeli other and of 1
him, though acting nominally under bis headship. He aseo-;
ciated Maximian with himself as co-regent, co-Augustus, with .
a separate oourt at Mediolanum (Milan), thence to rule Italy
and Africa. His own court he set up at Nicoinedia in Bithj^j
nia, and he retained for himself the government of the Eas^ '
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 'Cieaar,' for whom Augusta
Trevirorum (Trier) in GaiU served as a capital ; the control
and defence of Illyricum to another 'Ctesar,' who held court
at Sirmium. The two 'Ciesars' served as assistants, and
|Kiaed as presumptive successors, of the two ' Augiisti,' i
the more difficult provinces, as younger and more active ii
raents of government. Each Augustus and each CECsar
oised aujrrerae military and civil authority in his own divi
of the Empire, though each formally acknowledged IMi
head over all.
This ayBiem marks the abandonment of Rome as > CAptUi and d
recoKfiilion of a certain naiural diTieion between tlie euiem uid l]
weatem halves of the Empire.
THE QOVEaNMENTS OF GREECE AND HOME, 121
181. Refonas of Constantiae. — This division of authority,
of course, brought alxmt, after the retirement of Diocletian, a
struggle for sufirejuai'y betwe>-ii luaiiy 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 admioiatratiTe authority upon a
very different plan, which should give him, not rivals, but ser-
vants. His first (sare was to separate civil from military com-
. mand, and by thus splitting power control it. There was
I henceforth to be no all-in ('lusive jurisdiction save his own.
I For the purposes of civil administration he kept the fourfold
f 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 Pnefect empowered to act as supreme judge, as well as
supreme financial and administrative agent of tlie Emi)eror, in
his special domain, as the sui)erintendeut of provincial gov-
ernors, and as final adjudicator of all matters of dispute : ax
L ioll vice-regent, in short, in civil affairs.
I Under the arrangcniEDta of Diocletian p&c^h Augaatui and eieh
I Cntar bad liad a prietorian pnefect aasociated with liim ai hi« lieuten-
ant,— as iDi;ue»Bars under much altered circumslanues to tlie title of
the old-lime pneloriun pnofect of Romp, Under Constanline there
e the four pr^fectH, but no Augueli or Ca^anre plated over them, no
Iter but Conatnnline himself, Bad posaessing function* utterly dii-
iimiUr from those of the older prfftorian praifect in that ihey were not
Kl ail tnililarj, but aitogethcr citiI.
The pnetorian guards were finally abolished under Conatancinc. For
tfaem the play »a« over.
182. The four prsefectures Constantino divided into thirteen
'dioceses ' over which were placed vicars or vice-pnefecta ; and
these dioceses were in ttteir turn divided into one hundred and
Bixteen provinces governed, a few by pro-consuls, a somewhat
larger number by 'correctors,' many by 'consulars,' but most
^B by 'presidents,'
I
i
i
122 THE QOTEBSMESTS OF OBSBCE AND BOMB.
" All the drO magistntet," mjb Gibbon, " wen drrnwn from the pro.
fewion oC the Uw." Every candidAte for place had firat to receire fire
yean' training in the law. After that he was ready for the official
climb : employment in sncceMiTe rankf of the ■errioe might bring him
at Uft to the goTemment of a dloceae or eren a prefectore.
183. Such was the civil hierarchy. Military commaDd was
vested in four Masters-General superintending thirty-five sub-
ordinate commanders in the provinces.
Theie rabordinate commandera bore varioua titles; they were all
without distinction doket (jiuetM, leaden) ; but some of them had
attained to the superior dignity of counts {comiU»),
184. The Household Offices. — Gonstantine 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 f.irm still fur-
ther points the significance of the shifting of the centre of the
Empire. Rome 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 ma^niSoencey 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 offices, created in germ in
the early days of the Empire (sec. 177), had now expanded
into a great hierarchy, centring in seven notable offices of state,
and counting its scores and hundreds of officials of the minor
sort. There was, (1) the Great Chamberlain; (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 QuoBttor (sec
156) ; (4) a Treasurer-OenercU, superintendent of some twenty-
nine receivers of revenue in the provinces, overseer also of
foreign trade and certain manufactures ; (5) a treasurer called
Count of the Privy Rei^enue of the monarch; (6 and 7) two
Counts of the Domestics, new prsetorian prsefects, commanding,
I
I
THE GOVERNMENTS OF GREECE AND ROME. 123
the one the cavalry, the other the infantry, of the domestic
troops, officers who in later times would probably have been
known as constable and master of the horse.
186. Wo h«»e thm almoat complete in ihe lytlem of goTemmrnt
perfected by ComtnntiDe llikt machinery of houtrhold offlcen, mili-
tai7 CDonts, sod prorindal lieatensnlB wliich oag to Berve ■■ ii mo(Ii!l
throughout ihe Middle Agei wherever empire ilionld «riie and need
organiMlion. The ' companion* ' (camitei) of the Teutonic le«dem held
■ mni-h more honornble position than did the domestic icrvanti of the
Roman Emperor, and their dignity they transmitted to llie honaehold
oflk-et^ of (he Teutunic kingdoms; but the organization effecled by
Conitantlne anticipated that «y«tcm of government whii-li has given us
our provincial governors and our adtninistratire caliinets.
186. The Eastern and Western Empires; Greek and
Teuton. — The eooqueats within the Empirn effected by the
Teutonic peoples in the fifth centaury and the centuries imme-
diately following out away the West from the dominions o(
the Kmperor at Constantinople. The division between East
and West, whieh Diocletian had recognized in his administra-
tive arrangements, at length became a permanent division, not
merely an administrative, but a radical political separation,
sod 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 Rome or
Bavenna. 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 Boman Empire should arise under Charles the Great
(sec. 364). Meantime, however, the Eastern Empire retained
in large part its integrity and Tigor, as well as its adminis-
trative organization also. It was not to be totally overthrown
untU 1453.
I8T- RftUgioaa Sopsratlon and Antagonlnn. — The political
■epaxBtion thua brauj^hi about between the Easiern Empire and the
124 THE G0YERNMENT3 OF GREECE AND ROUE.
peoplet of the West wii eniphaiiEed uid embittered bj religious differ-
«D<;es. Chrialionily liad been Bilopled b? Conilantine, and liad prac-
tically continued to be the religion of the Eastern Empire without Inlet-
ropliOD ; but the Chriiiian doctrine of the Eait nai not th« aanie u
the Cbriatian doctrine of the West; the ecclesiastical parly centring in
Ihe episcopate at Rome violently antagonized the doctrines received at
Cong tADtino pie. The world Elierefore saw two cliurches ariEC, with two
magnates, tlie Pope at Rome sind the Patriarch at ConBUntinople, Ihe
one virtually supreme became in the West where he was overshadowed
by no imperial throne, tbu otiitr dumiiialed by a throne and therefore
partially aubordinate. Thia religious difference, accompanying a« ii
did diSerences of language and iradiljoa also, the more eSecluatly pre-
vented political unity and even political iutereoune between the liaat
■nd the West, and thus assisted in setting Western Europe apart to •
political development of her own.
Gbneba-l Summary.
188. The City the Centre of Ancient PoliticB. — We are
now in a poaitiou to understand how the full-grown Greek and
Boman goveriunents, 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 Soman institutions bore such clear traces, but
which it is so difficult for us now to inu^ine 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-
duBtry, like the cities of the present day; if merchants and
manufacturers filled its markets, that vas 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 neoessity
to a patriarchal confederacy of families, phnUries, 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 Dationalitics had
THE GOVERNMENTS OF GREECE AND ROME,
125
I
been purged by the feudal system, kneaded into coherent
masses by the great absolute monarchies of the Middle and
Modem Ages, vivified by Renaissance and Reformation, and
finally taught the national methods of the modem 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 xnXis (/wi'm), the city, — divorced
from municipal government was a word of death until nations
learned that combination of individual participation in local
af&irs 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.
\99. The Approaches to Hodern Politics: Creation of the
Patriarchal Presidency. — Rome's city government, as I have
shown, fell oiider 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 modem political
» practice. And the stages by which the approach was made
«re comparatively plain. It is probable, to begin with, that
tiie governments depicted in Homer were not the first hut 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-
^L Intion whose object it had been to put the heads of the ancient
^H femilies upon a footing of equality with the king. He had
^f thus become merely their patrioi'chal president.
190. Citiienshlp begins to be Dissociated from Kinship. —
But this aristocracy ooutained the seeds of certain revolution.
Aa dissociated chieftains the Elders had maintained at least a
^H distinct family authority, and so preserved tlie integrity of each
J
12(5 THE GOVERNMENTS OF GRKECK AND ROME.
separate family orgaDization ^ but as associated conncillora they
iu a measure merged tbelr individuality, at least their soU-
darity ; the law of primogeaiture began to be weakened, and
a drift was started towards that personal individuality, as eon-
trad istingui shed from corporate, family iudividualitj', which
diBtinguishes modem from very ancient politics. 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 thus emerged, a popuhttion aUen to
the ancient kin and unknown to the politics of the ancient dty
was at the gates of the constitution demanding admittance. A
non-citizen class, alien or native in origin, pleb», clients, metics
or jmrUeci, assisted to riches by enterprise in trade or by in-
dustry in the mechanic arts, or else sprang into importance as
the mainstay of standing armies, demanded and gained a voice
iu the affairs of states which they bad 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 reasona and espedieocies, 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 pleb» had brought in with them. It was to
l»e thereafter matter for discussion who should be admitted to
the franchise.
THE QOVERNMRNTS OF GIIEECE AND HOtE.
193. Politics separated from Religion. — The result!
though oftentimes slow in coming, were moiueiitoiia. Laws
and itistitutioua took on changed modes of life in this i
atmoBphere of discwsaion. The outcome was, in brief, that
Politics took precedence of Religion. Law had been the child
of Beli^on: 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 ; polities mnst 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 lieing made by resolution of
assemblies, it rapidly grew both in ma.s8 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.
195. 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 o& into modern.
RePHESENTATITE AUTUORITIEB.
On Greek losUtutiODS ;
Gilbert, Gnatav. " Haodbuch der GriecLischen Stftatsalt«rthiiiiier."
Leipxig, 1861.
I SekBmann, G. F.. " The Antiquities of Greece : The State." Trans-
^1 Ut«dby E. G. Hunlyand J, S. Mann, London, 18U0.
128 THE OOVERNMBKTS OF OREEGB AND BOMB.
Cotdanges, F. de, « The Ancient City." Tnmskted by Willard Small
Bostou, 1882.
Kuhrif E., *< Ueber die Entstehung der Stiidte der Alten. KomenTer-
fassung und Synoikismos." Leipzig.
Bluntschlit J. C, " Allegemeine Statslehre." Book I., Chape. III. and
VI. Stuttgart, 1875. There is an American translation of this
work.
Smith, *' Dictionary of Grecian and Roman Antiquities." 1858.
Cox, Rev. Sir Geo. W., "Lives of Greek Statesmen." (Harper's.)
Chaps, on Solon and Kleisthenes.
On points of Greek History :
Grote, Geo., " History of Greece." Very fall for the cHies ^ Hellas
outside the classical mainland.
Curtitis, Ernst, " History of Greece."
Droysen, J. G., " Geschichte des Hellenismus." 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.'
Bluntschli, J. C, " Allgemeine Statslehre." Book I., Chap. IIL
Arnold, W. T., " Roman Provincial Administration, to the Acceeaion
of Constantino the Great." I^ndon, 1879.
Smith, " Dictionary of Grecian and Roman Antiquities." 1858.
On points of Roman History :
Niehuhr, " Lectures on the History of Rome."
Ihne, " History of Rome." 3 vols. 1871.
Arnold, T., " History of Rome," to the second Punic War. 1816-49.
Mommsen^ T., ** History of Rome " and " Provinces of the Empire."
Capes, " The Early Empire." (Series of Epochs o/Andertt Hiatory,)
Merivale, " History of the Romans under the Empire.
Gibbon, ** Decline and Fall of tha Soman Empire.
It
■
BOUAN DOMINION AND ROMAN LAW.
196. Currettcy of Roman Law. — Roman law has entered
ioto all modern systems of jurisprudence as the major element
in their structure not only, but also us a ehief source of their
piiaciples and practii.'e, hiiving nuhicved perpetual dominanoj
:r all legal uouception and perpetual presidency over all legal
development by reason alike of its singular perfection and its
world-wide currency ; and it was Romau empire which gave
to that law both its qnality and it» universality. The uiuirac-
ter of Roman law and the course and organization of Roman
conquest are, therefore, tupiod which must be kept in mind
together.
197. Character of Early Romas Law. — Until Rome had
gout- quite far in her career of eoiiqueat Roman taw vms, 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 seml-religious rules governing the rela-
tions of the privileged patrician gentea to each other and to the
]>ublic magistrates. The proper procedure for the settlement
iif disputes between citizens was a sacerdotal secret, from all
knowledge of which the commonalty 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 autliorities. If any provision existed for
securing the rights of a non-patrician, he could know what
that provision waa only by putting his case to the test of a
180 BOBiAN DOMINION AND ROMAN LAW.
trial : and he knew that even when that ease had been brooght
to a successful issue, no precedent had been established ; it was
still a secret with the privileged classes what the geneial roles
of the law might be.
198. Plebeian Discontent with the Law : the XII Tables.
— In th<; breaking up of this selfish and narrow system, as in
tlu^ modification of political practice, the imperative discontent
of the phebeians was the chief force. They early demanded
admission to the knowledge of the law as well as to the exer-
cise of the magisterial i)Ower. The first step upon which they
insistcHl was the codification and publication of existing law.
Accordingly, in 451 and 450 b.c, the now celebrated XII
Tabh»8 were prepared and made public by two successive spe-
(*.ial (commissions of ten, the Decemvirs, The first decemvirate
(M)nnni8Hion consisted altogether of patricians, and is said to
have prepanul the first ten * tables ' of the law. The second
included three plebeians and added two more tables to the code.
Probably tills wiis the first time that the legal practices of the
city luul been reduced to anything like systematic statement ;
and in Innng stated they must have been to a certain extent
in()(liti(*d. Written exposition was a thing almost entirely
foHMgn to the habit of that primitive age; both because of
ih(^ limitations imiK)sed by mental habit, therefore, and of the
(litlU'ulties created by the unwilling materials with which they
luul to write, the sentences of the law engraved upon the
(•o])])er tablets set up in the Forum must have been brief and
t'oin])act. By being thus condensed the law must, moreover,
have lost some of its original flexibility and have become the
inon* rigid for being made the more certain. (Compare
see. 71.)
Tlie forms of legal actions were still held back : these the
X 1 1 Tables did not contain ; and it was, after all, upon a
k!u>wlodge of the forms of action that the patrician monopoly
of justiee chiefly depended. It required a new and energetic
plebeian agitation to make public the valuable secrets of pro-
ROMAN BOMIKION AKD ROMAS LAW.
131
cedure, — secrets necessarily so weighty in an age when law
waa married to religion, and wlien 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 poBsesaion of the law.
199. The Growth rf 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 Roman 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 Roman law waa interpretation, adjust-
ment, rather than legislation : the application of old principles
to new cases, not the formulation of new priudples,
200. The Pr«tors; the Prjetor Urbanus. — This princi-
ple of growth becomes most evident in the legal history of
Borne after the creation of the Praitorships-and the investiture
of the PfEBtors with the judicial functions formerly exercised
by consuls or king. There was a City Praetor (^Prattor urbanua)
and a Pr^tor of the Foreigners (Prosior peregrinun'). The
City Preetor was the magistrate to whom citizens resortad for
the settlement of conflicting claims. He did not himself settle
the matter between them, but te laid the legal basis for its
settlement. Having heard their statement of their ease, he
sent it for decision to some private citizen whom he nominated
judex, or arbitrator, for the occasion, accompanying hia 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
eort of hoard or jury to look into the merits of the controversy.
' Pratur qui Jul il-ol inltv ptrrgrinat."
132 ROMAN DOMINION AND BOM AN LAW.
Always, however, PrsBtor and judieea 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 Prsdtor
interpreted the law, and the judieea passed upon the tBuats.
201. The Law and the Praetor's Application of it. — The
law which the Praetor had to expound and apply in iiie formula
or briefs which he sent down to the judicesy 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 8enahia<(m9uUaj or
senatorial decrees, and a few legal principles introduced by
|)opular 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
lie 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 judieea. 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
ROMAN DOMINION AND ROMAN LAW.
133
raltis were always, in form at least, rules of procedure. The
Pnetor announced, for example, that he would, hereafter, regard
property held by certain niethodSj hitherto considered imtgular
or invalid, as if they were held according to due and immemo-
rial form, and would consider the title a<iquired by meaus of
them as valid. He did not asitume to make such titles valid :
that would be to change the law. But he could promise in
adjudicating cases, to treat them as i/they were valid, and ao
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 needs of a
growing and progressive people.
203. The Praetor Peregrinus. — The functions of the Prse-
tor of the Foreigners were similar to those of the City Praetor,
but much less limited by the iirescriptions of old Jaw. He ad-
toinistered justice between resident foreigners in Rome itself,
between Roman citizens and foreigners, and between citizens
of different cities within tlie Roman dominion. Roman law,
— the jus civile, the law administered and developed by the
ProetoT urbanus — was only far 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 whicli 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 coul(! not be used in cases
between citizens of diil'erent towns. Id all such cases, when
184 ROMAN DOBaNIOK IlSJ} ROMAN LAW.
Roman law could not be appealed to, the Pixeior peregrinuM
was called upon to declare what principles should be observed.
204. The Jus Gentium. — The first incumbents of this deli-
oato and difficult office, of Prsetor peregrinuBj were doubtless
arbitrary enough in their judgments, deciding according to
any rough general criteria of right or wrong, or any partial
analogies to similar cases under Eoman law that happened
to suggest themselves. But they seem, nevertheless, to have
had a sincere pur^K>se to be just, and at length the Boman
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-
s('H>ndonces of conception among these on many points fre-
quently ti> l)e decided. With their practical turn for system,
they availed themselves of these common conceptions of jus-
tice as the U'isis 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 Ix^th. As thest* general principles of universal accept-
auiH^ multiplied, and Ivgan to take systematic form under the
cumulative practice of suc*eessive Praetors, the resultaunt body
of law came to Ix^ known among the Romans as the jm» fern-
HurHy the law of the nations. — the law, i.e., common to the
nations among -whose members Koman magistrates had to
administer justice,
20o. The Jus Gentium not Intemationja Law. — This body
of law had, of course, nothing in common with what we now
call the I-aw of Nations, tluit is, Int^^mational Law. Inter-
national law relat<« to the dealings of nation with nation, and
is in lan^^t part public law — the law of state, of political,
aotion (sees. 1216, 1217V The jus pentivm, on the other
hand, was only a body of privait and commercial law.
ROMAN DOMINION AND KOMAN LAW.
135
the latter. It had nothing to do with state action, but con-
cerned itself exclusively with the relations of individuals to
each other among the races subject to Rome. Rome decided
political ixilicy, her Foreign Pnetor decided only private rights.
206. Influence of the Jus Gentium upon the Jus Civile.
— But of course the jiia gent in m attained an influence of great
importauce, even over the development of Roman law itself.
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 apjtarently 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 jua civile, the exclusive law
under which the Roman lived, was arbitrary and illiberal, by
compariaon. The Praetor pereifnnus began to set lessons for the
Prsetor urbanus. The jus civiie 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 Prtetor did not extend beyond Italy,
beyond the city's immediate dependencies. In the 'Prov-
inces' proper the governors exercised the functions of Prsetor
pervfriwis. The towns of the provinces, like the towns of
Italy, were left with their own muoicipal 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 aa pro-eonsul, therefore, or as pro-
prKtor, or under whatever title, the governor was invested with
pnetorial functions, aa well as with military command and civil
flupreraacy. It was with principles of judicial administration
tliat the governor's edict, issued on entering upon office, was
large!;- concerned. Here waa another and still larger field for
i
186 BOMAK DOMINION AND ROMAN LAW.
the growth of the jus gerUiumy — an almost unlimited souzoe
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 jtta
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 Eoman. 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 Rome.
The Stoics, like most of the previous schools of philosophers
in Greece, sought to reduce the operations of nature both in
human thought and iu the physical universe to some simple
fcJrmula, 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
HOMAN DOMINION AND ROSIAN LAW. 137
snpremacy was now assured. The jiis rivite more and more
yielded to its influences, and more and more rapidly the two
systems of law teniled to become but one.
210. Roman Citizenship and the Law. — This tendeney
waa aided by the grailual ilii^apiKaranue of all the most rital
distinctions between the citizen of Rnme 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 Roman citizenship. And of course with Boman
oitizeuship went Roman law. In this way the jus dvile and the
jus gentitim advanced to meet each other. Under the emperors
this drift of affairs was still further strenfrthened and quick-
ened till Caracalla's bestowal of citizenship upon all the in-
habitants of the Roman world was reached as a logical result.
211. The Jurists. — As Roman 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 a^^quired 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
Roman advocate was not the trained and specially instructed
man that the modern lawyer is exjiected to lie. 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 jvdiixa : 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- "
istenee a class of learned jurists, a sort of lit<^rary lawyers,
who devoted themselves, not to advocacy before the jury -courts,
but to the private study of th« law in its developments from the
i
138 ROMAN DOMINION AND ROMAN LAW.
XII Tables through the interpretations of the prsetorial edicts
and the suggestions of the jus 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 cases of the greatest possible scope and
variety.
212. Influence of the Jurists. — In the hands of these
private jurists the law of course received an immense theo-
retical development. And this very much to its advantage.
For Roman thinking, like Roman practice, was always emi-
nently conservative. The jurists took no unwarrantable lib-
erties with the law. They simply married its practice to its
philosophy, no one forbidding the banns. They most happily
effected the transfusion of the generous blood of the jus gentium
into the otlierwise 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 imi^ortance eventually sprang into ex-
istence. The jurists collected and edited the written sources
of the law, such as the Edicts of the Praetors, and set them in
the fuller and fuller light of an advancing scientific criticism.
ROMAN DOMINION AND ROMAN LAW. 139
Their conunentariea became of scarcely less importance than
the Edicts themselves, containing, as tliey did, the reasoned
intent of Table and Edict.
213. The Jurisconsults under the Empire. — This acien-
tifio cultivation of the law by scholarly students began ttefore
the end of the Republic, was far advanced, indeed, at the time
the Empire was established. The beginnings of the scientific
law literature of which I have spoken date as far back as 100
B.C.
The datra 100 b.c. >nd 260 a.d. are generxUj' taken bb marking the
beginning and end of the importart literary production on the pan of
the iaristg. The rao«t diitinguiBhed namea connected with this litera-
ture are thoae of Papinian, Ulpian, Gaiiu, and Jaliua Paulus.
It was under the emperors, however, tliat the greater part
of this peculiar literary and interpretative development at the
hands of the jurists took place. For under the im[ierial system
the jurists were given an exceptional position of official con-
nection with the administration of the law such aa no other
similar class of lawyers has ever possessed under any other
polity. Certain of the more distinguished of them were offi-
cially granted the jtts reapondendi which custom bad 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 jurisconaulta had
been authoritative in tact ; what the imperial commission did
was to render them authoritative in law. Of course if advo-
cates or litigants who were on opposite aides in any case could
produce opposite or differing opinions from these formally
commissioned jurisconsults, it devolved upon the judiees 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 j'lrisconsulta agreed, the judicea were of
course bound to decide ^n accordance with their opinion.
Certain writers — 'text writers,' as we call them — on our
own law have, by virtue of perspicacity and learning, acquired
1
140 ROMAN DOMINION AND BOMAN LAW.
iin infliienoe in our courts not mach inferior to tluit of the
Roman jurisconsults, but no BUckstone or Story bas ever been
commissioned by the state to be authoritative.
Under Ihe Empire the joriBconiulU acquired more UiMi tlie rig-lit ol
reaponflG : ilicy became scb't^l; engaged in the adiiiinigtratian of law.
eieruising judicinl functioni and applying to autual adjailicatimi the
testa whiuh they had in the repablican period applied only In the (onn
of unofficial opinions.
In the time of Augustus we find two taw ichooli in Rome, and lata
times saw many others teubtislicd in important proTiDcial eitjei.
214. Imperial Legislation. — The influence of the juriscon-
sults extended beyond the adtninistratiou to the creation of
law. Legislation under the ea.rly emperors, from Augustus to
HadiiftD, retained something of its old form. During the
reign of Augustus the popular assemblies were still given leave.
to paas upon the laws which the emperor, as trilnine, sub-
mitted to them ; and during a great part of the iiniwrial period
the Senate was formally consulted concerning most of the
matters of law and administration over which it had once had
exclusive jurisdiction (sees. Ifi5-170). But neither Senate
nor people were independent. The former waa at the mercy
of the emperor's power as censor; the lattr were at the dis-
posal of his powers as tribune. Law, nonseijupntly, earac to
emanate more and more nndisguisedly 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. Prol>ably most edicts and imperial
decisions were prepared, if not couoeivert, by competent law-
yers. Imperial legislation, therefore, in the most critical
period of its early development, was under thp guidance of the
most enlightened and skilful jnriats of the time, and so was
kept to the logical lines of its normal and philosoi)hicd growth.
aOMAN DOMIKION AND ROMAN LAW.
The juris consults may be snul to h;ive presided over all phasi
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-canguita, rescripts,
etc., which had accumulated during the imperial period to a
e code. The moat important efforts of this sort were
those made by Theodosius ( 379-395 a.d. ) and Justinian
(529-534 A.D.), The Theodosian Code is important because
it influenced the legislation of the first Teutonic masteru
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 Eoman
legal practice the world over. The republican legislation
and the prtetorial edicts of the (reriod of the Kepiihlic 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, wliich 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 Pandfcts or
Digest of the scientific law literature; 2. The Codex or Sum-
mary of imperial legislation; 3. The Instituliong, 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,
141 I
bases 1
relop- I
142
ROMAN DOMINION AND ROMAN LAW.
I
The whole cDnBtltuted that body of laws which was to be
known to the times succeeding the twelfth century as the
Corpus Juris Civaia, 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 ^hs civUe and jua gentiam,
216, The Corpus Juris CivUta became at once the law of
the Eastern Empire, and for a time the law of Italy also, II
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 wliat had been the western half of the old Empirei
except Italy, and even Italy he united only temporarily and
precariously to his eastern dominions. His Code entewd
Europe to possess it through the mediation of the universities
and ecclesiastics of the Middle Ages (sec, 258).
217. The Completed Roman Law : its Municipal Life. —
The hody of law thus completed by sagacious prat^tical adap-
tions, careful pliilosophical 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 Roman law— for it
has had such — are seen in municipal organization. Though
Rome 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, but the banks of the Rhine and other strategically
important portions of her doniiniona witli colonies of her own
citizens, who either b\iilt fortress towns where there had before
been no centred settlement at all, or sat themselves down in
some existing native village. In both cases they of course
imported Roman methotls of city government. Everywhere,
iL— r__ .^ n^y^g towns were neighbors to Roman municipal
therefor
ROMAN DOMINION AND ROMAN LAW.
143
practice, and took yearly more color of Roman political habit
from contact with It. By the time of the Teutonic invaaiona
Western and Southern Europe abounded in municipalities of
the stridt Koman 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 spreatl 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 aa 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 alt but the last stages of his civil development. It was
to be to him an exhauatleas mine of suggestion at least, if not
a definite store of ready-made law.
219. Roman Legal Dominion in the Fifth Century. — The
invading hosts who came from across the Rhine in the fifth
eentury of our era found Roman law and institutions every-
where in possession of the lands they conquered. Everywhere
there were towns of the Roman 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, Inflnence of Mosaic IcstitatloiiB. — II would be a mislak?,
howpTer, lo HecHbi? to Ruman legal cnnci^plions an undivided away over
the ilevelopnient of Uw and inatilutioni during the MiJdle Aget. Tlic
Teuton came under the iaflueuce, not of Home onl^, but alio of Chrii-
144 BOMAN DOMINION AND BOMAN LAW.
tianity ; and through the Chnrch there entered into Enrope 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 modem world ; and if we could but hare the
eyes to see the subtle elements of thought which constitute the gross
substance of our present habit, both as regards the sphere of prirate
life, and as regards the action of the state, we should easily difcoTer
how Tery much besides religion we owe to the Jew.
Representative Authorities.
For the texts of Roman law, see
Corpus Juris Civilis, edited by Kriiger, Mommsen, and the bros. Krie-
gelli. 3 vols. Berlin and Leipsic, 1872-1875.
Bruns, C. J., Pontes Juris Romani Antiqui. Tiibingen, 1872. Fifth
(iinproved) edition by Mommsen. Freiburg, 1887.
Huschkcy JurispruderUia ArUejustiniana. Leipsic, 1879.
For commentary and exposition, see
Holland, T. E. (editor), " Institutes of Justinian.
Poste (translator), Gaii ^^ Institutionum Juris CivUis.
Hadley, 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 much use.
Muirhead, Jas., " Historical Introduction to the Private Law of Rome."
Edinburgh, 1886.
Amos, Sheldon, "History and Principles of the Civil Law of Rome."
Mackeldy, F., "I^hrbuch der Institutionen des heutigen Romische
Rechts." Giessen, 1814. Translations, N. Y., 1845 ; Phila., 1883.
Ihering, R. v., " Geist des romischen Rechts." Of this work there is
a French translation.
For special expositions of the historical development of Roman
Law, see
PhUlimorey Jno. G., " Introduction to the Study and History of Roman
Law." London, 1848.
ROMAN DOMINION AND IIOMAN LAW.
145
Rivier, AlphoitBe, " Introduction kiatorique au droit Roi
wis, 1S81.
Ciart, E. C, " Early Roman Law. Regal Period." London, 1872,
Momnatn, Theodor, "History of Rome," passim, and " Rdmischo
Staatsrerht." 2 vola.
Puchitt, "Kursus der Institutionen," 1841; ninth edition by Kriiger,
2 ToU., 1881.
Waller, " Geschichte des RomiHchen Rechts." 2 f ol«., 3 eda. 1840-
1880.
Savigny, V. K. v., "Geechtcbt« des Rbmischeu Rechts in Mitt«l<«T."
Heidelberg, 1815-18:{1. French translation, 1839. Engl Uh trans-
lation of Vol. I., Edinburgh. 182fl.
Meyer. J. D., " Eaprit, Origine, et Progr^a des Inatitutiones Judici^re
des Principaux Pays de TEurope." Paris, 1823.
For comparisons of Roman law with several modem systems, see
Mackenzie, Lord, " Studies in Raman Law, with Comparative Views
of the Laws of France, England, and Scotland." Third edition,
1870.
Reeva, .Tno., "History of the English Law, from the Time of the
Romans to the End of the Reign of Elizabeth. With an Intro-
ductory Dissertation on the Mature 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. Finlaaon. Lon-
don, 18GS.
William*, Jas., " The Institutes of Justinian illustrated by English
Law." London, 188.5.
ScruHon, T. E., " Influence of the Roman I^w on the Law of Eng-
land." Camb. Univ. Press, ISaS.
ScAmWf, "Derpriniipielle Unterschied Bwisohen der Romischen und
Germanischen Rechte." 18.13.
Uahn, "Die materielle UebereiMstiramuiig der Romischen und Ger-
manischen Rechtsprinzipien." 1850.
Concerning the general institutional signitica
e of Roman lai
Sethg, J. R., " Roman Imperialistii."
Bryce, Jas., "The Holy Roiiiun Krnpire."
146 BOMAK DOMINION AND BOMAN LAW.
Maine, Sir H. S., "Ancient Law," "Early Law and Cttstom," and
" Early History of Institutions."
Austin, Jno., "Lectures on Jurisprudence, or the Philoeophy of Posi-
tive Law." 2 vols. London, 1873.
On special points reference may always be profitably made to
Smith, Dr. W., " Dictionary of Greek and Roman Antiquities."
V.
TEUTONIC POLITY AND GOVEKNMENT DURING
THE MIDDLE AGES.
221. Contact of the Teutonic Tribes with Rome. — The
Teutonic tribes which, in the fifth and following centuries,
threw themselves into the Western Roman Empire to possess
it were not all of them strangers to the polity which they
overset. The Romans had often invaded Germany, and, al-
though as often thrust out, had established a supremacy over
the minds at least, if not over the liberties, of the Germans.
Those tribes which had lived nearest the Rhine and the
Danube, moreover, had long been in more or less constant con-
tact with the masters of the Mediterranean and the western
world, and had, of course, been deeply affected by the example
of Roman civilization. Teutons had, besides, entered and, so
to say, espoused the Roman world in great numbers, in search
of individual adventure or advantage, long before the advent
of the barbarians as armed and emigrant hosts. Rome had
drawn some of her finest legions from these great races which
she could not subdue. Her armies were in the later days of
the Empire full of stalwart, fair-haired Germans.
222. Primitive Teutonic Institutions. — When Franks and
Groths 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
make to the history of institutions. Hitherto they had lived
148 TB0l^oNIC POLiry and qovebkmsnt
under a system of govemment 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 govemment. 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 commimity, 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
lx)dy of their free fellow-villagers.
223. Free, Unfree» and Noble, — Not all their fellow-
villagers were free. There were some who were excluded
from jwlitioal privilege and who held their lands only as serfs
of tho fnv men of the community; and there were others
who wen* lower still in rank, who were simple slaves. There
wort>, ag;iin, on the other hand, some who were more than free,
who, for inie reason or another, had risen to a recognized
nobility of stnition, to a jwsition of esteem and to an estate
of wt»alth alH)ve those of the rest of the community. But
nobility did not carry with it exceptional political privilege:
it only assim^l a consideration which put its possessor in the
way of wiimin^ the grt>at«>r preferments of oflSce in the gift
of tho villagt»-mooting. The power of the noble depended
\»pon tho frauohisos of his community rather than upon any
virtiio in his own blooiL
\
DURING THE MIDDLE AGES.
i
149
224. Inter-communal Government. — It was not often that
a village stood a^iart in entire dissociation from all similar
tribal or family centres; but when it did, the powers of its
mtwl (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 dr«w 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 atlministration 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 otficiiU 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. Not 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 bhwles 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
jKrson 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
TECTONIC POUTT AMD QOVSfiNMBST
servioe which tuideil much to his social consideration anil gave
him rank among the most powerful of his fellow-tribesmen.
22(1. Contrasts between the Teutonic STstem and the
Roman. — Thpse fpaturea oC tribal coafederatiou and personal
supremacy, tliough suggestive at many points of the primitive
Roman 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 much lesa advaJiced
stage of civilization, but they also contained certain principles
which were in nulioal contradirtion to some of the o-uuceptions
most fundamental to Roman state life.
227. Roman Allegiance to the State. — The central <
trast between the two systems may be roughly summed up in
the statement that the Teutonic was essentiaUy peratmai, the
Roman essentially impersonal. Neither the Roman soldier nor
the Roman citizen knew anything of the personal allegiance
which was the chief amalgam of primitive German politics.
His subordination was to the state, and that aubordinatitm ^
so complete that, as I have previously said, he was practically
merged in the State, possessing no rights hut 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
tiiem, OS the stcUe, the citizen or soldier owed the yielding of
everything, even of life itself: for as against the state the
Roman had no private rights. While he held office, therefore,
magistrate or commander was omnipotent ; his official conduct
could be called in question only after his term of office w
an end and lie had ceased to be the state's self. Of course
much decay had come into the heart of such principles
the Empire was forced to break before the barbarian ; but tiey
never ceaaed to be central to Roman political conception.
DURDTG THE MIDDLE AGES.
151
228. Teutonic Personal Allegiance. — With the Teutons,
on the contrary, jMlitical association manifested an irresistible
tendency towards just the opposite principles. When they
came to their final triumph over the Empire they came ranked
and associated upon grounds of personal allegiance. la their
old life in Germany, as we have seen (sec. 21i5), their relations
to their commanders did not cease at the elose of a war sanc-
tioned by the comiuuuity, thougli the commission of their lead-
ers did expire then. Many — and those the bravest and best
— remained members of their leader's comUatits, hound to him
by no public command or sanction at all, but only by hia 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 Boman observers.
Individuals had under such a system a freedom of origination
and a separateness of unofficial personal weight which to the
Soman were altogether singular and in large part rppugnant.
229. Temporary Coexistence of the Two Systems. — For
the first two or three centuries of the Teutonic dominion over
the Boinanized populations of their new territories Teutonic
and Roman iostitutious 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
Bimply 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 untouehed, to be occupied as before.
Of course Teutonic customs, being the customs of the dominant
race, more and more affected the older Roman rights, even if
only insensibly ; and Roman principles of right, belonging as
152 TEUTONIC POLITT AND GOVKBNMBNT
they did to a much superior and much more highly developed
ciTilization, which the Teuton had already lung rererenced,
must have had quite as great a modifj-ing effect Uiion 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 lat«r
days of the Empire, not a little of its old vigor and potency.
It had strongly afiected 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
influencea may be ventured, it may be said that the Teutonic
liad tlieir greatest weight on the side of political organization,
the Roman on the aide 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
Roman state in the invaded territory ; Roman public law they
had of course displaced, destroyed. It wa^ Roman conc«ptionff
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
iuilividual 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
direotion of a reproduction of Roman political method, but in
DUBING THE snCDLE AGES. 153
the direction of the crRation of that singular public polity which
we designate as meiliceral.
231. RomBs Influence upon Private Law. — The Boman
iiiflueiice eierted itself most directly and most powerfully, then,
throngh 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
Boman civil arrangements. Accordingly the sixth century has
scarcely opened before we find Alarie II., king of the West
Goths (506 A.D.), and Sigismund, king of the Burgundians
(617 A.D.), compiling, from the node of Theodosius and the
writings of Gains and Paiilus, comjjends 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 Gavil, another for the Frank. Even
us between Frank and Frank there was a difference of law.
The Salian Frank was not judged by the same rules as those
which bound the Ripuarian Frank, but for each there was a
law of his own. Sometimes, in a suit, it was the plaintiff,
Bometinies 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 towus that the law of
Rome had its strongholds. There it bad a centred and lively
iflueuce : and there it was long undisturbed by the conquerors.
It took the Teuton a long time to leani 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 enei^ea.
154 TEUTONIC POLITY AST) GOVBBNMBNT
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
Boman private law, but also Eoman 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
Bhone 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 Grerman customs with Roman
law and conception which, after a long intermediate fermen-
tation, was to produce the conditions of modem 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. The intermediate stage was Feudaiism,
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
I
i
DURING THE MIDDLE AGES. 155
host to a new kingship. As coiifederated tribes in their old
seats they had often cliosen kings, who typified in their official
dignity and sanctity the unity of tribal organization, who pre-
sided over the national councils, and who by reason uf their
preferred position enjoyed a somewhat greater state than their
noble associates in the tribes. But these early kingR, like the
Greek kings of the Homeric songs, were scarcely more than
patriarchal presidents, 'first among peers.' The later kings,
in Gaul, in England, and in Spain, — the kings of the emigra-
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 ami routed the "Roman forces who would have
withstood the stalwart immignuitB ; 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 bad never known l>efore.
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 posseasion 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: lauds 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
Boman overlordship for a German ; but they constituted a new
class of citizens in tlie German polity, and, of course, touched
with Roman influences Teutonic customs of tenure,
i
156 TEUTONIC POLITY AND GOYBBNMBNT
237. It was the circiimstances 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 themselyes, 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 i)olitical 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
DDTtING THE MIDDLE ARES.
157
everywhere. In England, under the Saxons, and afterwards
under their cousin Danes, the new polity was held together
primarily and principally by that old cement of personal alle-
giance, the relations of leader and comitatua (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, ho as to include both
France and England, it may be said that the benefice was of
two kinds. The English lienefices were most often estates
granted by the king to bis personal following, to his mmiteg,
or to his less independent adherents, on condition that they
should hold themselves ever ready to render him full aid and
service, and ever continue to aiihere 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 bad 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 beiie-
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.
340. Commendation, on the other hand, had no neceissary
oonne«tion with land. Its predominant feature was a personal
relationship which was rather that of master and man than
that of landlord and tenant. It seems to have been made
158 TEUTONIC POLITY AITO GOVEBNMSNT
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 * beneficiary^' 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 throughoat a
common territory. The king controlled directly, as he had
the power, only the greater lords, who were in feudal theory
his immediate vassals ; other men, lower down in the series,
could be reached from above only through their immediate
DURING THE MIDDLE AQSa. 1.59
masters. Authority filtered down to the lower grades of
gociety through the higher. It was a system, not of general
obedience to a common law, but of personal obedienee and
subordination founded upon land-ownership.
242. Such, then, was the Feudal System. The king had uo
immediate subjects except the greater barous and the vassals
on his own baronial estates, and the greater bafona were obedi-
ent subjects only when he had armed jMiwer sufficient to com-
pel them to obey. Their vaasala 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 wna himself
practically king of those holding under him. It was his decree
that sent them into the field ; it was his power that defended
them against other lords who would have oppressed or plun-
dered them ; and it waa 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 slmpe of custom ;
but the customs of one barony differed from those of another,
Except in so far as the priest luid 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 pratstice prepared a unified system of law for
the realm. It was an arrangement of gavcrnmeuts within
governments, a loosely confederated gronp of inharmonious
petty kingdoms.
243. The Feudal Conception of Sovereignty. — The most
notable feature of feudalism is that iu its system sovereignty
has liecome identified with otaierskip. The rights exercised
by the barons were in many cases nothing less thiin sovereign.
Not only did they decide property titles by the custom of
their tiarouica and private rights by laws determined in their
own courts, they often also coined money, they constantly
levied tolls u^Kin commerce, and they habitually made war
when they pleaaed upon rival neighbors. They gathered about
160 TEUTONIC POLITY AND GOVERNMENT
them, too, as the king did about himself, an immediate fol«
lowing of knightSy 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 first,
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 he bartered or sold, but the organized, the
uttered will of a community.
245. The Guilds. — Still, within the cities there early
sprang up a semi-feudal 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 &mou8
guUd system sprang into existence. Every handicraftsmaiii
DtrmNG THE MIDDLE AGES.
161
f trader, — like every landowner and every freeman in tlie
Bociety outside the towns, — had to find his ])l.ice in a sharply
differentiated social classiiication. Each oc^cupuition was con-
trolled by its guild ; and that guild was a close corporation,
admitting to membership only wliom it chose. No one could
enter save through the stringently guarded avenues of a limited
and prescribed apprenticeship; and once in, the apprentice
wa8 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, bad 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 Rhine 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 lejigues were the Hansa, more commonly known in
English writings as the Hanseatic (//ansa means trade-guild),
and the Rhenish. The former centred about the great cities
of Lfibeck and Hamburg, and at one tima included ninety of
the towns lying between the Baltic and the Elbe. The latter
had Worms and Mainz aa its leaders, and at one time or another
had connections with seventy towns, some of which stood as
far away from the Khine as Bremen and Nuremberg, though
the arteries of trade which it was meant to protect and keep
mgh I
leep I
162 TEUTONIC POLITY AND GOVERNMENT
open lay chiefly along the Rhine valley. Many great princes
were constrained to connect themselyes 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 riyalries 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 Roman Empire,
Both the Church and the Empire may be said to have been
shadows of imperial Bome. They were, by intention at least,
the temporal and spiritual halves of the old empire of the
Caesars.
248. (1) The Roman Catholic Church had, historically, a
real connection with the veritable dominion of Borne. Before
the Empire had been shattered by the onset of Teutons and
Turks, Christianity had become its recognized official religion.
The Pope in Rome 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 Rome 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 ita internal unity. The Pope's power
did not fall apart ;us did the king's. The priest acknowledged
III all things his allegiance to a universal kingdom, the spiritual
DURINO THB MIDDLE AOE3.
163
kingdom of the Church of Rome. That Church recognized no
boundaries, whether of baronies or of states, as lijnits 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 cert^nly retarded disintegration. Her lesson was brother-
hood and a common subjection ; and that lesson, though often
neglected, waa never utterly lost sight of or forgotten. She
kept alive, moreover, in her canon law, much of the civil law
of Rome : 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-biahops : 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
1 was imperial.
(2) The Holy Roman Empire. — Under the direct
sndants of Chloilwig, the once vast dominions of the
iks 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), France, and Belgium. And neither any Teuton nor any
successor of Teutons in Western Euroiie ever gathered wide
territories under his sway without dreaming of restoring the
Roman Empire and himself ascending the throne of the Ca
From Charles the Great to Napoleon the spell of the Roman
example has bound the imagination of every Euro|>ean con-
queror. Charles had this ambition clearly in his view, and
circumstances peculiarly favored its realization. At the same
time that he reached the height of his power, Rome reached
164
TEUTONIC t^UXX AJiD GOVBRNMblNT
the a«me of her diacontent with what she considered the here-
sies of the Extern See, aod the political disorders at Coustau-
tinople gave the KoinaD pontiff pretext for casting Hnally loose
from all Eastern connections. The Empress Irene deposed her
son and usurped his throne ; tlie Italians declared that no
woman could succeed to tJie titles of the Cfeaara; and the Pope,
ai'rogating to himself the prerogatives 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 bis empire real vitality
while he lived ; he, moreover, did what he could to haaben dvil
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 Rome
through the Middle Ages to modem times, now and again
backing them with real ]iower and always preserving for Ger-
many a shadow at least of unity in a lime of real disintegra-
tion. Believing themselves, besides, in the early times at any
rate, the lineal and legitimate successors of the Cfesara, there
was special reason why every emperor should continue to
build, so far as he had the opportunity, as Charles the Qr«at
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 iu 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
always a steady influence on the side of a system of law more
advanced and unifying than that of feudalism.
252. Centraliiiag Forces : the CarolingianB. — The rUe of
the family of Charles the Great into power illustrates the
DUBINQ THE MIDDLE AGE3.
165
character oi the cluef, indeed the ouly potent, centralizing
forces of the fcudiil time. Those forces lay in the ambition
of great barona. Unilor the descendants of Clilodwig (the
Merowingiaos) the territory of the Franks tended more and
more to become permanently 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 possessor. But, as it fell out in the
long mn, 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
Austrasiii, the family of Charles Martel. Charles Martel was
Mayor of the Palace under the Austrasian branch of the royal
family. The ofBce of Mayor of the Palace, though an offiee in
tiie 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 leafier, that Is, of the king's rivals in
power. It had indeed become tin hereditary office ho!d 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 ' luonarchs ; and his grandson
was Charles the Great.
253. The Capets : Concentration of Feudal Power. — In the
tenth century a similar change w;is wrought in France. The
descendants of Charles Martel (Carol ingians) had in their turn
lost vigor and become unfit for power. They were displaced,
therefore, in the western half of their dominions (in Neustria)
by a family of warriors whom they had endowed first with the
166 TEUTONIO POLITY AND GOyERNlCBNT
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. Befusing to degenerate, as the Merowingian
and Garolingian 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 iit 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 XTV.
could say with little exaggeration, ^V^Uxl c^est moV They
had gathered the fragments of the feudal system into a single
liand, and had made the state itself a feudal possession, a family
estate.
254. The Piecing together of Austria and Prussia. — Later
still the same process was repeated in Prussia and in Austria.
By conquest, inheritance, forfeiture, marriage, contract, fraud,
powerful feudal families pieced together those great kingdoms,
to become in after times the bases of national organization.
In neither Prussia nor Austria did the process go so far as in
France, though Austria, under the great house of Habsbuig,
DURING THE MIDDLB AGES. 167
became possessor of the imperial throne of the Holy Roman
Empire, and Prussia, under the equally great house of Hohen-
zoUem, has become the central and dominant state of a new
Grerman Empire, which, through the healthful processes of
modem 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.
EoMAN Law in Modern Legal Systems.
256. From the fifth to the twelfth centuries Koman 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 Koman provincials and observed
largely within the towns. As the old distinctions between
Roman and Teuton faded away, however, in the gradual mixture
of the populations, these rules entered more and more into the
general mass of common custom. This process was in great
part unconscious ; there was no scientific selection in the devel-
opment.
256. The Barbaric Codes. — It was not from mere tradition,
however, — not simply from Roman 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 (brevarium 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 Roman 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 j it was trans-
168 TBUTONIO POLITY AND GOVERNMSNT
mitted thence to the north of France^ to be handed on to Ger-
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 droU 4crU),
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 diWsion between the
langue d'oc and the langue d*oiL " The districts of the langue d*oU (pt the
Frankized Latin) were the country of custom ; the districts of the langu$
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 scientific lawyers. And not the Code
of Alaric, but the vastly more perfect Corpus Juris CivUis, 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
* The Dii^est and the Codex were in some measure made use of by the
canonisU throughout the Dark Ages.
DURING THE MIDDLE AGES.
study. The new cultivation of tlie kw began, naturally and
properly enough, in Italy, The University of Bologna roae
into prominence and became fiunona as the ehief seat of the
study of the Roman code. Pisa and other Italian schools then
took up the uew pursuit. I'resently the interest had spread
to France and to Spain, going in France first to Montpellier
and Paris, afterwards to Bourges, 0rl<^3, and Toulouse, the
old capital of the West Goths ; 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 Grotiua, 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 I>een regularly pursued
there down to the sixteenth century.
259. Entrance of Roman Law into the Legal Systems of
Europe. — Of course 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 emei^ng from the
feudal system because it was being adequately mastered and
syatematized at the uiiiveraities ; 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 anfl 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
waB to have in the kingdom of the Capets. Roman law came
into use in France with much the same pace with which the
Capets advanced to complete power, and triumphed with the
perfecting of the centralization which they effected. Louis
170 TEUTONIC POLITY AND GOVERNMENT
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 {legisleB)j 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 Jaw. As
the king's jurisdiction grew, the principles of Boman jurispru-
dence gained wider and wider acceptance and supremacy.
261. And presently the Koman law came, so to say, from
out the nation to meet the royal system. Very early in Berri,
Bourl)onnais, and Auvergne, the central districts of France, the
law of Rome 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 Napoleon, the last great codification of French law,
has been described as in great part a republication of the laws
of Justinian us 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 Roman
law contributed the chief formative forces, the forces of fusion
and systt»m.
202. Local Custom in France. — It is important to observe,
howi'vor, that the unifyhig, harmonizing influences exercised
by tlie growing royal jurisdiction were, for a long time at any
rato, influt'nces which affected %yroc€dure rather than the in-
ternal, esstMitial elements of legal principle. The differentia-
DURING THE MIDDLE AGES.
171
Q between district and district which had taken place in the
process of feudal izat ion had been of the sharpest, most decided
character. When the Capets first assmned 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 afterwanis
became part of France was, during the same period, moreover,
in foreign hands, held by England or Burgundy, The kiug-
dom as^finally consolidated, therefore, presented a very great
variety of deeply rooted and persistent loc^l laws and customs.
Normandy had one set of customs, Berri a very different set,
Anjou a third, Brittany a fourth ; and so throughout the onee
piecemeal country.
263. Dnifying 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-indej>endence 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
&om which they were brought up,
264. By degrees, however, new ideas and principles, as well
IS 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-
1 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 ofBcers of
172 TEUTONIC POLITY AND GOVERNMENT
the crown were of course everywhere ready to effect whatever
was within reach of their functions or example in the way of
bringing local custom around to the rules of universal accept-
ance to be found in Roman law and regal decision. Indepen-
dently, too, of the influence of the crown the Roman law was
entering ihe 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
Roman 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 Roman judicial practice and tra-
dition to its findings.
266. In Germany, as in France, the influence of the Roman
law has attended the progress of the forces of unification.
The Romans had never established their power beyond the
Rhine. There, after the movements of the Teutonic tribes in
the fifth and following centuries, as before, Grermanic custom
liad almost undisputed mastery. The feudal system, moreover,
left its work in more complete crystallization in Grermany than
elsewliere : for Germany emerged from the Middle Ages what
she still is in great part, namely, a mere congeries of petty
8tatt\s. Still the Holy Roman Empire^ however shadowy it
lHH»anie at times, had been created in Germany with the dis-
tinct idea of a title derived directly from Rome; and through-
(>\it all the changes of German history the imperial influence
has sheltered and fostered Roman law. The imperial courts,
the imperial lawyers, the imperial party in general, were
always administrators or advocates of its principles. When
t he house of Hal>sburg came to possess the Empire, as when
other |H>werful emperors had reigned (sees. 370, 374 et m^.),
th«»rt» was no small potency in these influences. More and
n»on» IHTvnsive lHH»ame the great irresistible system of law;
tworywhorts without displacing, it instructed^ supplemented,
DDRINO THE MIDDLE AGE3.
it;
I
moulded Germanic custom, untU aow its pTeseuce to both na-
tioDol and local law has ma^le 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 rales 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. Buman 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 tliose which
once came forth from Kologna and Paris and Leyden.
267. In England the Roman law has had a more obscure
hut hardly a less interesting history. The Romans governed
Britain four hundred years, bending the province to the pur-
poses of their atlministration mth their usual thoroughness.
We know that Papinian, the greatest of Rome's jurists, him-
self administered the law in Britain, and we have every tea-
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 r 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 medieval Italy her-
self, the study being continued without serious break for more
than three centuries ( sec. 25S ) ; and the works of the ear-
liest English legal text-writers, such as Bracton, Glanvil,
&nd the author of the Ftela, abound in tokens of a close
familiarity with the laws of the imperial codes, are full of
174 TEUTOiaO POLITY AND OOYEBNMENT
their very phraseology indeed. The laws of Henry L are
said by competent legal scholars to consist, to the extent of
fully one-half their content, of precepts borrowed from Bome.
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 Ghanceiy,
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 Eoman sources, in supplement of her own indig-
enous (jermanic 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.
Representative Authorities.
Church, R. W., " The Beginnings of the Middle Ages." (Series of
Epochs of Modem History,)
Emerton, E., ''Introduction to the Study of the Middle Ages."
lioston. 1889.
HaUam^ 11., »» View of the State of Europe daring the Middle Ages,"
especially Chapter II., which contains what is possibly the best
briof account in English of the Feudal System.
(tttUot, F., •* I/ectures on the History of Civilization in France and in
Kuro^ie."
Sttphtn^ Sir Jame^, ** I.«ecture8 on the History of France," especially
Wturi»8 I.- v.. inclusive.
IhitHjf, Victor, *» llistoire du Moyen Age, depuis la chute de TEmpire
*riXvia<»ut jusqu'au milieu du XV« Si^le." 1 vol. Paris. Sih
tHl, 1875.
DUBING THE MIDDLE AGES.
175
Sheppardt J. G., " The Fall of Rome and the Rise of the New Nation-
idities." 1 vol. London and New York, 1861.
Heereriy A. H. L., '< Manual of the History of the Political System of
Europe and Its Colonies." Oxford, 1834.
Freeman^ E. A., " Historical Essays." Series L
Curteis, A. M., <^ History of the Roman Empire from the Death of
Theodosius the Great to the Coronation of Charles the Great,
395-800." 1875.
GMoUf E., *< Decline and Fall of the Roman Empire." Smith's ed.
New York, 1880.
MUman, H. H., " History of Latin Christianity." 8 vols. New York.
Bryce, " The Holy Roman Empire."
Bluntschli, J. C, " Allgemeine Statslehre." Book I.. Chapters IV., VL
Stuttgart, 1875. There is an American translation of this work.
Concerning the introduction of Roman law into modern European
legal systems, see authorities at end of Chapter IV., ante.
VL
THE GOVERNMENT OF FRANCK
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
Hurguudy 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
those wore only the greater feudal sovereignties : within and
ahout them lay other districts not a few with masters ready to
a8H(»rt ])rivileges without number in contradiction of all central
T\x\i\ The early history of France is the history of a duchy
THK GOVERNMENT OF FRANCE.
177
striving to become a kingdom. 'Fram-e' holds a good stfa-
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 Iiand 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 abnost 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.
The processes of these singular achievements give to the ItiS'
tory of the French monarchy its distinctive poIiticaJ signifi-
cance: the means which the Capets devised for solidifying,
and, alter its solidification, for enlarging and effectuating their
power, furnish some of the most suggestive illustrative mate-
rial anywhere to be found for the general history of govern-
ment.
270. Perfection of the Feudal System in France. — The
feudal system worked its nicist i*rfect work in France. The
opportunities of feudalism there were great. Neustria, the
western, Gallic half of the great Prankish kingdom, was early
separated from Austrasia, the eastern, Germanic half (sees,
262, 253), and its separateiiesa proved the cause of its disinte-
gration. Burgundy, Brittany, and Acquitaiiie 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 tor 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 Prankish freemen whose liber-
178 THE GOVSRNMENT OF FRANOB.
ties had 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 modem 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 reckonas 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 the Capets had to build up their monarchy. It
was their task to undo the work of feudalism. But these were
not the only materials that they had to handle in the difficult
undertaking. There were other privileges besides those of
the feudal barons which it was necessary to destroy or subor-
dinate before they could see their power compact and undis-
puted.
273. Local Self -Government. — Notwithstanding the fact
that in most districts of the divided territory the power that
ruled him was brought close to every man's door in the person
of his feudal lord and master, there were many corners of the
system which sheltered vigorous local self-government. The
period of the greatest vitality of the feudal system was, in-
deed, the only period of effectual local self-government that
France has ever known. The eventual supremacy of the
crown, which snatched their power from the barons, also
destroyed local self-government, which the barons had in many
cases suffered to grow ^ and neither the Revolution nor any of
1 G. W. Kitchin, History of France, Vol. I., p. 186.
THE GOVERNMENT OF FRANCE.
179
the govemmenta which have succeeded the Revolution, lias yet
-restored it to complete life. Local liberties were taking form
and acquiring vigor during the very period in which the mo-
narchical power waa making its way towards supremacy; and
it was hy these local liberties that tlie 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 it» crea-
tive period, while the forces were at work, that ia, which were
ahapiag the relations of classes aiid of authorities to each
other, it waa 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-
vfaa, etc. " Everywhere a general assembly of the inhabitants
directly regulated affairs," delegating executive functions to
communal officers, who acted separately, each in tlie 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 principal affairs witliin the jurisdic-
tion of the assembly were, "the administration of communal
property, which in that period waa very important, police, and
the collection of the tasea both royal juid local." '
276. In the administration of justice, also, the Middle Agea
witnessed in France not a few features of popular [>rivilege.
The peaaant aa 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
' H. de FeiTon, Insliluliom Municipalet el Proctncialti Compar^m, p. S.
180
THE GOVEHNMEST OF FRANCB.
as judges, much as the freemen were present in the English
coanty courts (sees. 655, 751).
276. Liberties of Towns : the Roman Municipalities —
The privileges of self -direction granted to the rural eoinmunes.
however, were privileges granted, so to say, inaide vanmUige:
the members of the communes were not freed from their con-
stant feudal duties. Many towns, on the eoutraiy, 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 Roman power had been,
and the Prankish dominion fell apart into fragments whose
only connection was a Dom.inal subordination to a centisl
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, hail found
many Roman 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 Roman organiza-
tion liad endured, freed from Roman 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 Roman 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 tlie lands lying
about them, in the days when independent powers were to
be had for the seizing. The organization which Roman influ-
ences had bequeathed to these towns was oligarchical, aristo-
cratic ; the governing power rested with close corporations,
with councils (cvrice) which were co-optative, filling their
own vacancies. But forces presently appealed in them which
worked effectually for democracy. The Christian Church, as
well as the barbarian Teuton, took possession of Ganl; the
greater towns became the seats of bishops; and the bishops
THB GOVERNMENT OP PRANCE.
181
threw their weight on the side of the Gominoiis against both
the counts outside the towns and the oligarchs inside. Only
so could the magnates of the Church establish theraaelves in
real powex. In moat eases the ecclesia-stics and their restless
allies, the commons, won in the contest for supremacy, and
democracy was established.
Th» Italian tovni, with Iheir 'conaals' and their other imilationt
of the old Komau rupublicaa constitution, are perbapi the best examplea
of thii renaiBunce of democracy.
277. The Non-Roman Municipalities. — These Roman
towns were of course to be found for the most part only in the
south and along the Rhine. Sorth 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 privilegea from their baronial masters.
In very large nitmbets 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 aeigneurial authority as well as burgher
privilege was fully recognized, and under which, moreover,
the authority of the seigneur was actually exercised through
the instnuneutality 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-
Deurial authority of the king, — became in course of time the
prevalent, indeed the almost universal, type in France. The
182 THE GOVEENMEST OF FRASCR.
•prdvotal ' town ia 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 barona. Many
cities were driven to defend their privileges against the baron-
age by force of arms ; some, unable to stand out unaided
against fpuilal aggressions, were preserved from discomfiture
only by siicenr 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 immuuities. The kings profited very
slu'ewdly by the liberties of the towns, drawing the towns-
people very closely about themselves in the stnigglea 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 rot.
270. The Towns and the Crusades. — Not the teaat important
element in the grotith ot separatL- tnwii privileges wai the influence o(
the orusadea upon the power of tlie nobility. When llie full fervor of
crusading tvns upon France, her fi'utlal nobilit}' were ready to give up
aoything at home if by giving it up tliey miglit Iw enabled to go lo the
liolj wars, to the prosecution of nliiuh Mother Church nu so waroily
urging them. Their great need wui money; money the towns had;
and for money they bouglit privileges from departing crusader*. Very
often, too. their one-iiue lords n«ver returned from Palestiite — never
came back to reiume the powers ao hastily and eagerly bsrlered sway
before llicir departure. When ihey did return they relumed impover-
ithed, and Id no condition of fortune to compete with those who had
husbanded iheir resources at home. On eyery hand opportunities wetB
made for the perpetuation of towTi privilege*.
280. Municipal Pririleges, — The pri%HleKee extorted or
bought by the sttirdy townspeople were, to speak in general
THE aoVEKNMBNT OP PBAiJOE.
The ftdminUtrrt
ntned up:
terms, the right to make all the laws which concerned only
themselves, the right to adnLinister their own justice, the
right to raise their taxes (as well those demanded by king or
baron as those which they imposed upon themselves tor their
own purposes) iu 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.
fe functioTiB exercised by the towns liaye been
e adniiniiiration of communal properlj, the luain-
tenaucc of strcela Bud ruada, tlie uonalructiiin o( public edillcei, tlia
*upporl and direction of achooli, and the asieBsmeDt and colleutian of
alt taxes.'
Tlie Parliament of Paria (acca. 2R3-296] rpfuaed to recognize eiemp-
ttans from municipal charges eiainicd in certain caaea by tlie Doblease.
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
evetywhere the same. Often there were two assemblies which
took part in the direction of municipal affairs, an Assembly of
\otables and a General Assembly of citizens. These two
bodies did not stand to each other in the i-elation of two
houses of a single legislature; they were separate uot only, but
had also distinct functions. The popular body elected the
magistrates ; the select body aclvised 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.
il
184 THE GOVERNMENT OF FBANOB.
assembly of citizens^ which elected the magLstrates, 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 viUe), 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-Govemment.
— From 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 dCHats) 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.
655). The towns, on the other hand, in the central and
northern portions of France at least, represented nothing but
grants of privilege, were communities which had been given a
THE GOVERNMENT OF FRANCE.
185
Bpecial and exceptional place iu the feudal order. Tlie asaem-
blies of the provinces, accordingly, were not primary or demo-
ccatic like those of the towns, but were made up bij ' estates,' —
models for the States-General which appeared in 1302 (sees.
288-289).
The proTincial EiUtes were probublj in their origin nothing elae
than nnrmiil fcuilal cnuncili, mnde up, » they were, of repreientatirea
of all vrhD poueesed corporate or intliildual priTiUges, whose judg-
metita and adTice feuditl dukca and counts found it redound (o tlieir
greater peace and welfare to bear and heed.
In several of the provinces, aa, notably, in Languedoc and
Brittany, these provincial Estates continued to meet and to
exercise consideral)le functioua 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 imssessed 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 t)ie
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 ; tliey live by the royal favor and must in
all tilings yield to the royal will Nevertheless their privi-
leges are still so substantial aa 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 earry through entirely without supervision the
extensive improvements in roads and watercourses to which
the local patriotism bred by local self-government inclined
them. Restricted as their sphere was, they moved freely
within it, and gave to their provinces a vitality and a pros-
186 THE GOVERNMENT OF FBANOE.
perity such as the rest of France, administered, as it was,
exclusively from Paris, speedily and utterly lost.
284. Fnnotions of the Provincial Estates in Flnanoe. — The
Estates apportioned the taxes among the various sub-diyisiont, 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 officers,
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 sucxjessful 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 Cmeades and tho Monarchy. — Tlie monarchy, even
more than the towns (sec. 279), profited by the effects of the crusades
on the feudal nobility. So gre%t was the loss of life among the noblei,
I
THE GOVERNMENT OF FRASOB. 187
w» great was their loss of tnrlune, Ihnt thpj fell an extj prey to the
encroauhing moiiftrch;. During llje first orusadi-i tlie PrEDi^li kings
(tayed Hi home and reaped the adrantagcs wliicli the noblei loil ; during
the lait crusades, Che kings were strong enough ttiemselvei to Icare
home and indulge in bol? warfare in the East, without too great appre-
hension as to what tniglil happen to Ihe rofal power in thetr 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 than the
anarchy and confusion of feudal times had heen. The cities
could cope with neighbor lords ; and during the period of con-
test between king and barons they co>ild count oftentimes upon
assistance from the king : his interests, like theirs, lay in the
direction of cheeking 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 co»ild 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, tlie pro-
vincial assemblies, where they managed to exist at all in the
face of the growing power of the Crown, were, like all otlier
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 anthority against
thfl interference of the Pope in certain matters, bethought
himself of calling representatives of the nation to his sup-
THB aoWRVrXEST OF FRANOB.
port. The kings of France had already, of oonrse, often taken
the advice upon public affairs of the baronage or of tbe clergy,
each of which orders had a corporate existence and organiza-
tion of its own, and therefore possessed means of inffuential
advising i but I'hilip called in the burghers of the towns also
and constituted (1302) that States-General {Elalf-Oinfraux)
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 a«
' the people.'
289. Cfaaiacter of the States-Genetal. — The first Sutes-
General, summoned by Philip the Fair, reminds cue not a little
of the parliament called together in England in 1295 by Ed-
ward I. (sees. 667, 669) ; apparently France was about to hare
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 Crowo. But
after the full establishment of the legal power the countenanoe
of the Estates waa 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 proi>er, not to say neces-
sary, tor the exercise of power. The three Estates, the Nobil-
ity, the Clergy, and the Commons (Tiers £fnj), deliberated
apart from each other as separate IxKiies i and each submitted
its own list of grievances and snggestious to the king. They
acted oftea in harmony, but never la union ; their only oom-
THE GOVERNMENT OF FRANCE.
jaoB meeting was the first of eath session, when they all three
assembled in the same hall to hear a formal opening speech
from the throne. They never acquired this right to be con-
sulted with reference to that cacdinal affair of politics, taxa>-
I tion ; they never gained the right to ait independently of royal
sumniona. They were encouraged to submit what suggestions
I they chose to the government concerning the administration of
the kingdom j and, as a matter of fact, their counsels were
j often heeded by the king. But they never got beyond advising :
I never won the right to expect that their advice would lie taken.
Their sessions did, however, so long as they continued, contrib-
nte to keep alive a serviceable form of self-government which
at least held the nation within sight of substantial liberties;
I and which, above all, secured national recognition for that 'thinl
I estate,' the people, whose sturdiest members, the burghers of
the towns, were real representatives of local political life.
290. Administiatlve Development. — Uf course along with
the territorial expansion of the monarchy by annexation, ab-
sorption, and conquest there went also great administrative
t developments. As the monarchy grew, the instrumentalities
of government grew along with it : possession and control
advanced hand In hand.
201. 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 keept^r of both the public and the
private records of the court; a Cbamberlnin, who was superin-
tendent of the household; a. Senetchal, who presided in the king's
name and stead in the Feudal Court, and who represented the
king in the db'ect administration of justice; a Great BiUler,
I who was manager of the royal property and revenues ; and a
Cimttable, 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
M
190
THE QOVEENMENT OF FRANCE.
tenants in capUe, besides the functions of a taxing body and
of an administrative council (sees. 177, 184. 185).
292. The Council of State. — So long as ' France ' was only
a duchy and the renl territory of the Crown no wider than tlwi
immediate domain of the Capotian dukes, the weight of admin-
istration fell ujwn the officers of the household, and the Feudal
Court was of no continuous importauce. But as Prance grew,
the household ofHcers 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 a^iart into iHiroinittees,
into distinct sections, having each its own particidar part of
the duties once common to the whole body to perform. The
earlier Councils exercised without distinction functions polit-
ical, judicial, and financial, and tlieir differentiation, though
hurried forward by monarchs like Louis IX., was not given
definite completeness until 1302 (the year of the first States-
General) 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 ajicient name of parliameut (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 alisorbed, the Great Butler, for instance, becoming
merely the president of the Chamber of Accounts.
293, Tbe Paillamant ol Paris. — The judicial tection of the
Council of SiRle caiiiiiled at flrat, of course, like tlie otiier irctioni,
like the utinle Council indeed, of great (eadntories of the Crown, as
well u of adminiitrative experu gradually inlroduced. More and more,
honvTiT, (liie chief tribunni tended lo become exclaiiTeljr ■ bod)' of
lectinit-'iil nffleixli, of trained juKit* and experienced lawyert, (be Uw
offlccM and adviaen of the Ctowd.
THE GOVERNMENT OF FRASPE.
191
294. Departments of Administration. — The Charalier of
Accounts and the Parliament of I'aris presently became hard
crystals, separate and persistent entities in tlie public organi-
zation j but liilfereutiation within the Council of State con-
tinued. The Council tell into deijartments. By an ordiuanoe
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, (S) a ju<licial 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 e schcquer 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 St-ite 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,
tlirough a Pi-oeureur-Oiniral and his substitutes throughout
the kingdom, public prosecution was c-onducted and the cen-
tral administration represented in the local and [irovincial
courts ; (2) a Comptroller-General of the Finance*, who was
in effect Minister of the Interior; (3) a Minister of the Royal
Household, who was dispenser of thcwe moat jHttent tilings,
patronage and penalties, ami who was virtually minister of
religion ; (4) a Minister of War; (5) a Secretary of State for
Foreign Affairs ; and (0) a Sfcretary of State for Marine and
the Colonies (sec. 323),
296. GroTth of Centralized Local Administration : Louis
IX, — The expansion of the central organs o( a<!ministration
' 8m »pc, 737 Tor the now very similBr position of the Engliih Chmncel-
lor. Bee the ■nme leelion on the English Chkneetlor'* poiition u in aome
tort minuter of juitice.
192
THE GOVEfiSMENT OF FRANCE.
meant, of course, that tlie royal government was entering more
and more extensively into the management of affairs in the prov-
inces, that local administration vrns being centralized. This ex-
tension of centralized local administration may be said to have
begi\n in earnest under Louis IX- Louis IX. did more than any of
his predecessurii to strengthen the grip of the monarchy upon its
dominions hy means of direct instrnm en tali ties of government.
He was a man able to see justice and to do it, to fear God and
yet not the Church, to conquer men not less hy uprightness of
character than hy force of will and of arms ; and liis character
established the monarchy in its power. By combined strength
and even-handed nesa he bore down all baronial opposition;
the bitrons 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 "f I'aris
(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 di-ew the administration of the law in France
together into a centralized system by means of royal BaiUis
and Priests, whom lie subordinated to the Parliament of Paris,
2ST. Stepi of CentrallsatloD. — It ii not, of coune, to be nnder-
Blood rliAt Louli' work was tu nny cuniiderable extent a work of crea-
tion : it wu not, but rather n work of adftptation, eipiiDsian, lyilemati-
wiijn. The Bysleiti >ihLi:h he [ifrfecl^d liid been ilowiy growing under
hii predeceiion. The I1.11II1 was, in the Middle Aget, a very caroinon
officer, representing king or seigneur, as the case might be, adminisler.
ing juBtlce in hii name, comnianding hja men-at-arms, managing the
flnsacet. caring, indeed, (or erery detail of adminiatration. At dnt,
it i« said, "all of judicial, flnanciat, and military admintitration was in
hi> hands." It was an old syilein nt royal baillii, Kl orer district*
known as bailliagei (bailiwicka). thai Louis IX- eiteuded and regulated,
keeping an eye to it, howeTer, die while, that the bii//ii should be made
to feel their dependence upon the Crown 10 constantly that they ahould
THE GOVERNMENT OF FRANCE. 193
dream of following the eiftmple of
idepenilent feudal lorda un their own
Subiequfnt deTslupmenti efTecleJ n nalursl differentiation and
■pecializaiion in the office of Uiilli, There eame to be, on ilie one
hand, bailiff) of the rain [bailhi da rvbc) charged with the ftdminialr*-
tion of justice, and, on thi> other hand, iuifijfi of iht aieord (baiUtt
dV/iA) charged with the administration of miliury atTiiira, as well ai
tnoro and more numerous lieatenanti to the various baillit. The resi-
dent baitht and prieols (a rirtuallf equivalent title), acting imder gen-
eral commission to lee that the king's authority was recognized nnd
obey ed, the king's taxes collected, etc., graduiill/ absorbed almost all
administrative power. There a,ppeBred also, in the course of these
developments, Treasurers -Genernl nnd Receivers of Domains, and Cap-
tains-General in each of the baitfiugts.
The old office of Senesclinl (sec, 201) became merged in that of
Chief Suilli and P:vrii of Paris.
39B. Feraonal Oorenunent; IiOtiia 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 do man who
remained upon hi* estate, who did not dance constant attendance upon
his majesty, the king, at bis court, to add to its brilliRni'y and servility,
might expect anything but disfavor and loss. He made of the great
landed nobility a court nobiUly, taming men from interest in their
tenants and their estates to interest in court intrigue alone. lie drew
n of rank and ambition to himself, merged them in himself, and
fhing between the monarchy and the masses whereby the ter-
mpact of the great revolution which was to come might be
299. The Completed Ceotralization : the Intendftnt^ —
Finally came the completed centralization which followed the
days of Richelieu, whose central figure was the Ititettdant, a.
direct appointee and agent of the king and absolute ruler iu
every province ; and whose lesser figures were tlie aub-delegatea
of the Intendant, rulers in ev^ry district and commune. The
rule of these agents of the crown almost totally extinguished
the separate privileges of the elected magistrates of the towns
nofiin
i
194 THE GOVERNMENT OP FRANGB.
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, administratiTe dis-
trict. The Provinces were grouped into GenercUities, of which there were
in all thirtj-two, and it was over a OeneraLity that each Intendant ruled.
Ecclesiastical administration was served by still another distinct division
into Dioceses.
301. 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; and
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 commissioDs 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 mannor had their business gradually stolen from
them. The principle of appeal established by Louis IX. at
THE GOVEBKMENT OF FRANCE,
195
length worked its perfect work. Every case in which auy
interest cared for from Paris (and what interest vas not?)
was either actually or by pretence involved waa 'evoked' to
special courts set up by royal commission. No detail was too
insignifieant to come within the usurpations of the king's
government.
303. The Royal Council and the Comptroller-General. —
The Royal Council at Paris regulated, by 'orders in council,'
every interest, great or small, in the whole kingdom. The
Comptroller-General, acting through the Intendants and their
sub-delegates, and through the royal tribunals, managed France.
Everybody's affairs were submitted to him, and through him
to the Royal Council ; ancl 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
pai/s iTilulg, and far here and there a persistent form of town
life, France lay in the pigeon-holes of a bureau, Tabla rata
had been made of the historical elements of local government.
304. The Spirit of the Admlnlstiatlon. •- Thii bus}' superrfBion
of local and individual interegts naa alwajre paternal in intent; and tlie
inleDtioni of the ueniral power were never more benerolent Ihan jiut
when the Kerolutioii was beg'imiing to draw an apace. "The rofal
gorerDnent waa Keneratly willing in tlie latter half of the eighteenth
century to redresn a given cnie of abme, but it never felt itielf itrong
enough, or had leisure enough, to deal with the general aource from
which the particular grievance sprang." '
305. The Revolution. — This whole fabric of government
went to pieces in the storm of the Kevohition, But the revo-
I Mr, John Morlej's Mlictllanits, Vol. II. (last Hacniillan edition),
esiBj' ou "Turgot," p. 13S.
196
THE GOVERNMENT OF FRANCS.
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 aud
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 aoveieignty of the people ; but As-
sembly aiid Convention could do uo more than arrogate all
power to themselves, as the jwople's representatives, and seek
to reign in the king's stCEtd 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 H«v-
olution removed all the foundations of French potitica, but
scarcely any of the foundations of French administration.
The Constituent Assembly enacted in 179J that there should
be six ministries, namely, of Justice, the Interior, Finance,
War, Marine, and Foreign Affairs. In 171)4 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 miu is tries 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 divei-sify 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 theiy
created, of course made no effort to serve republican develop-
I jaeai.
THE GOVEKNMENT OF FRANCE,
197
308. Napoleon simply reorganized dfapotiara. In doing ao,
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, aa
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, CommiBsions,
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 officers
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 adiniuiater, 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 ilay. The Constituent Assembly, willing to obliterate
the old Provinces of France, with their memories of feudal privi-
, 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 rfgime. This he accomplished in that
celebrated "Constitution of the Year VIII" which still lies
almost undisturbed at the foundation of French administration.
The Revolution had resulted in imparting to centralization
what it never had before ; namely, assured order and effective
Bjatem.
nograph 01
■, p. 18.
198 THE OOVBRNMSNT OF FBANOB.
Since the war between France and Oennany in 1870-'l, the Depart-
ments of France have numbered only eightj-Biz, the Iom of AUace
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 France
since the Revolution has pushed her, however violently,
towards genuine representative institutions and real republi-
canism. Louis XVIIL, 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
Republic.
310. The Third Republic. — The Third Republic was pro-
claimed in Paris by Gambetta on the 4th September, 1870.
Its government was at first provisional, the war with Germany
being still in progress. On the 8th February, 1871, a national
assembly was chosen, by universal suffrage, to fix upon terms
of peace with Germany : and it was as agent of this assembly
that M. Thiers concluded the treaty which saved Belfort and
was soon to rid French territory of German troops.
311. The Framing of the Constitution. — But the assembly
deliberately outlived its commission as peace-concluder, and
continued to direct the affairs of the country till February,
1876, ending by assuming the functions of a constituent as-
sembly and framing a permanent constitution. The present
constitution was, therefore, adopted by this assembly on the
THE GOVERNJCENT OP FRANCE.
199
2&th Febmary, 1875. It went into operation one year later,
in February, 1870. It gave to the government of the country
substantially the organizatioa which had been improvised by
the a.ssembly whieh 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 tlirough
a President of the Republic elected by itself, who met the as-
sembly at its sessions as a responsible minister, and held ofBce
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 assemlily, except thii»ugh 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 per>iat«Tice of the kisembly in liolding nn to a governins power
not contGmplRlpil in the commission it had reuwTed from the coanlry ft«
peace-maker onl;, and its reluelance in Riving to the country a regnlar
government which ihould superaede thii unwarranted provisional ays.
tem of its own, are easily explained by the composition of the assembly.
SioguUrly enough, considering the posture of sHair* at the time of Ibe
elecljoni (1871), a majority of the members ot the assembly <rai com-
posed ot partisans of a monarchital form of government. Had there not
been disunion among lliem, tlie monarchists could easily have outvoted
the republican members. But the monarchical mnjoriry was made np
of three irreconcilable factions ; Ltgitimi^t, wlio favored llie restoration
of the elder Bourbon line, Orlianitla, wlio wanted the younger line
(the Orli'ans brnnch) brouglil back to the throne, and Bonapaiihtt,
who wished lo see the Empire re-eslablished. These factions i
to agree upon nottiing but this, that it would be- dangerous to leave
the making of a constitution to another assembly which might liave >
republican majority. They clung to power, therefore, in liopes of being
able to agree upon some sort ot a monarchy. Bui the agrecn
200 THE GOVERKMBNT OF FBAKOB.
came, and they had at last to frame a constitution as consenratiTe as
they dared make in face of a coantrj 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*aai. 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 proyisions 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 Constitution itself differs from an ordinary statute
only in having its amendment surrounded by certain differ-
ences of legislative procedure. It was framed and promul-
gated by a legislature, — the provisional national assembly
already spoken of (sec. 310), — and went into force without
being submitted to a vote of the people ; and it can be changed
or altogether abrogated by the Legislature which it called into
existence, if only the two Houses of that Legislature act in the
matter jointly, as a National Assembly, and not separately as
ordinary legislative chambers. The Legislature is, besides,
the only body competent to pass upon the constitutionality or
unconstitutionality of legislation, — the only authoritative in-
THE GOVERNMENT OF FRANCE,
terpreter of the Conatitntion. Francfi, like England, vesta in
her parliament a complete sovereignty of discretion as to its
own acts.
The principsl difference betv«ea the two ctiea ia, that the English
Parliameot may exorcise all its powers in Ihe asme way, by ordinary
procedure, while Ihe French Cliitnbers are pul under cerlnin limitBtcoas
of procedure in the exercise of their sovtreignty as it sSects funds'
menUl Ian (sec. 318).
314. The Senate. — This sovereign parliament consists of
two Houses, a Senate and a Chamber of Deputies. The Cou-
stitntion says nothing as to the composition of either of these
bodies; in the case of the Senate, it ia 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
eonsiat of three hundred members chosen by 'eleotoral col-
leges ' sjiecially constituted fur the purpose in the several De-
partments, and the term of senatorahiji has been fixed at nine
years. Forty yeara haa been declared the minimum ago for
senators. Tlie electoral college for the choice of senators is
composed in ea«h Dei>artment of the deputies from the Depart-
ment, the members of the ' General Council ' of the Department
(aeo. 341), and the members of the Councils of its several Ar-
rondissements (sec. 347), together with cei-tain delegates cJioseu
by the Communes from the membership of the communal nr
municipal Councils (sec. 351). One-third of the membership
of the Senate is renewed every three years,
Just ■! one-third of the Senate of the Dnited States is renewed every
two years. Most Eurnpeati coTistitutions tiave adopted name such
method of partial renewal of certain representative bodies at intervals
shorter than the term of memberBhip.
Until 18P4 sevenly-flve of the senators were chosen, by the Senate
itMlf, for life. By virtue of a consticutional cbange effeeled in 1884,
all vacancies occurring in thebe life-menibcrihipa are now fllled by elee-
lion in the Departments, as other seats are, and for the usual term of
^^^^
J
202 THB GOVEBNMElirr OF FBANGE.
nine years. This process will in time, of course, do away with all life-
membership.
Legislation determines from time to time how many senators shall
be elected by each Department. According to the present distribution
thirty, or one-tenth of the whole number, are returned by the city of
Paris, which itself constitutes a Department.
315. 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 Arrondiase-
ments serve as ^congressional districts,' as we should call them,
— and this method of voting is accordingly known in France
as 9cruHn d^arrondissement.
In 1885 tlie 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 Uste. 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 1880 scrutin
d'arrondissementf which had been in use before 1885, was re-established,
because scrutin de Uste 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, Guar
deloupe, Guyana, India, Martinique, Reunion, and Senegal each
send one. All counted, there are five hundred and eighty-four
THE GOVERNMENT OF FRANCE. 208
deputies. Elections to the Chamber do not take phuie at reg-
ular inteirals and on fixed dates named by statute, but must
be ordered by decree from the President of the Republic in each
oaae. The law directs, however, tliat the President must order
an election within sixty days, or in case of a dissolution, within
two months after the expiriitiun of a term of the Chamher ;
and that the new Chamber must come together within the ten
days following the election. At least twenty days must sepor
rate decree and day of election.
318. In Case of Uaurpatloii. — In cnie the Chambere ehould be
illegallj dissotreil or tiindereil from Beeembltng. the UeDerid CuuncilB
of the IJepirtmenta arc to convene withool delay in their respective
places o( mectint; and take the neceBiary steps for preserving order and
quiet. Each Caunci! is lo choose two dele^tea to join diiiegatea from
the other Councils in assemblinK at the place whither the members ot
the legal goiemment and the regular reprcseutatives of the people who
have escaped the tyranny liave betaken themselres. The eitrsordin»ry
■aienibly thus brought together it autliorized to conililute itself (or
buaineu when half the Departments shall be represented; and it may
lake any steps that may be necessary to maintain order, administer
affairs, and cslBblisb tbe independence of the regular Chambers. It is
dissolved, ipto facia, so soon ns 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 Senate
and Chamber of Deputies meet together in joint session as it
National Assembly fur two purposes : the revision of the Con-
stitution and the election of the President of the Republic.
The Houses meet for the performance of their ordinary Itgis
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 wljoum. For
the election of the President there are clearly determined times-
204 THE GOVEBNMENT OF FBANCK
whenever the office of President falls Tacant, whether by the
death or resignation of the President or by the expiration of
his term.
318. Revision of the Constitation. — 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 happen, therefore, that the majoritj in one of the
Houses would be outroted on joint ballot in National Astemblj. If
sach were likely to be the case, that majoritj coold hardly be expected
to consent readily to a joint session. France has, not two, bnt 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 Yote 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 Quaestors, 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 ojfficers of the public
THE GOVERNMENT OF FRANCE.
service. He has no veto on legislation, but he is authoi'ized to
demand a reconsideration of any meaaure 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 ha» continued five mouths, and an extra ses-
sion when he pleases ; and lie 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 bus 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.
'Die only limiutian pul fa; liie conetilulioo upon the choice of iJie
Nationkl Auembly in elei:(ing a Freaiilonl of Hie litpublic U, Ihal no
one (hall be choien Presuluiit who ia a member of any family which hat
occupied the throne uf Prance.
320. The rretldenl's power of disBnlving the ChBDlber might, on
occaiion, be uied to bar even the proceedinpi of the National Aiiembly.
The conaent of the Senate having l>een nblainecl, the I*reiident could
diiaolTe the Chamber while the National AsBembly waa in seuion, and
to deprive ihat body of two-ihirds of iu meniben, leaving it without
that ' absolute niajorily,' lacking; which it can uke no authoritative
action. Such a course would, however, be clearly revolutionary, —
more rcvolucionary Chan any action of the Aaaembly that il might be
nacd to prevent, — and would, though perhaps technically defenaible,
have no real sanction of law.
321. Influence of President and Senate. — The President and
Senate, it will lie leeti, are given a really vtry great power of control
over the Chamber of Depuliea. It ia within the choice of the Prcaidenl
to moderate the exceeiei of the Chamber by returning bilti lo it (or
rpconaid era lion, or by adjourning it durintt ■ period of Too ([reat enelte-
Rienl; and it ii within the choice of the Preiidcnt and Senate acliDg
together to appeal from ila deciiions to the constituenciei by a diato-
latioo. The Senate, moreover, has been given go many nicmberi of
206 THE OOYERKMENT OF FRANCE.
real weight of character and distkictioii of career that it woald seem to
hare been in a position to act in restraint of the Chamber with firmness
and success. Bat the later presidents (Gr^yj and Camot) haTe 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.—^ 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 Minlatries. — There are now eleven ministers: the Minis-
ter of Justice, filling the office filled before the Revolution bj the Chan-
cellor (sec. 295) ; the Minister of Finance, who has taken the place of
the Comptroller-Greneral of ante-revolutionary days (sees. 296, 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-revolutionaiy
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
PuUic Instruction (1848), Religion (1848), and the Fine Arts; the Minis-
ter of PuUic 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
yJfninJBtration in the Chambers. They are commonly chosen
THE GOVERNMENT OF FRANCE.
from amongst the members of the Houses; but, whether mem-
bers or not, they have, as ministers, the right to attend all s
sions of the Chambers and to take a specially privileged part in
debate. The same right extends also to the Uuder-secretaries
of Finance, of the Interior, of the Colonies, and of Fine Arts,
who are, consequently, usually members of the Chambers.
A minister may apeak at any time in the Clmmbers ; not even the
cldlurr (previous quoftinn) can exclude him.
In 188S the Minister of War wiu without n seal in the Chamber.
32R. The Council of Ministers. ^ As an adininistmtive
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 administration of the
laws, with a view to giving unity of direction to afEairs of
state. In ease of the death, resignation, or incapacitation of
the President of the Republic, the Council is to act in his
stead until the National Assembly can meet and elect his suc-
cesflor. Its members are ex officio members of the Council of
State, the highest judicial tribunal of the Hepublic for the
determination of administrative cases (sec. 3o3).
Z'2G. 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 coneeming
matters afFectiug 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 OP
of statutes, but of the President's decree. No decree of the
208 THE QOYERNMENT OF FBAKCE.
President's is valid, however, unless countersigned by the minr
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 office. 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 mora of a
menace to good government in France than it has been to good gOYem-
ment in our own country under the federal system of appointment.
The number of offices in the gift of the ministers in France is yastlj
greater than the number within the gift of the President of the United
States ; and tlie ministers' need to please the Chambers by faTors 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 simply because no policy of theira
THE GOVERNMENT OP FRAKCB. 209
could succeed without legislative approval and support. They
reaign when defeated because they will not carry out meaaures
of which they disapprove. In theory their res pons ibility 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 ia more directly representative of the
nation.
328. Questions and Interpellations. — The ministers may
be held closely to their responsibility at every turn of their
policy by means of various simple and effective forms of in-
quiry on the part of the Chambers. First of all is the direct
ijueation. Any member of either House may, after due notice
given to the minister concemeil, 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 witliout 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
' Inlerpellalion.' 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 sjiecial 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 brining admimatrative acts under the scrutiny of the
Chambers consists in the appointment of a Committee of
Investigation.
210 THE GOVERNMENT OF FBANGE.
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 for 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 one 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 consider matters referred to them.
332. The Budget Committee. — All financial matters are
considered by special standing committees chosen for one year;
in the Chamber of Deputies by a Budget Committee composed
of thirty-three members, and in the Senate by a Finance Com-
mittee composed of eighteen members ; and these Committees,
like other standing committees, arrogate to themselves some-
THE GOVERNMENT OF FRANCE.
thing like absolute dominatioa of the financial policj- of the
goveromeDt, with the result of robbing financial legislation of
order and conaistency, and of sadly obscuring the responsibility
of the ministers. Other committees simply consider and report
upon ministerial measures ; tlie Budget Committee undertakes
often radically to revise, sometimes altogether to trausform,
ministerial proposals, originating when it was meant only to
control.^
333. aovenuaent by the ChamborB. — Miniiterial reipomibility
has rspklly cjugi'neraled in France, during itie pMt few years, inlo gov-
ernmcnt by the Chamben, or. worse still, govemnii?nt by ilie Chamber of
Deputies. Ministerial n-apuntitiilitj ii compatible with miniiterial lead-
ership; >Lid under a minislry whieh ib really gi ten leave to direct the
counc of public policy, the Chamben Judging and controlling but not
directing, that policy mty h^te dignity, consiitency, end strength.
But in France the minlalen have, more and more as the years of the
Republit: have muttiplied, been made to aubetilute for originative leader-
ship Dubmisaive obedience, complete lervility to the wiahei, and even to
the whimii of the Chambei' of Deputies. The extraordinary fuoctinns
which have been arbitraril; aBsumed by the Budget Comiiiitlee siniply
mirror the whole political aituation in France. The Chnmbec has
imdertaken to govern, with or nitbout the leadership of ministers. So
capricioiu, lo wilful has it been in its rejection of every minister who
would not at once willingly serve its mooda, ao impatient Indeed with 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 moat burdcnaome, that most
intolerable of all forma of government, govemnttnl Ay mass mtetiag, — by
an inorganic popular aeaembly. It Is ibia state of affairs which has
called forth ao loud a demand for a revision of tbe Constitution, and
which hni at tbe larae time apparently created an opportunity for
another return to some sort of dictatorship.
334. Departmeotal Organization. — Each minister is as-
sisted in the iulmini.stratiou of his Department by a 'Cabinet/
which must not be confounded with the Cabinet of ministera.
The Cabinet of each Department is composed of such heads
1 See the Bevue dtt Dtur Mmdtt tot Not. lit, 188d, p. 226 tt itq.
212 THE GOVERNMENT OF FSANOB.
of the 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 ChamberSi and
serves generally as the unifying and directing organ of the
Department.
335. Departmental Functions. — The possession of such
a ' Cabinet ' constitutes the one feature which all the Depart-
ments have in common: each Department having, of course,
an organization adapted to the performance of its own peculiar
duties. The main duties of most of the Departments are suifi-
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 France 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 Foreig^n Affairs con-
trols the relations of France with foreign countries. The
Ministry of the Interior undertakes all duties not assigned
to any other executive Department. That of Finance collects,
handles, disburses, and accounts for the revenues of the state.
That of War directs all military affairs. That of Marine and
the Colonies has, added to the duty of managing the navy, the
duty of acting for the colonies as all departments in one.
The Ministry of Public Instruction, Reli^on, 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 public art-schools,
THE GOVEKKMENT OP FRANCE.
museums, and art-exliibitions, subsidizes the theatres, exer-
cises a cenaorship over the drama, superintends conservatories
and schools of music and oratory, and supervises the state
manufactories of Sfivres ware and tapestry. The 3liriislry 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
Miniatry of Trade and Jndunfri/ undertakes to provide for the
interior commerce of the country the facilities afforded by
special courts of law, bourses and cliamhers 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 Miniatry ofPostn
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,
123o) more conspicuously thau they illustrate the form and
spirit of her political institutions, A mirror of the political life
of France is to he found in the organization of the Ministry of
the Interior, which is more largely concerned than any othei
Department with the multi&rious details of local government.
214 THE GOVEBNMBNT OF FRANCS.
Local (Joyesnmsnt.
336. France still preserves the administratiye 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 DepartrneiUs divided into Arrondissements, Arronr
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 groimdwork 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 chaiacteri new aptitudes, new purposes. Her new ways
THE GOVEBKMBNT OF FBANGB. 215
ran 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 the 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 Greneral 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 Greneral Council
of the Department at any time except when his accounts are being
considered.
339. Such is the legal position of the Prefect. His actual
position is somewhat different. The politics of the Kepublic,
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 Greneral 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
^ He appoints and disciplines the teachers.
216 THB GOVEBKMSNT OF FRANCS.
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.
S40. The SpoilB System in France. — French administratioa in
all its branches, indeed, and in all grades of its senrice, from the lowest
to the highest, has suffered profound corruption through the introduc-
tion of the fatal idea that public office may and should be used as a
reward for party services. Ministries have adopted, all too readily,
the damning practice of distributing offices among their party followers
as pay for party activity, and even among the friends and constituents
of deputies, in exchange for support in the Chamber. And of course,
when short of gifts to bestow, they empty as many offices as possible of
opponents or luke-warm friends in order to have them to give away.
This policy is doubly fatal to good government in France because of
the very frequent changes of ministry at present characteristic of her
politics.
341. The General Council of the Department. — The legis-
lative body of the Department is the Grcneral 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 Coimcil, 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
THB GOVEBNMENT OF FRANCE. 217
haying 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 yaries 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 onfall of its decisions. Members
are liable to penalties for non-attendance or neglect of duty.
They are, however, on the other hand, paid nothing for their
services.
343. At the first regular session of the year the Council
considers general business; at the second and longer session
it discusses the budget of the department, presented by the
Prefect, and audits the accounts of the year. At either session
it may require from the Prefect or any other chief of the
departmental service full oral or, if it choose, written replies
to all questions it may have to ask with reference to the
administration.
344. The supervisory and regulative powers of the General
Council are of considerable importance; but its originating
powers are of the most restricted kind. It has the right to
appropriate certain moqeys for the expenses of local government,
but it has not the right to tax for any purpose. The amount
218 THE GOVERNMENT OF FBAKOE.
and the source of the money it is to use* are determined by the
Chambers in Paris. Even such narrowe^i acts of appropriation
as it can pass have to be confirmed by pre^^idential decree. Its
chief functions are directory, not originatwe. It sees to the
renting and maintenance of the buildings needed for its own
use, -for the use of the Prefect and his sulK^rdinates, 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 lunar
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 Couuci*
and amenable to the Council of State.
346. Central Control. — The most noticeable feature of thif
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.
"" te Council oversteps the limits of its powers, it is checked
THE GOVERNMENT OF FRAKCE. 219
by decree, and not by such a cliallenging of its acts iu the
courts by the persons affected as, in English or American prac-
tice, strengthens liberty by nxaking the individual alert to
assert the law on his own behalf instead of trnating inertly
to the government to keep all things in order. Even espres-
sion ot 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 Anondissement 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 lai^e,' for the
whole Department, but by Arrondissemeuts, — not by se.rutin
de Hate, that is, but by acnUin d'arrondissement (sec. 315).
It is also an important administrative division which serves as
a judicial district and aa the province of a sub-prefect and an
arrondisse mental 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 (conseU
d'arrondissement), elected from the cantons, like the General
Council of the Department, ha.s 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 oiticeTS
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 ot
the Peace ; it is a muster district for the army, and it serves
as a territorial unit of organization for registration and for the
departmental care of roads, but it has no administrative organi-
zation of its own. It is a mere region of convenient size for
electoral and like purposes.
349. The Commune is the smallest of the administrative
divisions of France, and, unlike the arrondissement and canton,
220 THB GOVEBKMENT OF FRANCE.
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 populooi commonet were ap-
pointed by the authorities in Paris, the mayors of the smaller com-
munes by the Prefects. Between 1831 and 1852 the choice of the
appointing power was confined to the members of the Municipal Coun-
cils ; but between 1862 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 boaiii: 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 commimes in prance is 36,105,
]0T*1 il is (he duly of the
o fill them with oilier men
maf or or hi* aBBietanta ineli);ible for one year.
One of the dutrca of the maj'or ia to appoint the police force and
other iubordin ale officers of Ihe Commuae; but in Communei of otot
forif thoaiantl inhnbitantB the mnyor's composition of Ihe polii'e force
mnat be ratifieil by decree, and in other uommunes all his appoinimenu
mntt be conSrmed by the Prefect.
351. The Huoicipal Council. — There is in every Commuue
a MiinicipLil Cuiincil (of from ten to tliirty-six members, ac-
cording to the size of the commune) which has, besides its
privilege of electing the mayor and his aasistauta, pretty
much the same place in the government of the Commune that
the General Coimcil has in the government of the Department.
Its decisions, however, have not the- same force that attaches
to decisions of the General Conncil. The latter are valid
iinleaa vetoed ; the former are not valid until confirmed ; they
must, for a certain term at least, await ratification. Unlike
the General Council, the Muuici|>al Conncil 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 aoeounts are under consideration.
Neither the Munieipat Council nor the Conncil of the Arrondisiemenl
il jadge of the Talidily of the election* of its members. Contested
election cases are heard by the Frefeclural Council (sec. 354).
Dntil 1831 the Municipal Council nns choaen by the Prefect from a
lilt of qunliSed persons made up in the Commune. Between I&3I and
1818 its membera were elected by s roslricled suffrage. Since 1B18 they
have been elected by uniTenal suffrage.
In caae of a dissolution of the Municipal Council, it« place may be
taken, for the overaighC of current necessary matters, by a delegation
of from three to seven members appointed by the President of tfaa
J
222 THE GOYERKMENT OF FBANGB.
Republic to act till another election can be had. This delegation can>
not, however, take upon itself more than the merelj directory powers
of the Council.
352. Oversight of the Commune. — The Commune, though
in many of its relations a subdivision of the Department,
is not subject to the oversight of the General GounciL 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 France 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." *
353. 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
ministers, 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 Chambers 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
^ Lebon (Marquardsen), pp. 106, 107.
THS GOYEBXXENT OP FRANCS. 223
are not sabordinate to each other : each is directly subordinate
to the Council of State. The Prefectural Council is, of course,
the most important of them. It has, amongst other weighty
functions, that of determining the validity of elections to the
Council of the Arrondissement and to the Municipal Council.
For the rest, it has jurisdiction over all administrative ques-
tions, and over all conflicts between administrative authority
and private rights. Its processes of trial and adjudication
are briefer and less expensive than those of the ordinary law
courts. In almost all cases an appeal lies to the Council of
State.
The Prefect it the legal representative of the goyemment in catei
brought before the Prefectorml 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.
Each 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 I'aris.
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 arrondissoments. 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 MiniHters,
the Senate may be constituted a special court for tlu^ (consid-
eration of questions seeming to involve the safety of th<^ state ;
and such questions may be removed by the same authority
from the ordinary courts.
The appointment of all judges rests with the President, or,
224 THB GOVERNMENT OF FRANQS.
rather, with the Minister of Justice ; and the tenure of the judi-
cial office, 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
{coura d^assises) constituted four times a year in each Depart-
ment for the trial of all crimes, and of political and press of-
fences; and in these the jury is sole judge of the guilt or
innocence of the accused; the judges determine the pun-
ishment.
The jury courts sit under the presidency of a member of the Court
of Appeal within whose jurisdiction the Department lies in which the
court is convened, and with him are associated two ' assessors.' The
state is represented in each case by the state-attorney or 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.
357. 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.
THS 60VEBNMBNT OF FRANCE.
225
Some Bepresentatiyb Authorities.
Lebon, Andr€, **Da8 Staatsrecht der franzdsischen Kepublik" (in
Marquardsen*s '^Handbuch des oeffeutlichen Rechts der Gegen-
wart"). Freiburg in B., 1886.
Aucoc, '^ Conferences sur Tadministration et le droit adniinistratif."
3 vols. Paris, 1882.
Blockj '< Dictionnaire de I'administration fran9aise/' Paris, 18S7, and
subsequent annual supplements.
Ducrocq, ^'Conrs de droit administratif." 2 vols. Paris, 1881.
Ferron, H. de, *' Institutions municipales et provinciales compar^es.**
Paris, 1884.
Demombynes, '*Les Constitutions Europ^nnes." 2 vols. Paris, 1883.
Vol. II., p. 1 ef aeq.
Ckiruelj '* Dictionnaire historique des Institutions, Moeurs, et Cou-
tumes de la France." 6 ed., 2 vols. Paris, 1884.
Stephen, Sir Jas., *< Lectures on the Hbtory of France." 2 vols., 3 ed.
London, 1857.
VIL
THE GOVERNMENTS OF GERMANY
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 Merowingian and Carolingian, — the new size and potency
of the regal power bred amidst the readjustments of conquer-
ing migration by the dominant 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 g^fts of land
and novel growths of privilege based upon such fresh gifts,
not so much through ' benefice ' and ' commendation,' that is,
the new adjustments of personal allegiance elsewhere (sees.
238-240), as through the official organization of the Frankish
monarchy.
359. Official System of the Frankish Monarchy: the
Graf en. — In order to exercise their kingly powers the more
effectually, the Frankish monarchs adopted the natural plan,
for which there was Roman precedent, of delegating their
functions to officers commissioned to act as their representa-
tives in various districts of their extensive domains. There
THE GOVEKNMBKTS OF OBEtHANY.
227
does iiot seem to have been auy symmetrical division of the
territory into distritta to fit the official system. Here and
there throughout the kingdom there were counts (Orafsii), the
king's vicegerents iu the exercise of the financial, jndieial, 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 oi policy such claims were gener-
ally allowed. The demesnes of the greater landowners were
cut out from the administrative territory of the Grri/and given
separate political functions. Harons such aa we have seen in
France, — local autocrats with law courts and a petty sovei^
eignty of their own, — were thus freely created. The king
apparently could not deny them the ' immunities ' they de-
manded.
360. The Magistracy of Office and the Magistracy of Pro-
prietorship— There thus grew up, side by side, as it were, a
double magistracy — a magistracy of office aud a magistracy of
proprietorship. The Cfraf ruled by virtue of his office j the
baron by virtue of his landed possessions ; there were lords by
privilege {Immunitatsherren), 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 Qiof 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. £ithei there went, therefore, along with the graf-
228 THE GOVERNMENTS OF GERMANY.
ship, gifts of land, or else men already sufficiently 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 Prankish
ascendency had in the days of conquest iinited 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), OrafSy and barons, had all alike become lords
within their own territories {LandesJierren), Bishops and
abbots, too, as in France, had entered the competition for
power and become themselves grafs and barons. That terri-
torial sovereignty, that private ownership of political author-
ity which is the distinguishing mark of feudalism, and which
we have seen so fully developed in France, is present in as full
development here in Germany also. But the elements of the
development are very different in the two countries. In
France we have seen the appointment of royal delegates come
after the perfecting of feudalism and lead, through the gradual
concentration of judicial and other authority in the king's
hands, to the undermining and final overthrow of baronial
sovereignty (sees. 296, 302). In Germany, on the contrary,
the royal representatives, appointed while feudalism was
taking shape, themselves entered and strengthened the baron-
age, quitting their dependent functions as officials for the in-
dependent functions of territorial lords. In France, in other
THE GOVERNMENTS OF GERMANY. 229
words, the appointment of ju<licial 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 proeess ; feudalism was fostered by office,
363. The Harkgraf. — One office especially fostered feudal
independence in Germany. Outside the hierarchy I have de-
Bcribed, and standing in special relations with the king, waa
the Markgraf, — the graf of the Mark or border, set to defend
the kingdom against inroads by hostile peojjles. 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 tirat 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 Osfmark 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 powei-s which wowld one
day make of Iiim 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 rflle 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
280 THE OOVEBNMENTS OF GERMANY.
great tradition and rehabilitate the Empire. The Carolingians
kept alive the title of Emperor as a title of precedence to be
borne by the elder line of descendants from the great Charles ;
but they divided his territories among them, generation after
generation, in the old disintegrating Frankish way, and so
cheated whomsoever of their number was called Emperor of
any real Empire. It was thus that France and other territo-
ries became separated from the Grerman portion of the Frank-
lands, and set apart to work out histories of their own (sees.
252, 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, Grermany, 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 power in Italy. In 962, after Tictories won in the Pope's
behalf in Italy, he renewed in Rome the imperial office, to
which, the dukes witliin bis kingdom and the Hungarians
without bt^ing 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 bis 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 u[ion Italy, Otto and his successors failed to
make good, once and for all, their hold npon Germany. They
fell between two stools. It was impossible for them to bold
together in a common subjection both stubborn town- re publics
in Italy and refractory feudatories in Germany, Still Otto
could make some show of success even in such a task} and
even the less able successors of his own House handed on to
the Salian princes who came after them a power not altogether
squandered.
367. The Salian Emperors: Heary III. — The -Salian
House in its turn produced Henry III. (1039-105C) 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, Franconia, 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 tacked the
hereditary principle and the sustained capacity of a family
of Capets.
368. The Hohenstaufen : Frederic Barbarossa.— The line
of Salian emperors dwindled rapidly away after Henry III., and
in 1138 there was brought to the imperial throne that family
of Hohenstaufen which was to complete, through Frederic Bar-
barossa, the greatest of their line, the folly of Italian warfare.
The reign of Frederic was one long, variable, and eventually
282 THE GOVBBMMENT8 OF OBBMAKT.
fruitless struggle with the republican cities of Lombardy.
While the emperor spent all his resources in the south, Grer-
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 Grermany ; and the Bohemian duke (Vladislav)
received that royal crown which was to lift Bohemia into
the front rank among the Grerman states of the disintegrate
Empire.
369. The Interregnum and the Electors. — Almost imme-
diately after the death of the last of the Hohenstauf en 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 Carolingian 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) Richard of Cornwall, a son
of John of England; but another party among the princes
elected Alphonso of Castile, a great-grandson of Frederic Bar-
THE GOVEBNMEKT8 OF GERMANY. 233
b&rosaa, refused to recognize Richard as Eiuperor, and plunged
the DOUDtry into a dreary civil war of seventeeu years (1256-
1273), during which there really was no imperial govern-
ment at all. For Alpfaonso did not come to claim the half
crown thus equivocally offered him, Richard made no head-
way towards real emperorship, and anarchy worked its full
confusion. The barons of the torn kliigilom 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
j(otency; and the Empire seemed finally to have gone to
pieces.
370. The First Habsburg Emperor. — At length, in 1273,
the electors agreed upon Rudolf, 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 independenne.
They even degraded the imperial office by shamelessly selling
it to the richest of rival candidates ; they did not so muiih uti
keep faith with purchasers of the dignity, but sold it sonio-
times to mure than one aspirant at once. Rudolf, 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 moMt [ii>werfu!
prince of the Empire, and Ottocar's disappointment and rr:»ent-
ment at not receiving the coveted honor were so great that he
refused to acknowledge Rudolf as his suzerain. Rudolf, con-
sequently, immediately undertook to compel his submisston,
I Thii wai the period of the formation of the Banteatic and Rbenlah
IcagaeB meatioaed lec. 216.
234 THE GOVERKMENT8 OF GERMANY.
and so complete was his success in a battle on the Marchfeld
(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. Rudolfs election to the
throne had at any rate given to the house of Habsburg its
initial opportunity. Rudolfs son, Albert of Austria, also won
the crown, and Frederic of Austria soon after figured as rival
to Lewis of Bavaria, for the imperial title; but Habsburg's
time was not yet : Bohemian princes were to interpose a long
line of emperors before Austria should finally realize her am-
bition.
371. The Golden Bull. — From 1347 to 1437 there were,
with one interruption, emperors of the Luxemburg-Bohemian
line ; and the first of these, Charles IV. (1347-1378), is espe-
cially notable as having been instrumental in the promulgation
of that Golden Bull which was to continue to be the funda-
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 1356. 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
Rhine, the Duke of Saxony (Wittenberg), and the Markgraf of
Brandenburg. To each elector there attached a great imperial
office: the three archbishops were respectively arch-chancel-
lors of Germany, Italy, and Burgundy ; the king of Bohemia
was cui)bearer ; the Count Palatine, seneschal ; the Saxon duke,
marshal; and the Brandenburger, chamberlain. It seems to
have been the theory that it was these offices which conferred
upon their possessors their prerogative as electors; but of
course the fact was quite other : the office had been tacked on
to the prerogative.
THE GOVERNMENTS OF GERMANY.
235
Had the finil choice of eWton bc«n made ir the earliest d«7» n( the
Empire, it would doublleis have been olherwiae beilaned. It woald
hare becD natural in anj cue that the archbieliops of Maini, Trier,
and Cologne (hotild be preferred, for they had long been ilie greatest
ipirilmtl tnagnatea of the Empire; but at an earlier date the four tem-
poral Idles would haT« gone to the great duchiei of Fnnconia, SaioDj,
Swabia. and Bavaria. At it wai. in 1350 none of llieec duchiea any
longer eiisled whole. Two of IheiD. Fmnconia and Swabla, had become
entirelr eitincl : the place of FnncoDia ■> a principality had been taken
by ^e Palatinate of the Khine, that of Swabia by Brandenburg. The
Count Palatine and the Markgraf of Brandenburg ici^ordingly received
electoral toIcb. Saxony had been diTided between the house* of Saxon-
Wittenberg aod SaioD'Lauenburg, of whom the Golden Bull preferred
the fonner. Tbe Duke of Bavaria *ai of the aame bouse as the Count
Palatine, and two votes were not to be giren to one family. Bohemia
was new, but too powerful to be excluded.
The Bull lays down "a rariely of rules for the conduct of imperial
elections. Frankfort is flxed as the place of election ; the Archbishop
of Mcntz (MiiDz) named the oonrener of the electoral college ; to Ito-
hemia ii given the flrat, to the Count PaUtine the second place among
llie secular electors. A majority of Totes was in all case* to be decisire." '
There had long been seven electors : the Golden Bull only decided
the claims of ri'al parts of bouses, confirmed Bohemia in its vote, and
fixed the procedure.
372. Imperial Cities. — One of the most importaut develop-
mentB of tlie thirteenth century in Germany, — the period of
the Interregnum and of the extremcst feebleness and subordina-
tion of the imperial power, — was the rise of the free imperial
cities. The cities of the Empire had, as feudalism derelojied,
fallen into its order in two classes. Some of them held their
privileges of the Emperor himself, were his immediate vassals ;
others wen' subordinated to some feudal lord anil were subjects
of the Empire only tlirough 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 overlordfihip of princes who, having less vide
) Bryce, Holg Soman Bmpirt, 8th ed., p. 231.
THE GOVERSMBNTS OF GBRMANY.
interests to care for tfaan those which busied the E^mperor, could
render their power greater hy concentration. They were always
near at hand and jealous of any movement of independence on
the part of the towns within their domain; the Emjteror, 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 inunioipal
self-government. In the thirteenth century even thia 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 aitknowledgment of
their independence and importance was their admission to rep-
resentatitm in the Diet of the Empire — and such recognition
was not long delayed. The rOle of these great free cities in
imperial affairs became one of the most imiiortant of the many
independent rOles played on the confused stage of that troubled
time. LQbeck, Hamburg, and Bremen retuu to this day a cer-
tain privilege of position as free cities in the German Empire
(sees. 402, 405).
373. Tli« Swlu Confederation. — Almoat at the very time that
(he Halisburga Hrst nnn the imperial croHD and Hcquireil tbe duchy
ot Austria, iome of tlieir Swiss dependencies broki! nway (rom them,
and establiihed an independence nerer since perma.neolly brokm.
SchiTjz. Uri, and UnterwalJen. the sturdj Ultli! mountain commmiitiM
grouped about the southern end of quiet Lutenie, with nlioae ttrnggle
for freedom the glorioiu story of tlie Swim Confederation begina. con-
tained Bome part of the eitnte* of the Counts of Habiburg, wboae
lirreditary domains touched llie other end of Luctme, and stretched
wide to the north about the further shore of Lake Genera, and soulh-
WKnl again on the West. The region of the Alps contained the nota-
ble imperial cities of Ziirieh, Berne, Bnsle. and ScbatThauien ; and
Bcliwfz, Uri, and ITnterwatden claimed to be immediate TusaU ot the
Empsror, m these uilies nerc. The Count* of Habsburg, in despite of
this claim, sought to rvduce Ihem lo cubmission to themsetre*. The
result WHS a long struggle in which the three little canton*, at flrst
jdned only by their neighbor cantou, Lucerne, but afterwards by Zii-
THB GOVERNMENTS OF GEEMANY.
237
rich, GIbtiu, Zug, and Berne, were eTenlu«lly camplelelj Tii^torious.
B; the formatian of thil (itLiloui league of Eree L-antoni aad cities, >t
first known as the " Old Leii^uc uf l^gb Germany," but ullimstel)' ■■
Swilzerland (the land of Sdiw;z), there emerged from the German
Eopire one of the molt interestEng state* known to liiMory. It may
be said to hare been the oftspring ol the diainlegraling forcei of the
Empire. — A living proof of ils incoherenie. In the next chapter we
■hall consider iti polilii;al development with the special atlenlion which
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 ita political career.
In 1438 the Dukes of Austria, who had meantime added to their
posaesstona Carinthia and Tyrol, ascended the imperial throne,
to hand its titles on to their descendants in a direct Buccession
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 Caroliiigians, 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, Haximilian I. — Duricgthe 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
> In 17*2 ihey elected Charles VII, of Bavaria, and in 17M Fnwci* I.
of Lorraine (see. 380).
238 THE OOVERNMBNT8 OF GERMANY.
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 Roman Empire changes its
character and becomes exclusively Grerman. The Holy Roman
Empire was elective and was dominated in large measure by
ecclesiastical influences; the Grerman Empire of the Habs-
burgers is hereditary and strictly political. The Holy Roman
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 Grerman Empire is a mod-
ern organization intended to secure the dominance of a single
great state. It emerges as the light of the Renaissance 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
{Reichskammergericht) 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 3^6 Brjce, pp. 312 tt te^.
THB GOTKBHIIKIITB OP QKBMAHT. dS9
the better keeping of the peaoe» into ten lulminiaimtive dia«
tricts, which were to serve as a territorial franiowork for tht»
exercise of the imperial authority. Each distriot (or ** eirclt)/*
as it was called) had its own judicial council, a aort of lot^U
imperial chamber, which, like its prototype, the central Ct)uib
cil, was empowered to settle all disputes which threatened the
public peace. The system was one which promised centralin^
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 theniMelveH
rather than were administered.
The ten circlet comprited no lest than two hundred and forty tepd-
rate 'ettates' of the Empire, although Bohemia, I'ruMia, and HwUcer-
land were left oat aa already practically independent. l*hia aatonfthing
Dsmber, which ttill excluded the letaer feudatories Itke tlie imperial
knighu, conveya tome idea of tJie piece-meal political condition of the
Knpire.
3n. Although these refdrms did not result in any vtsry iMiiig-
factOTy system or in any permanent en/ergiziug of t\m 'antral
imperial pofwer throughoat the Empifv^ yet they wttr»t iy|/M^
of a hopeful tendez^ towajxk German national unity. Hmju
imiliaa was ahk to estaUish a perAoaaex^ arxny (it wa« ih*i ^im,
when gunpowder was diiring tib« old £eoidaJ ]k\'}m out t4 ^uti^
eooe and Skeoessitatixkg the drill of tJtUMUtdiu^ iAm:^^), Uj luU^-
daoe a system of impeiiaJ poUoe, ajud to oirgaubM; a jmi.Ua« UM^tt
post The functions of the Imperial <9iat<uiW, tOQ, i^^u^j/
passed iiite) the handt> uf a autalk^ <xiuit jutoDe i4UJUi«i<ii«ti*;iy
under ^le oantrd of the Smperor. The Jlout»e iA ii^^^\>^%
was act any rate secure in it« as^nd^ntey.
SI%. jieWairibmiMsaerM^ofL.'-^yfoui the i^l^u \fi ^jml
imflian L to the J^apoleouiv waci> at the o^uiu^ ^A Chi- piiiib
ent eentttry the historv uf is*mx»Ax\ ai> at) iiiinpu*' ut huidi^v
more than tite pulitt^tl history of Autfteia. 'J*!**^ ii*oHi «uiica*jK
Sestii!>e of the period it; the woiid^fflul ijiwtii i>1 irliVortiiUi)^
power by means ol a niodt edcVcaordiua^^ i>«^fi«^ o1 lonriiiiak'
240
THE GOVERNMENTS OF GERMANF,
marriages, which made conteiuporaries say that what Mars
gave to othera Venua gave to the House of Austria. Maxi-
imiliau I., as we have seen, married Mary of Burgundy and so
added to Austria the territorie'S of that great Ilouae. The son
of this marriage, Philip the Pair, Archduke of Austria, married
Joanna, the heiress of Aragoii and Castile, and su 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 dex>ended upou
these, the dreaded rival of every independent power in Europe
(1519-15J56). It was this Charles who, bidding for the polit-
ical co-operation of the Papacy against Francis I, of France,
threw his weight against Luther in the great Diet at Worms
and so inaugurated the momentous contests of the Keformation
wliich 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 lii stories.
379. The Thirty Years' War (1618-1G48), 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 Swetleu, France,
Brandenburg, and Anetria, 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.,
whatwa^ called "territorial superiority" (LandenkoUeU) — and
^permanent Diet was presently (1603) constituted at Begens-
Jf in whose hands a more definite imperial constitution began
THE GOVERNMENTS OF GERMANY.
241
to be developed. Perhaps the most important result of the
peace (of Westphalia) waa the acknowledgment of the inde-
pendence of Switzerland and tie Republic of the United Jleth-
erlands.
380. Uotil 1806 The eighteenth century is marked for
Germany (1) by the War of the Spanish Succession which re-
sulted (Peace of Utrecht) in the failure of the claim of the
Austrian Habsburgers to the throne of Spain and in the rec-
ognition of Pnissia (Brandenburg) as a kiugdom (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 Haba-
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 linal conBrmatlon of the title of Prussia, a title
rather of might than of right (Peace of Hubertsburg, 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
Prussia, to the attempt of Joseph to absorb Bavaria by trans-
ferring its heir to the Austrian Netherlands.
38t, End of the Old Empire. — This last event was upon
the eve of the French Revolution : and that revolution event-
ually brought forth Napoleon Bonaparte, whose sweeping con-
quests forced Francis of Austria to abdicate the imperial office
in 1806, and ao brought to an end at once the real German
1 Thii WM the iieriod (1742-lTft6) at ihe pleclioo of Challei of
•nd FrauuiB of Lurrulne (u the imperial difjiiity.
Bavuift I
242 TH£ GOVERNMENTS OF GERMANY.
Empire which Maximilian had founded, and the tradition of
the Holy Eoman Empire which ran back to the great Charles
aiid 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 borider kingdoms, in a rivalry which
was to have the most momentous influence upon Grerman
history.
383. The Mark Brandenburg. — The original North Mark,
— afterwards known as the AUniark, 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
fche Frankish kingdom ; neither Carolingian 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
^ About Bixty-five mileB northwest from Berlin.
THE GOVERNMENTS OP GEItMAKV, 243
had been passed, and botli Mecklenburg between tbe rivera,
and Pomerunia beyond, had been brought under their power,
and two-thitds of tlie southern shore of the BiUtic acknowl-
ed]^d them as masters. The House of Anhalt continued to
furnish Markgrafs for this great task of conquest for almost
two hundred years (li;{4-13i!0), — the period whieh saw the
rise and fall of the Hohenstaufen, the Interregnum, and the
greatest degradation of the imperial office, — a period con-
sequently of tbe greatest opportunity for iudependent action
and self-aggrandizement on the distant northern borders.
384. And Anhalt did its work thoroughly. It not only
conqueied, 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 laud was
thoroughly Teutonized, with the double benefit of a new and
vigorous population and a new fertility and wealth, — for tbe
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 Uarkgraf. — Under the House
of Anhalt, too, the Mark h:ul 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 Albert 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 Maikgrafs, secure in heretiltary poa-
244 TBB OOTBaKHBNTS OF OBBHJLHT.
a of their office, had beguQ lo act not as real officers, but
only aa 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
compactiiesa were a-making in the lauds 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 Emi)eror as a lapsed fief. B'roiii 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 band, both against disorder within and
covetous neighbors without; but to the Bavarians and LuXPm-
bnrgs 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 strainecl 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 prini'e whose
territories tuui-hefl those of Brandenburg helped himself
almost as he listed to such parts of the apparently doomed
* II wii« during llie tenure of BavHria thKt the riKht nf Brnndrnburx
to R Toie in the eleclor&l college wu acknowledged by tbe Golden
Boll (lec. 300).
THE OOTBRNMEKTS OF r.ESHAlTT.
24n
Mark as most tempted or poiild least withstand tim. It
looked as if Anhalt's work was to be utterly undone and
Brandenburg Ix'icnue commoo spoil for Germany.
387. The Hoheazollem. — 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 diminislied authority of the markgraf-
sliip. This was the now famous House of Hohenzollern. This
House, a branch of the Swabian Zollern, had been invested, in
1192, with the burggrafship of Nfirnberg. The Burggraf of
Nfirnberg, like the Markgraf of the North Mark, was originally
an imperial officer; but the burggrafship bei\ime hereditary
and semi -independent like all other grafships (sec. 360); and
in the hands of the Hohenzollern it had attained to a very
great power and importance. Gradually piece after piece of
the territories about Ndrnberg was absorbed until both Ana-
bach and Bayreuth were included in the possessions of the
ambitious burggrafs, and the Hohenzollern 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-
zollern, the Burggi-af of Narnberg, for stanch support against
his rivals in the imperial race. At any rate he created Fred-
eric Markgraf of Brandenburg in 1411. Twenty-sovcn years
afterwards, upon the death of Sigiamund, this same I'rederio
aspired to succeed htm, but Albert, the first of the continuous
line of Habsburgers, was chosen. The day for the reiJ rivalry
between Habsburg and Hohenzollern was not yet. Thu Brim*
denburger had first to nurse his power to its fiill 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 Hohenzollern concerning the manner in which their
new territory should be handed on by inheritance. They not
only recompaeted the Mark by restoring firm govemmi'nt,
248 THE OOVERNMBSTS OV OSRMAlT?,
retaking some of its stolen parts, and stamping out the threaten-
ing internal divisioiis between noble and noble ; they also deter-
miue<l that they would not themselves divide the domain. A
family law was promulgated by the Markgraf Albert 'Achilles'
(1471-14S6) which forbade any division of the Mark lands or
of the estates of Ansbacb and Bayreuth. These latter and the
Mark might be separated from each other; but neither was to
be partitioned within itself. Tlds is known as the Dt^omtio
AcklUea, and has justly lieen regarded as une of the principal
foundation stones of Hohenzollern predominance. For 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 ZWspo-
sUio, 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 compat't mass.
389. Jo&chim II. — Later Hohenzollern showed a capacity
for legal reforms of another kind. Joachim I. (1499-1535)
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, introduced 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. (1535-
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
municipaUties, — were most nearly at an equilibrium. Imme-
diately afterwards the towns declined, and all cireumstauoes
shaped themselves in favor of the Elector and against a oon-
tinued control of affairs by the 'estates.' More important
still, Joachim identified himself with the Prutestint side in the
great controversy of the Reformation, and from him dates that
THE QOVEENMEST8 OF GERMANY.
247
steady Protestantism of tlie House of HolieiizoUern which came
eventually to coiistitute a chief part of its claim to lead Get-
many in opposition to Catholic Austria. It was this Joachim
II., too, who prepared much of the later history of hia 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 Sigismuud of Hoheuzolleni became
also Duke of Prussia.
390, Prussia was a district of considerable size, lying be-
tween the rivers Vistula •ind Memel at the southeast extremity
of. the Baltic. It had been taken from the Lithuaniau 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 1511 the effort of the
Order to govern aa 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 ot
Poland. The Prussia, therefore,'to whose ducal throne John
Sigiamund 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 Pomerania to the
Vistula, which had once been part of the domain which the
Teutonic Knights hiid won, but which was now an integral part
of the territory of Poland.
"The Great Elector." — But in 1640 there came upon
the stage a Hobenzollern who was to force upon his neighbora
numerous changes in the political map. This was Frederic
Williiuu (1640-1688), aver since honored with the name of the
248
THE QOVEBNMENTB OP OBRHAtfT.
Great Elector. By the Peace of Westphalia, Frederic Wil-
liam obtained Mii^deburg and most of Pommerania (wbich
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 extorttid from the latter a
relinquishment of her feudal rights over Prussia, and so made
it a free duchy. Oue-third of his territory at bis death lay
outside of the Empire and owned no master but himself.
Inside hia 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
iaoome, so that only management and force of character were
needed to make the Elector's will supreme there. In Prussia
he did nut scruple to make force his instrument in establishing
absolutism.
392. The KlBgdom of Prussia. — Frederic, son of the
Great Elector, used the power left him by his father to pve
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 acourd-
ingly crowned himself with great im press iveness and pomp
at Kdnigsberg in Prussia, becoming King of Prussia and
Elector of Brandeuliurg. The greater title speedily swallowed
up the less. Tlie 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 knowu by
the title of greater dignity. A brief time and the natural
result will follow ; instead of Urandenbiirg's giving its name to
Pruaaia, Prussia will give its name to Brandenburg.
393. Frederic the Great. — Frederic, the first king of Prus-
sia, governed from 1688 to 1713. His son, Frederic William I.
(1713-1740), rounded out Brandenburg's possessions in Pom-
merania, and hoarded the money and prepared the army with
THE GOVEHNMENTS OF GERMANY.
which his son, Frederic the G-reat (1740-1786), was to complete
the greatness of Prussia. The great Frederic took Silesia from
Austria, as we have seen (st*c, 380), and then, joining in the
heartless and scaadnJous partition of I'ulaad 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 lulded to Prussia the districts known r
South and East I'russia.
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 atmospherJL- eoiiditions
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. So 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 S(w;ailed ' Confederacy of the Rhine,' of which he consti-
hited himself ' Protector,' and which-lasted from 1806 till 1813.
But, despite the ease with which he at fii-st divided Ger-
many in order to conquer it, Najwleon discovered at last that
he hfd himself aroused there a national feeling which was to
east him out and ruin him. In 1813 Germany rose, the Con-
federacy of the Rhine went to pieces, and all Napoleon's plans
were undone. He had done Germany the inestimable setviee
of making her patriotic.
250 THE GOVERirMENTS OF GERMANY.
395. The German Confederation (1815-1866). — The Con-
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 could not, however,
revivify the Grerman 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 component 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 sufficient 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 Frankfort (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 such union, and the attempt failed. Still earlier,
in 1833, Prussia had led in the formation of a ' Customs Union '
(ZoUverein) between herself and all ^ the states of the Confed-
^ fhe Union did not at first include this 'all/ but it did ereotuaUj.
THE GOVERNMENTS OP GERM ANT.
H DfVl
251
eration except Austria, which laid the free-trade basis for those
subsequent political arrange me-nts 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 brciwh 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 Confederiir
tjon'; the middle states, Bavaria, Wiirttemberg, Baden, etc.,
held off for a while to tbemselTes ; and Austria found herself
finally excluded from German itolitical arraugemeuts.
398. Austria out of Germany. — Since then Austria, oi-ig-
inally predominantly German, has devoted herself to the task
of amalgamating the various nationalities of Southeast Europe
under her hegemony, and so has become lu large part a non-
German state. Prussia haa become the head and front of
Germany, in her stead.
Meantime Prussia has grown more than one-fifth in terri-
tory. The rearrangement at Vienna in 1815 gave her Swedish
Pommerajiia and the northern half of Saxony ; the war of
1866 confirmed her in the possession of Schleswig-Holstein,
Hannover, Hesse-Casael, Hsase-Naasau, and Frankfort.
309. The German Empire. — The finishing impulse was
given to the new processes of union by the Franco-Prassian
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 VersaUles, Jan, 18, 1871).
252 TEU: GOVBBNMENTS OF OBBMAKY.
Government of the Empire.
400. Austria and Germany: Character of the German
Empire. — When he ceased to be Emperor of the Holy Boman
Empire (1806 ; sec. 381), Francis 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 Austria-Hungary, is
composed of the hereditary possessions of the House of Habs-
burg; the German Empire, on the othei: hand, is a federal
state composed of four kingdoms, six grand-duchies, five
duchies, seven principalities, three free cities, and the imperial
domain of Alsace-Lorraine, these lands being united in a great
' corporation of public law ' under the hereditary presidency of
the king of Prussia. Its Emperor is its president, not its
monarch.
The four kingdoms are Prussia, BaYaria, Wiirttemberg, and Saxony ;
the graud-ducliies, Baden, Mecklenburg-Schwerin, Hetse, Oldenburg,
Brunswick, Saxe- Weimar, and Mecklenburg-Strelitz ; the duchies, Saze-
Meiningen, Anhalt, Saxe-Coburg, and Saxe-Altenburg; the principali-
ties, Waldeck, Lippe, Schwarzburg-Rudolstadt, Schwarzburg-Sonden-
hausen, Keuss-Schleiz, Schaumburg-Lippe, and Reuta-Greiz; the free
cities, Hamburg, Liibeck, 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 Grerman states or renew the Con-
federation of the Ehinc, 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 Confed-
or Gixjuiirr. :u-$
tkn of die kiBc of Bsv^ril. t^ prffiidefit-kia«r v^fts oiv^vni^
Empevor, and die Gcbbui Cocf <dentKQ hecaaBe th^ Gi^nun
402. Tke rwiiilailM «f the Ei^iie.— Tbe mw Empii^.
howerer, beus stilL in its cunstinitioii. distiiKtest iTae«» of
its deriTstion. It is sdll a disdncdr fedend ntlier than
m
nnitaij statos, and the Emperor is still only its constitutional
president. As Emperor he ofrapies not an hereditarr thivHH^^
but cibIj an hereditaiy office. Sovereignty does not inside in
him, bat ^ in the nnion of German federal princes anil the free
cities." He is the chief officer of a great political corporation.
403. The Emperor. — Still his constitutional pren^tives
are of the most eminent kind. Unlike other presidents, he is
irresponsible: he cannot be removed, his office belonging in*
alienablj to the throne of Prossia, whether its occupant be
king or regent only. He summons, opens^ adjourns, and cU>sos
the two Houses of the federal legislature, the BundesnUh and
the Reichstag, the latter of which he can also, upon the mlvioe
of the Bundemuth^ dissolve. He appoints, and may at his
pleasure remove, the Imperial Chancellor, who is l>oth the
vital centre of all imperial administration and chairman of
the Bundesrath; and he appoints also, under the couutorsignor
ture of the Chancellor, all minor officers of the imjH»rial ser-
vice, whom, with a like co-operation of the Chancellor, ho 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 Band^nntth,
to coerce into obedience such states of the Empire as may at
any time wilfully and pertinaciously neglect to fulfil their
1 The pretent constitution of the Empire heart date April 10, 1871.
254 THE GOVERNMEKTS OF GERMANY.
federal duties. He has, in brief, to the fullest extent, both the
executive and the representative functions now characteristic
of the head of a powerful constitutional state. There are dis-
tinct limits to his power as Emperor, limits which mark and
emphasize the federal character of the Empire and make of it
a state governed by law, not by prerogative ; but those limits
nevertheless lie abundantly wide apart. Adding, as he does,
to his powers as hereditary president of the Empire his com-
manding privileges as king of Prussia and, as king of Prussia,
the dominant member of the Union, he possesses no slight
claim to be regarded as the most powerful ruler of our time.
(Compare sees. 319, 321, 326, 595, 604,^11^25, 626, 637, 644,
678, 706, 1102, fl48, 11^
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 theoretically 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
arc, first, that fourteen negative votes in the Bundesrath will
defeat a proposed amendment, and, second, that no state can
bo deprived of any right guaranteed to it by the constitution,
without its own consent. But, notwithstanding this great con-
1 Laband, Das Staatsrecht des deutchen Reichet (Marquardfen't Hand'
buck), p. 22.
THB GOVKRNMENTS OF GERMANY. 255
centration 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 BundesrcUh.
405. The Bimdesrath ; 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 dip-
lomatic agents, plenipotentiary charges cTaffair^ 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 Crerman 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
instructions 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 at a matter of practice the delegates to the Bundesrath
receive only instructions of a very general, unspecific character, or none
at all, seeking special instruction only for Yotes of great importance.
406. Representation of the States in the Bundesrath. —
The states of the ^Empire are unequally represented, accord-
ing to their size. Prussia has seventeen votes ; Bavaria six ;
1 Laband, p. 40.
256 THE OOYERNMSNTS OF 6EBMANT.
Saxony and Wdrttemberg four each ; Baden and Hessee each
three; Mecklenburg-Schwerin and Bmnswick 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 rotes cast
in the Bundesrath is quite evident. A combination of the smiU states
maj defeat any organic change of Uw 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 Grerman system in some respects not
unlike that which the Boman Senate held in Bome'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 JUichs-
tag, even when their views are not those which have been
accepted by the majority of the BundesrcUh.
409. The administrative function of the federal chamber
may be summed up in the word oversight. It considers all
THE 60V£RNM£NT8 OP QBEBIAXY. 257
defects or needs which discoyer themselyes 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 regula-
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 (Beichsgericht), 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 Reichstag during a legislative period, and to
other like weighty acts of government.
410. The judicial functions of the Bundesrath spring in part
out of its character as the chief administrative council of the
Empire. When acting as such a council, many of its conclu-
sions partake of the nature of decisions of a supreme adminis-
trative court of appeal. But its jurisdiction as a court is much
wider than questions of administration. It can declare a state
of the Empire delinquent, and order execution to issue against
it. It is the court of highest instance in every case of the
denial of justice to an individual in a state court arising out of
a defect or deficiency in the law of the state ; it being within its
competence in such a case to compel the state to cure the defi-
ciency and afford the suitor the proper remedy. It is the court
of appeal in all cases of dispute between two or more states of
the Empire which involve not mere private law questions (such
cases go to the ordinary civil courts), but points of public law.
258 THE GOVSBKMBKl!8 OP OfiftBlAinr.
In case it cannot agree upon a conclusion in tach diipatet, the whole
legisIatiTe power is brought into play and a law is passed covering the
matter in controversy. If in any case it considers itself unfitted by
its organization, or for any other reason, to act as a court in controTcr-
sies brought before it, it may delegate its judicial powers to a court or
to experts.
This it did in 1877 with 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 BundesraJth. 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 Prussians votes are cast prevailSy
for herVote 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 office 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. iS, n.
THB GOVBBNMENTB OF GBBMAKT.
more properly described lis Commissions, for like the executive
committee of our own Congress under the old Confederation
(sec. 867) they coutinue to sit during the recesses of the cham-
ber which they in a sense represent. Of those Commissions
two are appointed by the Emperor, nantely a Commlsaiou "for
the Land Forces and Fortifications" and a Commission "for
Saval Affairs " ; five are chosen yearly by the Bundearath,
namely, those "on Tariffs and Taxation," "for Trade and Com-
merce," "for Railways, Posts, and Telegraphs," "on Justice,"
and "on Accounts" (Recknungsweaen) ; 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 Bandesrath. 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; slie has committed to her, through
her king who is also Emperor, the whole conduct of the foreign
affairs of the Empire ; the Commission is apiiointed simply to
watch the course of intemationa! 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 Bundesralk and
to make no reports to it : it serves to receive communications
conceniiog the foreign afEairs of the Empire and to exchange
opinions with the imperial administration concerning" those
affairs.' Its action is thus independent of its connection with
the Bundesralk ; and this is the chief point of contrast between
it and the other Commissions. Their duties are principally to
the Bmides7'atti : they for the most part only make reports to it.
Besiiles their right lo repreaentnlion on the Cotumiaaiun on Foreign
Aflaira, of whkh BnvariH liai Uie presidency, Wurllemberfc, Bivsriii,
■ni] Saxdiif bave alio Ihe riglii lo appointments on Ihe Conimi»inn>
fur Land Forcea ntid FurtifiL'ationa and (or Naval AfCaira which it ie (lit
privilege of Ihe Emperor to name.
I Laband, p. U.
260 THE GOVBRNMEHTS OF GERMAMt.
FruuU ii entitled to t)i« pniidenc/ of all tlie Commiuioiu except
that on Foreig:n Aflairi.
Each atate represenled bus one vole in the action of a CommUaioD,
ftnd a simple majority cotiirule.
413. The Reichstag : its Character and Competence. — It
would lead to very serious inia conceptions to regard iheBunde*
rath and the Reidigtag as simply the two houses of the impft-
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 diJTereutly constituted and is entrusted
with a certain share in functions not legislative. Properly con-
ceived, the Bundesralh and Reichstag stand upon a very dif-
ferent footing with reference to each other. The legislative
functions of the Butidesrath are only incidental to ita charac-
ter as representative organ of tlie 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
Beiclintag, rather than legislates; and legislation is no more
peculiarly its business than is the superintendence of admiuis-
tration or the exercise of judicial functions. It, as part of the
administration, governs ; the Reichstag, as representing the
German people, controls. The control of the Reichj^ag 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 jiass
the necessary laws for the execution of treaties of which it
does not approve ; through ita right to inquire into the conduct
of affairs ; and through its right of remonstrance. Its [Miwers
are not enumerated ; they are, exercised iu 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 6eld of civil and criminal
enactment, though as a matter of fact it has been exercised aa
yet only over a part of that field ; much the greater part of
THE GOVERNMENTS OF GERMANY. 261
priTate law has been left to the regulation of the several
statea.
414. Compoaition of the Reichstag. — The Reichstag repre-
sentSy not the states, or the people of the several states regarded
separately^ but the whole Grerman 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 JBeichttag at present (1889) contiiti of three hundred and ninetj-
wertn memben ; and of this number Prussia returns two hundred and
thir^-dz.
415. The members of the Reichstag are elected for a term
of five years* by universal suffrage and secret ballot. The
voting age in Grermany is twenty-five years ; and that is also,
of course, the earliest age of eligibility to the Reichstag. •
The election districts are determined in the 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 bj the administrations of the states.
An absolate majoritj is required for election. In case no candidate
receives such a majority, the commissioner of election, — an officer
appointed by the administration for each district, — is to order a new
election to take place within fourteen days after the official publication
of the result of the first, the voting to be for the two candidates who
received the highest number of votes. Should this second election
result in a tie the lot decides.
416. Election to the Reichstag takes place, not on days set
by statute, but on days appointed by executive decree, as in
1 By a law of March 19, 1888, to take effect after the legislative period
1887-'90.
262 THE GOVERNMENTS OF GERMANY.
France (sec. 315). For the Reichstag may be dissolved by the
Emperor, with the consent of the Bundesrath (by a vote in
which Prussia concurs) before the completion of its regular
term of five years.
In case of a dissolution, a new election most be ordered within sixty
days, and the Reichstag mnst reassemble within ninety days.
The Emperor may also adjonm 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 ofifer themselves for re-election (compare sec. 683).
418. Organization of the Reichstag. — The Reichstag elects
its own President, Vice-presidents (2), and Secretaries. For
the facilitation of its business, it divides itself by lot into
seven ^ Sections ' {Abtheilungen), every Section being made to
contain, as nearly as may be, the same number of members as
each of the others. These Sections divide among them the
work of verifying the election of members and the choice
of special committees. The Reichstag has no standing com-
mittees; but from time to time, as convenience suggests,
temporary committees are named, whose duty it is to prepare
information for the body, which they present in reports of
a general nature. These committees it is which the Sections
select. Each Section contributes its quota of members to each
committee.
THE GOVERNMENTS OP GERMANY.
263
419. Courie of IiegiBlation. — One-h>lf of tlie nifiubpri conBtitule
« quorum. An absolute mnjoritj; it raquiiiie fur a valiJ vole.
ETer; mraiure paaaea through three r^iJin^. On llie first ihere it
a general debate on Ihe question whether Ihe matter iliall be n-ferrvd
to ■ coniiniiiee or be lakfn up at once by the bod^" iiielf (in plenum) ;
on the aecond, Ibe indiTidual clauiea of the bill, and ami'tidiuenlB to
eai'h clauie, are coniidered; on tlie third, the nork of the second reading
i> debated as a whole (aioendinents being admitted only if supported
by tbirtf members), voles are taken on the ulauses and acnendnienti
leriatiin, and then a vote is had upon the entire measure as completed.
420. inaction of Otficere.— The initial constitution of a newlj
elected Reidislag is interesting. It comes to order under Ihe presidt^HL-y
of the oldest member; it then elects its president, two viee-presideiils,
and lecreiariea ; the president and t ice-preside n is for a term of only
(our weeks. At the end of these (our weeks a preajdenl and vicc-
preiidcDla are elected for the rest of the session. There is no election
of officers for the whole legislatiye term, as in England and the United
States : at the opening of each annual session a new election takes
place. It is only at Ihe first, boirever, that there is a, so to say, experi-
mental election for a trial lerm of four weeks.
421. Imperial Administration. — While the distinetion be-
tweeu the executive aiid legislative functions of government
is sharply enough preserved in Germany, no equally clear dis-
crimination is made in practice between esecutive and judicial
funotions. The judiciary is a branch of the administration.
The caption 'Imperial Administration' covers, therefore, all
activities of the government of the Empire which a.re not
legislative.
Although it is a fundamental principle of the imperial cnn-
stitutiou 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 ins
tariff offii'iali and gaugers, the c<jait offlcen, and the district military
authorities, ar« aU stale officer*.
264 THB GOVBBKMlfiKTS OF 0EEMA2nr.
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 Germany. 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 Meich-
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 to the Reich-
stag much the same position that a French 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 goea, thieldt,
not the Emperor only, but also all other ministers. "The constitatioD
of the Empire knows only a single adrainistratiTc chief, the Imperial
Chancellor." ^
So all-indusiTe is the representative character of the chanoeliorship
1 Laband, p. 67.
THE GOVERNMENTS OF OERMANT. 265
thai all poiren not ipeciilcally delegated to others rest with the Chan-
cellor. Thus, except when a special enroj is appointed for the par>
pose, he conducts all negotiations with foreign powers. He is also
charged with facilitating the necessary intercourse between the Bundtt-
rath and the Reichttctg.
The Chancellor's relation to the Reichstag is typified in his
daty 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 official classification adopted in
Grerman commentaries on the public law of the Empire, the
Chanoellor 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 trens-
U17 of the Empire. Such outlays on the part of the states constitute
^ Laband, p. 66.
266 THE GOVERKMENTS OF GERMANY.
a part of their contribation to the support of the imperial gorem-
ment.
The states are required to make regular reports to the imperial gor-
emment concerning their conduct of imperial administration.
425. (4) When acting in the capacity of chairman of the
Bundesrathj 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 Bundesrathy but the
king of Prussia.
426. The Vice-Cbancellonhip. — The laws of the Empins make a
double provision for the appointment of substitutes for the Chancellor.
As I have already said, in connection with his presidency of tlie 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. Tlie
Chancellor may at any time, too, resume any duties that may have
been entrusted to the Vice-chancellor, and himself act as usual. Ho
is thus, in effect, ultimately responsible in every case, — even for
the non-exercise of his office. The vice-chancellorship is only a con-
venience.
427. Foreign Affairs. — The full jurisdiction over the for-
eign affairs of the Empire conferred upon the imperial govern-
ment by the constitution of the Empire does not exclude the
several states from having their own independent dealings
with foreign courts : it only confines them in such dealings to
matters which concern them without immediately affecting
imperial interests. The subject of extradition, for instance,
of the furtherance of science and art, of the personal relations
and private affairs of dynasties, and all matters which affect
the interests of private citizens individually, are left to be
arranged, if the states will, independently of the imperial For-
eign Office. The states, therefore, have as full a right to send
THS GOVERNMKNTS OF GERMAKY. 267
ambassadors for their own constitatioiial 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 Ausw&rtige AnU).
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 only 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 actiug under the
direction and in the pay of the state authorities ; but thorough
control of these state officials is exercised from Berlin. There
is at the capital a thoroughly organized Weights and Measures
Bureau (Narmal'EichungskommiBsian), which supplies standard
2C8
THE GOVEBKMKNTS OF GEHMANT.
i
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 met^ to be coined lieing 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 comniauded to
ooin ; 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. Rallvays. — Tlie policy of the Empire with reference
to the management of the railways is as yet but partially
developed. The Empire has ao far made comparatively little
use of the extensive jtowers 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-
Eiaenbaknami) has advisory rather than authorttrative func-
tions ; its principal supervisory purpose is the keeping of the
various roads safe and adequately equipped. The rriilways
are owned in large part by the several states ; and the states
are bound by the constitution to administer them, not inde-
pendently or antagonistically, but as parts of a general Gemuui
system. Here again the Empire has refrained from passing
any laws compelling obedience to the constitution on this
point ; possibly because the states hav« asiiduonsly complied
iness I
.irect I
isues I
THE GOVEBNMENTS OF GERMANY.
269
of their own accord. Using the Bundesrath for informal con-
ference on the matter (tlioug^h the BundesraCh has no consti-
tutional authority in railway a-dmiuistratioQ) they hare effected
satisfactory co-operative arrange men ts.
The mil**;! of Bavaria itand upon ft spcciftl footing: for Bavui*
came inlo the federation on ipetUl termi, reterriDg so iixteprndvnc'e
much greater than tlie other statea rplain in the raanBgcment of her
army, her rnilwayi. nnd lier posts nnd teli'^rnphs.
For military purpogM, the Empire maj I'oniiniind the services of the
railway* lery abioluti^ly. It is ai aids to military ■clminintralion pri-
mariiy that their proper constraolion and effident equipment are In-
listed on through the Imperial Railway Office. Even the BaTsrian
railroads may be absolutely controlled nhen declared by fornial impe-
rial iegiglaliTe action to be of military importance to llie Empire.
With reference to any but the Bavarian roads a simple rreolution of
the Buadfsratli alone suffices for this declaration.
The duty of the slates to ndminister their roads as parts of a single
lyalem is held to inrolve the running of a sufficient number of trains to
meet all the necessities of paispnger and freight traffic, the running of
through coaches, the maintennnce of proper connections, the affording
of full accommodations, etc.
Al times of scarcity or crisis, the Emperor may, with the advice of
the Bundtirath, prescribe low tariffs, within certain limits, for the trans-
portalioo of certain kinds of provisions.
432. Posts and Telegraphs, — Here the administrative ar-
rangements of the Empire are somewhat compHcated. 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
regulation aa brings their [Kistal and telegraphic services into
a necessary uniformity with those of the Empire at large. In
most of the states the imperial anthorities directly administer
these services; in a few, — Saxony, 8axe-AI ten burg, the two
Mecklenbui^, Brunswick, and Baden, — there is a sort of part-
nership between the states and the Empire. The principle
tbronghout is, however, that the Empire controU.
270 THE QOVERNMENTS OF GERMANY.
433. Patents, etc. — Besides the adrainistratire actirities with refer-
ence to internal affairs which I hare mentioned, the Empire issues
patents, grants warrants to sea-captains, naval engineers, steersmen, and
pilots ; and examines sea-going vessels with a view to testing their sea-
worthiness.
434. Military and NaTal 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 afEairs. But the case is different, in
form at least, with the army. That is composed of contingents
raised, equipped, drilled, and, in all but the highest commands,
officered by the states. This at least is the constitutional ar-
rangement : the actual arrangement is different. Only Bavaria,
Saxony, Wiirttemberg, and Brunswick really maintain separate
military administrations. The other states have handed over
their military prerogatives to the king of Prussia ; and Bruns-
wick also has organized her contingent in close imitation of
and subordination to the Prussian army. Bavaria's privileges
extend even to the appointment of the commander of her con-
tingent. The Emperor is commander-in-chief, however, appoint-
ing all the higher field officers ; and the imperial rules as to
recruitment, equipment, discipline, and training, of troops, and
as to the qualifications and relative grading of officers are of the
most minute kind and are imperative with regard to all states
alike. The language of the constitution in this connection is :
" To the Emperor belongs the uniform regulation and ordering
of the army, the supreme command in war and peace, the de-
termination of recruiting needs, and of expense accounts ; to
the individual states remain command of the contingents, and
[military] self-government."
435. Finance. — The expenses of the Empire are met partly
from imperial revenues, and partly from contributions by the
states. The Empire levies no direct taxes ; its revenues come
principally from customs duties and excises, certain stamp
THE GOVERNMENTS OF GERMANY. 271
taxes, the profits of the postal and telegraph system, of impe-
rial railways, of the imperial bank, and like sources. So far as
these do not suffice, the states assist, being assessed according
to population. And here, again, the states undertake much
of the actual work of administration : the customs officials, for
example, being state officers acting under imperial supervision.
The financial bureaux, like all other branches of the imperial
government, are immediately subordinated to the Imperial
Chancellor.
436. Justice. — In the administration of justice, as in so
many other undertakings of government, the Empire superin-
tends, merely, and systematizes. The state courts are also
courts of the Empire : imperial law prescribes for them a uni-
form organization and uniform modes of procedure : and at the
head of the system stands the Imperial Court (ReicJisgericht)
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 \kw ; 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. 915-920). 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 GOVERNMENTS OF GERMANY.
The Govkrkment of PsusaiA.'
43S, The organization of government in PruBsia has, for th«
student of {rerman political institutions, a double interest and
importance. In the first place, Prussia's king is Gennany's
Emjipror, and Prussia is the presiding state of the Emfrire:
iDiuiy of her executive bureaux are used as admini strati ve agen-
cies of the Empire. Her goyemment is to a certain extent an
organ and representative of the imperial government, Tn the
second place, Prussia's administrative system serves as a ^pe
of the highest development of local government in Germany.
Prussia haa studied to be more perfect than any other European
state in her administrative organization.
430. Stages of Administrative Development. — Until thn
time when she emerged from the long period of her develop-
ment as the Mark Kraudenburg and took her plaee among the
great military states of Europe, Prussia's administrative organ-
ization was of a. very crude sort, not much advanced beyond the
mediieval pattern. Later, under the Great Elector and bis 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 thp Napo-
leonic wars has her system of govemraent become a moil«l of
centralized civil order.
440. History of Local GoveToment. — It nmat of course be
rememberi'd that in dealing with Prussian local government
we are dealing with a complex of historical members. The
I'russia of to-day is not Brandenburg merely, but Pommerania,
Silesia, Hiiunover, 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 thf story, inasmuch as she has dominated and the others
it conititution of Pru»i4 wu procUimrd Jmi. 31, IBiiO,
he I
THB GOVERNMENTS OF GERMANT.
278
hare Id great part conformed to her standards and hei organ-
itUion. The royal, centralizing, systematizing furoes havo
worked outwards from her, receiving local modificatiuna, bat
impressiug much of uniformity. The process is even yet in-
complete, but its drift is uninistak^hle and deeislvi-ly eatab-
lished.
441. Early Organization la the Hark Brandenburg. — Wtt
hare already aeen what were the circumstances of the conquest
uid settlement of the Mark Brandenburg (sec. 383). The
German colonists were invited to the Mark by easy iKmditions
of tenure ; towns were built upon contract, Bpeci&l privileges
beiDg accorded the contractors ; and at first the complptities
of the feudal system were kept out by the direct relations
sustained by the settlers and towu-builders to the &lark-
grftf. Under the double system of conquest and seltlirmttnt
there emerged three classes of towns; (1) The original
Wendish towns which the comjuerors found already eatalf-
lished. These became Uerinau and were accor<led special
privileges which gave them a sepirate standing in Llie new
political order. (2) "Bourgs," or fortressea, armiml which
colonists bad clustered, and which, finally losing tlwir mili-
tary organization and spirit, as the time^ bec^ime ifcaceful, or
wars passed beyond them to the advanced frontiers of the
MsLvk, took on the ordinary features of a civil municipality.
(3) Full-grown villages ur trading settlements. Many of the
towns, of eoui-se, fell in spite of themselves into the feudal
order, as that fixed itself upoQ the Mark, and became manorial
boroughs ; but some kept for a very long time their seimrate-
ness and semi-independence.
442. The Early Local Officials.— The Markgraf and the
various princes and greater landluiila who presently took their
places in the expanding Mark kept their hold upon the towns
and the population of the niral districts through the instrumen-
tality of SehuUen and Burggrafen, officers having substantially
the aune position and functions as we have s - — -
•e seen the Fr^u^^^f
274
THE GOVERNMENTS OF GERSIANr.
1
baillia and pT^vota exercisiag (sec. 297). The Sckuhe w&s a
rural officer. He was the "intermediary Itetween tlie jwasanta
auil their prioce or their landloi'd," 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 permaii'^iit. Tlie
Barggrafen eventually disappeared. Municipal councils were
sufEered to assume the chief part in tho direction of civil affairs,
though the administration of justice was retained in the hands
of a city Schvlze. 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 tlie Burg-
graf as civil officer of the central government, was not dis-
tinctively a city official : hia jurisdiction probably included a
more or less extensive district of which the town was only the
oentre.
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 faming
the revenues,
145. Roaoltiug Unlta of Local Government. — The several DniU
of local govi'mmenl thus ilcrelupeil wi-re, cities, royul domains, manon,
anil rurd L-ommuiiL'a. Such were the inalerUls out of wliith the
■fterwBris compacted aduiiniatration of ihe monarchy wu to be put
together.
446. Process of Centralization. — The Great Elector, as we
have seen (sec. 391), reduced th-; Estates of the Mark to com-
plete subjection to his will. He it was, also, who began the
policy by which local affairs as well were to be centralized.
In the towns the process was simple enough. The difficulties
THE GOVERNMEKTS OP GEBMANT. 27o
of centralization were everywhere measured by the openness
or the obstructious of the chaoniels through which the authority
of the Elector was to reach the lower local instrumentalities of
government. In the towns tliere 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 establishtd, to make
burgomasters creatures of the royal will, or to put effective
restrictions upon municipal functions.
447- In the provinces, however, it was quite anotlier 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 comiuest. 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 successors 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 goverumeut 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 Scktdzen in the manorial villages. In
^
276 THE Q0V£RKMBNT8 OF GSBHANT.
the larger rural areas a Landraihj or sheriff, ''nominated hf
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' own 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 organiza-
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 proYince." The president of a chamber
was " expected to make periodical tours of inspection throughout the
province, as the Landratht 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 improve^
ments for their superintendence or administration, the whole board
superrising, auditing, etc.^
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 Regierungeuy 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 i)receding the Napoleonic wars, when
Prussia figured as a purely military state, the chief concern of
the central government was the maintenance and development
of the army. The chief source of revenue was the royal do-
mains : the chief need for revenue arose out of the under-
1 Tuttle, History of Prussia, Vol. III., pp. 107-109.
THE OOVEHNMENT8 OF GERMANY.
277
talcings of war.' There were^ therefore, at the seat of govern-
ment two specially prominent departments of administration,
the one known aa 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 oC the two great central
departments.' These two departments and their provincial
tajnificotions were, however, instead of being co-ordinated, kept
quite distinct from each other, clashing and interfering in their
activities rather than eo-operatingr.
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 fiuictions. 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 fimetions which had formerly Ijelonged to
other direct representatives of the crown. In the rural dis-
tricts the Chambers were served in civil matters by the several
Landrdtke.
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
' The knn^ consumed kboot flT^-grrenthi of the entire revenue.
' Sttltj. Li/e QRd Tima of Hitia. Vo[. I., CUmp. II. AUoTuUle.VoI. L,
pp. 421, 422.
THE GOVEllNMENTS OF GERMANY.
Directory aeparatud into Committees ; ami, aa time went on,
these committees began to assume the character of distinnt
Miniatries — though upon a very hapliazard system. The work
was divided jjartly upon a territorial basia, there being central
bureaux for certain provinces of the state, and jiartly upon a
logical baais, there being central bureaux for certain classes of
the public busineaa, irieapective of territorial diviaions. Fred-
eric the Great further confused the system by creating spe-
cial departments immediately dependent upon himself and a
special cabinet of advisers having no 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. Refonns of Steia and Hardenberg. — Oi-der was at
last introduced into the system thruugh the influence of Baron
vom Stein and the executive capacity of Count Hardenberg,
the two most eminent ministers of Frederic William 111., 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 organi7.ation 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. Prufiiaii adminiatratiTe arrangenients si tUey now exist mtj
he »id to be ■□ large part ntndeui-madr. Ab the Riiiiian emperors lioii-
ored tlie tcicniiflo jurist* of the Empire by calling ujion tliem m prr»ide
DTcr legal derelopmcnt. so have Prussian kings more and more inclineil
to rely upon the adiii^e of cultured studntts of inttituHon* in Ihe
organic development of tlie governnienl. Sl<-in was above all thing*
else a student nf governments. In our own day llie influence of Profes-
sor rineist upon adnii nisi rail ve evoluiion has continued the envllent
tradition of siudent power. AnH because she lias Ihiu Iriuled hvr
siudenu. I'ruMta liai bad practical iturlent): stndent* whose advU-e
]t been couerTativc and earefullji ohicrvant of historical condUiixii.
! QOVERNMENTS OF GBEMANY.
get And to keep il
ive Huch influence to iluilcndt where
1st part Tojtl or executive inltiallve
1 popular I'haniber. Il i» eniier lo
>r ihaa the ears of flio hundred.
454. Reform of Local Government before 1873. — The
ixmnty law (Kreisordnung) of the l.'i Uecember, 1872, has
been called the Magna Cliart'i of Prussian local government
Upon it all later changes and in odifi cations rest. Between the
period of Stein's reforms aiid the legislation of 1872 the
organization of local government was subatantially as follows : '
The provinces were divided into 'Government Districts,' as
now, the Government Districts into 'Circles' or Counties. An
administrative Board established in the Goverunient District
was then, as now, the vital organ of local administration. In
the province there was also a hoard, exercising general super-
visory powers, the eye of the central bureaux In the larger
affairs of administration, the u.ffairs, ttiat is, extending beyond
the area of a single Govemnient District ; and, as the chief
officer of the province, a ' Superior President ' of influential
position and function. But alongside of this quite modem
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, iu
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
' See H, B. D. Morier'e mm? on Local Goeentnttnt in Qermaaj/, in tliB
voloine of Cobden Chili Enai/i for 18T5.
THE GOVEiUtHBBTS OF GERMAHT.
means of a joint-oommittee oi^aDization, the burgomasters
being presidents rather than chief magistrates.
45t>. Iiaiidgam«indo and Manon. — Beside* tliew «reM of admin-
iatmlion Ihere nero rural L-omiuunva {iMiidgeinesudr.) atill connected,
qulle after the feuila! fashion, witb adjacent or ciruamjacent manon,
tbeir government vested in a Sclivlit and liro or more ScliSffat (_tbetiB»
or jotiices), the former being appointed either by the lorduf ilie maaor,
or, if the Tillage fas a free Tillage, ai •ometiines happened, b/ the
owner of same ancient freehold within the commune "itli irliich mano-
rial rights had Bumiihuw paiHed. The commune had, besides, either a
primary or an electiTC assembly. The communes were ofien allowed,
under tlic superrision of the offlciai board of the Govemmeal Distrret,
lu drair up c^haricrs fur Uiemselves, embodying their partli-alar local
laws and priiilegcs.
Within the mnnors police powers, poor-relief, the maintenance of
roads, etc., rested with (he proprietor. Local goreroment was within
their borders private goiemment.
466. Reform of 1872.— T:he legislation of 1872 took the
final Btepa towards getting rirl of such pieces as remained of
the antiquated system. It abolislied the hereditary jurisdic-
tion of the manor and the dependent office of Sehuige, and
establislied in pla«e of the feudal siatug an equal citizenship of
residence. In place of the Estates of the provino* and county
it put real representative bodies. It retained the Landrath,
but somewhat curtailed Lis powers in the smaller areas vithiu
the Circle, and associated with him an effective adminiBtratire
board, of which ho became little more than president. It car-
ried out more thoroughly than before in the various areas the
printiiple of board direction, integrating the lesser with the
greater boards, and thus giving to the smaller areas organic
connection with tlie larger. It reformed also the system of
local taxation. It in 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. 43*.
THE GOVERNMENTS OF GEBMASY. :281
457. The Central Executive Departments. — Stein's scheme
for the development of the ct-ntral organs of atlmtniatmtion
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 AEFairs,
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
Minbtry 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 atlminiotration of the royal
domains, had hitherto maintained a Department for Domuns
and Forests. That deiiartment was in 1878 transferred to the
Ministry of Agriculture, At the same time the Ministry of
Trade, Commerce, and Public Works was divided into two, a
Ministry of Trade and Commerce and a Ministry of Public
Works.
There »re now, therefore, nine niiniatriei : (1) ■ Miniitrj of Foreign
Aflaire (Stein. IB08); (2) a Mini8tr;r of the Interior (180H) : (3) a
Mintitrj of EecleiiaitiL-at, EduuAtional, and Sanitarf ARiir* (1817);
(4) a Ministry of Trarie and Commen.'e (1848) ; (6) a Miniairy of Agrl-
enlture (1848). DomainB, and FureiU (1878); («) a Miniairy of Public
Works (1878); (7) a Minisiry of Juslife (1808); (8) a Ministry of
Finance (1806): and (0) a Ministry of War (1808).
458, The Council of State. — Most of these ministries were
created before Prussia had any effective parliamentary system,
and when, consequently, there was no instrumentality in ex-
istence through which there could be exercised any legislative
control of the executive. Stein would have revived for the
282 THE GOVERNMENTS OF GERMANY.
exercise of some such function the ancient Council of State
{StdatsrcUh) 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.
469. 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
departmentsf^ieard complaints against decisions of ministries, and ful-
filled otlicr uses as a consultative council. Between 1848 and 1862 its
meetings were infrequent and only at the king's pleasure, its powers
passing into tlic hands of a committee of its members selected hy the
king, just as the powers of the English Privy Council passed to the
Cabinet (sec. 674). Since 1852 it lias been partially, but only partially,
recalled to life.
460. The Staatsministerium. — Instead of adopting Stein's
plan, Count ITardenberg integrated the several ministries by
establishing the Ministry of State, or College of Ministers
{Staatsministerium), which stands in much the same relation
to Prussian administration that the French Council of Minis-
ters (sec. 325) occupies towards administration in France,
thougli it. in some respects resembles also the French Council
of State (sec. 3o3). It is composed of the heads of the several
miniatries 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 jwlicy 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 Cliamber of Accounts (^Ober-
recknungskammer) and by the Economic Council ( Volkatcirtk-
aehafitrath). 'ITie 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 detaileti administration of the finances,
and is the judieial guardian of the laws concerning revenue
and disburaement.
462. The Economic Council. — The Economic Council con-
siders pro[>08aIs for laws or ordinances affecting weighty
economic interests whicli fall within the domains of the three
ministries of Trade and Commerce, of Public Works, and of
Agriculture. Such projiosals, as well as the proposals for the
repeal of such lawg and ordinances, are submitted to its debate
284
THE QOVERNMEKTS OF GERMANT.
before going to the king for hie approvaL It is also privilsp
to consider the question how I'mssia's votes sli^l be cast upon
such matters in the BundeanitA. Of course, however, its piirt.
in affaJrs is merely consultative. It la composed of seventy-
five members api^intwl by the king for a terra of five yeir".
forty-five of this number being appointed upon the nomia"iti(i:i
of various chambers of commerce, mercantile corporations, aii \
agri cultural unions.
463. The Minlalriei of War and of Foreign Affairs a
lol Prussian, but iinperiBl (tec. 427).
«il.v.
464. The Ministers la the Legislature. — The king — or,
more properly, the Administration, — is represented In the
legislative houses by the ministers, who need not be membere
in order to attend and speak on the public busitiess.
465. The Landtag : the House of Lords. — The Prussian
Landtag, or Legislature, consists uf two houses, a House of
Iiords (Herrenhaas) and a House of Representatives (^fiyeorrf-
netenkava). The House of Lords might better be described as
a house of nlasses. It contains not only hereditary members
who repi-esent rights of blood, but also life members who rt!p-
lesent landed properties and great Institutions, and oflicials 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 HohenzoIlern-IIechingen and Holieiwollern-Sigma-
ringen and of eighteen houses once sovereign whose domains
have been swallowed up by Prussia; certain noblemen ap-
pointed by the crown ; the four ohief 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,
iitul till- fi.irty-three ■■ilii-s which have received the right of
I
THE OOVBRNMENT8 OF OEKHANY.
nomination. The king may, besides, issue special summonB
to sit iu the House of Lords to such persons as he thinks
worthy. There is no limit plaoed upon the number of
hers, — the only restriction concerns age ; members must be
at least thirty years old.
466. The House of Representntives, though in a sense
representing every Prussian twenty-five years of age who is
not speeially disqualified to vote, is not constituted by a direct
popular franchise, or even by an equal suffrage. The vote ia
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 ; ea«h of these classes selects by vote a third of the number
of electors to which the district is entitled; and the electors
BO chosen elect the members of the House of Representatives.
467, Tha mectoral SjBtem. — One elector is chosen fur erery two
handred unci tlfly inlinbititnla ; llle Toling <■ not by llic ballul, but is
public, and an abaolute mijority of the eleciori Is required to elect.
Tile total ntimber of meinbiTB af the House is 432. The term ia Sre
years. Any Prusainn who is thirty years of age and in full posaessioD
of ciiil rights may be choaen.
488, It need hardly to be remarked that the diriaion of the primary
Toters into claaaes according to the ninount of taxes they pay girea a
preponderance to wealth. The three claaaea are of ciiorse very unequal
in numbera. It requirea ■ comparntivety amall number of rich men to
repreaent one-third of the taxable property iu a dialrict; it takes a con-
aiderably larger number of the well-to-do to repreaent another third;
and ihe laat third will be represented by the great majority of the la-
habitanti of the district. For (he claisea are not conatilutcd with a view
to diatribuling the small tax-pa yera anit equalizing the classes tiumeri-
oaily. Those who pay moat taxes conatilute the flrat class; thoae who
pay leas, the aecond ; thoae itho pay least or none, the third; and it
may very well happen that a very small number of persons electa tbns
a third of the electors.
469. Equality and Competence of the Hoosea. -
consent of both Houses is neceasary, of course, to the p
285 1
imonB I
hinks
mem- I
THE GOVERNMENTS OF GEHMANT.
of a law, and tliey etimd upon a perfent equality i
gardfl also the right of initiative in legislation, — except that
all fiiianeial measures must originate in the lower house,
and that the upper house can. jjass upon the budget, which
must bo presented first to the House of Representatives, only
as a whole. The Lords cannot amend the budget in part
when it comes up to them : they must accept or reject it
entire.
4T0, Tbe King's Poirer of Adjournment and DtaaolutJOD. —
The king mn; ndjcmrti tlic Hou«c of KeprcsentBlivei for ■ period not
exceeding tliir:j dnya, onoe during any one leuion nilhoul iU conaent.
He may alio dissolve it. Wlien a dissolution la reaorted to he rnuit
order a neo eleclion nithin t'lsty tinyt, and the newl; elected .touie
must n«aeml)le wittiin ninety daje. (Compare sec. 316, 31i).)
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 and the creations of Stein.
For Stein's hand is even more visible in local organisation in
Prussia than in the o^anization of the central ministries.
More conservative than the Constituent Assembly and Napo-
leon in France, he did not sweep away the old provinces of
Prussia, whose boundaries, like those of the French provinces
of the old r4gime, 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 tlie town ai-e, aa we sball
'. fiCMndinate. standing, not in subordination to eaoh oUtw,
me rank of the series.
n t -. i » :
^iX TheBrafviBoe. — Tliere jve is tlie Ptorince two sHs of
goTenunentiJ orgaaE : one of wiiidi r^iroseaits tlie sttt^ and its
ovenig^ tiie olker tte Prorinee ud its self-goTemxnent. (1)
Tlie state ib represesited bj a Supenor President azkd a Atnctii-
jsmItbiA asBoeiated widi Idm. Stein^s purpose in retaining the
^orincial ogganirataon was to seeore broad views of adminis-
tatiao throng nUirialfs diarged with the OTeisigbt of extended
areas and so ekyated above the near-sightednesss of local routine
and detail Nearer to the pardeolais of local administration
than the ministers at Beriin, bat not so near as the officials of
the Govemm^it Distriets, the provincial representatives of the
state are ehaiged with the care ^of all such affairs as concern
the entire province or stretch beyond the jurisdiction of a
sin^e [district] administration.^ * These are such matters
as affect imperial interests or the whole Prussian state ; the
concerns of public institutions whose functions extend Wyond
a District ; insurance companies ; extensive plans of improve*
ment; road and school management, etc. In exercising most
of these functions the provincial authorities act, howe\^r, 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 o(
> R. B. D. Morier, Cohden Club Euayt (1876) on fAKal Otn^frnm^nt and
Taxation, p. 433.
> Scholze, Das Staai$rtcht des Kitnigmdii PfusMH (In Marquardlt n*l
HandhwA^, p. 08.
288 THE GOVERNMENTS OF GERMANY.
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 eslraordinnrj powera of the ' Superior Preiideat ' >r« illus-
trated by the fact that, in case of serioui civil dislurbanup, uf war or
the danger n[ war, he ie authorized to assunie the whole authority of
admini»tr»lian, local a» well as general, within the ProTince.
In orerseeing Uie District Administration, however, he baa no execu-
tiTe, but onl; adTigory powera. He ia the eye of the Miniitriea at
Berlin, advising them of all mattera needing their action. Like the
French Prefect, he ia the aervant of all Miniatriea alike, though moat
directly and intimately associated with the Ministry of the Interior.
471. The defect of the provinoial organization in Pmaaia li aaid to
be lack of vitality. Critics like Profeiaor Oneist think that it rendera
the system of local government cumbrous without adding to its efficacy.
It is too much restricted to gratuituua advice, and too little authorized
to take authoritative action.
475. The PrQvimialrath, the Council associated with the Su-
perior President, consists, besides the President or his repre-
sentative as presiding ofBcer, 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.
4T6. (2) The organs representing the Pro\ince and its self-
government are the Provincial Landtag, the Provincial Com-
mittee, and the Landeahavptmaun or Landesdireklor. 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 Cireles or Counties by the diets of
the Circles : for, when looked at from the point of view of self-
> Schnlce, Da§ Staattrtckl dn KOnkfreitA* PrtUMteii (In HarqnardMn'i
Handhuch),^. B6.
THE G0VERNMENT8 OF GEHMAMY.
govemment, the Province is a union of Circles, not of Dis-
tricts ; the Districts are orguns of the centr.il government only.
The functions of the Landtag lie within the naiTow 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 ocuiioD, givei in opinion oti billi concerning the FroTince
mnd on other mattcri referred to il. tor an expreuion of opinion, by the
tulhoritiei >l Berlin.
477. The Landtag elects the Provincial Committee and the
Laitdtshauptmann, who are the executive organs of provincial
self-government. The Landeshauptmann and the Committee
stand related to eacJi other very much as do the Superior
President and Pmrinzlalrath. Prefect and Prefectural Council :
the Landeshauptmann is the executive, the Committee the con-
sultative organ of local self-administration.
478. The apherei of the re pn?BenU lives of the at«te and of the repr«-
lentalives of local Mlf-gor eminent aru quite thnrply distinguiahed in
PruNia. The ProTtneial Conitnitlee and (he Landt$haupt mam hav*
nothing to do with Ihe general ■ilmiDialratioQ : thai \» altoguChvr in the
hand* o( Ihe Supifrior PreiidcnE and thei'rMnfui(ifralA,wlia on their part
have nuthing lo do witli local self-government. The sphere of loi-al
Mlf'BOvernaient, though very narrow indeed, il much more guarded
against the eonslant inlerferente of the central authorities in Prussia
than in France. (Compare sei.-. 340.)
47Q. Conuutmal Batat«B. — In ttime FroTinces there still exist cer-
tain corporations, representing the old organiiatiiin by 'estates ' of in-
dependent disiric-ta, wliich retain their ' tandlag,' then separate property,
and a small part of ttieir privileges. They constitute rural pour-unions,
■nd play a limited part in local administration according to (he sharply
expiicjt laws of incorporation under which they now exist. They are,
howeTer, being gradually abolilhed or transformed by special enact-
ments. Their German name li Komnunal-tlandiicht VtrbSiult, which
may be translated. Unions of Communal Estalet.
480, The GOTernmeat District ( Rfgiernngsbnifk). — Un-
like the Province, the Government District has no organs of
290
THE GOVERNMENTS OP QEEMANY.
self-government: it is exclusively a division of «tole admin.
iBtration. Its fimctlonajies axe tht; principaJ — it may eveu
be uaid the univeraal — agenta of the central goveroment in
the detailed conduct of a<l ministration : they are cliarged 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 officers
specially commissioned for the purpose. In brief, they serve
every ministry except the Ministry of Justice.
481. Collectively the functionaries of the District axe called
the 'Administration' [Regierang), 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 siugle official,
the President of the Administration (Regierung^rdstdent).
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 {im Plenum). Each Board is
presided over by a ' Superior Administrative Councillor '
{pberregierjiiigxralh) ; and that on Domains and Forests has
associated with it a special functionai'y known as the Forest-
roaster. The members of the ' Administration ' are all a|>-
pointed by the central government, which places upon the
Boards whose functions require for their proper discharge a
special training certain so^alled " technical members " t for
instance, school experts, medical experts, road-engineers, and
technically instructed forest commissioners.
Theie ' AdminiiirKtioni' hare Isken tlie plaaei of the □lil-l!iii« Wkt
Uld Domains Chambers o( ohich I hare spoken (lee. 440). And which,
lllu the Adminiatrstloni, acted through Boards ai a sort of univtrial
I
tH£ GOVERKMENtS OF OBRMANV. 291
agency for all departments of goTemment. 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 official 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 Government 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 (Bezirksausachnsa) , 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 (Cobden Club Essays), p. 42^.
^ Schulze (in Marquardsen), p. 64.
292 THB GOVERNMENTS OF GERMANY.
chosen by the Provincial Comniittee (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. 500).
The GoYerament Districts number thirty-flve, and are grouped, mt
I liave said, within the twelve Proyincei.
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 {Kreisausschtiss) 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.
480. The Landrath and the Circle Committee. — The
Landrath stands upon a j)oculiar 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 GOVEItSMEliTS OK GEKUAMY.
the pririiege of aomination has iKen transferred to the Circle
Diet, as heir of the cuutrol once exercised by the local lords of
the soil. The Landralh 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. 500).
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 2J),000 inhabitants and
representation in the Diet is divided between town and country.
The country representation, iu its turn, is divided between the
rural Commune and the greater landowners.
The citiei elect rcpreaentnlivei eillicr singly or in gr'iupa : if singl/,
thraugh liieir inagiatraLei and councils Rctiiig logellieri if in group*,
through irleetori who ikSM-mlile under llie preiidency of the Luiidralh.
Ai 'gTcaler Inndowners' nrc clawed all tliotu who pay, in ihtir own
right, 75 thaleri annual land or building lax ; and these an- organiied
(or electoral purpoit'i in Unions (I'erbande). The rural Communet
elect in groups through eleclon. The lerni of incmberB of llie CinJe
Diet ia six years. Cities haring moru than 2S.0OO inliabitnnis vnnslltute
scparato Cia-les, and combine in their town governments both Circle and
CommuDE under lite fomia of city gov em men I.
488. The Magisterial District (AmUbexirk) The rural
Communes are groupt-d into some live thousand six hundred
and sixty -eight Magisterial Districts, which are presided
by a Reeve (Amt^vornteher), nominated by the Circle
Diet, and by an associate Magisterial Committee {AnUsa^$^■
2£I4
THE GOVEKNMENTS OF GEBUAKY.
»ckuss) composed of the chiefs of the Commuues oud the poo-
suasors of certain historically deriveil inde pendent proprietary
districts. These districts serve in their grade us minor units
for both state administration and communal aelf-direction,
489. The Rural Commune (Landgemehtde). — The organi-
zation of the Knral Commune varies widely in tlie different
Provinces, resting iu 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 & general
assembly of the people acta as the controlling body ; in others
a representative council. la some the executive officer is
known as ' mayor," iu 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
office prevails. The Communes may be siud to be in all
stages of the approach to complete self-^overnm-cut iu local
affairs, fiyatem has not yet thoroughly penetrated to them.
490. The City- Communes (Stad^yemeinde). — Amoug the
City Communes there is also great variety of organization;
but not 90 great as among th« rural Communes. The towns
have been brought to a somewhat uniform system by reforms
introduced by that great systematizer and vivifier of Prussian
administration, fiaron vom Stein. In some cities there is a
single executive, — a single Burgomaster, — perhaps assisted
by certain Boards; in others the Burgomaster hiia 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, policBj 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 timu representatives of the authori-
ties at the capital and of the citizens at home. When ac^ng
THE GOVERNMENTS OP GERMANY. 295
as agencies of the state administration they are^ of course,
responsible to the central Departments.
The qaalifications for citizenship vaiy widely in the different city
Communes. In some the possession of landed estate is required, in
others the payment of a certain tax, etc.
There is in Prussian local organization none of the extreme, the
rather forced uniformity so noticeable in France, where no difference is
made between rural Communes and city Communes, only the greater
cities, like Paris and Lyons, being given a special organization. In
Prussia historical and other grounds of variety have been freely
observed.
491. General Principles of Prussian Town Govemnient.
— 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-councilmen 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 ^ork of poor
296 THE GOVEENMKNTS OF QEBJIANY.
relief, in the guardianship of destitute orphaiiB, in education,
and in tax assessment 'select citizens' commonly reinforce the
more regular, tlie official, corpa of city officers. This literal
self-go vemment, which breiiks 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 increaaing the taxes of those who refuse to serve.
402. Berlin "gavcniB haelf through more Ihaa ten tlionund men
belonging to the wcallliier part of the middle clasiei." ' The citlient
chosen (or ward work or for uoniuiUiion with the central comniitl«ei of
Aldermen and town-cuuncillors inoludu increhnnta, pbyBk-isni, ■olicitora,
manufacturen, liead-lnssten of public luliooU, and like rcpreaentatiTe
persons.
4«3. The three-elaM »j»tem of voting described in leci. 466 and 468
obtaina also in all inuniuipal clectiona in PruBsia, bo thai wu'igbt in the
electoral control of city aflairs is proportioned to lax-aeaeniiment. One-
third of the eleoled Aldermen and town-couneillora represent the
wealthy claaa, one-third the middle data, 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. 430). They are Prussia's courts;
but they also serve as courts of the Empire ; Prussian law
commands only their persoimd and their territorial compe-
tence. At the head of the system sits the supreme court of
the Empire {Rekhngerichl), to which the courts of all the
other states stand subordinated.' In each Province there is a
Superior District C(mrt {Oberlandesgericht), and, next below it,
a District Court {Landgerichl). In each magisterial District
there is an Amlsgericht.
'Professor Gneist, Cvnltmiiararv Rirlfi; Vol. 46 (1884), p, 77T.
' Pruaaia ia vouchaafeci by imperial Inw the priyilegu of retaining her
own auprema court ; but she has not arailed heraelf of Ihe perniiaaion.
THE GOVERNMENTS OF GERMANY. 297
4d5. 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.
4%. 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 {KammerfUr ffandelssacJien) .
Each chamber has its own president and its own independent
organization.
497. Minor criminal cases are tried in sheriffs' courts {Sckof-
fengerichte) sitting in the Magisterial Districts ; more serious
offences by the criminal chamber of the District Court; all
grave crimes by special jury-courts {Schumrgerichte) which sit
imder the presidency of three judges of the District Court.
An appeal from a sheriffs 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 offices by no permanent tenure, but only
at the pleasure of the Minister.
298 THE GOVERNMENTS OF GERMANY.
Puritf in the adniinialntioD o( justice is louglit to
public nral proc-ec dings. Until a very rtcent periail all
the Pruasinn courls were irrillen : Ibe plea and the anat
the «iiil. Now public oral proceedings are made impernr
490. The organizatiDn of juslke in Pruaaia pruTJiles
tion by the atote of a ccrlnin ' voluntary ' juried ietioti, i
auch ■> the exercise of guardianehip and the probnte
latler it made a function of the AiHligtrlrht') are quite
practice of other couniriea; but others of which, »ueli
OTer certain feudal interests, are somewliat novel in tlie
The system knows also certain officially
(SdiitdtiiiSntitr) and certrun lrad« Judges, which
peculiar to itself.
600. AdministratiTe Courts (Verwnltung'^erickif). — The
same distinction between admiuiatrative and ordinary courts
of justice that we have observed in France obtains also in
Prussia (sec. 353). 'Where the use of the state's sovemgntj
(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 aovereigntj 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
officer, or cases of alleged illegal action on the part of a public
official, — 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 oonstitato Circles, the City Commiltee {Stadt-
av^achusa), 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 th«
magistracy of the cit^', acting collegiately, for a term of six
■ Fchul», p. 100.
THE GOTERNMTNTS OF GERMAST.
299
jearE, (2) In the Goverument 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
Admin is tratiou, one of its members under the title of Direc-
tor of the Administnitive Court (VenBaltitngiaierichtsdireklor).
(3) The Superior Adm>ni»traiive Court in Berlin (OberverwaU-
ungigericlu), whose members are appointed by the king, with
the consent of the council of ministers, for life. This court
stands npon the same footing of rank with the supreme fed-
eral tribunal, the Reichagericht. 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 {Qerkhtshof filr Kompetera-kon-
fiHoe). — 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 office) ; 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. (Comp. sec. .357. )
603. Tha FniBBlaii Courtm and Conatltatlonal Qneationa. —
The Prussinn courW liaTC no such power of pmsinK upon llie conati-
tmlonilil; of Iswg a> U poseeM«d by the eourls of the United STate*.
The; cannot go beyond tlie queclion whether a lair has been pused, or,
in adminiilratiie caaes, ao offlt-ial order iiaued, in due legal form.
G04. " When the Pruuian citizen, admitted, in the icrere bcIiooI of
■cIt-goTemmcnt, to a ihare in the tnagitterial function, shall liave
gainiMl in political conaciouaneu; when tiie protection of right within
the aphere of public law shall have been more aurely secured and ex-
tended through an cier wider sphere, then will the Pmssian state, not
tnerel; through military develo-poient. hat aiso through ita welt-mem-
bered {tcMhtglitderie) and free admlQiilralice ■rrangementa. fulfil its
national deatin/ (jIiuimhrH Betiifj, in Tirlue ot which it i* bound
)00 'a'HE OOVXBNHENT8 OF QEBHAHT.
(ie*(iMmf) to advance, with ■ itrang hud and to k fortiuiate Imu*
(glSchlick MnmutuJVtTtn) upon the immoTable foundationi uf a truly
popular moDuchy, th« great political and ecoDomical taika of the
pretent." •
Some Repbebektatitb Authorities.
LtOand, " Du Stutsrecht des Dentschen Reicbes." 8 toIs. Tubiageo,
1876-1383. First toL of new ed., 1888.
I/oband, " Das Stiatsrecht dea Deutechen Reiches " (in Marquardsea'B
"Haadbuch des oeSentlich«n Bectita der Gegenwart"). Frei-
burg in B., 1683.
V. RSnne, " Das Staatsrecht des Deutschen Reiches." 3d ed. Leipzig,
1876.
Grais, Graf Hue de. (See under Prussia.)
Mejer, Otto, " Einleituug in daa deutechen Staatsrecht." 2d ed. Frei-
burg in B., 1884.
Demombjfttti, "Constitutions Europ^nnea," VoL II., p. 487 et Kg.
Schulse, Hermann, " Das preussische Staatsrecht, auf Grundlage des
deutschen Staatarechtes," 2 vols. Leipzig, 1872-1877.
Schulze, Hermann, " Das Staatsrecht des Kociigreichs Preussen " (in
Marquardsen'a " Handbuch "). Freiburg in B., 1884.
RBnnt, Ludwig v., " Daa Staatsrecht der preussischen Monarchie." 3
Parts, 5 vols. 4th ed., 1881-1883.
Grain, Graf llu£ de, " Handbuch der Verfassung und Verwaltung in
PreuHxen und im deut«chen Reiche." 2d ed. Berlin. 1882.
Df,momhynen, " Constitutions Europ^iines," Vol. II., p. 733 el *eq.
Seeley, S. R., " Life and Times of Sl«in." (Part I., Chap. V. ; Part
III., Chap. I.; Part V., Chaps. 11., III.)
Morier, R. B. D., in Cobden Club Essays on " Local Govemmwit and
Taxation." 1875.
1 Schulse, p. 106.
Tin.
THE GOVERNMENTS OF SWITZERLAND.
50a Feudalism in Switzerland. — Until the beginning of
the fourteentli century the towns and commanes of the country
now called Switzerland were all held fast in the meshes of the
feudal system. Keal vasaalage, indeed, such as the low conn-
tries of France and Germany knew, had never penetrated to
all the valleys of the Alps; many a remote commnne 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 lenst no
nally within their overlordships, and most of the Swiss Can-
tons of to^iay represent for the most part various pieces of old
feudal domains.
606. First HoTements towards Cantonal Independence. —
In 1309, however, began the process which waa 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 itself.
They hiui already, about tht- middle of the thirteenth century,
drawn together into a league which proved the seed of tht!
modem Confederacy. That Confederacy has two distinguish-
ing characteristics. It has brought down to uh, throuttli an
almost unbroken tradition, the republican institutionn of tlio
Middle Ages ; and it has by slow processes of cautionji fdddm-
S02
THE GOVERNMENTS OF SWITZERLAND.
tion, drawn together into a real union communities the most
diverse alike in point of race, of language, and of institutiooa
without (ipstroying tlieir individualitj-.
507. The Processes of Confederate Growth. — lu its brief-
est terms the story is this. The Cantons broke from the fatal
toils of the feudal systeni while still in posaession of those local
libertiea which the disintegrateness of that system gave leave
to grow wherever courj^eous 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, consisted of the two very different elements of
strong, and for the most part axistocratic free cities and q^uiet
rural peasant democracies. It was necessarily a long time be-
fore eveneommon 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,
Sc.hwyz, Uri, and Unterwalden. But circumstances constrained
and wisdom prevailed : so that union was at last ai?hieved.
608. French Interference. — The year 1513 may be taken
as marking the close of the period during wlijcb the Con-
federacy won the place it was always to keep among the |>owers
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 184S, however, that its constitution was put
upon its present foundations ; and not till 1871 that that con-
stitution received at nil 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 o(
Switzerland in the Treaty of Westphalia, 1648 (aeo. 379). The
thirteen original Cantons had received great French cities, like
Geneva, to the West, and certain Italian lands to the South
either into close alliance or into fi.xed subjection. The French
Kevolution 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-
I>act 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 Cantona, exasperated by the forms of a
government not of their own choosing, had Bung 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 Americana, which forced a strong federal
government upon the United States.
509. The Sonderbund War. — Religious differences of opin-
ion, however, not political, were iji Switzerland the occasion of
the strife which was to bring union out of disunion. After t
power of Napoleon had been broken, the Congresa 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, Neuchatel, 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 baaia of union. One of the
clauses of that Pact contained a solemn guarantee of the rights ^
and privileges of the monasteries still maiatuned in the S
eBomaa^
mm
304 THK GOVERNMENTS OF SWITZERLAND,
Catholic Cantons : and upon tbat guarantee were based tlie liopes
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 resistlesslj
through Switzerland iluring the revolutionary period of 1830-
1848, and where the Protestant and Romaji Catholic parties
were nearly equal in popular force threatened not a. few of the
oldest foundations of the mediEBval church. The crisis was firat
fdt in Zilrich, where the excesses of a, radical party te-raporarUy
ill control brought about, in 183d, 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,
jof course, by the aggrieved party whether it would permit so
jflagrant a breach of the Pact of 1815. It was forced by a con-
> fiict of interests to a compromise, agreeing to the abolition of
four of Aai^u'n eight monasteries. This was in August, 1843.
The next month saw the formation of a separate League (Son-
derbuwT) by the seven Koman Catholic cantons, Schwyz, Uri,
ITnterwalden, LuEcm, Freibnrg, Valais, and Zxi%. The depu-
ties of these Cantons were, however, slow in withdrawing from
the Diet, and the Diet waa reluctant to come to open strife
with its recalcitrant members. Four years this league within
a league was permitted to continue its obstructive agitation.
But at la-st, in November, 1847, war came — a sharp, decisive
contest of only eighteen days' duration, in which the seceded
Cantons were overwhelmed and forced back to their allegiance.
1510. The New Constitutioa. — Constitutional revision fol-
lowed immediately. The Pact of 1815 was worn out ; a strong
and progressive constitution had become a necessity which aot
even the party of reaction could resist or ptinsay, By the
Constitution of 1848 there wM created, oat of ttn old di»-
THE GOVEKNMBNTa OP SWIT2EKLAND.
305
ooidant Confederatiou of states {Slaatenbaud) the present
federal State (Battdesataaty. 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 which are strikingly
like, as well aa many which are almost as strikingly unlike,
the familiar features of oui own national system. It has had,
since 1ST4, a federal Supreme Court, which is in miuiy impor-
tant fields of jurisdiction the highest tribunal of the land ; and
it has had ever since 18-18 a Legislature consisting, as with us,
of two branches, or Houses, the one representative of the peo-
ple, the other teptesentative of the states of the Confedera-
tion. The populiir chamber is called the " National Council "
(der Sationalratk). the federal senate, the " Council jf States "
(dw StSitdertUh). The former represents the people as a
whole; the latter, the Stat«B aa oonatitueBt members of the
Confederation.
Much of (he roembUncii of theK >rr>ngement« tu our own i> due to
contcinu* imiution. The object of tlie refuniKra of 184H aiicl 1871 iru
BOl, bo«rat«r, to Americaaize Ibuir guTemioeiit, and in moit reapevU il
lemuni distmctiTel; Swisi.
512. Nationality and State Sovereignty. — Much as such
institutions resemble our own i'eik-nil I'lirms, the Constitution
of Switzerland rests upon formal foundations such as were laid
for our Union by the failure of the Articles of Confederation,
rather than upon such as were laid by our war between the
States, — upon a federal, that is, rather than ujfon a national
conception. The Swiss Constitution does indeed itself speak
of the Swiss nation, declaring that " the Swiss Confederacy
haa 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 even the war between the States put
the word Nation into our Constitution. But the Constitution
306
THE GOVERNMENTS OF SWITZERLAIO),
o£ Switzerland also, vdth little regard for consistency, contains
a. distinct and emphatic assertion of that principle of divided
sovereignty which is so much less familiar to ua now than it
was before 1861. It declares that "the cantons are sover-
eign, BO 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 com[>etent inter-
preters are constrained to say that such a constitution does
not erect a single and compacted state (EinlieilaCaat) of which
the Cantons are only administrative divisions; but a federal
state, the units of whose membership are themselves 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.
51X Indefinite Constitutioiial Grants. — At the same time,
the Swiss Constitution leaves open a large rdAbatahl&'^TOund
between federal and cantonal powers tKSu 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 iutemal safety, order, and peace
of the country ; to adopt any measures " which have the ad-
THE GOVERNMENTS OF SWITZEiiLAND.
307
ministration of the federal Constitution, the guaraoteeing of
the uaiitonal constitutions, or the fuliUment of feiieral duties
for their object" ; and to effect revisions of the federal Consti-
tution.
This indefiniteneas is due, in large part at least, to the fact
that the federal Constitution, has not yet been put upon a, thor-
oughly logical ba;siB. Though the drift of nutional 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 authoritiea : with the result of leaving their outlines a
little vague.
514. Guarantee of the Cantonal Constitutions. — The Swiss
federal Constitution is more definite in guaranteeing to the
Cantons their constitutions than our federal Constitution la 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 Governmests.
515. The Cantonal Constitutions and the Federal Consti-
tution. — So doe]ily is Swiss federal organization rooted in can-
tonal precedents, that an miderstauding 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 Swigs- Constitution may be said to gen-
eralize and apply cantonal habit and experience : though both
oar Qvn Constitution and tliat of Switzerluid hi-ve profited
largely by foreign esamplei 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 stiffly opposing political purposes, have
(rffered 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 coiupnimise. 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 governments
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 prai^tical democracy than ac-
cording to the logic of the schools — the logic of elsewhere
accepted 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 ax^cording to which they proceed in all
political arrange!nents is, that in every department of affairs
the people roust, either immediately or through representatives,
exercise a direct, positive, effective control. They do not hesi-
'I Mj 'in prtotlce'i (or in thcorj ludi iliiiinctioni are obtprred.
The coiulilationa o( full]' hnlf tlie Cantona aay ex|)licil[]' that legiilattve,
executirti, Miii Judifial funi^lions ihall be kv]it ruiidnnipntaltj ilUlmct;
but in the jiraFtiFBl arrangremrata acCaally made Ih? line at d
S> bj no mean* eharply dnwn.
THE GOVEESMENT8 OF SWITZERLAND,
tote, therefore, to gire to their legislative bodies a share both in
the administr&tioD and in the iDterpretation of lawtt ; 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 t-
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, Untenvalden, Glams, and Apiienzell
this single law-making body is the LandngemitiHde, the free
assembly of all the qualified voters, the Jolk-mont: but in the
other Cantons the legislative assembly is representative. Rep-
resentatives are elected by direct popular vote in all the CantOQB,
and in almost all by the secret ballot,
ElpctinD* are for ■ term which varies from ooe year to alz in the
difTereul Canlont, Ihe rule being a term of from thnre to four yean.
The number of repr«ieotHiivei bcara a proportion to tlic number of
Inhabit anta nhieh alio rarie* ai between Can tan and Canton, the average
beios about one to erery W)l inhabitants.'
In moat of the eanloni tlie legislative body ii called Ihe Greater
Connuil (Cnuin- Rnlh) — Ihe executive body being the Leaser Council.
In Mme it is called the Cantonal Council (^Kaalontraih) \ in othera, tlie
Latidralh.
518. Functions of the Cantonal Legislatures. — The func-
tions of these councils have the iiiclusiveness characteristic of
Swiss political oi^aiiizatiou 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 scrutioy of adminiBtrative affairs which pene-
trates to details and keeps executive action completely within
' Orelli, Dai StaaUfMht dtr ickatUeriichm Eidgtnaian$ckafl iffandbuck)
pp. ion, 101.
310
THE GOVEKNMBLVTS OF SWITZEKLAND.
their control. It is a recognized principle of cantonal govern-
ment, indeed, that the executive body — executive power, as
we shall see, being vested in a board or commissioo, 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 responaible, as the selectmen of a New-England
town are responsible to the town-meeting (sees. 1003, 1004).
519. Share of the People in Legislatioa : Imperative Peti-
tion. — So far has the apparent logic uf democi'acy been carried
in Switzerland that the people are given in several ways a
direut part in law-making. It may even be s^d 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 bo<ly 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 unperaiive 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 upon it by the Council, and
then it must be submitted to the popular vote, even if the
action of the Council upon it ha^ been unfavorable.
Ilnsa by such popular initiitive Iliat corapulBoiyiaccinstioD v&b done
RWBj will] in Jtiiricli, by a JeciBiie vote, aguinst ihe wiihei of tUe Can-
tonal Council, in 1883. Of courieurrtnmfornialilieaiire required for Ihe
ttarting of ibeae, ao to s&j, autliorti«tiTe petition!, or m certAin backing
hf ft portion of the memberi of th(« Council. Thus, for inatance. il waa
the law in Uri until the adoption of her new Constitulioo in May, 1B88,
that iDcli a petition could be aisrted only if first propoaed by atren men
belonging loicven different fsniiliea, Tlie new Constitution prov idea that
petitinn* propoaing cbangei in the ConatitulioD moil bear at IraaE fifty li^
iwtarea; and thai tray vot«r may propoie acta for the Land»g«:Htiadt,
» OreUi, p. B9.
THK GOVERNMENTS OF SWITZERLAND. 311
620. The Popular Veto, — In some of the amaller cantons,
i^ain, the people are given a right of Veto. It is provided
that, within a certain length of time after the pubUcatiou 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 iu different
Cantons) and the measure be made to stand orfaU according
to the decision of that vote.
521. The Referendum. —The Veto, however, may be said to
have ^ven way to the RefereHdum. 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
Land»gemeind€n, 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-bouleaUc Senate in Athens prepared legislation
for the people voting in the Assembly (sec. 76). At stated in-
tervals every year, all acts of imiMirtance are submitted to the
popular vote, a vote which is taken in the little Cantons, like
Uri and TJnterwalden, in the Assembly, and in the other purely
democratic Cantons which have no popular Assembly, by the
ordinary processes of polling, Among^the Cantons wliich have
representative institutions, on the other hand, the Referendiini
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 caie of
the 'Veto.' The 'obligatory,' or invariable Re/ereudum is, of
course, simply popular legislation ; the ' facultative ' Referen-
n Totei ppon
312 THE QOVERNMENT8 OF SWITZERLAND.
ijiim may be described as a papular oversight of legialation : it
is the right of appeal from th.« Council to the people.
622. Hiatoiy ol tbe Befersndum. — The term Sr/rrtHilaM la u
old >i Ihif tixtei-nlli ci'iilury, and toDlaini a, reminiiceDte of llie itricllf
federal beglnningB of KOVemmeEit In two of tlie preicnt C&nlon* of ttia
Confederation, Orauliiinden, ninivt]>, and Vaiaii. These Cinton* wetv
not >t tliAl lime memben of tlie Confederation, but merely diatricU
allied wilh it [lugeirandte Ortt). Within tbeniBelvea Ihe; conatltated
ver; li>o*e confederauiei of Fommune* (In Gruubiiwlen three, in Valaia
twelve). Tlie delegate! whom tbe communea lenl to the federal »sem-
bl}' of the diilricl had to report every question of imporunue to their
con*tituent9 anrl crave instmclioTi b> to liow they should vole upon il.
This was the ori^nitl St/treiulum. It had a, partial vouiiterpart in lh«
constitution ci( ihe Cod federe lion down to the fomialion ol the preaenl
forms of goTernmeni in 1S48. Before that dale tlie menibera of tlie
central council of (lie Confe deration acted always under innruclioni
from their rt-spei'ttTe Cantons, and upon quealions nol eovered hy iheii
InalructLona il was their duly to seek spedal direulion from their home
governments. The Tt'/tffndun as now adopted by almost all the
CanloDS bears the radically vhanged cliarncter of legiilation by the
people. Only its name now gives testimony as to iti origin.'
523. 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 otherj 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" (^Standtakom.mi»-
sion), in some as the "Smaller Council," but in most as the
" Administrative Council" {BegterHngsralA). Its term of office
varies in the different Cantona from one to six years ; but the
custom is r6.«lection, bo 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 coimcil—
> Orelii, p. 104.
THE GOVEKNMENTS OF SWITZERLAND.
813
whence the name, in some cantons, of " smaller council." Now
direct election by the people has been almost uiiiverBally
adopted. Still the Administrative Conncil remains, in func-
tion, a committee of the Legislative Cuuneil, 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 Adminiatrati^'e Council to give over trying tq
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, oidy committees, and
the Council has usually a very real eoherence.
The prMidiDg; officer of an AdminiitretiTe Council ii gmermllj known
either ta Ltindammaini or aa RtyitrangsprSfiHtnt.
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 loca.1 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, — * Bexirksam-
■mann or Regierungs-Stalthaiter, — who is either elected by pop-
ular vote in the District or appoiiite<l 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 vot« of the people.
525. The Gemeinde, or Commune, enjoys in Switzerland a
degree of freedom in selfKli recti on which is possessed by
BimiUr 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).
BeBides its activities as an organ of self-government in the
314 THE GOVEKNMENTS OF S^ITZERLAKD.
direction of local affairs, it serves, however, also as an OTg&a
of the state admin i strati on j as a subdivision of the District;
a,ad in such functions it is subject to the jurisdiction of the
District SlaUhaUer.
CitizenBhip in SwiUierJand ia naturally anocialed vpry closely with
the Conimuiie, — the immediate home govern in en I of tlie citixen. — tlie
• primary and moit vitsl nrgnn of bis aelf-directioD in puliUc HlTaira.
The Commune ia, «o to wy. tlie central political family in Switzerlaod ;
It la to It llisi the primary dutiea of tlie citizen are owed.
526. In the Commune, as in the Canton itself, the executive
power is exercised by a Board, a communal or municipal coup-
oil. Legislative and consultative power rests, lu all but the
Kumance Cantons, with a general assembly of the people (Oe-
mtirnhversamvilung). In the Itomance 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 Uauptmann, sometimes Syndic) often exer-
cises some functions separately from the Council ; but, as a rule,
all executive action is collegiate.
As an ar<?a of general atate adminiatratjon tlie Onmunr ler*?* *■ ut
eleclorial district, ai a voting district tor the Refirendum, etc.
The Federai, Governmknt.
527. The Federal Executive. —In uo feature of the federal
organization is the influence of cantonal example moi-e evident
than in the collegiate character of the Executive. The execu-
tive power of the Confederation, like the executive power ol
each Canton, is vested not in a single person, as under monarch-
ical or presidential government, but in a board of persons.
Nor does Swiss jealousy of a too caaceotrated executive author-
THE GOVERNMENTS OF SWITZERLAND.
315
ity satiBfy itself with thua 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 execiitive^ctg'Bnefa'aa 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 required 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 (Biindearath). 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 (Bundesversanimlung) . 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 till the same office 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 tlie Vice.-P resident succeed-
ing the President, however ; and it has hiriierto been the uni-
form practice to follow this natural and proper line of promo-
tion.
The Fedpral Aasembly nay elecb to the Conncil any Swisi cillien
who i> eligible lo either Chtrnib^r of the Legialature. It raij eren
choaae memb^'rB nf the Chambera, though in election to a place in the
execulire hixly necessitales a reaignatinn of the legtilitive function.
fi29. The cboioe of the Federal Asaembly in conalitutine the eiecn-
tire haa hitherto been ndniirablj conaerrative. Some of the more prom-
inent inembera of the Coiincil hare been retaioed npnn it hy repealed
I
316 THE GOVERSMENTa OF SWITZERLAND.
re-electioQ tor fifteen or listeen ;e&i*. ODlr twice, indeed, tince IMS,
hare members wIid wished re-e1et.'tion been refuii-d it.'
63Q. The Federal Aisemblj'of course Slli all ravanciei in the mem-
benbip of the CoudcH.
631. The Ihree-years Icrm of the Council it coincident with the
three-years temi of the National Council, the popular branch of the
IiegiiUtare. At the beginning of each triennial term of fbii lower
Boiiae. the two Houses come together M a Federal Asiembl; and elect
the Federal Council.
532, The precedence of the President of the Council is a
merely formal precedence ; he is. in no aenae 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 'Hia Excellency'; and
he reneives a little larger salary than his colleagues receive.
533. The Executive and the Legislature. — The members
of the Federal Council, thongh they may nut 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 tmder 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 miniatera 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 fjegislature does not at all aSeut
their tenure. They hold office for a term of years, not for a
term of legislative success.
There ha»e been two caiea sinpe the est abli aliment of the Cooncil
in I84H, — two caaei, that ii, in fiirty years, — of reirgTiation fmm the
Council ou the ground of diiagreement in political opinion, — but two
■ Wtftmintltr Rrmeie, Vol. 128. p. EOT. ■ Ibid.
r 634. The
THE GOVEKNMENTS OF SWITZERLAND.
317
534. The EzecutiTe Departments. — The Council acts iis a
body of Ministers, It was the purpose of the Constitution
that all executive business should Ijo handled by the Council as
a whole, but of course such collegiate action baa proved prac-
tically impossible : it has beeu necessary to divide the work
among seven Departments. Each member of the Council pre-
sides over a De^iartment, conducting it much as an ordinary
miniBter would under a Cabinet system, though there is a
somewhat closer union of the several IJepartraents than charac-
terizes other systems, and a greater degree of control by the
ministers over such details of administration as the 'permar
neat ' 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 WTen Departnienti, a» organited bj ti Uw taking eSeot Jan. 1,
1BS8. arc (1) uf Forvign Affairs, (2} of JuiUce and Police, (3) of the
Interior, (4) of War, (6) of Finance and Inipoats, (8) of Induitry and
Agriculture, and (T) of Posts and RailwHyi. Tlie department ol Foreign
Affairi ia now separated from the presidency, with which il wb« formerly
alwaya aasociated, so that grcaler conlinliity of policy ia now pouible
in all departmenU.'
The arrangement of adinmlatrstive builucaa in DepartmeDla ii ef-
fected ill Switzerland, not aa !□ France and Germany, ly execuUre
decree, but by legialntire eliaeltneiit, aa in the United Slates.
bSb. It ia considered the eapi (a1 defecl of (Ilia collegiate organitalion
of the Swisa executive, combined aa it is with ihe aomewhat antngonialic
amngement of a diTision of execatire bualnesa among departmeula,
that it compela the members of the Council to exerulae at one and the
same lime two lai^ely ineonaistent functions. They are real, not simply
nominal, heads of dcpiirtments in Swiss practice, and are obliged aa
Buch to gi«e their time and atteqlion to Ihe routine, the detail, and the
technical niceties of adminia I ration ; and yet as n body they are expected
lo Imparl to the Bdminiatrntlon as a whole thot uniformity, breadth, and
1 See Hilw, iVi*[..c*M Jahrbuch rfer SciwtU, 1887, p. 778.
THE GOVERNMENTa UF SWITZERLAND.
flexibilit; of policj tlial can be imparted only b; thote who itand nlonf
from detail and routine and uamniand the wider views of general ex-
pediency. Tiiey are called to be botli leulinital offlciali and political
guides. It liaa been suggested by Ilioughtfal Swat publicialc that it
would be vastly better to give tlie depnrimeots pernianenl heads and
teaye to a board of ministers such aa llie present Connvii oiil; a general
overiiglil. roliiicnl and ad mi nisi rati ie tanolions require different
nptitudes, must he approached from very different point* of »iew, and
ought never to be united in tlie same persona.'
536, Mixed Funotions 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 Cod federation, iu the vesting of many execu-
tive functions either wholly or in part in the law-making bodies j
and a very singular confusion between executive and judicial
functions has issued iu the possession by t>oth 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 dear
siunmary view of the rAle played in Swiss federal affairs by
the central executive Council. Its duties give it a touch both
of legislative and of judicial quality.
537. (1) It stands closely conbected with the Legislature
because of its part in shaping legislation. The Council both
originates in the Houses proposals with reference to pending
questions an<l gives its opinion upon proposals referred to it,
either by the Houses or by the Cantons. In connection vrith
annual rejKirta 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
' Orelli, Dm Sloatirtrhl dcr Srhwetttriirhtn Eidiie»onentcha/t (HandbutK),
THE GOVERNMEXTS OF SWITZERLAND.
319
intimate servant and in part tlie authoritative guide of the
Legislature.
53S. (2) In tlie exerciae 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 whoee 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 aome ot Ihe topics louching ivhich the authoriUtive opinion
of the Council ni«y be token ; Cantotml sehool alfiiiri; freedom of
trade and commerce, snd the inlerpretRlion ot (.'ontracli with foreiRii
■tatei which concern Irftde and cnetoins-leiiei, patent righta, righlB of
Kttlement, freedom from miliur; service, free pdniage, etc. ; rights of
Ktllement within the Canlona; freedom of belief; validity of cantonal
electiona, vote*, etc. ; gratuitous equipment nf the militia.'
539. (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 spociaHy
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 exereises, 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
> Orelli. pp. 43, 41.
■ lUd.. p. 3*.
THE GOTERNMK!fTS OF SWITZERLAND.
the movements of sucb oautoiial troops aa are necessary to
meet any sudden danger, pruvided tlie Legislature is not in
I to command such measures, and provided the uoll is
for not more tban two thousand men or for a service of more
than three weeks. If more men or longer service seem □eces'
sary, the Le^slature must be called at once and Its sanotion
obtained. This power of the Council to pjiU out troops to meet
a pressing peril of war or riotous disorder is a logical part of
the general duty which is imposed upon it of guarding both
the external and the internal safety and order of the Confeder-
ation, a duty which embraces the general police fnnction of
keeping the peace.
n time of pesre; and eren
II ftpiece with Dill ihe con-
540. The Aimy. — The Coofederatini
army ; only ihe Caiiloiis uan mainUin Iroopi ir
Ihey L'lnnui keep more tliaii lliree hundred n
leiit of the Cunf ede ration ■
541. Pteaervation of Internal Order. — The rule that It ii the
province, not of t)io Caitlonti, but uf thi' federal governmenl to preterve
the internal order as nell as *(M:ure the exlemal ufely of the Confed-
eration is very absolutely held. The Cantoiu may not eren supprei*
disorder themselTee; they mu8t call upon Ihe federal authoritiea, who
must iDteryene. If the cue be urj^nl. a Canton ma; call in the help
of ■ neighbor Canton. If the ca.DtoDal authorities most immediately
concerned cannot act at all, the federal aathortties must themsetTct
take the initiative. There would seem to l>e no case contemplated in
which a Canton might take the res ponei bill ly of acting alone and for
itielf. There must be noia^ form of inter-cantonal co-opemCion ; tuore
than one Canton must agree to Ihe propriety of employing force.
042. ^rtradltion. — The moat common subject of those agreenieiilt
between Cantona which it is the duty of the federal Huthoritles to enforM
is KxtriiditJon. But such conventions do not either tn Switzerland or
in Giermanv (where Suisa etample in this mailer is followed] include
either political or press offences among the ritrnditabte crimes,
543. Appeal in Judicial Cases. — Following the example
of tlie cantonal constitutions, which provide for a very abso-
lute dependence of the executive upon the representatiros of
the people and f^el; neglect, in praotloa, the OBtefal diffeten-
THE GOVERNMENTS OF SWITZERLAND. 321
tiation of legialativc from administrative functions, the federal
Constitution of 1S48 allowed an appeal in all oases from the
Federal Council to the Federal Assembly {BundeaversaTiiTit-
Uing)} The constitutional revision of 1874, which had as oue
of its chief objects the development and strengthening of the
judiciary of the Confederation, transferred such ajipeals 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. Religious 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.
C44, U leemi lo bnte been the oonicioiu purpoec! of the more
idTRDced relonnen in 1874. lo bring the Fedcrfll Court us neiir u poi-
tlble in character and f luiuliom to the Supreme Court of the United
Blatei; but they were able to realise their |mrpo»e imlj- in purl. The
nioat imporlant prerogative of our own Court, its powers, namely, at
oonititutionnl interprelalion, whb denied the Federal Court in Svritzei^
land. Most conalitutional quEstiona are decided by the Logialature,
eicept vhen ipecially delegmed to the Court by legiElaiiun. The
chief questioni of ihii nature now taken cogniunce of by the Court
are diipiitea aa to constitutional rights between cantonal and federal
authorities.
545. The Federal Chancellor. —The office of Federal Chan-
cellor is an inheritance of the present from the older Confed-
eration, in whose days of incomplete federal izatiou the Chan-
^ There was a decided disposition on the part of the canetiiutlon-makers
of 184S, in Swiiaerland, because of a prevalent dread of creating too strong
■ central executive, to restrict (he federal Kxecutire even beyond Canto-
nal precedent
322 THE GOVERNMENTS OF SWITZEKLASD,
cellor typified the unity of the Cantons. The Chancellor is
elei^ted by the Federal Assembly at the same time aud for the
same term (three years) aa the Federal Cuuucll. He acts as
Secretary of the National Council [NatioiuUrat/i). 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 Vice-Chan cellor who serves as Secretary of the Council
of States (Standemtk).
546, The Federal Legislature. — Properly speaking the
le^slative powers of the Confederation are vested in the Federal
Assemhly ; 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 an equal footing as regards all^ubjects oflegiB-
lation, and divide the voU oi 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 rec^uired by
the Constitution to be held annually : as a matter of practice
they are held oftenCT: rue re are usually two sessions of con-
siderable length every year, one beginning in June, the other
in December; aud 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. Compositioa 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 ( WiM-KrHxn) in the proportion of one rep-
resentative for every 20,000 inhabitants. The federal electoral
districts cannot, however, cross cantonal boundary lines and
THE GOVERNMENTS OF SWITZEULAND. 323
include territory in more thau 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 sii 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.
Tbii is the ca«e wiih Ihe three so-called half -can torn, Obwalden,
NidwaldeD, and Inner Appenzell, The olher Cantons whk'h ti&re oniy
one repreienlative are Uri, with 23,7-14 JnhabitHntB, and Zug, with
22,829. Bern, on Ihe other hand, wliich has 630,411 inhabilanlB, has
Iwenly-aeveD rep reacDts lives, ani] Zurich, with 310,074, aixtecn, while
one other, Vaud, hae twelve, and two, Bt. Gallen and Graubilndeu, have
MS. In thoBe electoral diitricla which send more than one reprcwnM-
lire — aa (or instance, in Bern, whose twenty-ieven members are aent
from abi dittricta, — candidates are voted fur upon a ^neral ticket,
each voter being entitled to vote for is man; representative! at the
dlitrict returni (sec. 31&).
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 Oetoljer, on the same day throughout the country — and
that day is always a Sunday.
560. It IB upon the assembling of each new National Council that the
election of the Federal Coiindl takes place (sees. 528-531). Tlie three-
jeari term of the executive Council ii thus made to extend from the
beifioning uf the first seaaton of one National Council to the beginning
ol the first aeaaion of the next.
GSl. The National Council electa its own officers ; but in selecting
Iti President and Vicc-Freiident it ia bound by a rule aiinilar to that
which limits the choice of the Federal Council in its yearly eleclion of
ft presiding: officer. No one wlio baa been Preaidunt dgring a regular
•easion can be either President or Vive-Preaideut during the ariaion
324 THB GOVERNMENTH OF SWITZERLAND,
next following; nor can anj onr be V ice- P resilient twice in incceiBion.
For the offii.'en of the Nslional Aiicmlilv, like tbe officers of inoit
European Ian-making bodiet, are elirled every aension inilead of for
the whole term of the body, us in our Mouse of Rcpreient«ti*ei and
the English House of Commo^.
5u2. II. The Council of States (Stdnderatk) is composed of
forty-four memters : two from each of the twenty-two Cantons.
It would thus seem to resemble very closely in its eomposition
our own federal Senate and to represent distinctively the fed-
eral feature of the union between the Cantons. In fact, how-
ever, it haa 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 Ijear 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 fur two. In the Cantons which have the obligatory
r^erendum they are elected by popular vote, as the members
of the National Council are ; in those which have representa-
tive institutions they are elected by the legislative body of
the Canton. Differing, thus, from the I^^ationaJ 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 Counci] of
States can hardly be called the federal chamber : neither is it
merely a second chamber. Its position is anomalous and obvi-
ously transitional.
Ria. Tlie Council of Slfttei elects iti own Pruldent and Vic«-
Pr»»ldent, but nodiT iht reslrlclion that neither Preaident nor Viec-
Prciiitent can be cliosea at any leMion frotn (lie Canton (rom which
tile Preaident fnr llie Imniediatelj' precediiifc se»ion was taken, and that
the otiev at Vice-I'reaidi-tit cannot be filled dutiuK li
alar aeiaioni by a member from the Mme Canton.
THE OOVERNMEtJTS OF awiTZEKLAND.
325
6M. Tlie C>nton». upoi
twenty-flTC. boL'nuic three of them hare been divided into 'halt-
cantons.' nimely, Unlerwilden, Bsael, and Appenzel!. The half-cantoni
tend each one member to the Council of States, Tbe (olloviug is a
lilt of theCantonB: ZQridi, Bern, Luzern, Uri. Suliiiyx, Obwalden,
Kldwslden, Glarui, Zug, Freiburg, Solotlinrn, Baaelaladl, Baselland,
Scha&hausen, Outer Apiienlell, Inner Appenzell, St. Gallen, Graubiin-
den, Airgaii, Thurgou, Ticino, Vaud, Vtlais, Neuchit«l, Genera.
555. Functions of tlie Houses. — It may be aaid, in general
tenns, that its Legislature ib the supreme, the directing organ
of the Confederation. It is difficult, therefore, to classify the
(unctions 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 peaee 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 tbe 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 jKiwer. 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 upt>a the federal budget
and control the federal finances, o. 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 diicis-
ions of the Federal Council in contested administrative cases.
326
THE GOVBKNMESTS OF SWITZEKLASD.
of the people, the; revise the federal
7. With the c
Constitotiou.
656. Revision of the Constitutioii. — When the two Houses
can agree concerning a revision of the Constitution, it is effected
by the ordinary proeessea, under the ordinary rules, of legialar
tion, though it ia followed by an obligatory Referendum to
the people. But a revision may also be otherwise accomplished.
If one House demands particular changes and the other House
refuses to assent, or if 60,000 qualified voters call for a revia-
ion by petition, the question whether or uot 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 aflBrma-
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 antl must be accepted by a
majority of the people and by a majority of the Cantons in
order to go into force. In reckoning up the votes by Cantons,
on such occasions, the vote of a half-canton counts as half a
vote.
557. The Federal Referendum. — " Federal laws, a& well as
generally binding ledtral 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 Swias citizens
or of eight cantons." Such ia the language of Article 89 of
the federal Conatitution which establishes for the Confedera-
tion the 'facultative' Referendum* (sec. 521).
The whole JeUul of llie excrciie of the lii/trtadim h regnlBtcd by
federal legUlation. A period of ninely <!■;», running from the date of
Ihe publication of the Uw. ig eet within which ilii; dvm&nd for a popul>r
vote mutt be made. Copies of all federal lawi whk'h are lubjoct to
litftrindam are »enC to tlic aulhoriliei of each Canton, and by them
published io (he Commutiei, For the Communei are Donitiluled the
diilritti in which the popuUr demund it lo Le mnilc up. Thai detnand
niiul be made by written petition addresied to the Federal Council; all
■ Oielli, n.SO.
THE GOVEBNMENTa OF SWITZERLAND, 327
■Ignaturea must be autograpliic ; and the chief officer o( the ComtnuDe
muit Btteit the riglit of i?>ch signer to vote. Deiuandg frum Canloni
for the fifjerrniliim are mndc through the ciinlanal council*, aubjecl (o
the right of the people, under Ihe proTisions of [he cantonal rtferendum,
to reverie the ncticin.
la ease it appears that 30,000 voli-n or eieht Canlona demand the
Befirendum, lliG Federal Couni:il must set a da? (or the popular vote^
a da/ which must be at least four weeks later than the reeolutiuii wbioh
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, fulfilling the func-
tions delegated under the French and Prussian constitutions
to a special Court of Conflicts (sees. 367, 602).
The President of the National Cnancil preside! over the Bcisioni of
Ihe Federal Assembly, and the rulei of the National Council for the
most part goTem its proceedinf;s.
569. Administration of Justice : I. The Cantonal Courts.
— The Cantons art- left quite free by the federal Constitution
to organize their courts as they please. Not even a general
uniformity of system is prescribed as in Germany (sec. 436) ;
nor are the cantonal courts subordinated to the Federal Court
except in certain special cases provided for by statute. It may
, be said, in general terms, that justice is administered by the
Cantons, with recourse in selected cases to the tribunal of the
Confederation.
There is, however, a certain amount of uniformity in judi-
cial organization throughout Switzerland. There are usually
two ranks of enurts in each Canton : District Courts [Bezirkage-
rickte or Amt»geric!Ue) which are courts of first instajiPe, and
a Supreme or Appellate Court {Obfrgericht or Anpei'^-I'otifgt
328 THE GOVERNMENTS OF WWITZERI.AND.
rieht) w)ii(?li is the oourt ot final instance. There are also in
some of the Cantons Justiees of the Peace. Petty police cases
are heard by the District Courts subject to appeal to the
Supreme Court, just as eivil cases are; but for the bearing 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.
500, In three ol the larger canlons, Geneva, Zurich, and St. GBllen,
lliere are apecis.) CaMatlon Couru put sboTe the Obergtricld. Ziirieh
and Geneva hart! alio tpccial CoinmerL'ial Coarli (^tlandtUgericliXt).
661. In man/ oC the cantons Ilie Supreme Court exercim uertain
leini-exeeuliTe fuDCtiiine, taking the pUce of a Minivir; of Jualioe in
overteeing the action of the lower court* and at all judicial officers,
■uch at the slalea-Bllameya.
S62. Id moat o( the CHiilunn, too, the Supreme Court makes annual
repnrla to the legitlatire Council, tontaining a full review of the judi-
cial liuainvBS of each year, di«cu8»ing the atate of jutlicc with criticiem*
upon the eystcm in vogue and t-uggestiona of reform. These reporta
are imporlanl sourecs of judicial alntislici.
563. The terms of cautoual judges vary. The usual terms
are three, four, and six years. The judges of the inferior
courts are as a rule elected directly by the people : those of
the supreme courts commonly by the legislative Council.
6d4. In Berne the legialalive Council olio electa the Freiidenta of
the Dialrict Courta ; but tliia ia not the usual practice.
665. No quaiificaliona for election to the bench arc required by S»i«»
law except only the right to vole. But here, aa well aa 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 rC'election ii in moat caaea the rule.
50fl. In Oeneva the Slates-attDmey, instead of the Supreme Court,
is given the general duties of superintendence which, outalde of SiritM^
land, are veatcd in a Minister of Jaalice ; and in other canton* tlnilu-
offlccri are eiven prcmgatiTes much more extensive than are DiDally
aunciared with inch offices elaewliere.
W)7. II. The Federal Court. — The Federal f :ourt was
created by tlie Constitution ot 1848. Before that time arbitro-
THE GOVERNMENTS OF SWITZERLAND. 329
tion had beun the oiilj' form of adjudication between the Can-
tons. Even in creating it, however, the Constitution of 1848
withheld from the Federal Court all real efflcacy : its jurisdic-
tion was of the most restricted kind and was eoudemned to be
exercised under the active Buperintendence of the then omnip-
otent Federal Assembly. It was one of the ehief services of
the constitutional reform of 1874 that it elevated the Federal
Court to a pla«e of substantial influeuce 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 iu a transitional stage, and will
ultimately be given a still mure independent and influential
position.
568. The Federal Court consists of nine judges chosen by the
Federal Assembly (with due regard to tlie representation of
the three official lajignages 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 Frderal Aiicmblj' elei^ts, at the lame time that tt cliooies the
jndgcB, nine sululitutei hUo, wlio ait, bb ocL-asion demanilB, in place nf
•ny judge who cannot act, and who receive for Iheir occasional aer*ice«
a /m- diem compensation.
The members of llie Court may not hold anj other office or follow
any other busineai during their term us judges ; nor can they be mem-
bet* of any business corporation.
The Court elects two secrelnries, one of whom must represent Ger-
man, the other French Switzer]«.nd. — and one of whom must also know
Italian,
Seren judges constitute a ijvarum of the Court. The number of
, jadgei who sit in any case must alwaj be an uneven number, including
the president.
330 THE GOVERKMENTS OF SWITZERLAND.
o60. Criminal Jurisdiction of the Federal Court. — In the
exercise of its criminal juriadiction tlic Federal Court goea ou
circuit. The country is divided into five assize districts {Assi-
senbasirke), one of which embracea French Switzerland; a
second, Berne and the snrrouiidiug Cantons ; a third, Zdrich
and the Cantons bordering upon it; a fourth, central aud part
of cast Switzerland; and the fifth, Italian Switzerland.
The Courl annually diridet iteelf, for criminal business, into three
bodies: A Criminal Clinniber, a Chamber uf AcL-usation, anil a CaMa-
lian Chamber. The Criminal Chamber deuidts ai wlial plat^c« io tbe
several Diilricta assizei sbnll be held. The places selected famish, at
their own cast, a place of meeting. The cantonal police and court offi-
cers «errc as nfflciTS o[ this Cuiirt.
The Court elects every six yean, to hold for the whole term of the
Cotirt, two " .fudges of Inquest " C f^iii"'">dii"igiriclirtr') who are charged
with the preparation of teases.
A Stales •attorney appears for the Federal Council in all cases.
570. Cases in Public Law. — The juriadiction 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 enforcoment of
agreements between Cantons and foreign governments; and,
most fertile of all, eases involving the constitutional rights of
citizens, whether those rights rest upon the federal or upon a,
cantonal constitution.
G71. It is cunsidtreJ " the proper and natural proTtnce of the Federal
Court " in Swiizprland " to defen J the people and the citiMna againit
abases of powtr. whether Ihey procetfd from federal or cantonal ao'
thorities." Such n province is, howercr, in the very nature uf the ossc,
insusceptible of deflnitc limitnliani; ami the powers a! the Federal
Court have gradually spread far abroad by rvason of the temptation*
of thia T*(ple prerogatire. The most usual and proper crises arising
under it are infringements of the federal guarantee to the citizen of
THE GOVERNMENTS OP SWITZERLAND.
331 I
eqaality before the law, of freirdom of lettlcment, of security afcninit
donbte iBxition, of liberty of the pre», etc., but the Court hai gone
much beyond these. It* jurladictioii has been extended to the hearing
of complainia Bgaio«t cantonal autliuritie« for ordinary alleged failures
uf juttice, such as the Constiiutiun can hardly have contemplated giving
into the hands of Uia FedernI Caurt. The Court has eren "brought
witliin the circle of itJ judgnienls, ca4el where the appellant assert* a
denial of his cUima by a cBnl'inal judge grounded upon merely ob-
itructire motives or ao arbitrary application of the law." i
672. The Federal Court has also cognizance of contested
cltizensliip cases between Communes of different Cantons. For
citizenship in Switzerland is iirst uf 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 administra-
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 ; liut 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, .in 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, rnay 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 Cautons 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).
Caies of the flrat two of these four classea can be brought in the
Federal Court only if they involve a sum of 3000 franca. Otherwise
they must be instituted and adjudged in the cantonnl Courts.
By agreement of both parties, the jurisdiction of the Federal Court
may be invoked in any case in vrliich the subject of litigation is rendered
important by virtue of federal legislation.
' OreUi, p. 48.
THK GOVKBNMENTS OP SWITZERLAND.
I
674. A epeuiat railroad Jurisdjcllnn, too, Eiai been given to the Fed-
wnl Court, torering tsaeB concerning riglii of "■¥ »nd ihe right d( emi-
nent doninin, and catea in private law between railroads auil ib« Con-
575. (3) Criminal Cases, — The criminal jurUdictioD 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, howerer, in the dis-
cretion of certain authorities, include a variety of matters in
addition to these. Federal oiicers, 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 CitisiiliDn Cliambcr of ih« Federal Court takes cogniunt^e, be-
sides, of compliiinlB tonceming judgments of the i:&Dtonal court* given
ander certain fiscal, police, and blinking laws of the Confederation.
676. The Federal CouncU : (4) Administrative Cases. —
The admiuistralive jurisdiction of the Confederatiou, which is
exercised, not by the Federal Court, but l>y tlie 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 tlie Cantons,
freedom of trade, occupation and settlement, eoiisiuuptiuii
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 aervioe,
freedom of passage, etc. In aJ.1 these cases an appeal lies from
the Federal Council to the Housei.
THE GOVERNMENTS OP SWITZERLAND. S8S
677. 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 Befbeseittative Aitthosities.
Blunltehli, J. C, " Geachichto dea schweizei-ischen Bundesrechts von
den ersten ewigen Biindeu bia «uf die Gegeuwart." 2 vols. 1848-
■K. 2d ed. VoL I., 1875.
Blujner, J. J., " Hutdbuch des schweiierischen BundeBStoatsrechts."
2 voIb. 1863-'65. New «d., completed bj J. Morel, 1887.
Dubn, J., " Das dff^ntliche Recht der schweizerischen EidgeDoesen-
Bchaft" 1877-78- 2 parts.
Dtmombyna, G., " Lea Conatitutions Enrop^eDnea." Ed. 1888. Tol.
II., p. 304 tl teq.
Orelli, Aloia von, " Das Staatarecht der schweizerischen Eidgenoesen-
schaft " (in Marquardnen't "Handbuch des iiffentlichen Becfats").
Freiboi^ iu B., 18S5.
•SrieU, Ludw., " Handbuch des schweizerischen Staatarechts." 2 vols.
Zurich, 1837-'45. Contuns a great deal of original material for
the period preceding the formation of the present federal govern-
Meyer, Johann, " Geschichte dea schweizeriHchen Bundesrechts." 2
vols. 1876-78. Sappleraent, 1881.
" EidgenfiMische Bundesverfassung, Bundesgesetze, und Bun-
desbeachliisae," 1876.
" Staatskalender der schweizerischen Eidgenossenschaft," 1860.
Adanu, Sir F. O., and Canmngham, C. D., " The Swiss Confederation."
8vo. London and New York, 1889.
Moieg, Bernard, "The Federal Government of Switzerland, An Essay
on the Constitution." A com|iarative stud^. San Francisco, 1389.
IX.
THE DUAL MONARCHIES: AUSTRIA-HUNGARY —
SWEDEN-NORWAY.
>:««H. —
578. 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, sepa-
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 wliat the northern state has not, a common legisla-
tive authority, namely, and common departments of adminis'
t ration.
Austria-Hungary.
579. Austria's Historical Position. — The general course
of Austrian history I have already noted, in tracing the devel-
opment of German imperial politics (sees. 374, 381, 398).
Until the middle of the present century Austria stood at th?
THE DUAL MONARCHIES.
335
front of German political union ; not until 1866 waa she de-
posed from leadership in Germany and set a[»art to the difficult
task of amalgamating the polyglot dual monarchy of Austria-
Hungary.
580. Acquisition of Hungary and Bohemia. — It was un-
questionably Austria's headship in the Empire which enabled
the Habsburg princes at once to broaden and to consolidate
their domain in the southeastern border-land between Slav
and Teuton. Their power and Influence within the Empire of
course gave them their opportunity to control the destiny of
border states like Bohemia and Hungary, lying at Austria's
own doors. Both Hungary and Bohemia fell to Habsburg in
the same year, the year 1526. 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
prin<-es In 1526 their hold upon it was made complete, and
m 1547 they were able to make its possession hereditary
within their family.
6B3. MoiBvla. ~ MorsTia also w>i uid U SUvontc. Slav* etu-lj
droTe out ila Teulonit poiseaiorB, and were prevented from Joining Ihe
SliTi of Ihe aoulhensl in llie fornintion of a vast Slavonic kingdom
onl; by the interrention of the Magyan, Ibe conquerors of Hungary.
ThU dominant raoe in tlie lenll* tentury ibruat tlieiniclvea in between
the Slavs of the northwii^st and thnse of the soulbeast, and. driving
back the Slavi of Moravia, reduced the once ' Great Moravia ' to Ihe
dimensions of the present province. Striven for by Hungary, by
Poland, and by Bolicmii. Moravia finally met licr natural fale in in-
corporation nith Slavonic Bolietnia (1029), and passed, along with that
kiagdom, into Austrian hands, in 1626.
THE DUAL MONAHCHIES.
583. Hungary. — Hungary ia the land of the Magyars, a
Tunuilan race which retains even to the present day its dis-
tinctive Oriental features, habits, aud bearing among the native
European races about it. After having suffered the cummou
fortune of being overrun by numerous barbaric hordes at the
breaking up of the Koman empire, the territory of Hungary
became, in 889, the realm of the Magyar duke Arpdd, 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 1626 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
MohAea (29 August, 1526 ) brought terrible overthrow upon
the Hungarian forces at the hands of Soliman the Magiiificent,
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 Hababurger
to the throne and so put Austria permanently in the Hungariao
saddle. Not, however, until 1665-1671, a period of insurrec-
tion in Hungary, did tlie Habsburgers convert their elective
into an hereditary right to the throne.
584. Transylvania. Slavon£a, Croatia. — TranijtfuiiB. SlkTonia,
>ni] Crunlia, anni'xei) nl vsHouh limea to Hungary, pssged with Hun-
gary ID ilic home of llabsburg. Except during the period 18i8 to
IS8T, ilii> period during wliicli Hungary waa being diivipliDcd for ber
revolt of 1848-'!), Iheie proiincei hare remained apaiiagei of Hungary,
though Crofliia oci;iipie» a lomewhat dinlinclive poiition, and ia alwayi
accorded a represenlative of her own in (he Hungarian miniilry. From
1848 to l8<tT Tranaylranin, Slarunia, and Croatia were treated aa
Autlrian crnwn landa.
bSb. Oalicla, DalmatlB.'>G-aliriB, ■ district mnch fuoRlit for and
often divided, hut for aome time attached to Poland, came to Atlftrla
i
THE DUAL MONARCHIES.
337
npon the Bnt pmrtilion of Poianii, in 1172. DBlmatU, once part of
ancient Illyria, afterirsriln a pmscision of Venice, much coveted and
sometinles lietci by Croatia and by Hungary, iias aci^ujred by Austria
through ihp treaij of Campo Fonnio, in 1797,
586. Boaala and Haisegovina. — The Cotigresa of Berlin, 1878, met
to Qx upon a baiis for ttic new acttleuienta reaulting from ihe victoriea
of Ru«iin over Turkey, added to Aiuliia'a mulIifarioUB duties ai ruler
of many races tlie proWclorale of Bosnia and Herzegovina, diatricti
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
Hungary, namely. Bohemia, for all she has so much individ-
uality and boasts so fine a history uf independence, is swal-
lowed up in Austria : only the Magyars of Hungarj', 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 dominaiit 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, ISlav, 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 (jf the population, are less than half the whole number
of inhabitants ; and in Austria, though Germans are very
S88 THE DUAL MONATtCHJEfi.
greatly in the majority iu the central provinces which may be
called Austria proper, tliey c-onstitute in Austria taken as a
whole very littlt? taore than one-third of the population.
589. Home Rule : Bohemia, Hungary. — At li^ast two
among these many races, moreover, are strenuously, restlessly,
persistently devoted to independence. No lapse of time, no
defeat of hopes, seems sufficient to reconcile the Czechs of
Bohemia to incorporation with Austria : pride of race and the
memoriea of a notable and distln^ished history keep them
always at odds with the Germans within their gates and with
the government set over tbeii 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 won 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 laud of (wlitical lib-
erties almost as long as Etiglacid 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 nobiea, too, were entitled
to be personally summoned to the national Reichstag. Staml-
ing upon these privileges, th&y 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 till4fi87 did
the ancient right of armed resistance lose its legal support
^11^^^
THE DOAL MOMAKCUIES. 389
691. The period of reaction which followed the Sapoleoaic
wars and the Congress of Vienua found kings everywhere tight-
ening wliei'e they could the bonds of absolutisni; and nowhere
were those bonds more successfully strengthened than in Aub-
triarHungary under the reigning influence of sinister Metter-
nich. 1848, however, saw the flames of insurrection break
forth more fiercely in Hung;iry than anywhere else in terror-
struck Europe : only by the aid of Russia 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 fee! the necessity, if she would give her realm strength, to
give her subjects liberty. Her eyes at last fully o^jened to the
supreme folly of keeping the peoples under her rule weak and
spiritless, poor and motionless, In order that her monarchs
might not suSer contradiction, she assented, 18 February, 1867,
to that constitution which recognized the kingdom, not as
Austria's, but as the joint kingdom of Austria-Hungary, and
which gave to the empire its present relatively liberal political
organization.
59S. Dual Charactet of the Monarchy. — The Austro-Hun-
garian monarchy, although couipai'ted 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 Korway ; the latter has existed less than seventy -dve 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 leas than
partners in aEfairs of nearer interest ; Austria-Hungary, on the
3M THE DUAL MONAHCHIE8.
contrary, held as a dual possessioD by a single royal house fot
more than three hundred and fifty years, suhjected by that
house to the same military and flnaneial 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.
5y4. The Fundamental Laws. — The dukes of Austria at
first held their possessions as vassals of the Empire ; bnt they
held them under definite and liberal charters which vouchsafed
to them most of the substantial attributes of sovereignty.
The elevation of the Habsbur^ers to the imperial throne did
not easenlially change the relationship of the Austrian domin-
ions to their inunediate lords ; they continued to lie their [ws-
sessions in the full feudal sense of that term, the rights of their
peoples conditioned, indeed, by their own character an<l 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, and the laws of Hungary, (a) The
laws of the union embrace, Iwsides various other rules concern-
ing succession to the throne, the Pragmatic Sanction of ITllt
(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 tix 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 Reichsrath and of the provincial Landtt^.
Of these the chief are five fiindamentiil laws of Prxrember,
1867, by which a general reconstruction of the government was
effected in agreement with the new constitution given to the
union in that year, (c) The constitutional arrangements of
THE DUAL MONARCHIES.
Hongary rest upon the Golden Bull of Andreas II., 1222, touch-
ing the privileges of the Esta-tea (sec. 590) ; upon certain laws
of 1790-'9t 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 Keichstag, «tc. ; and upon a law of 1S68
(amended in 1873) whereby Croatia-Slavonia 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 submissiun. 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-a^buiuistration,
and the privileges of the free cities have triumphantly per-
sisted spite of all efforts maJe for their suppression.
£95, The Common Government: the Emperor-Eing. —
The Emperor of Austria bears also the titles King of Bohe-
mia and ' Apostolic ' King of Hungary {sec. 683). 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, Reichsrath 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 modem 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 Austria-Hungary
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, his -let it he' abnnrianriv vitaiize, ail Iawb* wfaedier con-
stitutional or other.
f>f eoone limitfttions upon tii»xiianuch's pverogstiTe are not
tsrily aof the le» real becaue he om^ mfarogate cfaem if he dare, so
long am cbe whole dxcpondoa ami temper of hia people and of hia dnca
forbid hia abrngadn^ them.
•iM. SncoaailoiL SBgiDcy, cfee. — The lawa touching the snccea-
flion to the Aaatro- Hungarian throne proTtde so mumteiy for the widest
poaaible collateral inheritances, that proTiaion for a Tacamrj ia appar-
ent! j not necesaarr. Peraunent laws Test the regenc^r in specific repre-
sentatiTes of the royal hooae. The tojai age of majoritj ia sztecn jears.
507. The Cmamaa Knxstries. — Tlie £znperop4ing ia as-
fn«tfid in his liirpotiijQ of the common afEurs of his two king-
doms by three )(inistries azui an Imperial Court of Audit.
There is (1) a Ministry of Fcrmujn Affairs and of the Imperial
Household, whii^h, besides the international functions indi-
<*Ated by its name, is t^hargeii with oversight of the foreign
trarle and shipping interests of the dual kingdom. (2) The
MiniMry of War, by which the common standing army of the
two kins^rloms is administeretL The legislation upon which
the maint^nanee 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
f'/>urjtries. It covers such points as the size of the army, lia-
bility tt} military service, rules and methods of recruiting, etc.,
and is ^'TnUKiied in identical laws adopted by the two legis-
lature's.
A 4 ^omrnft n^l^r-in-chief of the armj, the Emperor-king has the full
T\v.hi fif fVtnf:\p\\np, full power to appoint, remore, or transfer officers
of thf lino, sn'I the rletermination of both the war and peace organiza-
tiorn of ihf urmy, quite independently of any action whaterer on the
pHTi of ihc miniflNT of war. In most other concerns of the militsry
ntUwninirtkUor), howprer, his acts require the connter-iignatnre of the
rnin'uffr.
Tb«> militia n^rrices of the two kingdoms are separate, and separately
mnlntsinf d ; but in war the militia uf both countries becomes supple-
mrntary to the regular army.
THE DOAI, MONAHCHIES. 348
The Miniitry of Finance : acting under the Emperor, the
miniater of finance prepares the joint budget, apportions the
coattt of the common adniinlBtration 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 ch:irged with the administration
of Bosnia and Herzegovina.
608. TheiG two counlrieg, although atill namEDOlIy parts of the
Turkiih empire, have really, sinte the Treaty of Berlin (1878), beeu
■ubject in &U ihingg to Ausiria. The Auiirinn minUtry ot finxnc'c
■UiDdt for Ibem in the poaition of all sdminiatrBtJTe ilepartnieiiti com-
5OT. The chief aourcea of the common revenue in Auitria-Hungftry
■re cuitomi duties and direci contnhutions from the treaaurici of the
two itates. CertAin parts of the cueloma duties are anaigned to Ibe
common treaaury ; and euch expenses as tiiese are nnl luHicient to
meet are defrayed by the contribution*, Austria paying seveniy, and
Hungary thirty, prr roil, of tlie sunia needed.
600. ThB Economic relfttionB of AtiBtria and Hungaty ate rego-
lated in the iinporiant mailers of commerce, the money ayatem, the
management of railroads who'sc operation adecta the hilerests of both
kingdom*, tlie cuatom* eyiteiD, and the indirect taxation of tndaitries
by formal agreements of a semi-intemationBl charauier entered into
etery ten year*, and brought into forte by separate but of courae
identical law* passed in the national legislatures of both countries-
Each stale controls for itself tlic collection of customs duties within its
own territory ; but Auilrin.Hungary ia regarded as forming but ■ single
vtuloms and trade li.'rrilory, and the lawa touching admmistration in
these flelda must be identical in the two countries-
There is a joint'Stotk A u»tn>- Hungarian bank at Vienna ; the two
kingdoms have the luuie lyalem of weights and measures; and tliere is
separate coining but the same coinage.
Wi. Patents, Posta, and Talegrapha. — A common system of
patents and cojiyrighia is maintained ; and both countries have the same
postal and telegraph aervice.
602. The Delegations. — The most interesting and char.
acteristic feature of the common government of Austria-Hun-
844 THE DUAL M0KABGHIE8.
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 legislature 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 oelong 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-SIavonia on the Hungarian
side.
THE DUAL MONARCHIES.
345
When the two Delegations meet in joint seasion, the number of
meraben present from each niuat be equal to llie number of Ihoee
present from the otlier, ftnj numerical inequslity beini; corrected b;
ballot.
603. Citizenship. — There is no common citlzensMp for the
two kingdoms ; but iti all business relationahips 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 witii 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
bodies. All powers not explicitly so conferred remain with
the Emperor. He directs all the administrative activities of
the state ; he appoints the members of the upper house of the
Jieicharath ; and be 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 Reichsrath is indispensable to the determination of
the policy and content of all legislation. The only judicial
prerogative that remains with liim is the power of pardon.
On all sides his power is circumscribed by the legally neces-
sary co-oi>eration of other regularly constituted authorities.
605. The Ministry, which consists of a Minister-President
and seven heads of departnLents, acts 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
Mt; THI!. IIVAL HOKABCHIIB.
ui»iiU5Utt5fc ill til*!- JPiidusratii. Th*r^ must atienci both aiAaflcs to
d*ii*ih.C tii*: puh''v u- tij*: *.'X»?vuT!ve aiiil tc answer 'izEberpellB-
Tbtme urk mtvvi\ «x«culiT<r tl^'punmenu : Interior, Ximd DefeBoe,
Heik(g^ui) Mud l^uuatiatj, Tnid^-. Ap-icultnrt. Finmci'. and Jngtine. The
Miniiiier-h'ntfjdvut Imt uo {fortfuiiu.
tHiC. L^islatioii : Hie national and Prnvincul T^yMm-
turee. — lii all l^rgiKlatiuL ui wiiaiever kind tlit co-apenctdan of
tLt «;pi'«5beuuit)vefc uj tilt people it ueeeBBarr ; bnt not aH
of tliib co-uperdlive privil*ig»r belongh to tlie Meidisraih^ the
iiatiaiia] iegislnlive body. C<>-operatioii in the greater matters
of liigisLatioii ib exprebbly given by law tc» tlit* Meif^isrcdk, "but
all l<rgit>iutive powt'it not exj)reKsly granted to it belong to
the bjiher*- of tli*.' jjrovincial Landiagn.
007. The Reichsrath. — The Eeichnrath consists of a Honse
of Ijuidb and a iluube of liejireBeutatives. To the House of
i»i-db <xim«* ]tnui>ib of the blood royal who have reaclit»d their
Jiiajority, the anrhbishojuj and certain bishops, nobles of high
rank who liave acquired hereditan' seats in the cliainber, and
bUijli life nn^mU'i-b ab the Emperor chooses to ap}>oint in recog-
nition of b]>ecial servie«is to the state, to the church, to sci-
iiiii'A', or Uj ail. 'J'o the other house come representatives of
tlw* great landov^'n»'i>). of the cities and marts, of chambers of
tra<ii' and comnieicM'. and of the rural communes. The term
of the lower liouse is six vears.
'J*lie prc'M'iit iiuuibcr of members in the Iloiue of RepretentatiTes it
three hundrt'd aud lifty-thre<.'. Repreftentatiun is mpportioned among
the M'VtTHl imidii which form tlie Austrian domain ; and in Dalmatia
thtf greater Ux-pa^'crs, instead of the greater landowners, are repp&-
M*nt«d. Ill the class of landowners women may vote. The franchise
— which is partly direct, partly indirect — is made to rest throoghoat
all the cla»ses of voters in one way or another upon property.
'i'he assent of tlie cliamlj<*r8 is required not only in legisla-
tion but also for thft validity of treaties which affect the trade
oi tbd OOttntryi which lay ecoaomic burdens upon the state^
THE DUAL MONARCHIES.
which affect its legal constitution, or which concern any aliena-
tioD or extension of territory.
It ii the general rule, of cour
neceamr/ to every resolution or h
Citing eiiieption ia lo l>e noled,
chsmbera upon a question of fir
loweet flgurM or nuDibera are to V
le, lh>[ the aiscnt of both houiea Ji
ulion of the Rrirhtralh : but an inter
If a diBigreemenl arise between lh(
ante or at iniUtnr; r
e coniidered adopted.
The Eraperor 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 Reichsralh, and may close, adjourn,
or dissolve it.
608. Il i« within the prerogative of the Emperor, acting witli the
advice of hit miniatera. to enact any lnvrs which may seem lo be imme-
dialelj nci^easary dunng a recess of the Heirhtriilh, provided they be
not Snancial laws, or laws which in any way permanently encumber the
itate. But «uch lairi tnust be eukmitted to tlie Eelchiraik williin four
weeki after ili next aisembllnf; (going flrat to the House of Represen-
tatives), and altogether lapae unleas aubmitted to the Rticiaralh within
that time, ami aanctioned by it.
609. The I«ndtag». — The greater provimee of Austria posseia
their own Lnmliiujt, or legislatures, and to these belong considerable
legislative powers. The Emperor names the chairmen of the Landtags
and their aubstitutes ; he cnlla, opena, and may close, adjourn, or dia-
iotve the Landlags. But their asaent ia ncceeaary to all lawa which
affect the provinces which they r^'preaent, and their privileges consli-
Inte an important part of the total of legislative power which reals
with the repreaenlativea of the people. The provinces have also exten-
sive rights of self-administration.
610. Local Government. — The Landtags are of course the
most conspicuous or^na of aelf-govertuuent ; each Landtag
consists of a single chamber and represents the same four
olaasea of voters that send members to the national Reichsralh,
— with the addition of a fifth, official class. The administra-
tive organ of the province ia a provincial Committee, as in
France (sec. 345). Within the province there are, in some
parts of the country, circles, which are areas of financial
iiji TSK UCAL.
wjannsaaaansLi jnd Juuiueziois tjie aimmy ;;i^ snaHis^
SBKkn }t loeaL iDvianiiiesr jfi^ die Camj]iixm!9» Icwal CMMxies
Ttm*!!. uinns; ■•gi"TT •in? ^ummisBcn. jf jpneml sdcoce^ -ixer-
.'lat* fjii25iiitr*Mie Towp-rs Jt 3*fix-i2r»;«tiDiL Enough, a Mnminnal.
C*iiiiiiixCbif^ mil k !nTmnTrnal piesdsir .'iuseiu 'SDicKxier -»■£» j,
ir
kin:; b«>ax3 iabscuicallj die iume siacnjiis ^ die *7ciier
T«-tF*r5 if du* ^can? Ji HTmciry dun: ae bears ra Anatna : the
iir^t'Tinir hetui jf die saci*. oe t« oinac A-t in iH 3Atauiuatra>
TTTJ? 3iacr«*r5 duTTnaii die mmnsGec^ imi rn iH Le^cisiacrT^ mas-
"vrs dirTfi;:^. rie S^HrhdPvj. Er^n 21s s»?acv-aiaiiaif dcww» i<
limitrMi k$ rf^iris nin^iarj Ji die some ttlt diafi ir is lixni^ed
soiii 30 7«7r:f-jiiii. if ^iidic icufr aunutsn 1 mniifter scarailanc opoo
:Iie fT.n'X. x Tiiniscer if :he laofrUir a nmiater if pjiaiic«. a nunisotr ot
Pihiii: ^ }rxi ixiii CommmLuc&son. x aiiusoer if Traiie ami AcncttltaiY
a niniiitiir ;f Xisco*. a nuniscvr jf Re^^?a ami EiimcfoiL mt4 a
minivvr ^f Laa«i D^z-iunx. A.bhs'i u laeK :&efe is alwavs also a
Tr.»^ ni'.r.i.'t'^'ri irtr-cii zz.-r sirtin^ cf ahe chambers and plav
r;>7- *:.- fs-ini* iJir: iLi: the A,i5trLin mizisrer? plaj in the
Ci2. The Reichstag. — The £<fc'i.-;&jt.j^. the nationa! repre-
V r,*^*. .^ r/^/ly, '•• i^i^ti of i H: .Ls-r or Magnates and a House
of K'-r,:'->:r*tat:vr^. To ^he i.^mirr gu ail her^ditanr peers
'/r.o r.^tv hT, anr.-i^tl land t;*! of thni* thousand florins, the
i,.7f.i''.r off'w•i;l^H ^f tfi*f Roman Catholic and Grvek churches,
''•rtnin *('f\c'^\iirt\(^A and lav representatives of the Protestant
' Ki»r h^'H, fifty lif^ f;e^rs appointed bv the king, certain mem-
\f*'rA e.x officio, one daU^Ui from Croatia-Slavonia, and those
THE DUAL MONARCHIBS. 349
Toyai ai-ohdukeM who have iijaclied their majority aiid who own
landed eatatew in Hungary. The House of Kepn?sentativea
(consists of four hundred and fifty-three members elected by
direct vote for a term of live yeai-s.
The fmnchiae reits upon the pnyment of a xhhII amount of IBzei od
UqiI nr on income. Members of certain lestnecl and professional ulaatei,
howi'ver, posieu the franchiie without any property qualillcatiun.
The preiiilent anil licc-preiidcnt of the upper houie are nominaled
hy ihe king.
A« in the vaae of the Austriaa reprc«cntBtiT« bodien, to nlio In ths
case of the Uungarinn, the king convene* and Dpene, and may dote,
aijoiim, or dissolve them.
<J13. Local Governmeat. — For purposes of locai govern-
ment Hungary is divided into shires, certain self -ail ministered
cities, anil Communes. The orgiuii/.atioii is throughout sub-
stantially the same. In f^ach area, — the Commune excepted,
— there is a president who represents the central goverument ;
in each, without exception, there is a subordinate officer who
is exocutivB representative of the local body ; aiid in each
there is an assembly, in part representative and in part
primary, inasmuch as those who are most liighly taxed are
entitled to be present.
<tl4. Croatia-SlavonlB. — There in not in Hungary llie proviocia!
□rgamnition wliit-h »c have seen to exM in Austria (tecs. 000. 01 0).
Croatia- SI avonia is the only constituent part of tlie llungnrian lands
which has iu own separate Landtag. The organiwliou of thii territory
is in all respects exceptional, ll lias been given legal rights which can-
nut be taken away from it without its own consent; and it has a dis-
tinct administration rciponaible to Its own Landtag. It is nevertlieless
of canrae an integral part of the Hungarian monarchy.
S WED en-Norway.
615. Danes and Northmen. — The territory of the three
northern kingdoms of l>eiimark, Sweden, and Norway very
early became .1 home iif the Tentunic peoples, a nursery of
350
Teutonic stzeng^ & peculiar poesessioii of Teutonic instito-
tioofl. It waa fiom this northern land that the fierce North-
men issued forth to win dominions in France, in Bnssia. and
in Sicily ; from it. too. came the Duie to laj his strong hand
apon f-n^^nA Its roving giants kept the world in terror of
piracj and invasion for centories together.
616. Etafy ludtntiMa «f Swcdem aad Hqrwmy.— The
institotions of these strenooos northern folk were of the usoal
Germanic sort. Sweden and Norwaj were at firsts like all the
€rerman coontries, divided into a few score of loosely confed-
erated parts held together by no complete national organiza-
tion or common compacting anthority. By degrees^ however,
the osnal slow and changefol methods of consolidation wronght
out of the general mass of petty political particles the two
kingdoms of Sweden and Norway. In each a dominant ^imily
had worked its way to recc^nized snpremacy and a throne.
As in other Grermanic coontries 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 o})tained a share in the distribution of authority. Finally,
in I'lOT, a joint council of deputies from the three kingdoms
met at Kalinar, in Sweden, and effected the KcUmarian Union.
This union re.sulte^l directly from the marriage of H&kon VI.,
joint king of Sweden and Norway, with Margaret, daughter of
Valrlemar of Denmark ; the Council of Kalmar only put it
uiK)n a hiiH\H of (;lear understanding. It was agreed that the
three kingdoms should acknowledge a common monarch; that,
in default of heirs of the house then on the throne, the three
kingdoms should elect their common monarch, by such methods
THE DUAL MONARCHIES,
361
of agreeraent as they Rould deviae ; but that, whether under
elected or under hereditary inonnrch, ea«h kiugdoni should
retain its own laws and iiiatitntions,
(jlS. The Independence of Sweden. — For Korway this
union with Denmark proved of loug stamling. Not until 1814
waa it finally severed. Upon Sweden, however, Denmark
maintained a very precarious and unt'ertain hold, now niliug
her, again thrust out, and favored the while only by lier own
power and by the sleepless jealousies of the patriotic but self-
ish and suspicious Swedish uobles. At length, in 1323, Sweden
waa able to break finally away from the union. Her deliverer
was Gustaf Eriksson, better known aa Gustavua Vasa, who by
force of a singular genius for leadership and war first drove
the Dane out and then established the royal Hue which was to
give to Europe the grejit 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 history of
Sweden may he said to have begun. The house which he
founded remained ui»on the throne of Sweden until 1818, and
under the long line of sovereigns whifh he inaugurated the
Swedish constitution waa worked out through a most remarka-
ble series of swings ba«k 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 eou.stitution of Sweden as.so<.'iateil 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 a-seendency now of the king, now of the Council or of
the RikixUig, and again of the king, or of the Council and
Jtikwiag combined. With Gustaf Adolf (1611-1632) origi-
352 TUB DUAL MOVABCHIBB.
Bjtod tiie dmmsy {dan, letoined until the present ^....^mm^j^
aeeording to which each of the orders represented in the
BOcadag acted separately in the consideration of «^*^«**i
affairs, to the fostering of dissension among them. By dint of
the masterful policy of Karl XL (1672-1G97) the power of the
crown was made absolntey the Cooncil eclipsed. Kail XIL, a
great soldier, wasted the resooroes of the oonntry and iher^iy
prepared the waj for a decline of the rojal power. 1720 saw
a new constitation effected which ga^e almost entire ccmtrol of
affairs to the Council and to a conunittee of one hundred drawn
from the three first Estates of the i^OEsdo^, and 1734 Immght
forth a new code of laws. Oustaf III., however (1771-17%),
again reduced the Council from its high estate, and left to the
Bikadag nothing but a right to vote against an offensive war.
And so the constitution swung backwards and forwards until
the present century.
620. Bemadotte 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 Napoleon,
the master of Europe, chose as prince and successor to the
throne Bemadotte, a man who had risen from the ranks to
be one of the many distinguished generals bred in the service
of Napoleon.
Bemadotte 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 France ; and Norway was Sweden's reward when the Allies
made their deal at Vienna.
L 623.
THE DUAL MONARCHIES. 3^8
631. Norway's Fight for Independence and her New Con-
sdtation. — Norway, tlioiigli willing cuough to escape the do-
minion of Denmark, did not care to exchange for it an enual
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 mure the r61e
of an independent kingdom. And her new constitution she
managed to keep. Bernadotte compelled her ucquiesceiice in
the union with Sweden, but did not force upon her a surrender
of the institutions whicJi she had chosen to adopt.
622. The union between Norway and Denmark accomplished
at Kalmar had resulted in the absolute {>ower within his Nor-
we^an domain of the common king. Allying himself with
the eitizen class in the natiuual 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 cunsti-
tntion adopted by the Norwegians in 1814 naturally spoke an
extreme revolt from the long-hated authority of kings. It was
not only estremely democratic, it was also largely doctrinaire
and visionarj'. Its framers, having few Norwegian liberties
to build upon, had recourse to the always futile resource of
liorrowing 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
conatitntion gave Norway a valuable impulse towards regulated
political liberty; and, if not carried out at all pijints, was at
least a promise of things hoped for and afterwards to ite in
great measure attained.
Constitutioiial Contraat between Sweden and Nor-
way. — In Sweden there had been no such democmtic revolu-
i
354
TRB DUAL MONARCHtSS.
tion; and in point of instittitiooa tbi? two kingdoms wen in
1814 very unequal yoke-fellows. tJntil 1866 Swedun retained
her clumsy niachitiery of four estates in lier Bikidag, as well
as many other constitutional arnuigements which made the
royal power predominant. Doubtless the standing example
of Norway's more simple and liberal eoustitution hail much to
do with the revision of the Riksdag undertaken in 1866 ; 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
prineiiwUly by the movement of Sweden, the two countries have
drawn towards each other in institutional development.
624. The Fundamental Law3. — The present fundamental
law of Sweden-Norway consists of three parts : («) the 3e[>arate
constitutional laws of Sweden, (b) the separate constitutional
laws of Norway, and (c) the Impeiial Beichsacte of August,
1815, which biutls the two countries together imder 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 forinally adopted as such by the
StortAing. (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 RikHdag an orderly arrangement of its four
Estates and regulated the order of legislative business ; of the
enactments of Juno. 1868, which, abolishing the fourfold
constitution of the Riksdag, substituted two popular houses ;
and of the laws guaranteeing freedom of the press, passed in
May, 1810, and July. 1812. Taken together, these laws consti-
tute a body of fundamental provision slowly built up by
Swedish statesmen upon the somewhat inconstant bases of
Swedish constitutional precedent. Perhaps its most signifi-
THE DtTAI. UONABCBDSS. 356
cant feature appears in the detail irith which the eoactmenta
of 1310 enter into the regulation of the order and methods of
business in the Riksdag. Under the former complicated diris-
ion of that body into four separate houses minute r^ulative
detail was of course necessary, and, aa seen in the laws of 1810,
ia illustrative of one of the chief aiid most intetrsting diflScul-
ties of constitutional development in Sweden. (6) The consti-
tutional laws of Norway, on the otber hand, are, equally from
the nature of the case, very mucli mote simple. They consist of
the treaty of peaee 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 KeicAsacte of August, 1815,
which Sweden has continued to observe as a treaty merely, but
which Norway Las made a part of her constitution.
625. .The Common GoTenunent : The King. — The thong
which binds Sweden and Norway together is the authority of
their common kingj but this authority has one character as
respects Sweden and quite another as respects Norway, The
fundamental laws of each Idngdom 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
there denominated 'economic laws,' administrative laws,
namely, regulative of trades, commerce, and man»faeture, 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 RUcadag; but his veto is in every uase
absolute.
THK DUAL MONARCHIES.
The Biktdag mvj oi couree adviie the king concerning the economic
and adminiitratirc legiilalion enlnuted thus eicliuivelj to bim ; but
any itlion it maj lake has the force of adviof only. The only control
it can exercise in such cases coines to it through its money power; it
may withhold the money necessary to the carrying out of adminiitra-
ti»e or economic ordinancei del«rmincd upon by the king.
626. In Norway, on the other hand, the kiug haa no iode-
pendent bgislative powers, except during recesses of tUe
Storiliing; and his veto is only Btispeusive, Certam police reg-
ulations and certain ordinances totiohiug )>firticular branches of
industry he may isBue while the Storthing is iiot iti seesion.
but these are of force only until the Storthing comes together
again. His veto of l)ills passed by the Storthing may be over-
ridden by the passage of the same bill (it must continue lit-
erally the same) by three successive Storthings.
Tliia. of course, renders the passage of bills over Ills negative an
entreiuel}' tedious and difficult undertaking, and usually, in Aie of n
very urgent disposition on the part of the Siorihing to have lis own
way, a compromiie measure is finally adopted, often at the eipms
•aggestion of the king. In two notable instances, however, — the aboli-
tion of nobility (1821), namely, and the establishment of ministerial
represenlution in the Storthing (1884), — the veto was overridden,
through tlie persistence of the Sinrlhiag, by ineani of the constitu-
tional passage of the measures proposed.
027. The ThrotM. — Tlie royal majority is Kiicd at eighteen years.
Women are excluded from tiiv auccessian. The king must be of tlie
Lutheran faith. He Inkes the throne under oath tn 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 tbc field of battle.
[n case a vacancy occurs, the throne is to be filled by election, the
choice to be made by the Rikidag and the ISlerihiiig acting separately.
If they can agree; or, if they cannot agree, by a joint coramitlev of
seventy-two (thirty-six fnmi eacli body) auembled at Carlstad. This
committee is to choose between the two candidates hy secret ballot.
In the event of an interretinniti or of the minority of the king, th«
administration of the two kingdoms is to lie undertaken by a Joint
Council of Stale, consirliug of the ten ordinary state councillori o(
THE DUAL SIOlTAKCHIBw 857
Sweden and ten tpecial itpifiiBfuittt «f ^wwrny (%ii^ Wi). If the
interregnoiii or miiiotity coatiBme BMfe duw » Jt%r, hnmtrrer, the
natioiiAl repretenUtiTet mvit be emIM tn^geth^ an4 fnv<n an oprpor*
tunitj to make other ammgementi. If the kinf he lick or ahiMtit, hU
heir, if of age, goTeme in his ttcad.
628. Foreign and Common Affairs. — AImr#<)t the only
common affairs of the two kingdoms vhir^h are mmthn, tuA of
agreement between them, bat of soYfrreign a/:tion on th#; jiart
of the king acting for both, are those affairs whir;h afF#;/:t the
relations of Norway and Sweden with foreign fiountrien. In
this field of foreign affairs the king has pr>wer to declare war
and conclude peace, to form or dissolve allianr;esy to use Hhifis
of war or troops, to send or recall amVjassarlors, — has, in lirief,
all the prerogatives of sovereignty. His power it} iwX thiin for
both kingdoms does not, however, merge Sweden and Norway
as regards international relations: they retain their Hi-panite-
ness and individuality in the family of nations ; anri the king
may, and often does, conclude treaties affecting one of Ium king-
doms only. Peace and war are of course, however, crHiinion to
both kingdoms.
029. The king is assisted in these functions hj no common minUter
of foreign affairs : he acts through the Swedish minister, Norway having
no minister of foreign affairs at all. Certain other minbters of itatti
must be present when the Swedish foreign mmistvr layi 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 arise, the king must take the
opinion of a joint Council of the two kingdoms (sec. 634), hut
he is not legally bound by its opinions. He must himself
assume the fall 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 miliuiy
THE DUAL M0KARCHIR8.
force at Sweden, both Uod and nsTal, but he msy not u«e the Nonregiiin
troopa of Uie line without the eiprets conient of the Sorl/iing. The Nor-
wegian militia, luoreorer, cannot under any circuliietance» be employed
oulBide of Korwaj, and it ia witliin the competence af the StorAing at
mnj time to iiii^rease the militia at the expense of the regular line. It
has indeed actually done Ihia.
6W. Iiegtalative Control of Foieigm Rttlationa. — Of course, loo,
the king must in every exerciie al his royal powers act within the liinils
of llie fundamental law. He cannot eoter into any agreement with a
foreign country which ia Bot consistent with the constitations of his
kingdoms; he nuy not conclusiT«ly 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 fur the execution
of treaties. But these are the familiar limitadona of modern representa-
633. ConcuireDt I.egislatios. — 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 Riksiiag and the
Storthing severally.
Important examples of such ci
(he money systems of the two
Lapps.
631. The Joint Councils. — The place of a common ministry
to advise the king touching questions which affect the inter-
ests of botli kingdoms is taken in Sweden-Norway by a com-
plicated system of Joint Coimcils 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 sought and obtiuned.
Whenever, on the other hand, matters which directly affect
Sweden are under debate in the Norwegian Council of State at
Chriatiania, that Council must likewise be strengthfued by the
t three Swedish ministers. There is thus both a
of State; sad not a
two kingdams tf IX*
oonsideia&aii of oDt
-'JZU
I TZlL^LiSy H.
^zT'^rzr \t
tMBlSJLLiSS
nnfloaniiLau^-^ -r: T*w-:f
or of Xorvwrin
635. Cmaaunp. — XJieve tf Bt fnoiiiiiGa. 'mz-a^niin
two kingdomSf ahiioii^ Sw«deF an hliLfv~«rL i^^ 2^
to acquire citiaesiElup in Knrwsj 'pr iii?3<e- Tv&j^jro-^^
reciprocal adraiitages are. iic>wer^er. cif euurvr a— fro^:
of either comitiT mar, lor iofnau^^ c<wi. ^li^i o. -iiir
interstate trade is eDOonzaged. and a ic
Ib facilitated.
i.r 11**^
;iniII*Tir
* ■..■-
fnm IX* ua*^
iLkir^Tf :f i;
Legml buuthmcBt fron
63a The Gmenaestif Svedea II
temal legislation and admiTiiTstrarkg. tL*: tv -. Ll^-:. •n.b lj^t l£
distinct as if no legal relatiosifi eiis>»d ••r^vr?*:'! •li-ii. I1»'jL
has its own separate tpeasnrr. its c*wt: \tiZJL^ :tt ,-»■:. Hi.'ii^v
system, its own armj and navr ; and *;h^-L Li^t ~.Vt :t3. •.■.:>::.].u'et<e
administrative and legisladre orgaLuizaxici:^
637. The Swedish Exeoitm: The King and Cosndl.—
Sweden's theoretical derelopment in tbie firii jf •.■...li-iituii'.'iii^l
law has been less complete than her practical devel'>]«inrnt.
Her fundamental law recognizes only a twofold divisi' -n of
governmental powers, into Executive and Legislative. Judioial
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
860 THE DOAL MONARCHIES.
are quite as independent of him as they would be were Swedisli
theory upon this head more advanced.
638. The position and character of the Swedish Executive
are in some respects 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 heaxls of departilients as councillors of state
assigned the duty of advising the monarch. They bare seats
in the Riksdag with a full voice in all its debates and the right,
exercised in the name of the king, to initiate legislation. This
connection with the legislature involves also, as a natural con-
sequence, frequent resignations ot the ministers in cases of
unalterable disagreement between themselves and one or both
of the chaml>er3 ; but ministurial responsibility is not aa yet
ii recognized principle of the constitutiun. Kot only the full
equality of the two chambers stands in the way of its develop-
ment, hut also the authority of the king. The ministers serve
too many masters to be altogether responsible to any one of
tliem. In respect of her Esecutive, therefore, Sweden may
be said to stand half-way between England and France, where
ministers ore wholly responsible to one house of the legislature,
and Germany, where the ministers are responsible to the sov-
ereign alone.
039. The executiTe departmentB in Sweden «re the following terta:
Foreign AfTnire, Juatice, Laud Defence, Sfn Defence, Civil .Ufaln
(Interior), Finauoe, Ecctesisstical AlUire. At (be iie»d tit the Coun-
cil of State (Ibe coUci^tlTe niinuU]') «tan(]« a prime minister who U not
generally auigned any spcciSc expcutlre dnCieB. The division of buti-
ness among tlie departments realH entirely with the king, AlthoDgh
the king gorcma, however, (o far aa one man may, every decree which
he iHuea mnat be coiuiteraignod by the head of the department wtiote
F40. The Riksdag. — The national Riksdag consists, as in
most other governments, of two chambers. Of these one, the
upper chamber, consists of one hundred and forty-three mem-
THE DTTAL MONARCHIES.
361
1 cbosen for a. term of nine years by the representative
bodies of tlie eoiuities and the councils of the larger towns :
these electoral iKKiies being in their turn chosen upon the
basis of a complicated 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 inliabitants, the ton-ns one for every ten thou-
sand inhabitants, the latter beii^ thus given the preference in
representation.
Thi> does not, howerer, r«iiult in the return of x itiRJoT[ty of town
inemhers. Onlj- seven ty-aii membera nre rMumei) bj tho lawns, one
huntireil and forty-iii by tlie rural dislricls.
In s majority of the electnral diBtricts the vote u now direct, bjr
choice of tlie electors.
The proportion of repreBenlation in the upper house is one member
for every thirl; lliousand inhabilsntg. The rural population haa hy
this amuigement a larger repreBentation in the upper thnii in the lower
hoase. Oa\y the municipal cotinoils of Chose towns participnte in the
elections to this house whose population is not representpd in the
county councils. Such towns are onl/ four in number: Stockholm,
Goteborg. Matmi', and Narrk'>piiig.
The members of the upper house are not elected for a joint term of
nine years, but each member is uhosen to serve that length of time: so
that if any member be chosen lo flU a rneancy his term will, of eoune,
overlap the terras of Iho 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 tltat,
under 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.
THE DUAL MONABCHIKS.
642. Local GoTemment. — Local government rests in
SwL'di'ii upon very ancient historical foundations. The primi-
tive Germanic institutions of self-government liave 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 forhid, 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 Icing; but in
them also popular representatives play an important super-
visory part.
643. Changes in the Constitution. — Changes in the cou-
stitution can be quite simply effected. If proposed by one
Rikadiig and a^lopted 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 GoTernment of Norway : The Norwegian
ExecutiTe. — The king stands in substantially the same rela-
tions to his Council in Norway that he occupies towards hia
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 tiie
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-
I
THE DUAL MONARCHIES.
tiotu to the national legislature the Norwegian do not differ
greatly from the Swedish laioistera. Thi^y sit, without votinff,
in the Storthing; they have the privilege of iiiittativr, and
they are under no constitutioaal obligation to n^iiign in t-anc of
defeat (sec. 63S).
MS The Norwegtiin Couni.'il of Sute coniltti of two ptni, (a) «
miniiter of Male anil Iwo councitlorB. all three of whom accompany the
kinK. and (&} the ' Go*eniroeiit ' proper, eoiuiiting of a tninUlcr of
•tale, aa prime miniiler, and lii »r aeven other mlnlitcn, acoonlliin at
tlie prime miDiiter hu or hai not a porlfoHo, For the aJminiitralive
deparlmeDti in 'Sarm%j, ai in SwL'den, arc Kytn in numheri namely,
Bccleiiutical Affairs, Justice, Interior, Finance, War (indudinft. aincF
1S85, the nary), Public Works, and Audit. Tlie iliviiioo o( buaincn
among the sercral department! rente with the king.
646. The Storthing. — The national StoHhing has a nhariuv
ter and constitution quite peculiarly its own. It is, in fuct, a
single body, elected as a whole, btit self-divided for ordinary
legislative business into two sections, a Lagthhig and an
Oddathing. It is chosen for a term of three years and consists
of one hundred and fourteen members, tLirty-«ight (or one-
third) of whom are returned by the towns, seventy-six (or
two-thirds) by the rural districts.
ThiB proportion ia flied by law and can be changed only by coniti-
Indonal proTiiion.
The franchise reau upon a property qualiScalion, and the voting ia
indirect. In the citie* the accondary clcctora are choaen In the propor-
tion of one to every fifty Totars; in the country dlatricta in the propor-
tion of one for every one hondred votera.
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 Lagiking; the remaining three-fourths constitute
the OdtUthituj; and with the Odelalhing remains the right tii
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
864 THE DUAL MONA.RCHIBS.
to ordinary bills, however, that the SloHhing acta in this w^
as two houses. Constitutionitl and financial questionB It con-
siders as a single body.
In case the Lagthing twice rejects >nj meaiure lent to it bj the
Odeittkiag, the difierence ii decided in joinl leision by a two-thirdi vole.
648. Local Govemment. — Local government in Norway
does not rest upon the same undisturbed foundations of his-
torical tradition which in Sweden upliold it. The laws whicli
give to it its organization date from 1837. By these the counlxy
is divided into districts and communes, in the govenunent of
both of which the people are represented, but in both of which
officials apiwinted hj the central Govemment exercise consid-
erable {Kiwers of oversight and control.
649. Changes of Constitution. — Constitutional amendment
is effected in Norway substantially as in Swcflen. Proposals
of amendment must be introduced at the JlrU ordinary ikmIoh
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-tliirds of the members present are
required for the passage of such amendments, and the king's
veto operates as in other eases (sec, 626).
650. The Two Countries. — More tlian seventy years of
successful union (1814-1880) now stand behind this singular
dual monarchy of Sweden-Noi-way, 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 he, by not a little forbearance and eons i deration. The
two countries have concurred in removing also all the more
serious causes of possible commercial irritation between theni,
— each opening its markets to the natural produota 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 iwlicy, moreover, is often, when considered from Norway's
THE DCAL XO^ARCHIESw r^
point of Tiew, a Swiedish. policj merely. lookinij din?etlv or in-
directly towards Swetiuh oontn^L Xot a few causes of jealousy,
not a few points of friecioa. remain in the system. An indu-
ential party in Norway, thierefore. of oourse desires an even
larger measore of xnilependenoe and home rule than is now
possible without fundamental constitutional ohang^\ susj^ei^t-
ing, probably not without just cause, that it is the objtvt v^f a
certain party, at any rater if not of all ponies^ in Sweilen. to
weaken the guarantees of liberty now existing, and to draw
Norway ercn further within the circle of Swevlish ivntr\>L
The fature, it woulfi seem, must assureiUy brinsr forth either
greater consolidation of the dual goTemment or a new :uul
better, becaose closer, scheme of confederation.
SOMK fcrrBODrCTORY ArXUORITIES.
On AoBtria-HnngBiT :
Warwuj Banm H. de, ^ The Aastro-Hongftriaii Empire.** 8vo. London*
1877. Hialoricml mod descriptire.
Paitentm^ A J^ ''The Magyus, Their Country and lUi Institutionn.**
2 Tols. LondoD, 1870.
Atbriek^ J., ^Das SUat&recht der oesterreichisch-uuj^ari^^'hou Mon-
archies'' in Marqmardsens '' Handbuch des oefFentliohon Utvht««'*
Freiburg in B., ldS4.
Demambynesy G., •* Les Constitutions Europ^nes," IL, piv 1«7-.'UM,
Letry, D., '^ L' Aatriche-Hongrie, ses Institutions," etc. l\irijs 1S73,
On Sweden-Korwaj :
Ihmkamj S. A, «* History of Denmark, Sweden, and Norway." 3 voln.,
12nio. London, 1840. Best brief history in KngUsh.
Geijger, E. J., and Carlson^ F. F., "Gesohichto SwodiMJu." trnnitlatiHl
into German by J. C Petersen, 5 vols., Svo. (iotha, 1811^7*^,
Asckekaug, T. H., "Das Staatsrecht der veroinigten K(MUKr««ioh«)
Schweden nnd Norw^;en/' in Marq%uurdun*$ ^^Ilandbuoh iltft
oefFentlichen Rechts." Freiburg in B.» 1880.
Demombynes, G., ""Les Constitotions Enropienat," I., pp. 03-108,
THE GOVERNMENT OF ENOLAND.
I. Cbntbal Govebnmknt.
651. Origin of the Constitution Teutonic. — The history
of governiaeiit in England, as in Germany, begins with the
primitive politics of the Teutonic races. Those great race
movements of tlie fifth century which put the Frank in the
Roman's place in Gaul put the Angles and Saxons in the phice
of the Roman in Briton. The first Teutons who made 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 remiuned with the people of Britain
to be handed on, in faint reproduction, to future masters of the
island, it is impossible to say. Certainly, liowever, there was
nothing of Rome's handiwork in the forms of government
which the Teutons established at the basis of English politics.
Those forms were their own. "They were reproductions, as
nearly as the conditions of conquest would allow, of the in-
THE r.OVERNSrENT OF ENGLAND. 8fi7
Stttntioiis which the Bomans had seen in use among their
redoubtable foea beyond the Rhine before evei- the Empire had
suffered serious inroad,
652. Primitive Teutonic Institutioas. — These institutions
had none of the national character which they were in the
course of time to acquire. They iUiistrated the well-known
liistorical 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 tiermans 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 peaee directed their own affairs with
quite absolute freedom in village meeting. Even in war eaeh
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 demot;ratic temper seems to have ruled in the
politics of that rough primitive time. And it is not at all
likely that this temper was a whit abated among the hardy
pirates, as tempestuous as the northern waters which they
braved, who founded new kingdoms in Britain in the fifth
century.
653. Institutional Changes effected by Conquest. — It was
kingdoms, however, and not mere loose trilial confederaeiea,
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, 236) : they made real king-
ship necessary as an abiding basis for national organization.
The military leader waa of necessity constituted permanent
king, the same cohesion being needed to follow up and enjoy
conquest that had been need«d to effect it. But the new king-
doms were at first quite small, — small as the island waa, it
held many such, — and the internal organization of the tribes
868 TUB OOVERNMBNT OF EKOLAND.
was probably not deeply affected by the fact tbat a throne bad
been fl«t up. The people gathered, as wa* their long-time, their
immemorial wont, into more or less compact but always small
commuiiitiesj enjoying their lands according to some system
of common 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 aud ^vernment stilt proceeded, as
of old, from the meeting of village freemen.
654. The Hundred-moot and the Folk-mMt. — 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 tn 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 Saion
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 priest, 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 Geruiany in the first
century.
655. English Kingdom and English County. — When the
English kingdoms were mimy, eairh, probubly, had its general
council, which sat under thf presidency of the king, and which
iulvised with him concerning the common interests with some
THE GOVERNMENT OV EaiGLAND.
369
at least of the old autboritati veness which its conclusions had
possessed before the new kingship bad 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 sucb indepen-
dent political life, sank to the rdle of counties, and their folk-
moots, which had onc« been in a sense national assemblies,
became mere shire-moots, mere county courts, presided over by
the sheriff as representative of the king, the bisliop 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
aasembly of another kind, to a great council called the Wit-
magevMt, 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 organizar
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 officers and thegns about the king's person.
657. Powers of the Witenagemot. — Its powers were very
great indeed, in theory always, perhaps at hrst in practice also.
To it belonged the old popular prerogative of electing, or upon
n deposing, the king. It gave or withheld its consent
370
THE GOVERNMENT OF ENGLAND.
to grants of the public land. It was the supreme court of the
kingdom, for both civil aud criminal ca^es. It shared with
the king the law-making and appointing [lOwer, and joined
him in the imposition of taxes. As the king grew in power
and influence, the co-operation of the Witenagemot m 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 moat things merely formal and
perfunctory, wa* 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 officers of the shire became royal officers merely, the
ecclesiastical authority being set ai>art to Itself, and the ealdor-
man being shut out from all administrative functions. The
land William uonflscated, 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 ; aud 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 eieriuse of their privileges.
659. The Great Council of the Norman Kings. — More im-
portant stdl, he preserved, with uioditications to suit bis change
of system, the national assembly of the Saxon polity. Ha
claimed to come to the throne by natural right and legal sue-
caasion, not by conquest, anil tie sought to continue, as far aa
might be, the eoustitutioo under which he claimed succeesion.
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 WUenageniot. But of
course its character greatly changed under his hands. Eevolt
hardened his rule, to the exclusion of the old national element
from the central assembly of the realm. As the new organi-
zatiou of the country assumed a feudal character of the Norman
type, that new character became mirrored in the composition
of the national council. The Witencufemot merged in the Great
Council (viagnum or commune coiicUtum) of the king's tenants-
in-chief. To it came at first, besides the earls, the barons, and
the kniglita, who either in fact or in feudal theory held their
lands of the king, the archbisbojis also, the bishops, and the
abbots ; aubseiiuently, however, even thesti ecclesiastical mem-
bers were admitted only as barons, as holding land of the king
and 80 members of the feudal hierarchy. In theory, it would
seem, every landowner was entitled to claim a seat in this
Council i it was meant to hold the plar« 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 tlie Notmau kings, is 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, Ikave been evolved Parliament, the Cabinet, and the
courts of law.
600. Tbe Feudal System In Etngland. — England n>« not fend&l-
iMd by tlie Korninns. ('eudBLizRtinn liad grown there, na eUewhere,
with tlie growth of Teutonic palitics, under Shxoii and Dune as under
Frftnk aiiil Golb. Society in Engluid, as ua the CoDtineni, liad ilirided
THE GOVEENMENT OP ENGLAND,
I
intci rsnkg of nublea, freemeo and elavea bound together
trolly and the piinciplea of lindownerahip. What the Normiui did wai
to give Dew directions to the indigenuui grovtti uf feudaligin. The
eyateni liad not gone to auch leagtha of disintegriktLon in Eastland ai it
aftcrnarda went on the Continent, and Williaui the Conqueror'i flnt
care when compacting hii power in tlie idand wh« to lubordinate all
feudal elements permanently Id the crown. He saw to it, by the un-
hesitating use of his great power, that no baron ihould be able Ut copi
with the king without wide combinatiou with other baroni, tneh at
watchful kings could probably always preTent; and he dulled the edge
of hostile feeling by giving to the greater bnrons of the kingdom a
function of weight in the management of BfTsira hj bringing them into
peaceful and legitimate combination in the Great Council, which be
called together three times every year, and whose sdrice he nevel
refused at least to hear. That Council retained, formally at atiy rate,
the right lo choose the king, and all laws were declared to be cnMled
by and with its advice and consent,
661, Character of English Institutional Grovth.— Ithas
been noted aa a leading cbaracterintiR of the conetitutional
history of England that her politi^'Jil institutions have been
inceasantly in proeesa of development, a singular continuity
marking the whole of the transition from her most aneient to
her present forms of governmen t. It is not a history of breaks
or of new establishments, or of suceesaive new creations of
instnunentalitiea of legislation and administration: all the
wjiy through it is a history of almost insensible change, of
slow modifieatiou, and of unforced, almost of unconsciotu,
development. Very great contrasts appear between the char^
aoter of her government in one age and its character in ano^er
age distant one or more centuries from the first ; bnt it is very
difficult to peKeiv« any alteration at all when com[>ari9on is
made from generation to generation. Almost no ctiangee 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, ia one which may be outliue<l in quite brief epitome : its
stages are long, its features large, its details uneiisnitiRl to
clearness. It is possible to trace the evolution of the ordenid
I
THE aOVBBNMENT OF ENGLAND. 878
sjitem of Parliament, Cabinet, and courts out of the nebulous
mass of the Great Council without burdening the recital with
too great a weight of partiuuliirs.
662. The Course of Development. — In briefest summary
the facts are these : the Great (or National) Couik'U itself
became the Parliament of the realm ; those of its members, aa
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 tell becoming, in
the end, the courts of Exchequer, of Chancery, and of common
law.
663. The Permanent Council. —The body of state and
court officers whom the king k^ept 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 e.tay 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-
874
TUE GOVBRNMEST OF BNGLAKD.
sionally, but continuously ; not with a mere outside acquainb-
anct! with the posture of affairs, but with an inside intimacy uf
knowledge.
664. Composition of the Permanent Council. — Under the
Norman kings the membership of the Permanent Council con-
sisted, usually, of the two archbishops (of Canterbury and of
York), the Justiciar, the Treasurer, the Chancellor, the Stew>
ard, the Marshal, the Chamberlain, and the Butler, with the
occasional addition of other ofilcials, 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, a^ 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, aa
a rule, to have lain within the king's choice to constitute it
how he would.
605. The Powers of fhe Permanent Council were enormous:
were as large as those of the king himself, who constituted it
his administrative, judicial, and legislative agent. Ita " work
was to counsel and assist the king in the execution of every
power of the crown which was not exercised through the
machinery of the common law " ) ' and " the king could do
nearly every act in his Permanent Council of great men wliich
be could perform when surrounded by a larger number of bis
nobles ; except impose taxes on those nohles themselves." '
Itut the Permanent Council very early ceased to act as a
whole in the discbarge of all ita functions alike. Itself a cotd-
mittee, it presently, iu its turn, began to split up into commit-
660. The Law Courts. — Men specially learned in the law
were brought into its membership, the biter kings not hesitaU
> Rtul>lM, Om.Uiinwa! Hlitorf o/Enffland, Vol. III.,]). 862.
« A. V. Diiiey, The Privg Cu«iit{l. p. ii.
THE GOVEKNMBHT OF ESULAMD.
375
ing, when tlie needs of the service demanded, tu introduce
commoners, as the Couucil drifted away from eveu its nominal
connection witli the Great Coun(;il ; and to these tlic- financial
and judicial functions of the crown were more and more exctu-
sively entrusted. (Compare sec. 293.) It was not long before
(o) a separate Court of ExiHiequer, which was at first charged
priuciiiaUy with the audit of linaace 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 ComvyoH Pleas, jurisdiction over all
civil cases between subject and subject ; (c) still another, as a
supreme court, or Court of King's BencJi, which always accom-
panied tlie sovereign wherever he went and which was iu
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 heai-ing of other courta ; and (d) the
Chancellor, who liad once been merely jiresident, in the king's
absence, of the Permanent Councd when it heard appeals In its
judicial capacity, had absorbed to himself, in his Court of
Chancery, the whole of that 80-<!ft!led '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 Chaucellorship 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 tha
fourteenth.
667. Parliament. — Meantime the national body, the Great
Council, from which the Permanent Council and courts had in
a sense been derived, had had its own expansions and changes
of form and had taken on a new character of the utmost sig-
nificance. Not greatly altered in its composition during the
century which followed the Norman conquest, the Great Coun-
876
THE GOVERNMEKT OP ENGLAND.
oil was profoundly affected by the outcome of Magna Oharta
(a.d. 1216) and the momentoua oonstitntional strugglts which
followed it. It was then that the principle of repreaetUatioti
was first Introduced into the coimtitution of Parliament and
oommonera as well as nobles given seats in the national aasem-
blj. The archbishops, bishops, and abijots attended as of
course, as always before, and the earls and greater barons held
themselves equally entitled to he summoned always by special
personal summons ; but the lesser barons, who formerly had
been called to the Council, not by personal summons, but only
by a general summons addressed to them, along with all ten-
ants-in-ohief, 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 representation. Writs addressed to the
sheriffs, commanding the necessary elections to be held, called
for representatives of the lower clergy and, more important
still, for representatives (knights) of the shires and (burgesses)
of the towns. The Parliament which Edward I. summoned in
1296 contained all these elements and established the type for
the composition of all future Parliaments.
60S. In the (ourtcenlh clauie of Magna CIibtIb. John was luade to
promile tLal, beildes »uninioiling the arcllbishupt, btBliu]iB, abbot),
earli, and greater baroni ipfcrally, by ipccial pcnunBl letten, h«
would siunmon all leitur baroni >Uo by a geoeral ■uiumuni. lliraagh
the iheriSi and baiUITc, But Ihia general aummoni failed o( th*
deiired effect.
009. RvpresentatiTe* from the towna were suiumoued first in 1S66
by Earl Simon uf Monlfort, wliu knew that he could count upon the
inpport of llie Commons nf Englanil in liii conteit with the king,
Henry III,, and who ualled burgeMi^* to llie Parliament whieh he con-
stituted daring the brief period at bia aupremncy in order to give open
proof of thai tupport. Edw«rd I, followed Monlfort'a ezamplp in 120G,
not beeause he wai deliberately minded to form s truly reprf aenlallT*
•Hemhty ■> a wine step in constitutional derelopinent. but because he
wanted money and knew that taxes would be most readily paid If Toted
hj an awembly reprewuting all.
arte V
bich I
itioti ■
THE GOVERNMENT OF ENGLAND.
377
070. B«preacnUIivcs [roin thu ibirea (knigbls) had nUen been called
to ParliampnC before 126&. Step by «tep first one elenipnt uf Ibc nation
and liien anolhcr had boen introduced into Parliampnt : Ural Ibe Icaier
barona, by K'^nsrnl BUtnmons, — only, however, to drop out again, —
then the gentry ot the ibirei by election in the countie", finally the
bnrghera of the towni by similar election in county court.
671. Genesis of tbe Two Houses. — Such a body as the
Parliament suiumoned by Edward was, however, too conglom-
erate, too little homogeneoua to hold together. It did not loog
act a^ a single assembly ; but presently fell apart into two
'houses.' Had the lower clergy uontinued 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 Farlianient, 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 exclusiveiy 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 represantatives 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 commoners
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 summoos 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 wliat 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 cgunsellors of the king
THK GOVERNMENT OF EN(SLAND.
whom he maintained in permanent relations of confidence with
himseUj and throngh whom he suffered to be exercised some
of the greatest of the rojal prerogatives. Especially did the
arrangement seem obnoxiuus 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 I'ormanent Coun-
cil had been to the Great Council. It was still another "inner
cinile." 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 aflvica and resolution ; and the king separated from
the 'ordinarj' ' councillors certain selected men whom he con-
stituted his Privg Council, binding them to himself by special
oaths of fidelity and secrecy. From that moment the Perma-
nent Council is virtually superseded, and the Privj- 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 tlie 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 ileveloped from its roidst (sec,
666) ; and the same rights of exercising the iwwers of a courti
which had been assumed 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, whitdi were
not abolished until I64I, when that great revolution had fairly
set in, which was to crush arbitrary executive power forever
in England, and to usher iu the complete supremacy of Par-
liament.
674. Origin of the Cabinet. — Meanwhile, long before the
parliamentary wars had come to a head, the same causes that
THE GOVERNMENT OF ENGLAND. 879
had produced the Permanent and Privy Councils had again as-
seited their strength aud produced the Cabinet, still a third
" inner circle," this time ot tie Privy Cnunpil ; a small body
selected for special confidence by the king from the general
body of his counsellors, aJid 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 distiaction on persona to whom noth-
ing waa confided, and whose opinion was never asked. The
Sovereign, on the moat important occasions, resorted for advice
to a small knot of leading ministers. The advantages and dis-
advanti^^s of this course were early fwinted out by Bacon, with
his usual judgment and sagacity ; but it was not till after the
Bestoration 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 officially 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.'"
675. 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 11. It is
now the central body of the English Constitution. The stejis
by which it approached its present position are thna summa-
rized by a distinguished English writer:
" (1) First we find the Cabinet appearing in the sliajje of a
■ Macaulsy. IJinory of England. Vol. I., pp. 1B7, lil8 (Oarper'i ed.,
IM0).
THE GOVEKSMCST OF ENOLAUD.
small, informal, in-e^lar CatnariUa, selected at the pleasni*
of tlie Sovereign from the larger body of the Privy Council,
consulted by and privately advising the Crown, Imt with no
power to take any resolutions of State, or perform any act of
govemmetit 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
Coancil 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 cf« faao as
well as dejure, the only authoritative bmly of advisers of tha
Crown. {Reign of Charles I. and Charles II.. the latter of
whom governed during a part of his reign hy means of a
Cabinet, and towards its close through a 'reconstructed' Privy
Council.)
" (3) A third period, commencing witi the formation by
William III." of a ministry representing, not several parties,
as often before, but the party predominant in the 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 d«
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 Itoily, — uecessarily
consisting (a) of members of the Legislature ; (6) of the same
political views, and cbosen from the party possessing a ma-
jority ill the House of Commons ; (c) prosecuting a coucerted
policy ; (d) under a common responsibility to be signified by
collective resiguation in the event of parliamentary censure ;
and («) acknowledging a coniinun siilwrdination to one chief
THE GOTERNMEKT OP ENOLAXIX S81
Bimsker^ — took definite sliape in our modem theory of the
Coostitation, and so remains to the present day/' ^
67a FnrliaaeBt uid the Mttisters. — The principles oon-
eeming the ccnnposition of the modem Cabinets which are
stated in this last paragraph of Mr. Traill's summary may be
said to haTe been slowly developed out of the once changeful
relations between Parliament and the ministers of the Crown.
As I bare said (see. 672), the national council very early devel-
oped a profound jealousy of the power and' influence of the
small and prirato council, of state and court officials, which the
king associated with himself in the exercise of his great pre-
rogatiTes. 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 goveruinont
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 Kichard I., for abuse of ]H)wer.
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 ChaiiceUor
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 ph^ad
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
^ H. D. Traill, Central Government (English Citizen Series), pp. 28-25.
382 THE GOVEBITMENT OF ENGLAND.
for bad advice to the Growny for gross mistakes of policy as
well as for overt breaches of law and of constitutional rights.
^7. Disappearance of Impeachment. — The Act of Settle-
ment and the policy of William and Mary inaugurated, however,
the final period of Parliament's supremacy. Parliament's pref-
erences began to be regarded habitually in the choice of
ministers, and impeachment, consequently, began gradually
to fall into complete disuse. Its place was taken by parlia-
mentary votes, — finally by votes of the House of Commons
alone. Ministers, who cannot command a majority in the House
of Commons for the measures which they propose, resign, and
Parliament has its own way concerning the conduct of the
government.
678. The Executive. — The Executive, under the English
system, so far as it may be described at once briefly and cor-
rectly, may be said to consist of the Sovereign and a Cabinet
of ministers appointed with the Sovereign's formal consent.
All real authority is with the Cabinet ; but the ministers are,
in law, only the Sovereign's advisers, and the government is
conducted in the Sovereign's name. The true place of the
Sovereign in the system is that of an honored and influential
hereditary councillor, to whose advice an exalted title and a
constant familiarity with the greater affairs of state lend a
peculiar weight. The king * is in fact, though of course not
in legal theory, a permanent minister, differing from the other
ministers chiefly in not being responsible to Parliament for
his acts, and on that account less powerful than they.
670. The Sovereign is not a member of the Cabinet because George I.
could not speak English. Until the accession of George I. the king
alwajs 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 with
^ Since the throne of England is generally occupied by a man, it is moat
convenient to use ' king ' as the distinctive title of the Sovereign in every
general statement of constitutional principles.
THE GOVERNMENT OP KNOI-AND. 383
the C»Wnet. A slmilM example of the Interesting eaie with which
mcTi of our rnce eilnblieh nnd oluerTe preceilenta is lo be found in the
practice on the pari of Presidents of the United Statee of sending writ-
ten inessagea to Congress. Washington and Julin Adams addressed
Congress in person on public affairs ; but Jefferson, the lliird President,
was not an easy tpenker, ami preferred to send a wrillcn message.
Subsequent Presidents followed his example as of course. Hence a
binding rule of constitutional action.
fiSO. Position of the Cabinet. — The Cabinet consists of the
l>rincipal ministers of statp and has reached its present position
of power in the government because of its j'esponsibility to '
Parliament. The chief interest of Englifih constitutional his-
tory centres in the struggle of Parliament to establish its
supremacy over all other autliorities 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 cenlrury 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 l)asis of all its pretensions ; anil so soon as reforms in the
composition of the House of Commons bad made it truly repre-
sentative of the people, the House of I>orda, 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 ininistcra to Parliament constitutes their strength
Ifficausc it makes them the agents of Parliameut: 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 that his party will approve of
his assuming loaibility, he accepts the commission,
i
884 THE GOVERNMENT OF ENGLAND.
and, usually after due consultation with other prominent n
bera of his party, gives to the Sovereign a list of the men whom
he reuommends for appointment to the chief offices of state.
These the Sovereign appoints and commissions as of course.
\.,^hey aie 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 thenr-
selves by a career of steady suceesa in the debates of the
houses: they have come to the front by their own efforts, by
force uf their own ability, and represent, usually, tried parlia-
mentary cajtacity. Such capacity is necessary for their success
as ministers; for, after they have entered the Cabinet, they
oonstitute, in effect, a committee of the majority of the House
of Gouunons, commissionefl to lead Parliament in debate and
legislation, to keep it, — and, through it, of murse the country
at large, — informed concerning all important affairs of state
which can prudently be niiule public, and to carry out in the
conduct of the government the policy approved of by the rep-
resentatives of the people,
082. CompOBltlon of the Cabinet. — The C>bin«t doei not oon-
■!i( iDTsriablj of llic enme nuiiiticr o{ miniiten. Kleren offldali alwtjt
have leaW in it ; namely, llii; Firal Lord of the Treaiury. the Lord
Chancellor. Ihi> Lord I'rtBidenl of llie Council, the Lord Prirjr Seal,
the Chanctllor of Ihc Exehe<iucr, llie Atc SccKtnricB of Suie (for
Home AITatri, furForei);n Aflairg. for Ui€ CulonieR, for IniJi*, aod tor
War), anil tlie First l^ird of lh« Admirftltj'. To tlieie are gcnerallj'
added from Ihri'o to Ave otiien, according to circumBlancei : often, for
lniMnci>, liic I'niiitlcnt of the Board of Trade, aometimeB the Chief
Secretary lor Irelanil, frequently the Preeident of tlie Local Gorem-
mcnt Board. Tlio general rolo which goTemi Iheie addtlioni it, that
erery interest which it likely to be pramtnent tn the debate* and pro-
ceedinga uf tlie House of Coinmons ought la hare a C«btiiet minister
to speak tor it and to ofler to the Home rctponaible advice-
BSD. No member uf the House of Coininona may accept ofDce irith-
out the approval of tils con»tituent«. Upon receiving an appoiQCiQeiil
ntlniater he mutt teiign hit seal in the HoD>e and seek re-«leetian,
leprcscDtatiTe /Jot miniater. The wltolo lualter It merely formal,
^^^^^.W I
The govebNment of England.
385
howcTer, In mo«t cases. The apposite party do not uaualty , under (uch
circuiuitanceR, conlt^st the seat Ji lecond time, and the minister ia re-
' elected without oppoailion.
684. The cuBlom of the Sorercign's selecting only the chie/ minister
and intruiting him with (he formalion of ft mtnulry also, bi well as the
Sorereign'* absence from Cabinet meciings, originated with Oeorgc 1,,
wlio did not knov enough of English public men to choose all the
ministers, ftnd so left the choice to Wnlpole.
686. This method of forming a ministry is, of coursp, the
outcome of Farliameut's efforts to hold the king's niiaisters to
a Btrict responsibility to itself. None but members of their
own party would suit the majority in Parliameut as ministers ;
and since the ministers had to explain and excuse their policy
to the houses it was best that they should be members of the
houses with the full privileges 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. Hialsterial Responsibility. — If the ministers are
defeated ou any important measure in the House of Commons,
or if any vote of censure is passed upon them in that House,
they must resign, — such is the command of precedent, — and
another ministry must he formed which is iu 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 Coimnons would be cheated of all
real control of them if they could, njion each utterance of its
condemnation of an executive ai't, or upon each rejection by it
of a measure proposed or supported by them, ' throw over-
board ' only those of their number whoso departments were
most particularly affected by the vote, and so keep substan-
tially the same body of men iu 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
THE GOVERNMENT OV ENGLAND.
a new election ; that advice must be taken by the Sovereign ;
and the ministei-s stand or fall according to the disposition of
the new House towards them.
UST. It sliould be adduil Uiat exceptional casei do sometimei uiie in
wliiuh rcipunBJliility for an objectionable course of action cui be lo
plainly and directly fixed upon a particular tninieter, who Ills acted, it
may be, without Ihe concurrence, possibly without the knowledge, of hii
colleaguei, thnt hi> separnlc dismisEal from office ia recognized ■■ the
only proper remedy. A notable initaDce of thi« sort nrone in England
in 1861, ttlien Lord Palnierston,. then foreign secretary, was dismissed
from office for adding to various other aets of too great independence
of the concurrence of his colleagues or the crown an unauthoriaed ei-
pretsinn of approval of tlic coup il'ctiU of Louis Napoleon in France.
688. Lagnl Status ol the Cabinet — The peculiar bialorical
origin of the Cabinet uppunra in a atatumcnt of its position before the
law. As we have seen (sec. 674), it is not a body recognized by law:
its existence, like the eiislence of not a few other political inatitntion*
in England, is only cuitomari/. The particalar ministen who form (be
Cabinet have the right to be tlie exclusive adriacr* of the Crown, —
that is, [he only executive power, — only by virtue of their membership
of the Privy Council. They mast all be sworn into the memliership of
that body before they can act as ministers, as confidential icrvatits ot
the Sovereign. The Privy Council iiseU, however (» a wliole, that is),
hoi not been asked for political advice fur two centuries. It lakes no
part whatever in the function wLich twelve or fifteen m'misters elerciae
by virtue of belonging to it; it is not responsible, of coune, for the
advice they give; and it cannot in any way control that adviee.
689. Initiative of the Cabinet in Legislation. —Having
inherited the right of initiative in legislation wliich once be-
longed to the Crown, the Cabinet shajw aiid direct the busiuesa
of the houses. Most of the time of Parliament is oicupied liy
tlie consideration of measures which they have j)repared and
introduced ; at every ste|) in the procedure of tin; houses it is
the ditty of the ministers to giude and facilitate busineas.
iltH). The Prima Blinlatai. — " Consistency in policy and viffor In
■dminiMraiiun " on Ihe pari of the Cabinet are obuined by its or^putl-
zalion uAder l)ie authorily ot one 'First' Minister. This I*rime Minister
generally holds the office ot Ftral Lord of the Treuiuy. ll l« net Ihe
THB GOVEBNMEKT OP ENGLAND.
387
offlce. however, wbii;li glve« liiin priinacy in the CAhinet, but hit recog-
DLCVil weight as le«J<?r of hla partj, The lemder choieo hj the Sover-
eign tu form the ministry itaDdsi Kt its head wlien tomied. He UBulty
choosea to occupy the office of Fint Lurd nf the TrenBury becauie the
official dutiei of that place are nominal only anJ leave liim free tu
exeruite hie important functions bb leader of the pnrty in power.
691. The Departments of Administration. — Ho much for
the relations of the Cabinet to the Sovereign and to Parlia-
ment. Wheii we turn to view it iu its admimstrative and
governing capacity aa the Engliah 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
liide a thousand intricacies horn of that composite develop-
ment so characteristic of English institutions.
692. The Five Great ' Offices ' of Stote. — Not attempting
detail, however, it is possible to give a tolerably clear outline
of the central administration of the kingdom in comparatively
f words. The Treasury I shall describe in a separate para-
1 (sec. 696). The Home Office superintends the conatabu-
K oversees, to a limited extent, the local m^istracy and the
nistration 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, sufficiently, the Colonial Office, the War
Office, and the India Office.
1103. Tbc«e Sve great ' Offices ' are stl, historicaily coniidered, In a
certain sense off«liooti from a aingle offlce, that o[ ihe king's Frincipnl
Secretary of Slate. By one of the usual processes of F.ngtlsh conatitu-
tional development, an officer tfearing this title very early came into
eiiilence ai one of the most trntsted ministere of the Cr^n. At first
only a specially conflded-in serrant of Ihe Sovereign, employed on alt
TBS GoraunixsT or E5i&i.jL:n>.
iacty «f eowie, kccyiBf ciKk to a
IMtiyI ScCTtUiy of State for the Hose D>gpifLt, a Priacxpol
Hmnimtj of Scote for FoRi^B AMma% a Pknapol Sccretarr of Stale
for titt Colonca, a Vi'mufml Stcieiaij of Slate for War, aad a Pria-
ci^ Secretary of Scate for Iwfia. It
of erolatioo.
094. The Adflunltj, the Boaid «f Trade, ud the Local
GeirenflieBt Board. — The Admiraltr is, of coarse, the naval
ofliee. It is presided orer by a CcMnmission 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 Priry Council It is reconstituted at the opening of
eaeh reign V/y an order in Council. It consists, nominally, of
'^a President and certain ex officio members, including the
First Lrjrd 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
prarrtically itself. Its duties and privileges are both extensive
and imiKjrtant. 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
jiassenger 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
« Traill, pp. 126, 127.
coinage, and supervises the Post Office. Tiie Local OovemTnent
Board, which is also in form a committee of the PHvy Council,
has also in reality none of the characteristics either of a com-
mittee or of a board. It ia a separate and quite independent
department, 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 Exc-hequer, in reality take no part in its
management. It is, iu effect, the Enj^lish 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.
095. The Poat Olfioe is in England a lubdiviiion at the Bo«cd of
Trade. At its lit'iid ia n Poitmester General. Il conlruli, beeidtia the
Diukl buiinipas of r posl-offlce depHrinient. the telegrsiih system of the
country, which is owned by the ga*ernnicnt, and hu also under ita
direction a uaeful poiUl tarings-bank system,
696. The Treasury. — The history of tiiis 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
lK)ard instead of to a single individual. This hoard was known
as the " Lords Commissioners for executing the office of Lord
High Treasurer," and consisted of a First Lord of the Treaa-
iiry, the Chancellor of the Exchequer, and three others known
as Junior Lords. Evolution speedily set iu, as in other simitar
English boards, That is, the board ceased to act as a board.
THE GOVKKNMEKT OF ENGLAND.
Its fuaetious became concentrated in the liauds of the Chan-
cellor of the Exchequer ; the First Lordship, occupied almost
inraiiably since 1762 by the Prime Minister, gradually lost all
connection, except that of houorary chairmanship, with the
Treasury Gommissiou, its occupant giving all his energies to
his political functions (sec. 690) ; and the Junior Lords were
left none but parliamentary duties.
697. The Chancellor of the Exchequer, then, is the work-
ing bead of tbe Treasury Department, and as such plays one
of tbe most conspicuous and important rfiles in the govern-
ment of tbe country. He controls the revenue and expendi-
ture of tbe state, submitting to Parliament, In the form of an
annual 'budget,' careful comparisons of the sums needed for
tbe public service and of tbe sums that may be exi^cted to
acurue from existing or possible sources of revenue, together
with proposals to extend or curtail taxation according as there
is prospect of a deficit or of a surplus under existing arrange-
ments.
896. Tbe Batimates. - — The virioiu depmrloieDlB nuke up their
own esumiu-e ; but tlieae ste aubj ected In ri careful examioilioii b/ the
Chancellor of the Eidiei|uer, snd with him reata tbe prerogative of
re»i»ing them where lliey may aeeni lu admit of or require rertiion.
Thua chsiigea in iho clerical forces of the deparlnieDta or re-diBtribution
of their TTork among Bub-departmenta, etc., cannol, if the; iuvoWe ad-
ditional eipeose, be made without espreaa approval by the Treasury.
Mr. Gladatone twice, with charaeterialic energy, hehl, when Prime
Minister, both the office of Firat Lord of the TreaBur; and that of
Cbancellor of the Exchequer, lima in effect onve more bringing the
Firat Lord into rilal connection with hia notninnl ilepartnient.
699. Administrative Departments of the Privy Council.
— Though superseded its advisory council to the Crown by the
Cabinet and deprived of almost all executive control by the
virtual erection of its several boards into independent depart-
ments, the Privy Council still has one or two vital parts.
Otiief among these are (1) Tke Educalion Department, wliich
eonaists of the Lord President uf the Council, as uomiDAl
THE GOVERNMENT OF ENGLAND.
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 cliarged
with the atlministration of the public educational system of
the country ; and (2) The Agrictdturai DepartmmU, to which is
intrusted the enforcement of the 'Contagious Diseases (Ani-
mals) Acts' of 1878-1886, as well as sundry other powers.
Both of these 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).
TOO, Otbar Executive OfUoes. — Subordinate to the TreMor;
depurUneDt. but Id reality puia«aiing a quite distinct Individ us lily ol i((
own, ii the Ojfiee of Public Warki aud Buitdimji, whicti is vliarged Willi
the "tuitody aud iupervi«ion of the royal palaces nud public parlu, and
of sU public buildiQgi not ipeviHily aasigoed to the care of other depart-
ments."' It i« composed nominally of a First Commissioner, the Prin-
cipal Secretaries of State, and the Preiident of the Board of Trade, but
is controlled in fact by the First Commissioner and his pcnnaiienl
usistauts, the First Com misai oner representing it in Parliament.
TO). The iKtrd Pilvy Seal exercises no important fanctions except
those of keeping the great Sen.1 uf State and affi.<cing it to luch public
documents as need its formal attestation; but the office its '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 nho cannot or will not undertake onerous official
702. Tha Chancellor of tlie Duchy of Lanoaater hold* an
office whose dultea (entirely legal and local) have all been delegated
by long-standing hnbit to a Vice-Chancel I or; but eminent politicians
are often brought into the Cabinet through this sinecure CImnocllorship
in order that they may give the ministry the beneflt of their advice and
T03. Political Under Secretariea. — There are often associated
with the principal ministers of state certain ' political ' Under Secre-
ttriei, wbose function is one of very considerable importance. A poli^
ic»l Under Secretary is one who goes in or out of office with his parly,
' TraUI, p. 162.
892 THB GOVEBKMENT OF ENGLAND.
not haring a pUce in the cabinet but sharing its fortunes in tlie Com-
mons. He is parliamentary spokesman for his chief. If the foragn
minister, for instance, or any other member of the Cabinet^ the afbiirs
of whose department may be expected to call forth frequent comment
or question in the lower House, be a member of the House of Lorda,
he is represented in the Commons by an Under Secretary, who there
speaks as the minister's proxy. The representation of the ministert 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 sj^cially 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 lK>rd 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 lynse the ministers have inherited the
ancient prerogatives of the Crown; and Parliament is, to a
very sensible degree, dependent 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 busineaa of the
Houses to a great extent depends upon them for its progress.
They can make treaties, of whatever importance, with foreign
Rountries; they can shape the (Kilicy of the mother country
towards her colonies ; they «an 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 momentoua
moves of policy towards the English dependencies and towards
foreign countries, — in the lield, 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 suiy previoua _
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, ill ordinary speech, the House of Commons. When a min-
ister consults Parliament he consults the House of Commons ;
when the Qneen dissolves Parliament she dissolves the House
of Commons. A new Parliament is merely a new House of
Commons," ' Such has been tlie 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 rfiles 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.
* Spencer Walpole, The Eledoxalt and tht LegUlalure (English Citiien \
Series), p. 48.
It held both the knights of the shires and the burgesses of the
towns; and it waa 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 Coiumoiis. They were men of con-
sideration in their counties ; the only thing in eominon 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 snch
differences between the two groups of members in the lower
house ; their interests were soon felt to be common interesbi :
for the chief questions they had a real voice in detnding were
questions of taxation, which touched all aliite.
708. Historical Contrasts between County and Borough
Representatives. — The main ubject of the Crown in making
tlie 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 shiies 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
Hcconling to the charter of each individual town, but geuer^
ally sufficiently broad to include the better class of citizens. It
waa the decay of the towns and the narrowing of their fran-
chises which made the Commona 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 ; ' Imt this franchise remained unchanged until the parli-
amentary reforms of the present century, and tended steadily.
* Fort7 khilllnKt, it i« eitiraateil, were «qiiiral«at it th»t time In pur
ohMiag Vftloe hi tonj poundi mt pteMnt (fSOOJ.
THE QOVERNMEKT OF ENGLAND. 395
with the advancing wealth of the coantry, and the relative
decrease in the value of the shilling, to hecome more liberal,
more inclusive. The borough franchise, on tlie 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 ha<! virtu-
ally ceaaed before the dawn of th« 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 as the weight
of the nation shifted to the central and western coimties 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 tlieir 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 seats
in the Commons were virtually owned by the classes repre-
sented in the House of Lords.
The House of Commona consialed in ISOl of 668 mpmbcrB, and of
tlieae 425 arc laid io have been returned "on Ihe nominntinn or on th«
recommend alion of 262 patrons." Il ie said, also, that "306 out of tbe
613 members bolonging Io England and Walea owed Ilieir election to
the nomination either of the Trcuiur; or of 16^ powerful indiTiduaia." '
709, Oeograpbical Relations of Boroagha and CountleB. —
Of eoiirae borough pnpiiUlionB liaii ni) pnrt in the cloclion of county
mamlMTl. The counties repreicnleil in I'aitiament were rural areas.
> Watpole, p. GG,
896 THE GOVERNMENT OF ENGLAND.
cxcluiiTe of tbe towns. Thui Iliu I'Dutily of Derby wa.), for the piu^
poees of pArliameDtary rpprpienlalian, Ilie count? of Derb? ninu its
borough* ,
71u. Parliamentary Reform.— It was to remedy this state
uf tbitigs that tlie well-kiiown reforms of the present century
were undertaken. Those reforms have made the House oi
Commons truly representative and national : and in making it
national have made it dotninajit. In 1833 tliere was made a
wholesale redistribution of seats and a complete reformation
of tlie franchise. The decayed towns were deprived of their
members, and the new centres of i»pul;ition 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 oopybold 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 the bauds 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 Hfty-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 wliose holding was of the annual value of five
pounds, and every househohler 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 (lualifications for voters in the counties
' CopjUold wtaie* >f<g ciMt«« h«lil by the cuttom of the rautor In
which thc7 li«, k ctwlom eTidenced by > ' copy ' of the rolti of ihe Manor
CouK.
THE GOVERNMENT OK ENOLAND. 397
were made the same as the qualifications fixed for borough
electors by the law of 1867, and over two millions ami 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' in uietl in England aa lynonjniaDi willi the word
lodger. The ' occupation ' requLaitc for tlie exereiae o( tlie frsnchiBc
must be ot ■ "clear snnual value of £10," Occupation "by virtue of
anj offlcr, aerTicc. or employment," ii conaidercd, for the purpose of
the franchise, equivalent to occDpation for which rent is pkid, if the
rent woald come to the required amount, if ehai^^.
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 in the
counties, which were divided into electoral districts to each of
which a single representative was assigned, ' These changes
were accompanied by an increase of twelve in the total number
of members. Throngh the redistribution of seats in lii'32 and
1867 the number had remained 658 ; it is now 670.
713, The following ia an anal; ais of the present meitibenhip ot th«
Honae ot Comniona given in tlie Stntesman'n Year Book for 1887:'
the EnglUh counties return 253 members, the English boroughs 337,
the English univeraines 5; Scotch counties :J9, boroughs 31, universi-
tiea 2 ; Irish counties 85, borougha 10, unirersitiea 2. Tolala : counties
377, boroughs ^81, universities 9.
714. One aignal fealuru of the reforme of 1884-85 was that Ihey
applied to Scotland and Ireland as well aa to England and Wales.
Ewlier Acta had applied only to England and Wales, special At-ts
' Thii waa ealabliahing what the French, i
Woald call scmd'ii d'arrouiliitfiiieiil.
' Where other data alto will be found.
we have a
. inc. Hi).
THE QOTBBlrWSST OF BSGIiAND.
goTpmlng the franchUe and represenUlion in IreUnd and ScoUand.
Tbc Iriah delegation in Ihc Howe of Coininon* u now for the flrit time
truly repreientslive o[ the Irisli people.
716. The Icgiilation ot 1885, by diriding the Ktealer town into single
member constituencies, abollahcfl llie ' Ihree'Comered conilitnenciei '
which had been deviled in 1807 for purpoaei of minoritj' repreienla-
tion. Voters in placea wiiich returni'd more than two memberi were
allowed one vote if»» apiece in pari ianien tar j elections than the num-
ber of membera to be chosen. Thus, if any place returned foar mem-
ber*, for example, cath voter was entitltd to vote for three and no
more: it being hoped that the minorilj would bj proper management
under this plan be able to elect one ont 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 Housi; of Commoiis are eleuted, by secret ballot, for a term
of seven years. Any full citizen is eligible for election except
priests aud deacons of the Church of England, ministers of
the Chureh of Scotland, lloman Catholic ])riests, and sheriffs
and other returning officers, — aud except also, English and
Scotch peers. Irish peers are eligible and have often sat in
the House. ^ The persons thus esceptejl, — all save the peers,
at least, — can neither sit nor vote.
717. At n matter of fact no House ot Co mm ona hat ever lived ita
full term of seven years. A dissolution, for the purpose of a fresh
appeal to the conatituencies, haa always cut it oS before ils slslutory
time. The average duration of Parliaments has been less than four
years. The longeat Tarliament of the preient century (elected in 1820)
lived sii: years, one month, and nine days.
T18. The use of the secret ballot does not real upon any permanent
statute. In 1873 iu use was voted for one yean and ever since Uie
provi«ion has been annually renewed.
71P. Tliere is no property qualifleulion for election lo the House
DOW, as there wtu formerly; but the membera receive no pay for their
services; and, unless their constiiaents uiiderUke to support th«m, —
at was done in the early history of Parliament, and has been done again
in some recent InslanceSi — tliia fact constitutes a virtual income
qualiflcatiou.
■ Lord Palmenlon, for psample, wat an Iriah peer,
THE GOVBKNMENT OF BNi:il„\JJD.
720. Summons, Electoral Writ, Prorogatioa. — No stand-
ing statutes govern the time for electing Parliaments. Parlia^
ment asaembles 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 (see. 667). Parliament is
also 'prorogued,' (adjonmed for the session) by the Sovereign
(that is, the Cabinet) ; and assembled again, after recess, by
special summons.
721. The summons tor a nev PHrttsmcnt moat be igsaed at le»t
tliirtj-STe dRfs before [lie day let for its osaembling ; the Bummoni to a,
prorogaed I'arliinient at leaat fourl^en days beforehand. It in non the
invnritlilc cuBlom (□ aaietnblc Pn rlikniont once every year about the
middle of February, And to keep il in aeiBion from llial time till about
Tacnnt during a Bessioo, a writ ii iiiued for an
motion of the House itself; if a vacanej occur
rit il iaaued at the instance of tbe Speaker of the
e duration of Parliament has not been liable to
isG of thv Crown ; before ld86 Parliament died
I tlial year it nas enacted that Parliament should
last for six months after t)ie demise of the Crown, if not sooner dig-
Bolred by tbe new Sovereign. Parliament, it is now provided, must
assemble immediately upon the death of the Sovereign. If the Sover-
eign's death lake place after a disBolution and before the day fixed for
the convening of the new PBrliament, the old Parliament is to come
together for six months, if necessary, but for no longer term.
724. Organization of the House. — The Commons 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
the middle of August.
T12. If a seat fall v
election to
fill it upon
during a re
cess, the wr
House.
723. Sin
ce 18BT th
be affected
by a deni
with the m
narch. In
tile mJTrwtrral psn?. or majnrfty, oa chi^ adii*r sbt^.
726u n. Tke HMse tf L«rds: Its CifftHwa^ — Tlie
House of I/»ds consisted dming tiie session oi 1S8S of four
Imodred and serentj-six En^isJi Imedhair peers ( Dokes.
Marquises. Earls. Viseoimts. Barons^; the two arel&bisliops
and tw^ntr-foor iMshops, heading their seats bj Tiitae of th«r
o(Bc^; sixteffn Scc^tish representatiTe peers elected bj the
whole l^Ay of Scotch peers, of whom there are eightr-fire* to
sit for the t/i:Tm of Parliament ; twentr-ei^t Irish peers elected
bf the pe^irrs of Ireland, of whom there are (Hie hundred and
seTenty-seren, to sit for life; and three judicial members
known as l>jrds of Appeal in Ordinary (secs^ 728, 735* 736^
sitting, as life-peers only, by rirtne of their oflSce.
Then h no mctmmrj Umitatiaii to the nmmbcr of hcfedttarr E^hih
pccn. Pcen can be crested at will bj the Crown (that ii» bj the ■»>
ktry), and tbetr creatum b in fact frequent Two-thirds of the pctacnt
munber of peen bold peeragci created in the present centnrj. ThiitccB
were created in the jear 1886,
The nnrober of Scotch and Iriih peen is limited bj statute.
The Home of Lords is smnrooned to its sessions when the Hi
Commons is and the two most always be snmmooed tofether.
THE GOVERNMENT OF ENGLAND.
401
727. Functioii of the House of Lords in Legislation. —
The House of LonLs is, in legal theory, i!0€qu:J in nil resjH-cts
with the House of Commons j but, in faot, its authority is,
as I have already more than once said (sees. 677, C86, 707),
very inferior. Its consent is as necessary as that of the House
of Commons to every aet of leg'islatiou ; but it is not suffered
to withhold that consent when the House of Commons speaks
emphatically and with ttie apparent coiieurrence of the nation
on any matter : it is then a matter of imjierative policy with
it to acquiesce. Its legislative function has been well summed
up as a function of cautious revisi<m. 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 of Lords is still, however, in fa*!t aa well as in form,
the supreme court of appeal in England, ttiough it has long
since ceased to esereise its judicial functions (inherited from
the Great Council of Norman times) as a body. Those func-
tions are now always exereised by the Lord Chancellor, who is
ex-officio president of the House of Loi-ds, 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 tha 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 sliares with
the popular chamber the right of law-making, but cannot aasert
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 litw and pre-
cedent. She has great documuiits like Magna Cliarta at the
402 THE GOVERNMENT OF ENGLAND.
foundation of her institutions ; but Magna Charta was only a
royal ordinance. She has great laws like the Bill of Rights at
the centre of her political system ; but the Bill of Rights 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 rery impressive tribute which Sir Erskine May feels able
•oberly to pay to the conserratism 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." ^
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 central 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 Uiatory, VoL II., p. 243 (Am. ed., 1863).
THE GOVERNMENT OF ENGLAND. 403
1873. By that Act (which went into force on tha iBt Novem-
ber, 1875), and aubaeqiient additional legislation extending to
1877, the courts of law, which liad grown, as we have seen
(sec. 606), out of that once single body, the ancient Permaiieut
Council of the Norman and Plaittagenet kings, were at last
reintegrated, made np together into a eo-orilinated whole.
732. Judicial Reform : the Reorganization of 1873-77. —
These measures of reorganization and unification had beeu pre-
ceded, in 1846, by a certain degree of decentralization. Cer-
tain so-called County Courts were then created, which are local,
not perijKitetic Westminster, tribunals, and which have to a
very considerable extent absorbe<l the assize business, though
their function, theoretically, is only to assist, not to supplant,
the assizes. Now, therefore, the general outlines of the judi-
cial system are these. The general courts of the kingdom are
combined under the name, Supreme Coui't of Judicature.
This court is divided into two pajts, 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, imd Admiralty Division j 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. " Tha Chancery DIvlBloa hoa Ave judgei bei[i!e« its pres-
ident, Ihe Clmncellor; IheQuren'e Bencli Division haa flftctn ju%i>s,
of nhom one, the Lord Cliief Justice, U its president ; the Probiitc,
Divonre. and Admirntly Divisiun hai but two judges, of whom one
preiidea over the other."' Thia ari-angemenl inio diviaioni is > mere
mMter of convenience ; no verj strict distinctions as to jurisdiction sre
preierved ; and any ciiangea that the judges think desirable may be
' P. W. Maitlanil. Jutiici and Police ( English Citizen Series), pp. 43. 44.
THE GOVERNMENT OF ENGLAND,
iDtuIe hy *n Order in Council. Thus an Exchequer DiTision uid >
Common Pleai diviiion, wliicb at firet exi«teil, in preBcrvaiioo of the old
linei of organization, wore sboUahed iij aucli an Order in December,
1880. Tlie judges asaigncd to the TSrioui Djviaiona da not neueaiarily
or often ail together. Cases are generally heard before only one judge ;
so that the High Court may be said to liaTe the effective capacity of
twenty-three courts, ill total number of judges being tntnlj-thive.
Only when hearing appeali from inferior tribunals, or diachsTging aoy
olli«r function different from the ordinary trial of casea, must two or
more judgei sit together.
731. Tbe Court of Appeals ma; hear appeals on questions both
of law and of fact. It consists of the Master of the Kolls and five Lords
Justices, who may be said tu constitute its permanent and separate
bench, and of the president* of the three Divisions of the High Court
who may be called itt occasional memtieri. Three judt;eaare neccuarj
to exercise iti powers, and, iu practice, its six permanent membera
divide the work, holding the court in two independent sections.
735. Tba Houae of IiordB may alt, when acting as a court, when
Parliament ia not in aeision, after a prorogation, that is, or even after a
lUasolution : for the House of Lorda when silling as a court is tike its legis-
lative self only in Its modes of procedure. In all other respecla it ii
totally unlike the bodj which obeys the House of Commons in law-
making. It is constituted alwaj's, as a court, of the Lord Chancellor and
at least two of the Lords of Appeal in Ordinary of whom I have
apoken (sec. 726) ; only sometimes are there added to these a third Lord
of Appeal in Ordinary, an ei-Lord Clianceltor, or one or more of atinh
judges or ei'judges of the higher courts aa may have found their wajr
to peerages. Other members never attend ; or attending, never vote.
73d. A Judicial Committee of tba Privy CowioU. of which
also the Lord Clmncellor is a metmber, and which is presently to con-
sist mainly of the same Lords of Appeal in Ordinary that act in Judicial
matters ns the House of Lords, constitutes a court of last resort for
India, the Colonies, the Cliannel Islands, and the Isle of Alan.
131. Tb« lK>Td ChancsUor ii the most notable officer in the whole
tyitem. He is president of the House of Lords, of the Court of Appeal,
of the High Court of Justice, and of the Chancery Divisliin 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 ami the Privy f^uncil always, in Iho Coiut uf
Appeal often. Hare singular still, he is the political officer of the law :
lie is a uiember always of tbe Cabinet, and like the other toemben,
THE GOVERNMENT OP ENGLAND.
belongs (o s party and gopi in oro'ut of offii:e nccording
the House of Commons, eierciiing while in offlcf , in bi
functions of a Minister of Ciril Justice.'
738. Civil Cases are heard «ittier by judges of the High
Court in London, by judges of that court sitting on circuit in
the various 'aaaize towns' of the county, of which there is
always at least oue for each county, or by the new County
Courts created in 1846, which difier 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 Courta have jurisdiction in all casei of debt or
dsmage wlierc the sum uUiniecl does not exceed £60, nud in certain
equity cases wliere not more than £500 is inTolved — except that cases
of slander, libel, aeduciion, and breach of promise to roarry, as well >u
alt matrimonial cases arc withheld from theta. At least, such is their
joriadiction in roagh outline. A full account would inxolre many de-
tails ; for it baa been the tendency of all recent judicial legislation in
EDgland to gire mora and more business, even of the most imporunt
kind, to these Courts. Tlieir present importance may be judgt-d from
the fact, stated by Mr. Maittand, that " most of the contentious litiga-
tion in England is about smaller sums than " £50.
740. A judge of the High Court may send down to a county court,
upon the application of either party, cases of contract in which the sum
claimed docs not exceed .£100. Any case, liowever small ilie pecuniary
claim involved, may be removed from the county to tlic Higli Court if
the judge of the county court will certify that important principle* of
law are likely to arise in it, or if tlie Migh Court or any judge thereof
deem it desirable that it ihould be removed. Appeals from h county
court (o the High Coarl are forbidden in moat cases in which less than
' Hallland, p. 0
THE QOVBENMEMT OF ENOLAND.
741. The count; court lystem reste upon the buU of *■ diviiioD of
the country into Ofty-aiii circuits. All but one or two of then include
teverat ' districts ' — the district* num be ring about 501. Each district
hai ita own aeparalc court, with its owa ofBcee, regiitrsr, etc.; but Che
judges are appointed lor tlie clrcikita, — ami fur each circuit. They are
appointed by ilie Lord Chancellor from barrialera of seTen years' aluid-
ing.'
712. JiulM are falling tnore and more into djsnte in England in
cJTil cases. In all the more imporiani causes, outside the Chancery
Uiriiion, whose rule of action, tike that of the old Chancery Court, is
'no jury,' a jury may be impanelled at the desire of either party ; but
many litigants now prefer to do wiihuul, — especially in the County
Cnurli, where both the facts and the law are in the vast majority o(
cases paesod upon by Ihc judge alone, without the asBislance of the
Jury of fire which might in these courts be summoned in all casta of
above £20 value.
743. Criminal Cases are tried either before the couuty Jus-
tices of the Peace, who are uupaid officers ajjfjoiiited by the
Chancellor upou the recomraen4ation of the Lords Lieutenant
of the Counties I before borough Justices, who are paid judges
much like all others; or before judges of the High Court ou
circuit. The jurisdiction of the Justices may be said to include
all but the gravest offences, all but those, namely, which are
piinishable by death or by penal servitude, and except, alao, -
l>erjury, 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 ye-ar. All crimina.1 cases, except, of course, those
of the pettiest character, such as police cases, are tried before
juries.
" About one-half of the criminal trials," it is italed,' " take place at
county sessions, about one-fourlh at borough teaiioni, the rest at Assise*
or the Central Criminal Court," the great criminal court nt London.
■ The various Acts affecting the county ci
aolidaled by the County CourU Act, ISBS.
were amended and con-
1 Maitlaad. p. 80.
I
I
I
THE UOVERNMBNT OF ESGLASD. 407
744. Quarter and Petty Sesaloiu. — For the exerciie of tbeir more
InporUDt juilioial funi:IionB the JusLices meet quarterly, io Qunrter
ScBsioas; but for minnr duties in which it is not necessary for more
than Ivo Justic-ei (o join, there are numerous Petty Sessions held at
Tariuus polnta in the counties. Eacli county is divtdeil by Its Quarter
Sessions into /leHy leisional diilricla, ^nd every neighborhood is gircii
thus its own court of Petty Sessions, — from wbieh in almost all cases
an appenl lies to Quarter Sessions. Thus tho important funttion of
licensing (sec. T71) is exercised by Petty ScBsions, subject Io appeal to
the whole bench of Justices,
T45. The JuBtices of the Peace nere. as ne shall see more partic-
ularly in other coanectiona (sees, 754-767), the general goiemmeoial
authorities of the counties, until the reform of local gorernment effected
in ISS8, exercising functions of the most various, multifarious, and
infloeatial 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 the somewhat autocratic nature of the office of
Justice, it has been, on the whole, exercised with great wisdom and
public spiril, and daring most periods with extraonlinary moderation,
industry, and effectiveness.
740. The duties which Americans associate with the office of Justice
of the Peace arc exercised in England, not by the bench of Justices
sitting in Quarter Sessions, — Ihey then coostilnte, 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 detei!-
747, Police. — The police force, or, in more EBglish phraae,
the couBtabulary, of the klDgdom is overseen from London by
the Home Office, which makes all general rales as to its dis-
cipline, pay, etc., appoints royal inspectors, and dett^rmines,
under the Treasury, the stmount of state aid to be given to the
support of the forces; but all the real administering of the
system is done by the Iwal authorities. In the Counties a
408 THE GOVBBNMENT OF ENGLAND.
joint Committee of Quarter Sessions and the County Council
appoint the Chief Constable, who appoints and governs the
force with powers of summary dismissal and punishment, but
who acts in all things subject to the governing control of the
Committee. In those towns which undertake to maintain a
force distinct from that of the County the Head Constable is
chosen by the town authorities and the direction of the force
is superintended by a * Watch Committee ' of the Town Coun-
cil. London, which employs, it is stated, one-third of the en-
tire police force of the kingdom, has been given a special,
exceptional system of its own. The city police are governed
by a Commissioner and two Assistant Commissioners who are
appointed by the Home Secretary and serve directly under his
authority.
The police throughout the country are giren something Uke military
driU and training, the organization being made as perfect, the training
as thorough, and the discipline as effectire as possible. Ex-army offi-
cers are preferred for the office of Chief Constable.
II. Local Government.
748. Complex Character of Local Govemment in England.
— The subject of local government in England is one of ex-
treme complexity and, therefore, for my present purpose of
brief description, one of extreme difficulty. So perfectly un-
systematic, indeed, are the provisions of English law in this
field that most of the writers who have undertaken to expound
them — even to English readers — have seemed to derive a
certain zest from the despairful nature of their task — a sort
of forlorn-hope enthusiasm. The institutions of local govern-
ment in England have grown piece by piece as other English
institutions have grown, and not according to any complete or
logical plan of statutory construction. They are patch-work,
not symmetrical net-work, and the patches are of all sizes and
colors.
THE GOVERNMENT OF ENGLANr>.
409
I
I
"For alniMt every new BdmLniatmtivc function," complaiiiB one of
the recent li>ndl)oaks on the aubject, " the Legislature liaa provided k
new Krea containing a new conatituency, whn iiy a ntw method of elec-
tion cliooae cnniliilatei who aatiif; a new qualifliration, to ait upon a new
board, iuriDg a new term, to levy a new rale [tax], and to ipend a
good deal of tlie now revenues in paying new offluera and erecting new
baiidinga." '
749. It has been the habit of English legislatora, iustead of
perfecting, enlarging, or adapting old luaehinery, to create all
Borts of new pieces of machiiierv with little or no regard to
their fitness to be combined with the old or with each other.
The Local Government Act of 1888 repreaenta the first delib-
erate attempt at syatematization j but even that Act does not
effect system, and itself iiitrodueea additional elements of con-
fusion by first adopting another Act (the Municipal Corpora-
tiona 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 Bome of the ioc^l administrative bodies meant
to he governed by it. It would seem as logical a plan of de-
scription as any, therefore, to discuss the older divisions and
instnimentalities first and then treat afterwards of more recent
legislative creations as of modifications — of however hap-
hazard a kind — of thesf.
750, General Characterization.. — In general terms, then,
it may be said, that throughout a.lmoat the whole of English
Tiistory, 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
lip by feudal jurisdictions, and now retain only a certain minor
part in the function, once exclusively their own, of caring for
the poor; and that this ancient framework of countifs, towns,
' Local AdminUlraliea {Imperial Parliamenl Seriea), by Wm, Rathbone,
\ Albert Pell, and F. C, Montague, p. U,
410 THE GOVBRNBiENT OF ENGLAND.
and parishes has, of late years, been extensively overlaid and
in large part obscured : (a) by the combination (1834) of par-
ishes into ' Unions ' made up quite irrespective of county
boundaries and charged not only with the immemorial parish
duty of maintaining the poor but often with sanitary regula-
tion also and school superintendence, and generally with a mis-
cellany of other functions ; (6) by the creation of new districts
for the care of highways; and (c) by new varieties of town
and semi-town government. The only distinction persistent
enough to serve as a basis for any classification of the areas and
functions of the local administration thus constructed is the
distinction between Rural Administration and Urban Adminis-
tration, — a distinction now in part destroyed by the Act of
1888 ; and of these two divisions of administration almost the
only general remark which it seems safe to venture is, that
Rural Administration has hitherto rested much more broadly
than does Urban on old historical foundations.
751. The County: Its Historical Rootage. — For the
County, with its influential Justices of the Peace and its wide
administrative activities, is still the vital centre of rural govern-
ment in England; and the Counties are in a sense older than
the kingdom itself. Many of them, as we have seen (sec. 655)
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, *he 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
THB GOVERNMENT OF ENGLAND.
411
of govemment ; 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.
752. Early Evolution of the County Organs. — In Korman
times the eoldorman's oifice languished in the shadow of the
Sheriff's great authority. The spiritual and tem[ioral courts
were separated, too, and the bishop withdrew in large measure
from official participation in local political 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 ofBce 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 tha 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 govemment
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 Heury II. 's capable direction,
the great baronial sheriffs were tried for malfeasance in office,
J
418
THE noVBRNMEaJT OP ENGLAND.
and, though influent!^ enough to escape formal conrictioD,
were not influential enough to retain their offices. They ware
dismissed, and replaced by Exchequer officials diiectly depen-
dent upon the Crown. la 1194, in the next reign, it was
arranged that certain 'custoilians of pleas of the crown ' should
be elected in the counties, to the further ousting of the
Sherii^ from their old-time judicial prerogatives. Then came
Ma^a 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 witit the administration of jus-
tice, was limited to one year. The pulling down of the old
system was complete ; fresh construction had already become
necessary.
754, justices of the Peace. — The reconstruction was
effected through the appointment of 'Justices of the Peace.'
The expedient of 'custodians of pleas of the crown' {cuatodM
placUorum eoronee) elected in county court, as substitutes for
the Sheriff in tlie exercise of sundry important fuacttona 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 ctww-
nara 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 OMe
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 HI., Justicea also,
intrusted with a certain jurisdiction over criminal cases, to
the supplanting of the Sheriff in the last of bis judi<'ial fane-
tions, his right, namely, to pass judgment in his (oiirn or pet^
court on police cases, — to apply the discipline of enforced
order to small offences ^^inat the public peace.
THE OOVEKNMENT OF ENGLAND.
413
7Sd. Hencefoi'th, aa it turned out, the process of providiug
ways of local government was simple enough, as legislators
chose to conduct it. It consisted simply in charging the Jua-
tices of the Pea<;e with t!ie 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 imjiortaiit functionaries of locid 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 Government
Act of 1888, already referred to, were they relegated to their
older and most characteristic judicial functions, and their
iidmiiiistrative and financial powers transferred to another
body, the newly created County Council.
750. Fnnotioiu of Juotlcsa ot the Feaoa prior to Becoat B«-
torau. — Tlie JuBlicc of Ihe Peace liui been rery liappilj' deiiTilii-d >«
Imving l>ecn under the old gytitcni " lEio Btalc'a muu of all work." Hit
multifarious duliei brought him into iIig wrTii-e (o) of the Priry Coun-
cil, undet whole Veterinary Departinent ho participated in the Bdminii-
iration of the Acts relating to uontaginUB raUle digeaBes; (_h) of the
Home Offloe, under which he acted in governing the c-ouniy constabu-
lary, in conducting the adminiatration of lunatic asylnmi, and in visiting
prisons ; (c) iif the Board of Trade, under whose general soperiision lie
provided and tested weights acid measures, constructed and repaired
bridges, and oversaw liighway authorities ; and (if) of tlic I^cal Gov-
ernment Board, under whose aaperintendence he appointed pariah over-
aeera of the poor, ciercised, oo appeal, a revisory power over the poor-
rates, and took a certain part in sanitary regulation. The Justice,
besides, formerly levied the county tax, or * rate,' out of which the
elpenici of county business were defrayed, issued licenses for the sale
of intoxicating drinks (as tliey 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' dislriets ;
they issued orders for the removal of paupers lo their legal place of
settlement t they fulfilled n thousand and one administrative functions
too varioua to classify, too subordinate to need enumeration, now that
most of them have been transferred to the Cnunclls. The trial of crimi-
nal cases, together with the performance of the various functions attend-
THE GOVERNMENT OF ENGLAND.
uiit upon BUvli a jurisdiction, alwnya conaiituteil. of coune, oae of the
woigliUcst (lultpi of their office, and it now iia I'liief and klmoit onir
"Long ago," lauglii Mr. Maitland, epeakiii); before (he poiiage of
the Act of 1886, "long ago lav/yvra abancloneil all hope of deacrlblng
the duties of o justice in any ni?thodic fBBLiun. and the nlphabet has
become (lie onlj poBsibte connecting thread. A -Tuslice must liave tome-
thing to do with ' Itailroadi, Rape, Ratea, Recognizancea, Record*, and
Recreation Grounds'; with ' Perjary, Pelroieam, Piracy, and Plaj-
houaea '; with ' Diaorderly Houeea, Dieaentera, Dogs, and Drainage.'"'
ToT. Chaiaoter and Repute of the Office ot Jtiatlce. -^ The ofBce
of Juatice of tbc Peace ia repreai'titnlivc in the aame sense — not an un-
important lenac — in which the unrcfornied parlianienta of the early
part of the eentnry were represcntalire of llie county populntioni. The
Juaticea are appointed from among the more contiderable gentry of the
counliet, and represent in a very substantial way the permanent inter-
esta of the predominantly rural comiQunitiea over whote juatice they
preside. An intereating proof of their Tirtually represenlatiTe char-
acter appears in the popularity of their office during the greater part
of it* history. Amidal all the exlcnaions of the franchise, all the re-
making of representative inatitutions which this century has witnetavi)
In England, the Justiceship of (he Peace remained practically untouched,
because on all hands greatly respected, until the evident need to intni-
duce system into local government, and the apparent desirability of
syitema tiling i( in accordance with the whole policy of recent reforms
in England by extending the principle of papular representation by
election to connly government, as it had been already extended to ad-
ministration in the lesser areas, led to the aubstilation of County Coun-
cils for the Juatice* aa the counij avthori^ in flnancial and adinlalatra-
tive affairs.
7fi8. The Lorii Lieutenant. — In the reign of Mary a ' Lorrl
lAenlfnant ' took the jiliwp of tlio Sheriff iu the Comity as head
of the militia, becoming the chief representative of the crown
in the County, and subsequently the keeper of the county
records {Custoa Roluiomm). The Sheriff, since the comple-
tion of tliis change, has been a merely administrative officer,
executing the judgments of the courts, and presiding over
1 Jutlie^ ntirj PiJiet, p, 84.
THE GOVERNMENT OF ENGLAND. 415
parliamentary elections. The command of the militia re-
maiued with the Lwrds Lient:enant imtil 1871, when it was
vested in the crown, — that is , assumed by the central admin-
istration.
Jutticei of tlie Pence are atitl jippoinled by the Chaneellor upon the
noinioation of the Lori] IJeutennnt ot eauh uount)' (lec. H3).
759. The Reform of i888. — The reform of local adminis-
tration proposed by the ministry of Lord Salisbury, in the
spring of 1888, altliougb not Tenturing so far as it would be
necessary to go to introduce order and symmetry into a jiatch-
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 lie said to have consisted (a) of the over-
lapping of the various areas of local govei-njuent, 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; (h) of a consequent lack of co-ordination and
subordination amonglocal autliorities, fruitful of the waste of
money and the loss of efiSciency always resulting from confu-
sions and duplications of organization; (c) of varieties of time,
method, and franchise iu the choice of local officials ; and (d)
of an iniinite complexity in the arrangements regarding local
taxation, the sums needed for the variou.s purposes of local
government (for the poor, for example, for the repair of high-
ways, for county outlays, etc. ) being separately assessed and
separately collected, at great expense and at the cost of great
vexation to the tax-payer.
416 THB GOVBSRNHEKT OP ENQLAND.
Hr. Gnsc^lien U ilnted to linve anid in debate upon tliii lubject,
"Eren one knows that Iliv Rrst reform nccdi'd ii to cunaolitlate all
rates and to hure one derannd note fur all rate«, and r lingle authotily
for levying the rale and diatrlbuling the proceeds ain<mg tucb otbar
antliorilicB hi hHvc power to aali fur contributions. It le attooiihing
tlial tliis ihould not hare been done already. I^t me give jou my
personal experience. I myself receiveil in oQe year eighiy-seTen demand
notes on an aggregnle valuation of about £1100, One parish alone
■enl me eight rale-pHpers for an iggregate amount of 12s. 4d. The
intricacies of imperial finance are timplicity Itself compared with this
local financial cbaos."
"flO. The ministry at first proposetl Ui remedy thia confusion,
at least in part, by largely centring adminiBtration, outside the
greater towns, in two areas, the County ami 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 mads in unification by making the Counties and IHstricts
the controlling organs of local government, and provision was
to be made for extensive readjustments of boundaries which
would bring the smaller rura] areas into proper relation and
sulK)rdinatiou to the larger by making them in all cases at least
subdivisions of counties. Little was proposed in rent iti cation
of the tiuaneial disorder su i>at4*iit and so wasteful under oxist-
ing arrangements ; but both County and District were to have
representative councils presumably (ittod ultimately to assume
the whole taxing function. The franchise by which these
bodies were to l>e elected was to be assimilated to the simplest
and broadest used in local and parlianieutary elwttiiina. It was
proposed, moreover, in the interest of uniformity, that the con-
stitution of the councils should be substantially the same as
that of the borough and urban district councils already in
existence.
761. Only a portion of tbia reform, however, mule its way
through Parliament and l>ecaiue uti A<;t. : the ' Lmial tiuveni-
meiit Bill,' though it ret-'iiiied its name, Ifcnatne in leulity only
a County Governmeut Bill befure it reached its passage. The
THE OOVEItNMENT OF ENfiLAND.
417
proviaions relating to DistriKta were left out, and only the
oouiity waa reorganizetL The lai'ger l)orougIis were given
county privileges, the smaller brought intci new and closer re-
latious with the reconstructed county governnieuts. London,
too, was given a connty organization. The integration of the
smaller areas of rural administration with the new county
aystem was left for another time.
Thi« I'lunplelion of the reform was protniied for rni early dale by Ihe
niiuiatry, lioverer, Rnil may perliaps be very eoau accompli shed.'
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 tifty tliousand 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 daes 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 jjossessed by the boroughs only. The nomencla-
ture of the Act would be more correct, though [Kissibly less
convenient, had it called the counties ' borough counties ' in-
stead of calling some boroughs ' county boroughs.' The meas-
ure lias been very appropriately descrilied 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 dubl>ed " admin-
istrative counties," because they are not in all cases the histor-
ical counties of the map. In several instances roimtiee are
separated into parts for the purposes of the reorganization.
Thus the £ast Riding of Yorkshire constitutes one 'admjois-
' Written March, 1889.
418 THE GOVBRKMENT OF ENGLAND.
trative county/ the North Biding 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 60,000 inhabitants not treated as counties
are more or less incorporated with the counties in whicli thej lie.
If any urban sanitary district lie within more than one county, it is
to be deemed to belong to the county in which the greater part of its
population liye 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, ]X)wers, and is au-
tb*)rized to act as a Justice of the Peace, along with the rest
C'f the * Commission ' of the County.
THE GOVERNMENT OF ENGl^VND.
766. An; one may be elected a councillor who U a quBliScd voter in
tlie county, or who is pnlitled to vote in parliamenlnry eleclioni by
virtue of awnergliip of property in the county; anJ in the counties,
though nut in the borougtis, frum whose constitution this of the coun-
tici is copied, ppers owning properly in the county and "clerlta in holy
orden anil other minislen of religion" may be chosen to the couticil,
706. TLe number ol cotmclllon, and consequently also the num-
ber of aldermen, in each County Council ((or the Utter number is
always one-third of the former) was fixed in the first iiislsnce by order
of tlic Local QoremmenC Board, and is in some cases very large. Thui
Lancashire has n council (aldermen, of course, included) of 140 mein-
bcri, the West HidiuK of Torkahire ft council of 120, Devon a council
of 104. Rutland, whose council it the ■niitlleit, bai 26. The aretage
is probably about 75.
707. For the election of councillors the county, including the bor-
oughs which are not 'county borouglis,' is dirideil lata flrtioral ditlrieit,
corresponding in number to the number of councillors, one councillor
being chosen from each diilrict. The namber of these districts haring
been dclcrniined by the order of the Local Ooremmenl Board, their
nrea 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 diiia-
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 coimcillors are elected,
to speak in the moat 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, ])ayiug 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
ilO and who resides in the county, or within seven miles of il, may role
I
•:\
■I
I
420 THB COVERKMBNT OP ENGLAND.
in the elections for county councillore though his residence hai
of only six months' standing.
Single women who have the necessary qualifications as rate]
and residents are entitled to TOte as county electors.
770. Powers of the County Councils. — The Connc
each County is a body corporate, under the title of the " Cc
Council of " (the name of the administrative cou:
and as such may have a common seal, hold property, mak
laws, etc. Its by-laws, however, unless they concern nuisa
are subject to approval by the Secretary of State,^ and m;
annulled by an order in Council.
(1) The Council holds and administers all county prop
and may purchase or lease lands or buildings for county i
(2) With it rests the duty of maintaining, managing,
when necessary, enlarging, the pauper lunatic asylums oi
county, and of establishing and maintaining, or contribi
to, reformatory and industrial schools ;
(3) It is charged with maintaining county bridges, an
main roads in every part not specially reserved by urban au
ities for their own management because lying within theii
limits ; and it may declare any road a main road which s
to serve as such, and which has been put in thorough r€
liefore being accepted by the county, by the local higl
authorities (sec. 78G) ;
(4) It administers the statutes affecting the contagion!
eases of animals, destructive insects, tish preservation, we
and measures, etc. ;
(5) It appoints, pays, and may remove the county T
urer, the county coroner, the public surveyor, the cc
analyst, and all other officers paid out of the county rat
except the clerk of the Peace and the clerks of tlie .Justic
including the medical health officers, though these latter
tionaries report, not to the Council (the Council receives
1 Presamably the Home Secretary.
THK OOVliliNMENT OF ENGLAND, 421
a copy of their report), but to the Local Government Board,
and the only power of the Couopil in the premises is to address
to the Board, iudejjcndently and of their own motion, reiiresen-
tatioiis as to the entorcBment of the Public Health Acts where
such representationa seem necessary ;
(0) It deterniinea 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, anil snpervises
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 JB obTiouBlj impoBiible lo claseiry or make an; generalized BUte-
tnent of IhU miscellany of pciwefB : they muat be cnllnieraled or not
italetl at hII, Tliey arc for Ilie moHt part, though not altogether, the
adminiBtratire povera formerly intruBled to the JuBticeB of the Peace.
771. The licensing functioa, as being semi-judicial, is left
in most cases with the Justices of the Peace ; but the County
Council is assigned the grautiDg of licenses to music and danc-
ing halls, to houses which ai'e 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 aei'tion of the Act
of 1SS8, authorised to delegate it* powera of licenBing in the case of play-
honaes and in the case of viplosives bauitto (he JuBlkes ngain, acting
in petty eeeBioue. The same section also pemjiti a siniiUr deleg'tion
to the JuEticea of (he powers exercised by the Council under Ibe Act
touching conlagioue cuttle diiieaseB.
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, anil in preparing
or revising the basis or standard for the county rates ; though
in this last matter it acts subject to appeal to Quarter Sessions.
It may borrow money, " on the security of the county fund,"
for the purpose of consolidating the county debt, purchasing
422 THE GOVERNMENT OF ENGLAND.
property for the county, or undertaking permanent public
works, provided it first obtain the consent of the Local Gov-
ernment Board to the raising of the loan. The Board gives or
withholds its consent only after a local inquiry, and, in case
it assents, fixes the period within 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 cent, of the annual
ratable yalue of the ratable property of the county, or if the proposed
loan would raise it above that amount, a loan can be sanctioned only by
a provisional order of the Board, — an order, that 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 the consent
of the Local Oovernment Board be obtained.
773. Addltioiial Powers. — 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 Grovem-
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 Councirs 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. Returns of the actual receipts and expenditures of each
financial year are also made to the Local Government Boards
THE GOVEKNMENT OF ENGLAND.
in auch form and with sueli particulars as the Board directs ;
and full abatraets of these retanis are annually laid before both
Houses of Parliament. The county accounts are, moreover,
pieriodically audited by district auditors appointed by tiie
Local Gkiverument Board.
The aoctittnla of tlie county Treniuccr nre audited, loo, by the Couutil,
77(>. Local rates are assessed exclusively upon real estate,
and, until the passage of the Local Governmeut 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 fi-om 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,
sliall be distributed among the counties from the imperial
treasury, under the direction of tlie Local Grovemment Board,
for the purpose of defraying certain specified county expenses,
notably for the education of paupers and the support of pauper
lunatics.
7*7. The police powers, long exercised by the Justices of
the Peace, are now exercised I»y a joint committee of Quarter
Sessions and the County Cuuu«il. This committee is made up,
in equal parts, of .Fustices 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 Counctt is empowered to net in the exerci*e of »11
but its financial powers through cnmiuitleeB, and Ici join in aclion with
other louil ■uilioritien in «ny proper case through n itanding joint
commillee *uch as that wliii:h hat control of the comlRbularj,
779. BoumdariBo. — The Ai^t of 188H providea fur the much needed
uo-ordinalion of area^ li.v empowering the Local Goremiuent Board,
424 THE GOVERNMENT OF EXGLAXD.
acting upon the recommeodmlioo of a conntj or a borough council,
and after a local inqnirj pabllclj held before a Local GoTemment
Board inspector, to make an order for the alteration of conntj or
borough boundaries, for the union of two boroughs, or for the alter-
ation of anj area of local goTemment onlj partlj included in a count/
or borough. Such an order is prorisional, however, and must await
the assent of Parliament.
A Count/ Council, moreoTer, ma/ itself proride for the alteration or
definition of the boundaries of an/ parish or an/ count/ district which
is not a borough, for the union of such parish or district with other
districts or parishes, or for the couTersion of rural into urban, or urban
into rural, districts. In case such an order is made bv a Council, how-
CTcr, three months is to be allowed for protests on the part of count/
electors. These protests are to be addressed to the Local Goyemment
Board. In case a protest is entered under the proper conditions as to
number and electoral qualification of the protestants, a local inquir/
must be held, and the order ma/ 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
I
THE GOVEIINMBNT OF KNnLANI*.
persona that, when not ar^ting upon church afEairs, constituted
the township meeting. It was the villagu moot ' in its eceie-
aiaatical aspect.' And when the township privileges were, hy
feudalization, swallowed up in the manorial rights of the baron-
age, the vestry was all that remained of the old organization of
self -^vernment ; the court, or civil asseiuhly, 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 Iwirous the people were fain to enjoy as
vestrymen,
781. The Poor-law Parish. — It was in this way that it fell
out that the township, when aeting in matters strictly non-
ecclesiastical came to call itself the parish, and that it became
necessary to distinguish thu 'civil jjarish' from the 'ecclesias-
tical pariah.' The vestry came at last to elect, not church-
wardens only, but way-wardens also, and assessors ; and in the
sixteenth century (1535, 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
ia necessary to speak at any length in describing the present
arrangements of local government in England, the I'oor-law
Parish, namely. The legislation of the present century, which
has been busy about so many things, has not failed to i-eadjust
the parish: in most eases, as alttired by statute to suit the
conveniences of poor-law administration, "the modem 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 ()f 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 jKxir. The imixirtant feature of the new
aihninistration is, that as actual administrators the parochial
officers have been subordinated to a wider authority. The
426 TUB GOTEUNiLENT OF ENai^ND.
[lui'ish is the unit of taxation for the support of the poor, but
the work of assessiug and collecting the taxes ia done by orer-
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 pariah,
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 pariahei know no diatiaction between town and conntr}'.
Tlicy cOTer a certain deftnile area, whether that area Ilea within a town or
wilhont, or partly within and partly without. The; thut often coniliine
urban with rural papuladona for the purpoaet of poor-law taialion.
lis. Tlie orilinar; oreraeera are not paid offleerai but one or more
nui'ifanr orerieers, who are paid, may be elected by the reatry of a poor-
Uw pariah (to be appoinlcd under the seal of the Jnsticea) ; and when
auch officer! are appointed they naturally do motl of the work.
784. The dmiea now remaining with the vealry are, chiefly, the
management of parochial property and the adminiitration of certain
locally optional acta, when adopted, concerning the eatabliahrnent and
maintenance of free Ubrariea and the tpecial lighting and patrolling of
the parochial territory.
Ve*trios arc either ■ common ' or ' select.' A ' common ' reitry
contlatf of all the ralcpayers of tbe parish, — ia a general paKsh meet-
ing. A 'aelect' vcatry conaUta of elected repreaentalifea of the rate-
T8S. The pariah avrtea at an -electoral and jnry dietrict sa well aa a
tax diatrict, and llie oreraeera of tbe poor, beaidea aaaeaaing and ntitlng
the poiir-raiea. niaki' out the jury li«t* and the liata of parliatnenlary,
county, and munidpnl rolera.
Iffi. Tbe Highway Pariah. — Varioua roral 'pariahe*,' anme ot
which coincide with the poor-law pariah, hut othen of which arc quite
diatinct, are charged with an adminisIratiTv part in the maintenance of
tbe highways. Often, howerer, rural partahea are grouped fur ihla pur-
poau into larger 'Uighwa; Uitlricta' ureatcd by order of the Justkcfbi
THE GOVKENMENT OF EKGLAND. 427
Quirter Seniona, nnil whose waj-wardeni are elected by the leveral
cnmponeiit pariaheE. Urban dieiri cit, again, hiTe, in their tarn, Hparate
higliWBj' authorities of their own.
787. The Union. — The Union is primarily an aggregation
of pariahes 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 Aet uf Parliament to exer-
cise a general oversight over the administration of the poor-
laws, the Act being known aa the Poor Law Amendment Act.
This Commission was autliorized to group the pariahes 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 offieers ; and
it audits, through special district auditors, Union ai'counts.
788. The administrative authority of the Union is a Board
of Guardians, consisting of the Justices residing within thu
Union, who are members ex officio, and of members elected by
the several parishes composing the Union, — every parish
which contains as many as tliree hundred inhabitants being
entitled tu choose at least one Guardian. It is the elected
members, of course, and not the Justices, who really act in the
Board.
789. The Rural Sanitary District. — Later legislation has
charged the Board of Guardians with the care of the sanitation
of all parts of the Union which lie outside urban limits, thus
erecting the rural portions of each Union into a special Bural
Sanitary District.
790. Besides their dutiei of poor-relief and lanitary regulation, the
Quardiana uf each L'ntoa are charged with attending to the rei^istration
i;:i
ti
ill
1
428 THB GOVERNMENT OF ENGLAND.
of births and deaths, to the lighting of such portions of their di
as need to be lighted, though lying outside technically urban limii
with the administration of the laws concerning vaccination.
791. The Local Government Board fixes for the Guardians a pr
I qualification, which is to be in no case above £40 rating. The
dians are elected by the " owners and ratepayers *' of each parist
voter being entitled to one vote for every £50 of rated property
a ^tal number of six votes. If any one be entitled to vote b
owner and as ratepayer, he may cast as many as twelve votes, in c
is rated to a sufllcient amount.
792. Unions are of all sizes and plans, though it is within the
of the Local Government Board to readjust their boundaries and
them into proper geographical relations with other larger areas,
only rule heretofore observed as to their make-up is, that thi
always to be aggregations of parishes already existing. They ha
been conformed to county boundaries at all. It is stated that ii
out of a total of 617 Unions, 176 ** included parts of two or more
ties, and of these 29 were each in three counties, and four were e
four counties."^ Unions vary so greatly in size that it is esti
that some contain as many as one hundred and twenty times the
lation of others. The average population of the Unions is said
about 45,000.
793. Municipalities. — A comprehensive view of mun
government in England must embrace both those govemm
agencies which English law describes as municipal corpon
and those which it calls Urban Sanitary Districts. Urbai
itary Districts are simply less develoj)ed municipal coi
tions : sanitary regulation is their chief but by no means
only function. In any logical classification, they mui
regarded as a species of municipal government.
794. I. Municipal Corporations. — The constitutic
those English towns which have fully developed municip
ganizations rests upon the Municipal Corporations Act of
and its various amendments as codified in an Act of 1^
the same name. This latter Act is, in its turn, in some d
altered by the Local Government Act of 1888. If the ir
' Local Administration, p. 40.
THE GOVEKSMBST OF ESGLASD. V2y
tants of any place wish to have it incorporated as a munlci-
palitj, they must address a petition to that eSect to the Privy
Council. Notice of such a petition must be sent to the Coun-
cil of the county in which the pla^e is situate and also to the
Local Qoveroment Board. The Privy Council will appoint a
committee to coiisider 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 t!ie County Council or the Local Governjnenl Board
must also be considered.
OenetNllj there is coneMerable local opposition either to mch %
petition being offered or lo its being grnnteii when offered; for the
government of the place it usually already in Che hands of nuineioni
local siKliaritieB of one kind or another who do not relish the idea of
being extinguished, and there are, of course, persons who do not care
to take part in bearing the additional expenses of a more elaborate
organization.
If the petition Ije 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 Ixirough shall tie "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 aldermen are elected by the councillors for a
terra o£ six years, one-half of their number retiring from office
every three years, l>y rotation. Tlie mayor is elected by the
Council — by the aldermen and councillors, that is, — holds
THE 60TBBKKENT OW EHGLASD.
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 ari»
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 j the old authorities have kept the rest.
Thus the Union has been not at all affected, as an area of poor-
relief, by the superimpoaition of boroughs or of Urban Sani-
tary Districts upon it. In the same way, liecause 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 Imrough con-
tents itself in jutlicial matters with the jurisdiction of the
county Justices ; or (b) it obtains the appointment of addi-
tional Justices of its own, who are, however, strictly, memben
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 Kecorder,
to whom is given the power of two Justices acting together and
' Cbalmert, £«m/ Otermmtnt, |). 74.
THE GOVEKNMKNT OF ENGLAND. 4al
the exclusive right to hold Quarter Sessions — who is made,
as it were, a multiple Justice of the Peace.
Borough* which hare a leparste commiatLOii of the peace are knonn
u " uuutiti«s of towns''; thoie which tiare independent Quarter Ses-
sions AB " ijujtrter Hessions boroiigha."
Every ninjor is tx o^io Justice of the Peace, and continues lo
enjo^ that offline for one year after the expiration of his term a» mayor.
This ti true even when his borough has no separate cominiBsion of the
peace.
7!IT. County Boroughs In every borough the mayor,
aldeniieti, and councillors, sitting together aa a single body,
eonatitute 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 1888j it is necessary to distinguish, in the matter of
liowers, 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 hits spread its boundaries quite
irrespective of differences between town and country. In the
cose of these ' county boroughs," all powers conferred upon coun-
ties are powers conferred ujwin them also.
U llie Council of any boroug-h or of a county make representation to
the Local OoTernmenl Boaril that it isdesiralite to constitute a borough
that has (.'ome to have a population of not less than Sfty thousand a
' count/ lioraut(h,' the Board sImU, unleM there be some special reason
THB OOVHUNMEST of EHOl
to [he conlrarj, liold a locnl inquiry nni] provide for the gift of eonatj
ifufui to the boroDgh or not as the; think best. If the; order tbe
borough constituted a ' county borough.' the order i« proviiional mBrely.
79S. Other Boroughs. — Boroughs which have not been put
iu the same rank with counties and given full privileges of
self-administ ration aa ' county borouglis/ fall into three classes
in respect of their goveminental 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 goveminent 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 theni separately. They rantribute 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 [iarishes 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-sufficient in their
organization and powers as the 'county boroughs ' themselves.
(2) Boroughs which have separate Quarter Sessions but
whose popidation numbers less than ten thousand. These are
made by the Act of 1888 to yield to the Councils of the
comities in which they lie the powers once esercised 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 ]iart in the mainten-
ance and management of refonuutory and industrial schools,
and in the administration of tbe Acts ri'lating to fish conserva>
tion, explosives, and highways and locomotives.
THE GOVEHNMENT OF ENGLAJJD. 433
The; maf. in Tiew of their dimuiBhcd powers, petition Ibc Crown to
revoke the grant to them of teparale Quarter SesBions.
(3) Boroughs which have not a separate court of Quarter
Sessions and whose population is uudei 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. Ever; boroDgh has ita hwd paid Clerk and Treaaarer, who are
appointed by (lie Couneil and hold office during ila picaiure, beiidei
"luch other officers ai have UBuall}' been sppoiolcd In the borough, or
as the Council think netessar?-" If a borough have its own Quarter
Sessions, it hai aUo, as incident to that Court, its own Clerk of [be
Peace and its own Coroner.
800. Tbe tlnauclal powers of s municipal Council are in all caiei
strictly limited as regards the borrowing of money. " In each inalancei
when a loan is rcijuired by a municipal corporation, tlie tontrolling
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
i< approved, a tern 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 fcoroughe are exempt from this jurisdic-
tion. The audit is conducted by three borough auditors, two elected
by the burgessea, called elecdve auditors, one appointed by the mayor,
t^ed the mayor'a auditor."*
802. II. Urban Sanitary Districts.— "The boundaries of
poor-law unions are the boundaries of rural sauitiry districts,
and the guardians are the rural sanitary authority. The urban
districts are carved out of the rural districts according to the
484 THB GOTEBKMEMT OF ENGLAND.
exigencies of population.''^ The organization of an Urban
Sanitary District is more highly 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 (sec. 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 first 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 a 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 difference, 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
> Chalmen, p. 109. < Bonce, p. 203.
THE GOVERNMENT OF ENGLAND. 485
Farliament : it is miicli easier, of course, to apply to the Local
Government Board. As towns already incorporated have
grown, therefore, tlie added portions have become indepen-
dently incorporated Urban Sanitary Diatricta, and thus the
town lias 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 mumcipally self-contaiaed, and con-
sequently self-governing." '
804. Under Ihe Local Goremment Act of 1888 the traundarie* ot »
borough maj, as we hare seen (see. 770), be altered by proTiiional order
of the Local Gorernmeiit Board, upon the aJtlr^ai of the borough Coun-
cil. This order, however, being provisional, must receive Che lanction
of Parliamenl, and ia made only after lofal inquiry. The proceedings,
therefore, for changing tlie bounilaries of a borough are atilt much more
elaborate and difBcuIt than the free action of the Local Government
Board wilb reference (o uriian aanilary districts. Formerly a aeparote
bill. Dot introduced by the government, *as needed to change the boun-
daries of a borough ; now an Act approviog a provisional order backed
by the Local Goremment Board and likely to be acted upon favorably.
Out of 25.1)8(l,2S'l peraona in England and Wales, Mr. Bunce esti-
mates, following the census of 1881, 17,286,028 to have been under urban
authority. 8,683,200 under rural.''
806, Central Control of Urban Auttaoiitiea. — Full municipal
corporations look partly (in the matter of sanitary regulation, for ex-
ample,) to Ilie Local Governmcat Board as a tentral authority exerciiing
powers of supervision, parlly (in the manngement of the conilabulary,
for instance,) to the Home OfBce, and partly (if aeaports) to the Board
of Trade. Urban .Sanitary Districla, however, have but a aingle au-
thority set over them, [he Loi^al Government Board.
BOO. ' Impiovement Act Dl«ttioti.' — Besidea the Urban Sanitary
Districts, there nre atill about Qfty districts which have boards with
quite similar powers under special 'ImproTement Acts' pasaed from
time to time with reference to pnrticular localities. Tliese boards are
known as Improvement Commissioners.
807. London. — The metropolis was, until the piissage of the
Act of 1888, the unsolved problem, the unregenerate monster,
' Bunce, p. 298. ' lUd., p. 286.
486 THE 60VEBKMENT OF ENGLAND.
of local govemment 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 mediaeval 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 mediaeval trade guilds, vestries, and
sanitary authorities had been in some sort bound together
since 1856 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 are 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 mentioned is the School District. Under the great Edu-
THE GOVERNMENT OF ENQIjASTD.
cation Act of 1870 aiid the supplementary Acts of 1876 and
1880, England is divided for educational purposes into districts
which are under the superviaion of the Education Department
of the Privy Council. These districts are not mapped out
quite so iudejtendently of previously existing boundaries as
other local areas have been ; they are made to coincide, so
far aa possible, with parishes or with municipal boroughB, 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.
Sll. The pbn of public edncaCian in England conlemplKlpB the uBiit-
snce nnd supplcmGnlmg of private endeBvor. Wlierc jirii'iile achoaU
sufGt^e for the accom modal ion of [he school population of a district, the
government simply supetintendg, and, uDder certain condition*, «id».
Where private schools arc inauffiuienl, on the otlier hand, llie gocem-
meat eitobliaiies scIiooIh of its own under the control of a achool 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 official like the French Prefect (sees, 338,
339, 346), or any dominant board like the ' Administration' of
the Prussian Government District (sees. 480-483). There
has, indeed, been developing in England throughout the last
half of this century a marked tendency to bring local authori-
ties more and more under the supervision in important matters
of the government departments in London, — a tendency which
has led to the concentration, since 1871, in the hands of the
438
THE GOVEUNMENT OF EyjGLAND.
Local CiOTeriiment Board of various powers once scattered
amoug such authorities as the Home OtRee, the Privy Counuil,
etc. But this tendeucy, which is towards control, lias not beeti
towards ceutralizatioii. It hat>, so far, not gone beyond making
the advice of the central autliority always accessible by local
officers or bodies, and its conspiit ueeessary 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 p&r-
I. Its authority in Banitary matters makes its directions
imperative as to the execution of the Public Health Acts ; but
in many cases tlie locid 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 nuisances, 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 bound by the action of the Local
Government Board ; and its aaaent to propositions to raise
loans is seldom given without very thorough inquiry and with-
out good reason shown. But all these are fuuctiona ofaj/ttem,
BO to say, rather than of centralization. Co-onlinution in
methods of poor-relief is sought, that relief being given under
national statutes, and co-operation of central with loc^ 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
ofScials 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 Ch
Colonies.
813. English Colonial Expansion. — Boubtlese the most
Bigniticaut and momentous iact of modern history is the wide
diffusion of the English race, the sweep of its comiuerce, the
dominance of its institutions, its imperial control of the desti-
nieB 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 insteail of at the back of
the nations of the Continent, a profouml 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 laud worth the having
in whatever quarter of the globe. With her conquests and her
settlers have gone also her institutions, until 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 alow 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 ti«r own selfish benefit. Nothing
less than the loss of America sufficed to teach her how short-
sighted such a policy was. But, unlike Rome, she was fortu-
nate enough to lose the best part of her possessions without
being herself overwhelmed ; aud even after the loss of America,
time and opportunity offered for the building up of another
colonial empire scarcely less ^reat.
816. Towards her present colonies her policy is most liberal;
for the England of the present is a very different England
from that wliieh 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 inte^
eats in the colonies, had she not herself speedily thereafter
440 THE GOVERNMENT OF ENGLAND.
been brought by other causes to a. chunge 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 fnll rights as Eiiglisbmen.
816. 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
goveniments. of the American states south of it in their
own colonial times, consisted of an Eseeutive, 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
apsembly, aa had hastened the sepaiutioo of the United States
from England ; and at last rebellion liad been made to speaJc
the demands of the colonists for constitutional reform. The re-
bellion was put down, but the defeated colonists wert- 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 measures necessary for her pacification
may justly be called the fountain head of all that England
haa since done for the betterment of government in her colo-
nies. Lord Durham recommended nothing less than complete
aelf-^vernment, with interference from Enghuid in nothing
but questions immediately and evidently affecting imperial
interests. 1847 saw independent responsible selt^governmeat
ipletely established in Canada, and subsequent yejirtt liave
THE GOVERNMENT OP ENGLAND. 441
seen it extended to all the British colonies capable of self-
direction.
817. The Self-Goyeming Colonies. — The English colonies,
as at present organized, may be roughly classified in two groups
as (a) Self-governing and (6) Grown colonies. The self-govern-
ing colonies are nine in number; namely, Canada, Newfound-
land, Cape of Good Hope, the four col6nies 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 Goyemment of Canada. — In 1840 Parliament
provided by Act for the union of Upper and Lower Canada
(now the provinces of Ontario and Quebec) upon a basis sug-
gested by Lord Durham's report ; but the legislative union of
these two provinces, the one English, the other almost wholly
French, was ill-advised and proved provisional only. Although
an Act of 1854 granted to the united colonies a government
as nearly as might be modelled upon the government of Eng-
land herself, no satisfactory basis of self-government was
reached until, by the 'British North America Act' of 1867,
the colonies were at once separated and re-integrated by means
of a federal constitution. That Act is the present constitution
of the "Dominion of Canada." Under that constitution the
442 TBB GOTKKZmKST OF E^S^GLAISD.
seren proTinces now comprised within the IX>minioii, namel j,
Ontario, Qoebec, Norm Scoda. New Bnmswiek. Manitoba,
British Cohnnfaia, and Prince Edward Island, hare each a sepa-
rate partiament and administration. In each a Lieat^nant^jOT-
emor presides ; in each^ as in the Dominion itself, there is a
ministiy responsible for its policj and executive acts to a par-
liament follr equipped for self-direction in local af^drs.
81d. The pffOTinoot of tht Britbh North Aaeriea Act were dxmf ted
hi Cuuida mod aooqited hj the Pariii»mt in England without altera-
tkm. In the diTicion of powers wludi tiwj make between the goTem-
ment of the DoounkMi and the govcnuneiits of the tereral proTincet,
they differ reiy radieaUj in diaracter from the proTiaiont of our own
federal conttitntion. Ov coostitntioa grants certain specified powers
to the general goTemmoit and reserres the rest to the states; the
British North America Act, on the contraxy, grants certain specified
powers to the prorinces and reserres all others to the goTemment of
the Dominion. Among the powers thns reserred to the federal gorem-
ment is that of enacting all criminal laws.
In Ontario, British Columbia, and Manitoba, the legislatnre consists
of bnt a single house.
820. The government of the DominioD is a very faithful re-
production of the government of the mother country. The
Crown is represented by the Grovemor-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 upon 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
(insists 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
j>eer8 at home, the advice of the ministers is decisive. The
THE GOVRHNMENT OF ENGLAND. 443
House of CoraiBons consists at present 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, liowever,
that Quebec shall always have sisty-five members.
B21. Besides liii veto, Ihe GoTcmor-General hu tlie right lo reserve
meBBures for tlie cousideratioQ of Ihe Crown (I'.r,, o[ (be minitlen in
England), Hnd this right lie aonietLmei exercises. He m*]' also disallow
acts of the provinciai iegistatures.
832. The lltteen ministers composing llie Council or cabinet are, a
Prime Minister and President of the Council, a Minister of Public
Works, a Minister of Itailwajs and Canals, a Minister uf Customs, a
Minister of Mililia and Defence, a Minister of Agricallare, a Minister
of Inland ReTenue. a Secretary of Stale, a Minister of Justice, a Minister
of Finance, a Minister of Marine knd Fisbertes, a Minister of the Inte-
rior, iiid a PuBlmaster-Oeneral, besides two ministers without portfolios.
823. The diilribulton of representation in the Dominion House of
Commons is it present as follows r Ontario lias 02 members, Quebec 65.
KoTB Scotia 21, New Brunswiek IS, Manitoba 6, British Colambia 0.
Prince Edward Island 6. and the North West Territories {not yet fulljr
admitted to provincial rank) 4, The represent alives are elected by a
franchise based upon a small properly qua liB cation.
624. The Parliament of the Dominion may be dissolved by the
GoTemor-General upon the advice of the ministers and a new election
held, as in Enifland, when an appeal to the conititueociei is deemed
necessary or desirable.
S25, 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
Le^slative Cwinuil and an elected Legislative Assenihly ; but
in Queensland a property qualification is required of the electors
who choose the lower house, while in New .South Wales there
is no such limitation upon the suffrage. In South Australia
444 THE GOVERNMENT OF ENGLAND.
and Victoria both houses of the legislature are elected ; in both
a property qualification is required of the electors who choose
the members of the upper house, and in Victoria a like qualifi-
cation for membership of the upper house, also. In Victoria
certain educational and professional qualifications are allowed
to take the place of a property qualification. In each of the
colonies the governor plays the part of a constitutional monarch,
acting always upon the advice of ministers responsible to the
popular chamber.
826. The Powers of the Colonial Courts. — The action of
the courts in the colonies in certain questions furnishes an in-
structive counterpart to the constitutional functions of our own
courts. The colonial governments are conducted under writ-
ten constitutions as our own governments are, though their
constitutions are imperial statutes while ours are drafted by
conventions and adopted by vote of the people. And colonial
courts exercise the same power of constitutional interpretation
that belongs to our own courts and has often been carelessly
assumed to be a peculiar prerogative of theirs. They test acts
of legislation by the grants of power under which they are
enacted, an appeal lying from them to the Judicial Committee
of the Privy Council in England, which serves as a general
supreme court for the colonies (sees. 736, 869).
The constitutionality of laws passed by the Dominion Parliament in
Canada is considered first, of course, by the courts of the Dominion,
going thence, if appealed, to the Privy Council.
827. The Crown Colonies. — All those colonies which have
not responsible self-government are classed as Crown colonies,
colonies more or less completely directed by the Colonial
Office in London. They range in organization all the way
from mere military administrations, such as have been estab-
lished in St. Helena and Gibraltar, through those which, like
Trinidad and the Straits Settlements, have both a nominated
Executive and a nominated Legislative Council, and those like
THE GOVERNMENT OF ENGLAND.
445
I
Jamaica and Westcrci Australia, whose iiomiiiateii Exei^utiva
ated witli :i Legislative Council in part electeil, to
those like tlie Bahaiiiaa and Bermuda, iu which the Councils
are altoj^ther elected, but which have iiu respoDslble ministry.
Powers of Colonial GovernorB. — It is interesting to
ihave the testimony of ouy of the must capable and eminent of
English colonial administrators us to the relative desirability
oj the post of governor in a colony in which he is governor
iadced, with no ministers empowered to force their advice
upon him, and in a colony where he must play the unobtrueive
part of constitutional monarch. Lord Elgin says with great
confidence, in his Letten, that his position as governor of Can-
ada waa 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 anothe r 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 nde as a friend than as a master.
8^fl. India. — India stands in matters of government, as in
'80 many other respects, entirely apart from the rest of the
British Empire. It is governed, tlirough the instrumentality
(rf its Governor-General and his Council, directly from London
I^ a member of the Cabinet, the Secretary of State for India.
The Secretary of State ia assisted by a Council of fifteen mem-
appointed by the Crfiwn from among persons who have re-
1 or served in India. Acting under the Secretary of State
' Leittn and Jounali of Lard Elfin, ed. by Theotlore W«lrond, Loud.,
|'18T2, p. 12tt.
446
THE GOVBRNUENT OF ENGLAND.
and hia CouDeil in London, tliere is tlie Governor-General of
India, wlio is also assisted b^- a Couneil, — a Council whiclt is
first of all administrative, but which, when re-enforced by tiom
six to twelve additional members appointed by the Governor-
General, has also the functions of a legialatlve eounctl.
The work of the OoTeroor-GcnerarB Council ia divided amoDK tie
dcpArtmcnIs, thoip, namely, of foreign affairs, Bnancea, the interior,
militaiy adniiniitration, knd paHlc <iork»; but tlieae dcparlmeat* do
not create a ministry; they are regsfdod simply as committee* of th«
Countil.
Tlie members of the Council, six in number, beiidet a KTenth to-
caltcd extraordinary member wtio ii commuiiler-in-uhief of the forcM,
are appointed by the Crown. 'ITie spision* of the re-«nfarced or legU-
laliie council are held always in ptiblii.'.
SiiO. Not all of India is ilirectly admiuiBtered by the English
government : there are numerous native states, acting with sub-
stantial iiidependenne in local affairs, though under English-
overiordship and control. Such part of the vast territory as
is administered directly by Euglish officials is divided into eig;ht
provinces, of which the chief in importance are Madras and
Bombay. The governors of Madras and Bombay are appointed
by the Crown and are aaaisted, as the Governor-General ia,
liy two councils, a^lministrative and legislative. The Lieuten-
ant-Governors of Bengal anl the North West Provinces are
appointed by the Governor-General and assisted by an admin-
istrative council only. The Lieutenant-Governors or Commis-
sioners of the other provinces, who are also appointed by the
Governor^ eneral, are without councils.
831. Greater Britain. — Greater Britain, the world of
English colonies, differs very materially from Greater Greece,
the widespread Hellas of the ancient world. Hellas was dis-
integrate : the Greeks carried with thein, as of course, Greek
institutions, but oidy to allow those institutions wide dtffer«o- |
tiation; in no way did Greek settlement signify race integta-
oational nesus of rule. Englishmen, on the coutmry.
I
^L^ii^*'
THE GOVERNMENT OF ENGLAND. 447
in English colonies, maintain a homogeneity and integration
both of race and of institutions which have drawn the four parts
of the world together under common influences, if they have
not compacted them for a common destiny. Throughout Eu-
rope reformers have copied English political arrangements;
the colonists have not copied them, they have extended and
are perpetuating and perfecting them.
Bepbesentatiye Authorities
Stubbs, Wm., << Constitutional History of England." 3 vols. Oxford,
1883.
Hallam, H., *< Constitutional History of England." 2 vols. N. Y.,
1880.
May, Sir T. E., "Constitutional History of England." 2 vols. N. Y.,
1880.
Taswell'Langmead, "English Constitutional History." London and
Boston. 3 ed. 1886.
GneisU R., " History of the Englbh Constitution." 2 vols. N. Y., 1886.
"Student's History of the EngUsh Parliament." N. Y.. 1887.
" Self-Grovemment, Communalverfassnng und Verwaltungs-
gerichte." 3d ed. Berlin. 1871.
Bagehot, Walter, " The Enghsh Constitution." N. Y., 1882.
English Citizen Series: H. D. Traill, "Central Government.'
Af . D, Chalmers, " Local Government.'
F. W. Maitland, ** Justice and Police.'
S, Walpole, " The Electorate and the Legislature."
T. W, Fowle, " The Poor Law.'
/. S. Cotton Sf E. J. Payne, " Colonies and Dependencies.*
Heam, W. E., " The Government of England." 2d ed. London, 1887.
Dicey, A. V., " The Privy Council" London, 1887.
" The Law of the Constitution." 2d ed. London, 1886.
Cobden Club Essays, 1882 : " Local Government and Taxation iu the
United Kingdom."
Imperial Parliament Series: '^Iiooal Administration," by W. Rath'
bone, A. PeU. Mid F. C. Mif^ ^^ 19^.
\7UVCrUtU<3UI>. "
tt
■
»f
Ithe
448 THB GOVBBNMENT OF ENGLAND.
Todd, Alpheus, *' Parliamentary Groyemment in England." New ed.
London and N. Y., 1888-'9.
^ Parliamentary Government in the British Colonies." Boston,
1880.
Ftelden, H. St. C, '* A Short Constitutional History of England" (a
serviceable topical epitome). Oxford & London, 1882.
For the local government reforms of 1888, see :
Baker, Chas. E., " The Local Government Act, 1888, with Notes and
Index." London, 1888.
Holdswarth, W. A., " The Local Government Act, 1888, with Introduc-
tion and Notes.*' London, 1888.
XI.
THE GOVERNMENT OF THE UNITED STATES.
y^^o^
832. The English Occupation of America. — The political
institutions of the United States are in all their main features
simply the political institutions of England, as transplanted
by English colonists in the course of the two centuries which
preceded our own, worked out through a fresh development to
new and characteristic forms. Though now possessing so large
an admixture of foreign blood, a large majority of the people
of the United States are still of British extraction ; and at first
the settlements of New England and the South contained no
other element. In the far North, in what is now Canada, there
were French settlements ; in Florida there were colonists from
Spain, and at the mouth of the Mississippi also there was a
French population; the Dutch had settled upon the Hudscm
and held the great port at its mouth, and the Swedes had
established themselves on the Delaware: all along the coast
there was rivalry between the western nations of Europe for
the possession of the new continent. But by steady and for
the most part easy steps of aggression the English extended
their domain and won the best regions of the great coast. New
England, Virginia, and the Carolinas were never seriously dis-
puted against them ; and, these once possessed, the interven-
ing foreigner was soon thrust out : so that the English power
had presently a compact and centred mass which could not be
dislodged, and whose ultimate expansion over the whole con-
tinent it proved impossible to stay. England was not long in
450
THE GOVEBSMBNT OP THE UNITKD STATES.
widening hor colonial borders : the Frencli power was crushed
out in the North, the Spanish power was limited in the South,
and the colonies had only to become free to develop' energy
more than sufficient to make all the most competed-for por-
tions of the continent thoroughly English, — thoroughly Anglo-
American.
S3a Adaptation of English Institutions. — This growth of
the English power in iVjiieriea involved as of course a corre-
sponding expansion of English local institutions of govemmeat j
aa America became English, English institutions in the col-
onies became American ; they adapted themselves, i.e., to the
new problems and the new conveniences of political life in
separate colonies, — colonies struggling at first, then expand-
ing, at last triumphing; and without losing their English
character gained an American farm and flavor.
; 834. It would l>a an utterly erroneous, an entirely reveraed,
statement of our colonial history to say that the English
planted states in America: they planted small iiiolated set-
tlements, and these settlements grew into states. The process,
in other words, was from local, through state, to national or-
ganization. Aud not everywhere among the English on the
new continent was the form of loc^ goveruuient at first adopted
the same : there was no invariable pattern, but evorywhera, on
the contrary, a spontaneous adjustment of political means to
place and circumstance. By all the settlements alike Ei^Ush
precedent was followed, but cot the same English precedent;
each colony, with the true English sagacity of practical habit,
borrowed what was beat suited to its own situation. New Eng-
land had one system, Virginia another. New Jersey and Penn-
sylvania still a third, u»m{>ounded after a sort of the other
two.
835. The New England Colonies. — In New England the
centre of government waa always the town, with its church and
Bohuolhouse and its neighborly' cluster of houses gathered about
these. The soil on the coast where the first settlers establislied
THE OOVEatSMENT OF THE UNITED STATI-». 451
themaelves was sh^low aiid sluw to yield returns even to hard
and assiduous toil ; the climate was rigorous, witli its lu&g
winters and its bleak noast winds ; every circumstance invited
to close settlement and trade, to the intimate relationsliips of
commerce and the adventures of sea-faring rather than to the
wide-spreading settlements characteristic of an agricultural
population.
836. The first New Englanders, moreover, were religious
refugees. They had left the Old World to escape the Old
World's persecutions and in order to find independence of
worship i they were establishing a church as well as a com-
munity ; they acted as organized congregations ; their life was
both spiritually and temporally organic. Close geographical
association, therefore, such as was virtually forced upon them
by the conditions of livelihood by which they found themselves
constrained, accorded well with their higher social purposes.
The church could be made, by such association, and accordingly
was made, the vital nerve-centre of their union : the minister
was the nding head of the community, and church membership
was in seveml of the settlements recognized as identical with
citizenship.
837. The Separate Towns The several parts of the New
England coast were settled by quite indejieudent groups of set-
tlers. There was the Plymouth colony at Plymouth, and alto-
gether distinct from it, the Massachusetts Bay colony at Salem
and Charlestown. To the south of these, founded by men dis-
satisfied with the Massachusetts government, were Portsmouth,
Newport, and Providence, in what is now Bhode Island. On
the Connecticut river other wanderers from Massachusetts built
Hartford and Windsor and Wetbersfield. Saybrook, at the
mouth of the Connecticut river, was settled direct from Eng-
land; so also was the colony of New Haven, on the coast of
Long Island Soimd west of the Connecticut. From year to
year the planting of towns went diligently on: almost every
town became the prolific mother of towns, which either sprang
462 THE GOVERKKBKT OF THE UNITED STATES.
up dose about it and retained a sort of dependence upon it, or,
planted at a distance^ ventured upDn an entirely separate life
in the wilderness (sees. 115, 116, 118).
8^. Union of the Towns. — Gradually the towns of each
of the general regions mentioned drew together into the colo-
nies known to later times, the colonies which were to form the
Union. Plymouth merged in Massachusetts ; Portsmouth,
Newport, and Providence became but parts of Rhode Island ;
New Haven was joined to Connecticut. But at first these
larger colonies were scarcely more than town leagues: each
town retained unaltered its separate organization and a perfect
independence in the regulation of its own local affairs. In
Khode Island, particularly, their jealousy of each other and
their reluctance to expose themselves to anything like a loss
of perfect autonomy long kept the common government which
they most of the time maintained at a balance between union
and dissolution. In the other New England colonies the same
influences manifested themselves, though in a less degree.
The town system which everywhere prevailed was by its
nature an extremely decentralized form of government : gov-
ernment, so to say, came to a separate head in each locality :
and the chief vitality was in these several self-governing units
of each group rather than in the bonds which connected them
with each other.
839. Forms of Town Government. — The form of town
government was everywhere such as it was quite natural that
Englishmen should have set up. The names of the town offi-
cers were borrowed from the borough governments at home,
and their duties were, as nearly as circumstances warranted,
the same as the duties of the officers whose names they bore.
But the New England town was, at the same time, in many of
its most important and most characteristic features, rather a
reversion to older types of government than a transplanted
cutting of the towns which the settlers had left behind them
in the England of the seventeenth century. There was in it
THE GOVERNMENT OF THE UNITED STATES. 4lJ3
of course none of tlie elaborated class privilege that narrowed
the town governmeiitB of the Eoglajul of that time. All the
townsmen met in town meeting and there elected their officers:
those officers were responsible to them and always rendered
careful account of their actions to the body which cleoted
them. Generally the most important of these officers were
called Selectmen, — men selected by the town meeting to carry
on the necessary public business of the eommunity, — and
these Selectmen stood in the closest relations of counsel and
responsibility to the town meeting. In the earliest times the
franchise was restricted, in Massachusetts and New Haven at
least, to those who were church members, and many were ex-
cluded by this rule from participation in the government; but
even under auch circumstances there was real and effective
self-government. The towns lacked neither vitality nor energy,
for they did not lack liberty. In the late days when great cities
grew up, the simple township system had to be abandoned in
part ; as the colonics expanded, too, they gained in energy and
vitality as wholes, and their component parts, the towns, fell
by degrees to a place of less exclusive importance in colonial
afifairs ; but this basis of the township was never lost and is to-
day still the foundation of local government in New England.
840. Colonial Organization. — As the towns came together
into the groupings which cmistituted the later colonies other
areas of government of course came into use. Townships
were, for judicial purposes, combined into counties, and by
various otlu^r means of organization a new nexus was given to
the several parts of the now extended state. From the first
the colonists had their "general courts," their central legislar
tive assemblies representative of the freemen. To these
assemblies went delegates from the several towns eompriswl
in the colony. As the colonies grew, their growth but
strengthened their assemblies: it was in the common ruling
ftmction of these that the union of the several parts of each
colony was made real and lasting.
454 THK GOVERKHIENT OF THE UNITED STATEd.
The sheriffi of the conntiet of colonial Massachusetts were appointed
hj the Goremor. The derelopment of the county organization brought
into existence, too. Justices of the Peace who met in Quarter Sessions,
afterwards called *' General Sessions,** and who were the general countj
authoritj quite after the fashion of the mother country .^
841. The Southern Colonies. — To this picture of the
political institutions of colonial New England political and
social organization in the Southern colonies offered many
broad contrasts. The settlers in Virginia were not religious
refugees : they had come out for a separate adventure in polit-
ical, or rather in social, organization, but not for a separate
venture in religion ; and the coast they happened upon, instead
of being rugged and bleak, was low and fertile, with a kindly
climate, deep rivers, broad stretches of inviting country, and a
generous readiness to yield its fruits in season. They had
been sent out by a Company (the " Virginia Company " it was
called) in England, to which the Virginia territory had been
granted by the Crown, and they had no thought but to live
under the governors whom the Company had placed over
them. They founded Jamestown some hundred miles above
the mouth of the James river ; but Jamestown was in no way
like the New England towns, and it soon became evident that
town life was not to be the characteristic life of the colony.
The rich soil invited to agriculture, the numerous rivers, full
and deep, stood ready to serve as natural highways, and as the
population of the colony increased it spread, — spread far and
wide along the courses of the rivers.
842. Expansion without Separation. — Still there would
appear to have been no idea of organic separation in this pro-
cess, as there was so often in the spreadings of the New England
colonists. Great plantations indeed grew up with an almost
entirely separate life of their own, with their own wharves on
* See Town and County Government in the English Colonie» of North
America, by Edward Channing, Johns Hopkins Unirersitj Studies in His-
torical and Political Science, 2d Series, pp. 40-42.
1
THE GOVERNMENT OF THE UNITED STATES.
455
the river fronts and their own direct trade with the outer
world bj vessels whii;h ciuae and went between them and
England, or between them and the trading colonies to the
north ; but all this took place without any idea of organic po-
litical separateness. This diffused ^ricultural iwpulation thus
living its owii life on the great rural properties which steadily
multiplied in all directions still consciously formed a single
colony, living at first under the general govemnient of the
Company which had sent out the first settlers, and afterwards,
when the Company had been deprived of its charter and pos-
sessions, under the authority of royal governors. Its parts
hung loosely together indeed, but they did not threaten to fall
apart : the plan waa expansion, not segregation.
843. Southera Colonial Society. — The charaeteristics of
the society formed under such circumstances were of course
very marked. Slaves were early introduced into the colony,
and served well to aid and quicken the development of the
plantation system. A great gap speedily showed itself between
the owners of estates and the laboring classes. Where slavery
exists manual toil must be coiisidered slavish and all the ideas
on which aristocracy aie founded must find eaay and sponta-
neous rootage. Great contrasts of condition soon appeared,
such as the more democratic trading communities of New Eng-
land were not to know until the rise of the modern industrial
organi7.ation ; and the goveraing power rested of course with '
the powerful, the propertied classes.
8-14. Government of Coloaial Virginia. — The government
of colonial Virginia bore, in all its broader features, much the
same character as the niral government of England. Organ-
ization was effected through a machinery of wide counties,
instead of by means of compacted townships. There was at
the head of each county, un<ler this first order of things, a
Lieutenant whose duties corresponded roughly with those of
the Ijords Lieutenant in England. The other important ex-
ecutive oEficer of the county, too, in Virginia as in England,
456 THE GOVERNMENT OP THE UNITED STATES.
was the Sheriff. The Lieutenant was appointed by the Grov-
emor, was chief of the military (militia) organization of the
county, and, by virtue of his membership in the Governor's
Council, exercised certain judicial functions in the county.
The Sheriff also was appointed by the Grovernor, upon the nom-
ination of the Justices of the county. His duties an English
sheriff would have regarded as quite normal. And added to
these officers there was, as in England, a " commission of the
peace," a body of justices or commissioners authorized to hold
county court for the hearing of all ordinary cases not of grave
import ; authorized to levy the county taxes, to appoint sur-
veyors of highways, to divide the county into precincts ; em-
powered to act as the general administrative authority of the
county in the management of all matters not otherwise as-
signed. The Episcopal church had the same official recog-
nition in Virginia as in England and contributed the same
machinery, — the machinery of the Vestry, — to local govern-
ment. Even the division of the 'hundred' was recognized,
so close was the outline likeness between the institutions of the
mother country and those of her crude child in the west. The
>^ system was undemocratic, of course, as was its model : " the
dominant idea," as Mr. Ingle says, " was gradation of power
from the Governor downward, not upward from the people." ^
The Justices, like the other officers of the county, were ap-
pointed by the Governor, and held only during his pleasure : the
whole system rested upon a rather absolute centralization. But
still there was liberty. There was strong local feeling and
individual pride to counteract the subserviency of the officers :
those officers showed a more or less self-respecting independ-
ence in their administration ; and at least the spirit of English
self-government was kept alive.
* I.,ocal Institutions in Virginia, by Edward Ingle, Johns Hopkins TJni-
Tersity Studies in Historical and Political Science, 3d Series, p. 07 (con-
tinuous, p. 199).
THE GOVEBNMENT OF THE UNITED STATES.
457
845, Virginia's Colonial Assembly. — The vital centre of
[ the political life of the coluiiy was her represeiitativt; aasemlily.
So early as 1619, but twelve years after the foundation of the
colony (1607), the Virginia Company, then still in control, had
oalled together in the colony, through its governor, an a&sembly
representing the plantations then existing, which were in this
L way treated as independent corporations entitled to a represen-
I tative voice in colonial affairs. Later years saw the Assembly
I developed upon the basis of a representation by towns, hun-
I dreds, and plantations t and even after the governors sent out
I by the Company had been supplanted by royal governors this
I representative body, this House of Burgesses, as it came to be
I rtyled, continued to exist, and to wax strong in control. The
I first Assembly, that of 1619, had sat in joint session with the
governor and hia council, but the more fully developed assem-
bly of later times sat apart as a distinct and independent body.
It was this elective representation in the government of the
colony which made and kept Virginia a vital political unit,
with a real organic life and feeling.
846, The constitutions of the other southern colonies
corresponded in all essential features with the constitution of
I Virginia. They, too, had the county system and the general
nepresentation in a central asaenibly, combined with governors
Ffind councils appointed by the Grown. All save Maryland.
Her constitution differed from the others mainly in this, that
in place of the king stood a ' proprietor ' to whom the fullest
prerogatives of government had been granted.
847, The Middle Colonies ba<l a mixed population. New
I York ha<l been New Netlierland, and the Delaware had been
I first settled by the Swedes and then conquered by the Dutch,
l-When the territory, which was to comprise New York, New
I Jersey, Delaware, and Pennsylvania, fell into the hands of
I'the English the foreign element was not displaced but merely
Vckiminated ; and to a large extent it kept its local peculiarities
|<of institution. For the rest, the E^nglish settlers of the region
458 THE GOV]
followed no uniform or characteristic method of organization.
The middle coloDies, though possessed of a rich soil, had also
fine seaports which inrited to commerce ; their climate wna
neither so harsh as that of Mew England, nor so mild and
beguiling as that of the southeru colonies. Their people, conse-
quently, built towns and traded, like the people of New Eag-
land; but also spreadabroad over the fertile country and farmed,
like the people of Virginia. They did these things, however,
without developing either the town system of New England or
the plantation system of Virginia. Townships they had, but
counties also ; they were simple and democratic, like the New
Englanders, and yet they were agricultural also, like the Vir-
ginians: in occupation and p<jlittcal organization, as well as in
geographical situation, they were midway between their neigh-
bors to the north and south,
$48. The Charters: Massachusetts. —The political rela.-
tions of the colonies to the mother country during the variouB
developments of which I have spoken were as various as the
separate histories of the colonies. The three New England
colonies, Massachusetts, Rhode Island, and Connecticut, pos-
sessed charters from the king which virtually authorized them
to conduct their own governments without direct interference
on the part of the Administration at home. During the first
years of English settlement on the American coast it had been
the practice of the government in England to grant territory
on the new continent to companies like the Virginia Company
of which I have spoken, — grants which carried with them the
right of governing the new settlements subject only to a general
supervision on the part of the home authorities. The colony
of Massachusetts Bay was established under such an arrange-
ment: a Com|>auy, to which special privileges of settlement
and* government had lieen granted, sent out colonists who
founded Salem and Boston ; but the history of this Company
was very different from the history of the Virginia Cum-
piiny. The Virginia Company tried to manage their oolony
THE GOVERNMENT OF THE UNITED STATES.
from London, where the memliers of the Company, who v
active liberals and therefore not very active eourtiers, pres-
ently got into trouble with the government and had tx)th their
charter and their colony taken away from them. The Massa-
chusetts Company, ou the other hand, itself came to America,
and, almost unobserved by the jjowera in London, erected some-
thing very like a separate state on the new continent. Its
charter was received in 1629 ; in 1630 it emigrated, governor,
directors, charter, and all, to America, bringing a numerous
body of settlers, founded Boston and Cambridge, and put
quietly into operation the complete machinery of government
which it had brought with it. It created not a little stir in
official circles in England when it was discovered that the
Company which had been given rights of settlement on the
New England coast had left the country and waa building a
flourishing semi-independent state on its territories ; but small
colonies at a great distance could not long retain the atten-
tion of busy politicians in London, and nothing was done then
to destroy the bold arrangement. Fatal collision with the home
government could not, however, it turned out, be permanently,
or even long avoided by the aggressive, self-willed rulers of
the Massachusetts Company. Many of the laws which they
passed did not please the Cmwn, — particularly those which
set up an exclusive religion an-d tolerated no other; they would
not change their laws at the Crown's bidding ; and, though the
evil day was postponed, it came at last. In 1684 the contest
between Crown and colony came to a head, and the charter of
the Massachiisetts Company was annulled. Before a change
could be effected in the government, indeed, the king, Charles
II., died, and during the troublous reign of James II, the colo-
nists quietly resumed their charter privileges ; but in 1692 the
government of William and Mary was ready to deal with thftm,
and a new form of colonial organization was forced upon them.
They were compelled to take a governor from the king; the
royal governor appointed the judicial officers of the colony and
460 THE oovimmiBKT or tbk uwrTra) btateb.
controlled its military forces; and, allhuugli the noloiiists !t-
tained their assembly and through thiit assembly chose the
governor's Council, the old charter jirivileges were pernia^
nently lost.
849. The Connecticnt Charter. — Khodc Island and Con-
necticut were small and ujore fortunate. The town of Say-
brook, Ht the mouth of the Connecticut river, had been founded
under a charter gnuited to two English noblemen, and consisted,
therefore, of immigrants direct from England ; but Saybrook
did not grow rapidly and proved a coiuparative failure. The
successful, and dominant settlement on the Connecticut was
that which had been founded higher up the river at Hartford
by men from Massachusetts who had neither charter nor any
other legal rights, but who had simply come, settled, and made
a written constitution for themselves. New Uaveu, westward
of the river on the shore of bhe sound, had been established
by a band of English immi^'ants equally without charter
rights, but equally ready and able to construct a frame of gov-
ernment for themselves. Some thirty years after their settle-
ment, the leaders of the 'Connecticut colony,* up the river,
which meantime had become an extended cluster of towns,
decided that it was time to obtain a charter. Accordingly
they sent their governor, Winthrop, to England to procure
one. He was entirely successful, much more successful than
was pleasant to the settlers of the New Haven district ; for hs
bad obtained a grant which included their lands and colony
and which thus forced them to become a part of ' Connecticut.*
Saybrook had already been absorbed. The charter gave the
colonists substantiidly the sani« rights of self-government that
they had had under their own written constitution, adopted
upon their first settlement ; it was, in other words, just such
a ctftrter as Massachusetts then enjoyed. And, unlike Mksm-
chnsetts, Connecticut kept her charter, kejrt it not only through
colonial times to the Revolution, but made it at the RevolutioD
her state constitution, and was content to live under it until
THE GOVEKNMENT OF THE UNITED STATES. 461
1818. Her shrewdness, her arts of timely concession, and her
inoffensive size enabled her to turn away from herself each
Hnccessive danger of forfeiture.
8dU. Rhode Island's Charter. — Rhode Island was similEirly
protected by fortune and sagacious management. Koger Wil-
liams, the energetic leader of settlement in that region, obtained
a charter from Pailiament in 1644, which was confirmed iu
1654, and replaced by a. new charter, from Charles IT., in 1663,
the year after Connecticut obtained its legal pririleges through
the instrumentality of Winthrop. Aa New Haven and Con-
necticut were joined by Winthrop's charter, bo were the towns
of the Rhode Island country united by the charters obtained
by Williams, under the style 'Rhode Island and ProvidencB
Plantations,' — a title which is still the full official name of
the state. The charter of '63 waa retained by the people of
Rhode Island even longer than the people of Connecticut re-
tained theirs. It was not radically chaoiged until 1842,
851. Proprietary Gov>^rnmenta. — The govemmenta of
almost all the other colonies were at first 'proprietary';
those of Marj'land, Pennsylvania, and Delaware remained pro-
prietary until the Revolution. Maryland was granted to the
Calverts, Lords Baltimore; Pennsylvajiia and Delaware were
both included in the grant to William Penn ; New York was
bestowed upon James, Duke of York, upon whose ascension of
the throne, as James II., it became an immediate province of
the Crown j New Jersey, originally a part of New York, was
first bestowed by the Duke of York on Lord John Berkeley
and Sir John Carteret, was afterwards divided, then .sold in
part, and finally surrendered to the Crown (1702) ; the Caro-
linas and Georgia in the same way, given at first to. propri-
etors, passed very soon into the hands of the royal govem-
nent. New Hampshire, after several attempts to unite with
lUassachusetts, fell quietly into the status of a royal colony,
ithout having had either a charter or a proprietaty stage
( existence.
462 THE GOVERNMENT OF THK UNITED STATES.
852. Government unfler proprietors meant simply govern-
ment by governors and councils appointt^d by the proprietora,
with in all cases a full right od the part of the people to con-
trol the government through representative assemblies. The
private proprietora, like the great public proprietor, the Crown,
granted charters to their colonies. Tlie charter which Penii
bestowed upon Pennsylvania is distinguished as one of thu
best-conceived and most liberal charters of the time; and
under it his colony certainly enjoyed as good government as
most of the colonies could secure.
853. Direct GoTemment by the Cr^wn, which came in turn
to every colony except Rhode Island. Connecticut, Maryliuid,
Pennsylvania, and Delaware, involved the apjwiintment of
governors by the Crown, and also, everywhere except in Mas-
sachusetts, the appointment of the governor's council. It gen-
erally involved also the dependence of the colonial judiciary,
and in general of the whole administrative machinery of gov-
ernment, upon the royal will; but it, nevertheless, did not
exclude the colonists from subetantial powers of self-govern-
ment. Everywhere legislators disciplined governors with the
effective whip of the money power, and everywhere the people
grew accustomed to esteem the management of their own affairs,
especially the control of their own taxes, matter-of-course privi-
leges, quite as inalienable rights of Englishmen in America as
of Englishmen in England.
864, Development of the AssemUies. — It was, indeed, as
a matter of course rather than as a matter of right that the
powers of the colonial assemblies waxed greater and greater
from year to year. Parliament would have been wise to con-
tinue the policy of neglect which had been the opportunity of
the colonies in the development of their constitutional liber-
tics. Li'ft to themselves, they quickly showed what race they
were of.
A* Burke iftid. In tbelr jntliflcation, tiitf " had formed within tlicni-
wUes, cither \ij royal iaitracUvD or toytX cliorUr, Mtcmblln to ex-
\
THE GOVERNMENT OF THE UNITED STATES, 463
ceedingly reiembliiiK h pnrlinmenl. in all Ilieir fonna, funi.-ti(iiiii, nnd
powera, thai it naa impoaeible they shnulil not imbibe some opinion of
a giniilar anlbority.
"At tlie firet deaignation of Ilieac nasemblioa, thej were probablj
Dot intended (or anj thing more (nor perhftps did (hej think Ihemaelrei
muc^h higbtr) tbnn Ibe municipal I'orporaiiani wiihin tliis ialand, tn
which aoiDi> nl present love Id compare [bem. But nothing in progrei-
lion can rest on its original plan, . . . Therefore, ai the colonies pros-
pered and increased lo a namcmus and mighty people, spreading ovci
a Terj great tract of the globe, it was natural that Ibey aboald allribuls
to asseinblius so respectable In thi^ir formal conatttution some part ol
tlie dignity of the great natiana wbicb tliey represented. No longer
tied to by-Uwa, these asaembties made acts of all eorts and in all cases
whalRoever. The; levied money, not far parocliial purpoaei, but upon
rcgnlar grants In Ibc crown, following all the rules and principles of a
parliament, to which they approached eiery day more and more nearly.
■ ■ . Things could not be otherwise ; and English colonies must be had
on tbcsc terms, or not had at all. In the meantime neither party felt
any inconTenience from this double legielature,' to which Ihcy had been
(onneU by imperceptible habits, and old custom, the great support of
all ihe governments in the world. Though these two legislatures were
sometimea found perhaps performing the rery same fnncliona, they did
not very groasly or lyalemalically claah. ... A regular revenue, by the
authority of Parliament, for the support of civil and military eBlabliab-
montt. seems not to hare been thought of until the colonies were too
proud to submit, too strong to be forced, too enlightened not to see all
the consequences which must arise from anch a ayatem."'
855. Ill such assertions of a right of parliamentary self-gov-
ernment it might be exjieeteii that the charter colonies would
be most forward ; but, as a matter of fact, such was not the
case. Massachusetts was ever, indeed, very stubbornly and
heroically attached to her liberties, but the royal colony of
Virginia was not a whit behind her. The assemblies of the
royal colonies, no less than those of the charter governments,
early, and as if by an instinct and habit common to the ra*.-e, de-
< The legislature of England, i.e., and a colonial legislature.
>" Letter to Ihe SherUIs of Bristol," WorLi (ed. Boston, 1880), Vol. II.,
484 THE GOVBHNMENT OF THE ONtTKD STATES.
veloiwd a coDscioiisness ami pnuitioe of local sovereignty, which
comported well enough, inileed, with perfect loyalty, which
waa long-suffcriDg as tuw^nls Navigation Acta aiid all intet^
ferences bj' the mother country with the external relations of
the colonies, their plat^e in the politics ami commerce of the
outside world, but which was from the first prompt to resent
and resist all dictation as to the strictly interior affairs of the
settlements. And the same was true of the proprietary colo-
nies, also: Maryland assumed the same privileges that Vir-
ginia insisted upon enjoying, and even Pennsylvania, with its
population compounded of English, Dutch, and Swedes, mani-
fested not a little of the same spirit of independent self-
direction.
856. Development ' of Constitutional Liberty in the Col-
onies.— There was, therefore, a comparatively uniform de-
velopment of constitutional Liberty throughout the colonies.
Everywhere the same general causes were operative. The set-
tlement and development of a new country gave to the elective
governing bodies of the colonies a wide and various duty of
legislative regulation; the newness of the country created
everywhere substantially the same new conditions of social rela-
tionship; every where, and more and more as the years went on,
there was a very general particijiation in communal and colonial
affairs by the mass of the people most interested: democratic
institutions brought in their train equality of law juid a wide-
spread c«nscJouBness of community of interest. Each colony
grew the while more and more vividly conscious of its separate
political personality in its relations with the other colonies and
with the ruling powers in England.
857. Political Sympathy of the Colonies. — The substan-
tial identity of the lines of institutional development in the
several colonies appears in iiothuig inore clearly or conolu-
Avely that! in their close and 3)Kintaiieous alliance against Kug-
l At tlie Revolution. Despite very considerable outward
Knees of social cimditiou ^nd many apparent divei^eoDies
THE GOVBItNMENT OF TUB UNtTBD .-STATES. ^
of interest as between colony and colony, they one and all
wnnled the same revolution: almost vithout hesitatiuD they ran
together to co-operate by the same means for the same ends ;
they did not so much make a common cause as Itave a rammon
cause from the first. The real concrete case of revolution, so
to say, was made np between England and Massachusetts : to
the politicians in the mother country it seemed possible to di-
Tide the colonies on grounds of self-intereat : apparently colo-
nies so utterly different in every outward aspect, so strongly
contrasted in actual economic coudition as Massachusetts and
Vir^nia, could easily be played oS against one another. But
we now know how little foundation of fact such a view had.
Boston's trade was offered to Salem, her commercial rival, as a
bait to catch Salem's acquiescence in the iniquitous Boston
Port Bill which shut Boston off from all trade ; but Salem
would not have it : what was to prevent similar treatment of
herself in the future ? More striking still, distant Vir^ia
sounded the call to i-evolutiou in behalf of Massachusetts t the
contest was polifkal, she clearly perceived, not economical, —
a contest of prinoiple, not a contest for any temporary int^irest
or momentary advantage; from tlie point of view of politics
Massachusetts' quarrel was Virginia's also. Virginia spoke at
once, therefore, and as a leader, for nomhiuatiou, for a joint
resistance to the s^gressions of the home government, and at
length for independence and a perpetual union between the
colonies. For the shortest possible time did the struggle re-
main local; immediately it liecame 'continental.'
858. American as compared with English Constitutioiial
Development. — There was in this development of self-govern-
ment in America a certain very dose resemblance to the devel-
opment of self-government in England ; but there were also
other points of very strong and obvious contrast Iwtween the
institutional historiea of the two countries. Both in England
and America the process of institutional growth was in the same
direction : it began with small, hardy, deep-rooted local insti-
\
atmiENT OF THE 0HITBD 8TATa».
1 self -directing communities, and widened
il iiistitutioiis whicli bound the constituent
iT in a strong and lasting central union.
(h tier village communities and her judicial
■ Uiindretk,' with the primitive cummnnal institutions of the
Teutonic folk ; these were tirat gathered to a head in the petty
kingdoms of the days of the Hokuu Heptarchy ; another step,
and these one-time petty kingdoms were merely the counties
of a wider union, and England was ready for the amalgamation
of the Norman rule, was ready for the growth of her parlia-
ments and her nationality. In like manner, the United States
began with isolated settlements upon a long coast, settlements
separate, self-contained, self-regulative ; these in time merged
in numerous [letty colonial statea ; and finally these colonial
states fitted themselves together into a national union.
869. Process of Growth in America Federation, in England
Consolidation. — But the means of integration were in the two
cases quite diverse. American integration ha« been federal;
English, absorptive, ineorpunitive. Tlie earlier stages of fed-
eration did not appear in the aouthern colonies ; because there
the unity of the tirst settlement wiis geuenUly not broken ; the
Vir^nia of the Revolution was but an expansion of the James-
town settlement; growth by agricultural development waa not
disintegrating like growth by town establishment. But in
Xew England the process is obvioimly federative fi-om the first,
finding its niost perfect type, prukibly, in Rhode Island, whose
town atoms drew so slowly and reluctantly together and so long
stoutly resisted the idea that they had in any sense been
absorbed or subordinated under the operation of the charters
of ' Rhode Island and Providence Plantations.' What was at
first mere confederation between these smallest units, however,
by degrees became virtual coalescence, and the absorbed towns
finally formed but suborduiate parts in the new and larger
colonial units which drew together in the Continental Con-
gresses. Between these larger units, these full-grown colonial
THE GUVEUNMEaiT OF THE UNITED STATLS. 467
states, of coiuse, imion was from the first distiuctly federative,
matter ot concession and contrdct. They were united in en-
tirely voluntary association, as of course the Saxou kingdoms
860. Conscious Development of Institutions in America.
— Throughout their develoiiuient, therefore, the colonies pre-
sented, in still iiuother equally important res]>ect, a marked
contrast to English development in this, that the formulation
of their institutions was consc^ious and deliberate. The royal
colonies, like the proprietary aad the charter colonies, exercised
their rights of self-government under written grants of privi-
lege from tlie Grown : their institutions grew within the area
of written constituent law ; from the first they had definite
written ' constitutions ' wherein the general fabric of their gov-
ernments was outlined. Conatitutiou by written law, there-
fore, became very early one of the matter-of-course habits of
colonial thought and action. When they cast off their alle-
giance to Great Britain their self-constitution, as independent
political bodies, took the sliape ot a recasting ot their colonial
constitutions simply ; Rhotle Island and Connecticut, as we
have seen, did not even tind it uecessary to change their char-
ters in any important particular : they already chose their own
governors and officials as well as made their own laws. The
other colonies, with little more trouble, found a^lequate means
of self-government in changes which involved hardly more
than substituting the authority of the people for the authority
of the English Crown. But the charter, the written coustit-
uent law, waa retained as of course : the new governments had
their charters which emanated from the people, as the old gov-
ernments had had theirs given by the king. Popular conven-
tions took the plaee of the Privy Council. The colonists were
not inventing written constitutions ; they were simply contin-
uing their former habitual constitutional life.
861. English Law and Precedent. — Whatever the form ot
colonial institutions, however, their substance and content were
468 THE GOVEBNMKST OF THE TNITED STATES.
thoroughly English. In a sense, indeed, even the forms of
ColonioJ constituent law may he. said to have been English,
aince it was English practice whieh originated the idea and
habit of giving written grants of privilege to distant colonies.
The colonial law of Canada and Anstralia stands to-day in moch
the same relation to the law of the mother country that the law
of the American colonies bore to the law which created them
(sec. 826). Within the constitutions of the colonial and rev-
olotionan,- time, at any rate, English law and precedent were
cloaely followed. The English common law lias gone with Eng-
lishmen to the ends of the world : the English communities in
America were but projected parts of the greater English comma-
nity at home; the laws of private and personal relation which
obtiuned in England were recognized and administered also in
the colonies; and when, at the time of the Revolution, the
colonists developed out of their charters the constitutions
under which they were to live as independent coramonwealthB
their first care was to adopt this common law under which
they hail always acted. Im^iortant modifications were made
indeed iu the law thus adopted. It was purged of all class
privilege, of all church prerogative, of all things incomiwtible
with the simple demoi-ratic society of the new world ; but no
real break was made with the principles of English legal
precedent and practice.
S62. Quite as naturally and quite as completely was English
practice adhered to in the public law of the colonies and of the
independent commonwealths into which they grew. The relar
tions of the colonial legislatures with the colonial governors
were just the relations of King and Parliament reproduced on
a small scale, but with scarcely less earnestness and spirit. In
all respects, except that of the erection of a responsible min-
istry representing and shielding the Executive, the relations nf
the people to their governments remind of English precedpnt.
The powers of the executive were, in small, the powers of the
Crown. The courts were constituted as tJie English coorts
THE fiOVEKSMBNT OF TRE UNITED STATES.
4fi9
were, and followed the same rales of procedure. Of comae
the English in America, being men of the samp practical politi-
cal ra<'e as Englishmen in England, struck out not a few lines
of development of their own in suiting their institutions to
the daily needs of a new civilization and to novel c^ndittona of
social organization ; American politics were not long in acquir-
ing in many respects a character peculiarly their own. But
the manner of development was English throughout : there was
nowhere any turning of sharp corners : there was nowhere any
break of continuity ; to the present day our institutions rest
upon foundations as old as the Teutonic peoples,
863. Union : Preliminary Steps. — How much of political
precedent that was their own the colonists had develoi>ed ap-
peared most distinctly when they came to put the ttml>ers of
their Union together iu the days succeeding the Revolution,
The colonies cannot be said to liave framed any federative con-
stituent law until 1777, when the Articles of Confederation
were drawn up. Before that time they had co-operated with-
out any determinate law of co-operation, acting rather upon the
suggestions of international procedure thau upon any clear
recognition of corporate comhination. Preparations for union
there had been, and signs of its coming; hut no more. For a
period of forty years following the year 1643 the New England
colonies hud held together in loose confederation !4!ain3t the
Indians; in 1754 colonial delegates who had met at Albany for
conference with representatives of the Six Nations discussL-d
a premature plan of union; in llGo delegates from nine of the
colonies met at New York and uttered in behalf of all English
Americans that protest agiiinst taxation by Parliament which
gave the key-note to all the suiisequent thought of the revolu-
tionary movement ; and in 1 774 sat the first of the series of
'Continental Congresses' with which began American union.
But in none of these steps was there any creation of organic
union ; that was to be the result of slow proee.ssea, and was to
be effected only by the formulation of an entirely new body of
law.
470 THE GOVERNMENT OP THE USITKD STAT88.
S<tl. SepaiBteueu of the Colonial Oorsnunent*. — It ii Tery
iiiipurlaiil, ira just view is tu be Eurint-iJ uf thi- proceasea by whjqh the
Union wua cnnHlrui^ted, to realize tlie cuinplete tepkniteneii of the gov-
eriimenls of Ihc ciilunii-a. They alt lielil enbatintially the aarae gfoenl
rtlalioii to the Etlgtisli authorities : ttiey had a oommua duty aa toward*
tlie diitanl country from wliich tlicy had all L'onie out ; but Ihey were not
connected by any bonds of goTemoient on tliis side (he sea. E»cb of
the coloniea had its ovti separate executirc ufBi'iala. legialalure, and
courts, whith hail do connection whatever with the offlcen, legialatum,
and oaurta of any other colony. Their oo-operation from lime to time
in meeting dangers whii^h tlireaCaned them all alike wat natural and
ipontaoeous, but it was intermittent; it rested upon mere temporary
necessity and had no basis of interior orj^nic law. The coloniats had
many grounds of sympathy. Beaidea possessing the same blood and (he
■ame language, they entertained the same ideas about political justice;
their dangera, whether proceeding from aggressiona un the part of the
French and Indians which threatened their lives, or from aggression*
by Parliament which threatened their liberties, were common danger* :
they were one and all ecjually interested in the succ-eaaful de»elopment
•ad liberal government of the new country with which they had
identified the insel Tea. But the motive of their endeavors wai always
the preservation of their internal and separate self-government; their
liberiie* were historically coimiidcnE wilti their organization and rights
■s separate governments. It was., therefore, only by the slow processes
of a hard experience of the fatal consequences of any other courte that
the coloniea were brought to subordinate themselves tu a central au-
thority which could gu further than mere conference and command them.
They saw from the first the necessity for co-operation, but they did not
lee from the first the abaolule necessity for union. Very alowly, con-
sidering the swift inSuences of revolution amidst which they worked, ttnd
very reinctanlly, considering the evident dangers of separation which
daily looked them in the face, did they construct the union which wu
to deprive them of the fulness of their loved independence.
865. The Coniederadon. — It was not until 1781 that a
foundation of distinct written law was put beut^atli the prac-
tioe of union; it was not till 1789 that the law of the unian
waa made orgauic. In 1781 the Articlea of Confederation were
fiually adopted which hail Iwkh proitoeed by the Continental
Congress of 1777 : hut thesii Aiticlea gave uo real integration
THE (iOVEKNWENT OF THE UNITED 8TATB8.
to the constituent states : they were from the first a rope, of
Band which could bind no one. They did little more than
legitimate the Continental Congress. Under them the powers
of the Confederation were to be exercised by its Congress ; its
only executive or judicial organs were to be mere committees
or ^^ucieti of the Congress ; and it was in fact to have no real
use for executive parts, for it was to have no executive r
Its function was to be advice, not command. It hung upon
the will of the states, being permitted no effective will of its
own. The Articles were scarcely more than an international
convention.
SOS. Tb« AlrtiolttB ol CoufederaUoD farmall; Tested the eierdae
of federal functions in a Congress just such as the Continental Con-
gresses had h?en, -— a Congresa, cli&t is, consisting of delegates from the
several stales, and in whose deciaiutis the states were to hare an abao-
lutely equal voice. No state, it was arranged, shonld have her TOte in
the CoDgreia unless represented tj at least two delegates, an
on the other hand, was lo be entitled to send more than teiea delegates ;
whether she sent two or seven, however, her vole wai to be single rote,
upon which her delegates were to agree. The goverament thus con-
stituted was officiall)' known aa " The United Slates in Congress as-
sembled." For the exercise of representative funetiona it was very
liberallj and completelj equipped. To it the independence of the
several states in dealing with foreign powers was entirely subordinated.
It alone was to conduct all international currespondence and lanction
all international agreements; it was to control the armf and uavf of
the Confederation ; it was to preside over federal Qnances, doing all
barrowiug and all spending that might be necessary for the purposes of
c the value of current coin
s to be arbitrator
be the single and
erests of the con-
it and complete.
and contemptible.
dilHcull i:oncurrence
difScult by the fact
and the standards of weights and
in disputes between the states ; in brief,
dominant authority for all the graver c(
rcprL-s.
e posit
807. WeaknsBB of the Cooiedaration.
lulely no executive power, and was therefore helph
It could take no important resolution wllhou
e naade all the
472 TBB GOVERNMENT OP THE TTSTTEn STATES.
grraB, and led some of them tEain and again to (hlI to aciid delpgnlei to
iti'sewiona; iu cliief eiecutivo agencj was a commiitre of its members
representing all the «tatt« (hence ualied the " Commiltee of Statea " }
and bound by the lams hard rule of obtaining the concurrence of nine
of its thirteen members to every important executive atep; and, above
all, lis only power to govern the states was a power to ndvisc them. It
could ask the states for moDcy. but it could not compel Ihem to givs
it ; it could ask them for troops, but could not force tbem to heed the
reqiiisilion : it could make treaties, but must trust the states to fulfil
them ; it could contract debts, but must rely upon the slates to pay
them. It was a body richly euough endowed with prerogatives, bat
not at nil endowed with powers. "The United States in Congreii
a^BembU'd " formed a mere consultative and advisory board.
868. Need of a Better Union. — It was the fatal executire
impoteney of the Confederatioii which led to the formation of
the present stronger autl more complete goverament. The old
Continental Congresses bad sutHeed, after a fashion, to keep
the colonies together so long as the pressure of the war con-
tinued; throughout that war there had been, despite much in-
difference now and again on the part of some of the colonies
to their duty, and of not a'little positive dereliction of plain
obligations, a wonderful degree of energy and unity of action
among the confederated colonists. But when the pressure of
the war was removed there was an ominous access of indiffer-
ence, an ill-boding decrease of respect for plighted faith between
the states. Signs fast multiplied both of the individual weak-
ness of the states and of the growth of threatening jealousies
between them. A war of tariffs began between neighbor states
on the seaboard, notably between New York and New Jersey
and between Virginia and Mar^'land. In Massachusetts there
flared out, by reason of the poverty engendered by the war, a
rebellion of debtors under Daniel Shays wliich it was for a mo-
ment feared the state authorities might find it hard to cope
with. It speedily Iwcamo evident that, both for the sake of in-
ternal order and of iuter-atate peace and goodwill, a real central
government was neede^l. Central consultation would not suffice;
THE GOVERNMENT OF THE DNITED STATES. 473
there muat be eeutral goverumcDt, The Confedsmtion, there-
fore, was no real advance upon the oM Coiitiiieutal Congreases.
Before a single decade had passed over the new government
with its fair-s]}oken Articles a new union had been erected and
the real history of the United States l>egiin.
869. The ConstitutioD : Colonial Precedents. — The pres-
ent Constitution erects a very different government; it is the
charter of a federal state, which has a eoniroanding law and an
independent power of Its own, whose Constitution and law are
the supreme law of the land. The Convention which framed
tlie new constitution met in Philadelphia in May, 1787, and
fused together over the slow fires of prolonged debate the ele-
ments of Englislj and colonial precedent which were to consti-
tute the government of the United States. In the debates of
that Convention during that memorable summer are to be read
the particulars of the translation of English precedent into
American practice made during the formative colonial period.
Through the instrumentality of the able luen who composed
that extraordinary assembly, the government of the United
States was fitted out with the fidl experience of the colonies
and of the revolutionary statics.' It was arranged that the
legislature of the new federal government should consist of
two houses, not in direct imitation of the English system,
whose House of Lords we did not, of course, have the mate-
rials for reproducing, but in conformity with an almost univer-
sal example set by the states. A single state furnished the
precedent in accordance with which a real difference of char-
acter was given to the two houses. The lower house of the
Connecticut legislature was constituted by an equal represen-
1 In deicribing the work of the Convenlioa I follow here Professor
Alexander Joiinslon'ii cle&r (.'xponitjun jt^cen In Ihe New !'n'iuyl-m Srririi'
tor September, 1887, under Ihe lille "Tlie Firil Century of the Con-
stilulion." A con»enient brief siirTey of the chief features of the slate
conititutions at the time of the tonoaUon of the present KOvemmeDt of ihf
Union may be found in llildreth, Vol. III., Chap. XLIV.
474 THE GOVBENMBNT OF THE UNITED STATES.
tation of the towns of the state, while her upper house repre-
sented her people at large : and Connecticut's example showed
the Convention a convenient way of compromise by which
they could reconcile the two parties within it which were con-
tending, the one for an equal representation of the states in Con-
gress after the absolute manner of the Confederation, the other
for a proportional representation of the people simply. The
Senate, it was agreed, should represent the states equally,
the House of Representatives the people proportionally. The
names Senate and House of Representatives were to be found
already in use by several of the States. The single Executive,
the President, was an obvious copy of the state governors,
many of whom at that time bore the name of president ; his
veto power was to be found formulated ready to hand in the
constitution of New York: a method of impeachment was
already prepared in the constitutions of half a dozen states.
Several states had also the office of Vice-President. With a
fine insight into the real character of the government which
they were constructing, the Convention provided that its judi-
ciary should be placed, not under the President or the houses,
but alongside of them, upon a footing of perfect equality with
them, and that with it, as a co-ordinate branch of the govern-
ment, should rest the weighty prerogative of passing upon the
constitutionality of all laws. A similar arrangement obtained
under the state constitutions, but the function of constitutional
interpretation was necessarily as old as written charters and
constitutions, had been an inevitable corollary to their funda-
mental proposition of a»gift of limited powers. Written con-
stituent law is by its very nature a law higher than the legis-
lature acting under it can enact, and by that law, as by an in-
variable standard, must the courts test all acts of legislation.*
The colonial courts had often upon this principle questioned
the validity of colonial legislation, and the Supreme Court of
* See A. V. Dicey, The Law of the Constitution^ Chap. III.; and J. Bryce,
The American Commonwealth, Chap. XXIII.
THK GOVEltSMENT OF THE UNITED STATES. 475
the United States had long had a prototype in tlie Jutlirial
Committee of the Privy Counnil, whose function it waa to hear
appeals from the colonies, and whose practice it had been to
pronounce against all laws incompatible with the royal charters
(sees. 736, 826).
870. Wlien they came to equip Congress with powers, the
Convention a<lopted the plan of careful enumeration ; it set
out the acta of government which were to be permitted to the
legislature of the new government in a distinctly cast list of
eighteen Itenis. Even in doing this, however, they may be said
to have been simply recording the experience of the Confed-
eration: they were giving Congress the powers for lack of
which the Congress of the Confederation had proved helpless
and ridiculous. It was only when they came to construct the
machinery for the election of the President that they left the
field of American experience and English example and devised
an arrangement which was so original that it was destined to
break down almost as soon as it was put in operation.
871. Tliia irenerat statement of llii; broader featuri'S of the selcclire
work of the Conrention will lufBue fur the present: other more
particular reference* to stale precedent anil experience may l)e made in
their proper connections in oar further diicussJon of (he goTemment.
I will) in these paragraphs only to Ox the attention of the student, bj
wa; of clarifying preparation, upon the insfructive fact that the work
of ihe Convention wits a work of selection, not a work of crealran, and *''
that the auccfrei of their work wna not a luccets nf invention, alwaya
most dangerous in goTemmenl. hut a success of judgment, of selective
wisdom, of practical ugacii.v. — the only sort of success in politics
which can ever be made pcrmancnl.
872. Character of the Hew Goverament It is one of
the distinguishing characteristics of the English race whose
political habit has been tr.i.nsmitted to us through the sagacious
generation by whom this government was erected that they
have never felt themselves bound by the logic of laws, but
only by a praetieal uuderetanding of them based upon slow
precedent. For this race the law under which they live is at
476 THE GOVEBNMKNT OF THE UNITED STATES.
any particular time whaJt it w then understood to be; and this
understanding of it is compounded of the circumstances of the
case. Absolute theories of legal consequence they have never
cared to follow out to their conclusions. Their laws have
always been used as parts of the practical running machinery
of their politics, — parts to be fitted from time to time, by
interpretation, to existing opinion and social condition.
873. Character of the Government Changes with Opin-
ion. — It requires a steady, clear-viewed, thoroughly informed
historical sense, therefore, to determine what was at any given
time the real character of our political institutions. To us of
the present day it seems that the Constitution framed in 1787
gave birth in 1789 to a national government such as that
which now constitutes an indestructible bond of union for the
states ; but the men of that time would certainly have laughed
at any such idea, — and for the English race, as I have said,
every law is what those who administer it think that it is.
The men of 1789 meant to form " a more perfect union " than
that which had existed under the Confederation: they saw
that for the colonies there must be union or disintegration ;
they thought union needful and they meant to have it in any
necessary degree. But they had no special love for the union
which they set about consummating, and they meant to have as
little of it as possible, — as little as might be compatible with
wise providence as to the welfare of the new-fledged states.
They were even more afraid of having too strong a central
government than of having one which was too weak, and they
accepted the new constitution offered them by the Convention
of 1787 because convinced of the truth of the arguments urged
by its friends to the effect that the union would be federal
merely and would involve no real sacrifice of individuality or
autonomy on the part of the states.
874. Early Sentiment towards the Union. — It is aston-
ishing to us of this generation to learn how much both of
hostility and of indifference was felt for the new government^
THE GOVERNMENT OF THE UNH
which we see to have been the salvation of the oountry. Even
those who helped make it and who worked most sincerely for
its adoption entertained grave doubts as to its durability ;
some of them even queationecl, in despondent moments, its
usefulness. Philosophic statesmen like Alexander Hiuailtou
supported it with ardent purpose and sustained hope ; but for
the average citizen, who was not in the least degree philo-
sophic, it was at first an object of quite unexciting contempla-
tion. It was for his state, each man felt, that his blood and
treasure had been poured out: it wax that Massachusetts and
Virginia might be free that the war had been fought, not that
the colonies might have a new central government set up over
them ; patriotism was state patriotism. The states were living,
organic persons : the union was an arrangement, — possibly it
would prove to he only a temporary arrangement; new adjust-
ments might have to be made,
875. Early Tolerance for Threats of Secession It is
by this frame of mind on tlie part of the first generation that
knew the present coustitution that we must explain the un-
doubted early tolerance for threats of secession. The Union
was too young to be sacred ; the self-love of the atatea was too
pronounced to be averse from the idea that complete state
independence might at any tiuie be resumed. Discontent in
any quarter waa the signal for signihoant bints at possible
withdrawal. As the new system lived on from year to year
and from year to year approved itself strong and effective it
became respected ; as it gathered dignity ajid force regard wa.s
added to respect, until at last the federal govertuaent became
a rallying centre for great parties moved by genuine national
sentiment. But at first neither love nor respect shielded
the federal authorities from the jealousies and menaces of the
states. The new government was to grow national with the
growth of a national history and a national sentiment.
87(j. Growth of the National Idea. — The career and fate
of the Federalist Party very well illustrate the first state of
47H
OOVERNMBNT OF THE UNITED STATES.
opiuion conferning the Union. The Federalist party was the
party of the Constitution, — the party which had been chiefly
instnunentiil in bringing about the adoption of the new frame
of government. Immediiitely upon the inauguration of the
present Union this partly of its friends was put in charge of
the new central body politic. It presided over the critical
period of its organization, and framed the first measures which
gave it financial credit, international consideration, security,
and energy. But it soon became evident that the Federalists
held views as to the nature of the new government which not
all of those who had voted for the adoption of the Constitu-
tion were willing to sanction. They assumed for the federal
authorities prerogatives of too great absoluteness, and seemed
to not a few to he acting upon the idea that the purpose of the
Constitution was to subordinate, and if need be sacrifice, state
interests to the interests of the general government. Very
speedily, therefore, they brought a reaction upon themselves,
and were displaced by a party which felt that the limitations
put by the Constitution upon federal authority ought to be
very strictly observed. This new party, calling itself ' Demo-
cratic-Republican, ' may be said to have been created by the
injudicious exeesEes of the Federalists ; and from this point of
view the Federalist party may be said to have effected its own
destruction. After its first national defeat it never again came
into power. Rapidly in some places, slowly in others, it went
utterly to pieces.
877. But, although the Federalist party was destroyed, time
worked in favor of its political conceptions. The Democratic-
Republicans soon found that success in conducting the affairs
of the federal govertiment waa, even for them, conditioned
upon very liberal readings of the authority conferred by the
Constitution ; and by alow degrees they drifted into practices
of ' broad construction ' quite as abhorrent to their own first
principles as tht much-berated measures of the Federalists
had been. But the Democratic-Republicans, — or the Demo-
THE GOVERNMENT OF TITK UNITED STATES.
cratB, as they were before long more briefly described, — had
the advantage of a corresponding change in public opinion.
That, too, was steadily becoming nationalist in its tendencies, i'
878. Railroads, Expansion. a.nd War aid the National Idea.
— So' long as the people of one section of the country •
little or nothing of the people of the other sections, separate-
ness of feeling and localnesa of view continued to exist and to
exercise a controlling force ; the majority of the people contin-
ued to put the states before the nation in their thoughts and
to demand more or less punctilious regard for state preroga-
tives. But when railroads began to be built and to multiply;
when people from all parts of the Union began to go oat and
settle the West together; when, seeing each other and trading
with each other began to make the people of aU the states very
much alike in most of the greater things of habit and institu-
tion, and even in most of the smaller things of opinion and con-
duct ; when new states which ha<l grown up in the West with-
out any of the old conservative colonial tmditions began to be
admitted to the Union in increasing numbers, regarding them-
selves as bom in and of the Union ; when a second war with
England and a hot struggle with Mexico had tested the gov-
ernment and strengthened a sentiment of national patriotism,
— then at length it began to be very generally thought that
the Federalists had been right after all ; that the federal gov-
emraent ought to come first in consideration, even at the cost
of some state pride.
879. Slavery stands in the Way of Nationality. — Wliat
stood most in the way of the universal growth of this sort of
national feeling was the great difference between the northern
and southern portions of the Cnion caused by the existence
of slavery in the South. So long as the laborers in the South
were slaves and those of the North free men, these two sec-
tions could not become like one another either socially or
politically, and could nut have the same national feeling. The
North and Northwest meant one thing when they spoke of the
480 THE GOVBRNMBNT OF THE UNITED STATES.
nation; the South meant quite another thing. Each meant
a nation socially and politically like itself. The two sections,
therefore, rapidly became dissatisfied with living together under
the same political system, and the secession so much talked
about in various quarters in the earlier days of the Union at
last became a reality. Inevitably came the war of secession,
by means of whose fiery processes the differences of institution
between North and South were to be swept utterly away.
880. Civil War completes the Union. — The war wrought
changes of the most profound character. Secession was pre-
vented, the Union was preserved, and slavery was forever
abolished; these were the immediate effects of the struggle;
but the remoter results were even more important. They pene-
trated to the changing of the very nature of the Union, though
the form of the federal government remained in all essential
features unaltered. The great effect of the war was, that the
nation was made homogeneous. There was no longer any
permanent reason why the South should not become like the
rest of the country in character and sentiment. Both sections
were brought to the same modes of life and thought; there
was no longer any obstacle to our being in reality one great
nation. The effort made in the war, moreover, to preserve the
Union, and the result of the war in making the country at last
homogeneous throughout, has made the federal government, as
representative of the nation, seem greater in our eyes than
ever before, and has i)ermanently modified in the profoundest
manner the way in which all the old questions concerning
constitutionality and state rights are regarded.
. 881. Present Character of the Union. — It of course by no
means follows that because we have become in the fullest or-
ganic sense a nation, ours has become a unitary government,
its federal features merged in a new national organization.
The government of the Union has indeed become permanent,
the cherished representative, the vital organ of our life as a
nation ; but the states have not been swallowed up by the fed-
THE GOVEKNMENT OF THE DSITED STATES. 481
eral power: their prerogatives ate as essential to our system
as ever, — are indeed becoiuinK more iind more essential to it
from year to year as tlie already vastly complex organism of
the nation expands. But, instead of regarding the goverumeut
of the United States and the government of a state as two
governments, as our fathers did, we now regard them, — if we
(Day make a matter-of-fact analysis of our working views in
polities, — as two parts of one and the same government, two p
complemeutaiy parts of a single system. The value of the pian
of government which our statesmen adopted at the first, the
plan of functions divided between national and state authui'-
ities, baa abated not a whit : we are only a little less anxious
about the clearness of the lines of division. The national
government still has its charter, somewhat enlarged since the
war, but substantially the same document as of old ; and the
national authorities must still canfine themselves to measures
within the sanction of that charter:, the state governments,
too, still have their charters, and still have valid claim to all
powers not specifically delegated to the government of the
Union. Liberal construction of the federal charter the nation
wants, but not a false construction of it. The nation properly
comes before the states in honor and importance, not because
it is Tiiore important than they are, but because it is all-impor-
tant to them and to the maintenance of every principle of
government which we have established and now cherish. The
national government is the organic frame of the states : it has
enabled, and still enables, them to exist.
882. Present Character of the Govenunent of the Union.
— It is perhaps most in at'«ordance witli the accomplished
results of our national development to describe the government
of the United States, not as a dual government, but as a double
government, so complete is the present integration of its state
and federal parts. Government with us has ceased to be plural
and has become singular, the government of the United States :
distinct as are its parts, they are not separate. For the sake of
482 THE QOYBBKHENT OF THE UNITED STATES.
convenience, we speak of the government of the Union and of
the government of a state, as if the two were quite separate ;
bat such phraseology scarcely conveys a just impression of the
realities of our practice. The state and federal systems are so
adjusted under our public law that they may not only operate
smoothly and effectively each in the sphere which is exclu-
sively its own, but also fit into each other with perfect har-
mony of co-operation wherever their jurisdictions cross or are
parallel, acting as parts of one and the same frame of govern-
ment, with an uncontested subordination of functions and an
undoubted common aim.
883. Although these two parts of our government are thus
vitally united, however, thus integrated into what is in reality
a single scheme of government, state law by no means depends
upon federal law for its sanction. The Constitution of the
United States and the laws and treaties passed in pursuance
thereof are indeed the supreme law of the laud, but their su-
premacy does not trench upon or displace the self-originated
authority of the states in the immensely important sphere re-
served to them. Although it is true, taking our system as a
whole, that the governments of the states are subordinate in
our political order to the government of the Union, they are
not subordinate in the sense of being subject to be commanded
by it, but only in being less than national in their jurisdiction.
884. The States not Administrative Divisions but Con-
stituent Members of the Union. — The common and conven-
ient distinction between central and local government furnishes
no ground of discrimination as between the federal and state
governments. A central government, as contradistinguished
from a local government within the meaning of this distinc-
tion, is a government which prescribes both the constitution
and the mode of action of the lesser organs of the system to
which it belongs. This the governments of the states do with
reference to the townships, the counties, the cities within their
territories : these local bodies are merely administrative divis-
■ ttl
THE GOVERNMENT OF THK UNlTBn STATES. 488
ioQS of the states, agencies delegated to do the (Uily work of
government. But, of course, there is no such relationship
between the federal government and the states. They are not
administrative divisions but constituent members of the Union,
co-ordinate with the Union in th«ir powers, in no sense subject
to it in their appropriate spberea. They are excluded, indeed,
by the federal Constitution from the exercise of cerfciin func-
tions, but the great and all-important fuaetions which they do
exercise are not given them by that Constitution : they are ex-
ercised, on the contrary, upon the eompletest principles of self-
direction. We may properly distinguish the government of a
county and the govermnent of a state by the distinction be-
tween local and central government, but not the government
of a state and the government of the Union.
Character, 0 roans, and Functions of the States.
886. The States properly come first in a description of the
government of this country, not only because it was in conform-
ity with state models and precedents that the federal govern-
ment was constructed, but also and more particularly because
the great bulk of the business of government still rests with
the state authorities; because the states still carry by far the
greater part of the weight of the governing function, still con-
stitute the ordinary fountains of justice and of legal right, still
stand nearest the people in the regulation of all their social
and legal relationships. Like the Swiss Cantons (sec. 515),
our states have given to the goveriuuent which binds them to-
gether their owTi forms of constitution ; but even more than
the Cantons have our states retained their right to rule their
citizens in all ordinary matters without federal interference.
They are the chief creators of law among us. They are the
chief constituent units of our political system not only, but
are also self -directive units. Tliey make up the mass, the liody,
the constituent tissue, the organic stuff of the goveriunent of
484 THE oovuksmejjt op the united states.
the country. To them U intrusted our daily welfare, t« the
federal governintiit only oar collective interests. Upon the
character of the state goveriiments dei<eiid8 the chai'acter of
the natiou in its Beveral constituent members; upon the char-
acter of the federal government depends the eluiracter of the
nation as a whole. If we are to hegin out study^ of our iiiati-
tiitiona at the i^antre, the heart of self-government, we must
begin with thti stateu.
886. The Law of the States: Its Character. — The law
of eaiJi state consists of two great parts, (1) the Constitutioii,
Btatutes, and treaties of the United States and (2) the consti-
l tation and statutes of the state. The Constitution, stotntes,
and treaties of the United States are the supreme law of the
land not so much in the sense of being set above the constitu-
tions and laws of the states as in the sense of being, by virtue
( of the principles of our public law, integral ])artB of the law of
the states. The constitutions of several of the states deelant
the Constitution of the United States to be a part of the fun-
damental law of those states : but such declarations are only
formal recognitions of a jiriuoiple now indubitable. On their
legal as well as on their political side the two parts of our sys-
^ tem have been completely integrat«d. Upon the state courts
as well as upon the courts of the United States rests the duty
of administering federal law. The federal Constitution is a
negative portion of state law in resjieGt of the limitations
which it sets to the sphere of state activity ; but the laws
]>assed by Congress under the authority of that Constitution are
also positive portions of state law, whose mandates all officers
of government, whether state or federal, are bound to observe.
687. The constituted autharities of the states do not stand
in the same relation, however, to the Constitution and laws of
the Union that they bear to state law ; of state law they are
the final interpreters, hut of federal law they arn only provis-
ional interpreters. In acting upon federal law state officers
always act subject to the supervision of the federal tribunals.
THE GOVERNMENT OK THE UNITED STATES.
485
886. The funotionB ol the atats conita with leEard to the
Interpretation of ledeTal lavr very forcib]; illuBtrate tlic adjust-
niuiils of our syeleni, H in nriy case brought in a stnte lourt tlie ques-
liim arise wlietlmr a certnin «late low involvi'ij in the KWe i( or w not in
f ioiation of the Constitution of the Uiiiteit Sutes, the court may freely
give its judgment upon the question, and if its judgment lie that the law
ii nuf L'onstilulionnl that judgmcnl is conelusive; only when it deeUreH
the Uw to be in agrecnii^nt willi the fi'ileral Cunatilution niny ila opinion
be lilted to a federal tribunal for reTision. The federal law is, thus, not
regarded as a thing apart from the law of a stale, too savred to be
handled by any but tlie federal courts, ite specially eonstitut*d
guardians : it is a part of state law and the stale courts may detjlare
and apply its principles. But of course in the last resort the federal
courts are themselves to shield it from a too liberHl ur too prejudiced
judgment by stale judges, who may very eonceivably be interested to
vindicate the statutes of their slate as against any objections drawn
from the law of the Union. Both for the sake of making it uniforin
and for the sake of keeping it supreme must federal law receive its final
889. Scope of State Law. — A moment's thought BuiiiceB to
reveal how very great a field of activity, how preponderant a
part remains under our system to the states. The powers ot
the federal goverumeut 8e«in great by enumeration: besides
being intrinsically powers of the greatest imi)ortanpe, they are
made the more impr>sing in the Constitution by the foot of
their being set forth in an exhaustive list. The residuuTa of
powers that remains to the states, consisting as it does of un-
enumerated items, is of course vague, and because vague seems
unimportant by comparisun. A moment's examitiation of this
residuum however, a moment's consideration of its contents,
puts a very different face on the matter. It is worth while
for the sake of an adequate understanding of the i-eal division
of powers nndpr our government to give to the powers remain-
ing with the states something like the same setting forth that
is given to those granted to the Union.
890. Legislative Powers of the Union. — The Constitution of
the United States grants to Congress first of aU, of course, the
486
THE QOVEUNMENT OF THE UNITED STATES.
power to lay and ooUect taxes, duties, imposts, and excises tor
the support of the government of the Union, the payment of ita
debts, and the promotion of the common defence and wel^re,
and also tlie power to borrow money on the credit of the TJuited
States j but these powers of taxation and borrowing belong also
to the states, except that they must raise their revenues with-
out resort to duties, imposts, and excises, the privilege of impos-
ing these being reserved to the Union exclusively. The powers
which disting:iiish the genend government from the govern-
ments of the states are not these powers of raising money but
these others : To control the monetary system of the country,
to maintain post-offices and post-roads, to grant patents and
copyrights, to deal with crimes committed on tlie high seas or
against the law of nations, to shape the foreign relations of
the country, to declare war and control the military forces of
the nation, and to regulate commerce both with foreign coun-
tries and among the states. It is empowered also to establish
uniform rules of naturalization and uniform laws concerning
bankruptcy ; but these powers do not belong to it exclusively ;
in case Congress does not act in these matters, the states may
adopt laws for themselves concerning them. All the powers
of the general government are plainly such aa affect interests
which it would be impossible to regulate harmoniously by any
scheme of separate state action, and only such ; all other
|>owers whatever remain with the states.
891, Powers withheld from the States. — Some powers th«
Constitution of the United States expressly withholds from the
states, besides those granted excUiaively to the general govern-
ment: No state may pass any bill of attainder, ea; post /bcto Isw,
or law impairing the obligation of contracts, or grant any titte
of nobility ; no state may, without the consent of Congress,
lay any imposts or duties, keep troops or ships of war in tim«
of peace, enter into any agreement with another state or with
a foreign ^wwer, or engage in war unless actually invaded or
in such tiiimediate danger as will not admit of delay. But
-
THE GOVEBSMENT OF THE UNITE!> STATES.
487
these pruliibitioiis obviously curtail scarcely at all the sphere
which the states would in any ease normally occu]>y within
the scheme of federal union.
892. Powers left with the States. — Compared with the
vast prerogMtivea of the stute legislatures, these limitations
seem small euough. All the civil and religious rights of our
citizens depend upon state legislation ; the eduiiatiou of the
people is in the care of the states ; with them rests the regula-
tion of the suffrage ; they prescribe the rules of marriage, the
legal relations of husband and wife, of parent and child; they
determine the powers of maatera over servants and the whole
law of principal and agent, which is so vitfil a matter in all
business transactions ; they regulate partnership, debt and
credit, insurance ; they constitute all corporations, both private
and municipal, except such as specially fulfil the financial or
other specific functions of the federal government j they con-
trol the possession, distribution, and use of property, the exer-
cise of trades, and all contract relations ; and they formulate
and administer all criminal law, except only that which con-
cerns crimes committed i^ainst the United States, on the high
seas, or against the law of nations. Space would fail in which
to enumerate the partieulars of this vast range of power; to
detail its parts would be to catalogue all social and business
relationships, to examine all the foundations of law and order,
81>.l. A itriking illustration of the preponderant part played by lUte
law under our ayilein is lupplied in ilie surprising fact that only one
out of tlie dozen grealeal lubjctl* of legialalion irhiuh have engaged
the public mind in England durirg Ihe present century would bare aome
within the powers of the federal govemmenl under the Constitution as
it stood before the war, only two under the Conslilutton bs it stands
since the addition of the witr amendments, I snppoae that I am justi-
fied in singling out si thpse twelve greatest lubjei^ts of lefcislation the
following: Catholic emancipation, parliamentary reform, the abolition
of slarery, the nmendment of the ]>oor-lawe. the reform of municipal
corporations, the repeal of ihe L-orn Ibwb, the admission of the .lews to
Parliament, the dlsestabli aliment of tbe XtlhIi ubufi^h, tbe alteration of
488 THE GOVEKNMENT OF THE UNITED STATES.
Ihe IHbIi load Uw», the establiBbment of nalional cducaCion, Ihe intro-
iluL-ti'in of the ballot, aad the refarni of tlic uriniUml law. Of theie
evL-rj DDG cicept the corn Invis noil tlic abolition i>( slavery would have
been under our sf stem, bo far as they i/ould be dealt with at all, aubjectt
[or stale regulation etitirely ; and of uuurse it wii only hy conctilutional
■meDdmcnt made in recognition of the acconipllghed facta of the war Ibat
■Urery, which was formerly a question rescned for Blnte action, and for
■tate action alone, woi brought within the field of tlic feiteral aiillioritj.'
894. Non-constitutioiial Provisions in State Constitutioas.
— One of the most t'h a fast eristic features of our .state law is
the threatened loss of all real distinction between eonstitu-
tional and ordinary law. Cunstitiitions are of course adver-
tiaed by their name to be botliea of law by which government
is constitvted, by which, that is, yovoniineut is given its organ-
ization and fuuctionB. Private law, the regulation of the
relations of citizens to each other in their private capacities,
does not fall within their legitimate province. This [iriticiple
is fully recognized in the foiistructiou of our federal Constitu-
tion, which is strong and flexible chiefly because of its great,
its admirable simplicity and its strictly amstUvtional scope.
Bnt constitution-making in the states, especially in the newer
states, has proceeded u^ton no such idea. Not only do the
constitutions of the states go very much more into detail in
their prescriptions t'nn'hing the organization of the govern-
ment; they go far beyond urgiinic provisions and undertake
the ordinary, but very different, work of legislative enactment.
They commonly embody regnliittous, for example, with refer-
ence to the management of state jtro^ierty, such as canals and
roads, and for the detailed adminlstnitiun of the state debt ;
they detennine the ainoiints and sorts of projwrty which are
to be exempt from seizure for private delit ; they formulate
sumptuary laws, such as those forbidding the sale of intoxicat-
ing liquors ; at a score of points they enter without hesitation
' See iT. F. Jameaoo, Ititroduftim to tU CtnrtitHliom^ and Politieal Hit-
tor<f ef thi Indwidwl Ht<iifi, Johns Hni'kin* I'niT. Studiei In Hial. and Fei.
Sei., Fourth SEriei> p. 0 (cuntitiuuus p. \S9).
THE GOVERNMENT OP THE UNITED STATES. 489
Ot misgiving the field visually reserved for the action of legis-
lative bodies.
895. Distrust of Legislation. — The motive, af course, is
dissatisf.tutioii with legislation, distrust of legialatora, a wish
to secure for certain classes of law a greater permanency and
stability than is vouchsafed to statutes, which stand in con-
stant peril of repeal, A fiuther motive is the desire to give
to such laws the sanction of a popular vote. The practice, has
its analogies to the Swiss Referendfim (sees. o2l, o.'i"). It is
the almost universal practice throughout the Union to submit
constitutional provisions to a vote of the people ; and the non-
constitutional provisions which are becoming so common in
our constitutions are virtually only ordinary laws submitted
to popular sanction and so placed, along vnth the rest of the
instrument of which they form incongruous parts, beyond the
liability of being changed otherwise than through the acquies-
cence of the same ultimate authority. The practice perhaps
discovers a tendency towards devising means for making all
very important legal provisions dependent upon direct popular
participation in the act of enactment.
SSfl. The objections to the practice are ai obvious as they are
weigUCj. General outlines of orgnnizntion, such n* tile Conititutton ot
the United Stnres contains, maj be ruaile to stand without eBsenllal
■Iteration for long; poriuils together; but in proportion ns cunstitutiona
make provifion for interests whose Bspecti must chntiRe from time to
time with changing circumstaoce, they enter the domain of sncli law aa
must be labjci^t to constant modi Heat ion and adaptation. Not onlj
must the ilialinetions between conBtituIional and ordinary law hitherto
recognized and valued tend to be fatally obscurpd, but the much lo be
desired stability of constitutional proviaioni niust in great part be rac-
rifleed. Tlio«e tonslilutions which contain the largest amount of extra-
Deoiu matter, which docs not concern at all the Rtructure or functiona
ot government, but only prirate or particular interosls, must of course,
however carefully drawn, prove subject lo most frequent tliange. In
some lit our states, accordingly, constitutions have been as often
changed as important statutes. Tlic dnnj;eT is that constitution-making
will become with ua only a cumbrous mode of legislBtion,
J
490 THE GOVERNMENT OF THE UNITED STATES.
897. Id one or two of t&e States the Swiss RefeTrendum has
bees more exactly reproduced, though not, ao far as I know, in
conscious imitation of Swiss example. Thus the Wisconsin
couatitution leaves it with the people to decide whether banks
shall be establisheii by state law or not ; and the constitution
of Minnesota makes certain railway laws and all appropria-
tions from the internal improvement land fund of the Ht&te
dependent for theii validity upon the sanction of a popular
The objectinni to the rejerendnm are. of coarse, th*
diicriminatinic judgment >nil a fulness ol informstion on Die part of the
people touclitnfc questions of public policj which itiej ilo not often
poieesi, and that it lowers the acnse of Tespouiibilitf od the part of
tegisUton.
898. Constitutional Ameadments. — The amendment ot
state constitutions, like the amendment of the federal iK>nsti-
lution, can be efEected only by elaborate, formal, and unusual
processes which are meant to hedge the fundamental law
about with a greater dignity and sanctity than attaches to any
other body of legal precepts. The theory of our whole consti-
tutional arrangement is, that the people have not only, in
estiiblishing their constitutions, bound their ^ents, the govern-
ing bodies and officials of the states, but have also bound
themselves. — have Ijound themselves to change the funda-
mental rides which they have made only by certain formal and
deliberate processes which mast mark the act of change as at
once solemn and fully advised.
890. In Difland, as we have seen (sec. 730), constitutional amnd-
ment is not dislinguishablc from simple Irgislstion. Parliament may,
' by simple Act, change any, e*en the most fundamental, principle of
government that the deliberate opinion of the nation wishes to see
vhanited. Where (he conetitution consists for the most part of mere
precedent, anil for the rest of Acta of Parliament or royal nrdinacces
simply, it may be altered as easily as precedent toay be departed from,
In England that is not easily. Tlie great uonsvrTntirc force there is the
difficulty witli which Englishmen abandon established cnuntcs. Jjt
i
THE GOVERNMENT OF THE UNITED STATES. 491
France, conilitutionnl amprntment diffen from ordinarj' legiilHtion
only in this, that [lie two cbimbcra must >it together ■! Versaitles, is a
single Nationnl Asiembly, when paaiiiig Inws which nlTeet the conititu-
tion (sec. 318). In Oennany L'onstitiitional amendmenl differs from
ordinnr}' legislation oiily in the number of voti's required for the pns-
■Rge of Bti amendment through the Bundearaih, in nliich fourteen nega.
live votes will defeat it (sees. 41M. 400, ii.)- In the United Stales,
on till- contrary, conaCilutionnl aniendtnent diffprs from ordinary legis-
lation both in formal procedure and in the political powers called into
action to effect it. The people have always a voice.
900. Preliminary Steps of Amendment. — Legislatures,
with ns, may not undertake any general revision of the funda-
mental law. In case a general revision of a state constitution
is sought to be efFeeted, the legislature is empowered to pro-
pose the calling of a popular convention to be chosen apeoially
for the purpose ; the question whether or not such a conven-
tion shall be called must be submitted to the people ; if they
Tote for its being summoned, it is elected by the usual suffrage ;
it meets and undertakes the revision, and then submits the
results of its labors to the popular vote, which may either
accept those results, or reject them and fall back upon the old
constitutional arrangements.
In very many stales a proposition for the calling of such a conven-
tion may be submitted to the people only if adopted by a two-thirds
vote of both houses of the legislature.
901. Proposal of Amendment!. — Legislatures may, how-
ever, themselves jtroi>ose particular amendments to constitu-
tional provisions. In some of the states a mere majority vote
suffices for the preliminary adoption of amendments by the
legislature., though in most larger majorities, ranging from
three-fifths of a quorum to two-thirds of the elected members
of each house, must be obtained. But in almost all cases
popular sanation must follow : a vote of the people being made
an indispensable condition precedent to the ineorporation of
an amendment in the fundamental law. In many states, in-
492
THE GOVERNMENT OF THE UNITED STATES.
\
deed, amendments proposed thus by the legislature must be
adopted by two successive legislatures besides receiving the
people's sanction before it can become part of the constitu-
tion ; in some a popular vote intervenes between the two
legislative adoptions which must be bad before the desired
amendment is effected.
S02. Of course the deUlla of Ihese praceuet diSer widely ii
Btatrs. In Vermont only the senate cnn propose nmendnenti, and It
only at intertala of ten years. In ConncoticDt amendnicnts can be
originated only by the boose uf re prcsen tatties. Various reatrictioni,
too. are in many of the atales pat upon the number of clauses ot the
constitution to which ftniendrnptitB can be propoiecl. at any sinKle lep*-
Intive session, [lie number nf limes amendments may be submitted to
the people within n specified Icnii of years, and the method to be fol-
lowed in the popular vote when niore than one amendment is stibmilted.
In most states, too, special popular majorities are required for the adop-
tion ot all constitutional changes.
DOS. These processes of amendment have been found by no nieans
su difficult as they seem. The habit of Inserting in state conatttullons
enactments not properly belonging with constitutional provision*, and
which must be subject to frequent alteration, has of course led to fre-
quent appeals to the people fur purptisei of ametidmenl, and has served
to show how easy amendment may be made. So easy and normal,
indeed, have appeals to the people in state affairs become that the con-
stitution of New Hampshire goes to ibe length of proTidlng (or the
submission to the vote of the pe^tple every secen years of tlie question
whether or not the slate constitution shall be revised by a eonvention
called (or ibe purpose, while that of Iowa commands the submisaion
of the same question to tbe people every ten years, that nf Michigan
every sixteen years ; and the constitutions of New York, Uhio, ^nrginla,
and Maryland direct its submission every twenty years.
0114. Conflict of Laws. — This plan of leaving to theststee
the regulation of all that portion of the law whieb most nearly
touches our daily interests, and which in effect det4<rminea the
whole structure of society, the whole organic action of in-
dustry and business, has some very serious disatlvautagiiii :
disadvantages whiuh make themselves more and more «ni-
^
J
THE GOVERNMENT OF THE UNITED STATES. 493
phatically felt as modem tendencies of social and political
development more and more prevail over the old conservative
forces. When the Conatitution of the Union was framed the
states were practically very far distant from one another. Dif-
ficultieti of travel very greatly restricted intercourse between
them : being, so to say, physically separate, it was no incon-
venience that they were also legally separate. But now that
the railroad and the telegraph have ma/le the country small
both to the traveller and to the sender of mess^es the states
have been in a sense both geographically and socially fused.
Above all, they have been commercially fused, industrially
knit together; state divisions, it turns out, are not natural
economic divisions ; they practically constitute no boundaries
at all to any distinctly marked industrial regions. Variety
and conflict of laws, consequently, have brought not a little
friction and confusion alike into our social and into our busi-
ness arrangements.
906. Detrimental Effects. — At some points this diversity
and multiformity of law almost fatally affects the deepest aad
most abiding interests of the national life. Above all things
else, it has touched the marriage relation, tliat tap-root of all
social growth, with a deadly comiptiou. Not only has the
marrii^ tie Iteen very greatly rehuted in some of the states,
while in others it retains its old-time tightness, so that the
conservative rules which jealously guarded the family, as the
heart of the state, promise amid the confusion to be almost
forgotten ; but diversities between state and state have made
possible the most scandalous processes of collusive divorce and
fraudulent marriage.
It hfiB become poisible for either parly
■nolber etiite anil, without afqui ring there eii
froin it* courts a routine divorce because
■niwered a (umnion* to defence piiblithed
■nit ii instituted for divorce and therefore praclk'nlly certain
tvoQ^ht to the notice of the penon fur chom it i( intended.
to M marriage to go into
n a legal reaidenee, obtain
tlie other part/ has not
whicli
494 THE GOVERNMENT OF THE UNITED STATES.
Under luch ■ lyitem a person ma? be divorced withoul knowing il;
and it may be possible for a man to keep different irivea, or a woman
difterent huiliands. in several etale^ a( tlie lame ticne.
906, In the matter of taxation so great a variety of law
obtains among the states as to preclude in part a normal and
healthy economic development : special taxes drive out cert^n
employments from some states, special exemptions artitioiaJly
foster them in others ; and in many quarters ill-judged or ill-
adjusted systems of taxation tend to hamper industry and
exolude capital. So, too, as to corporations diversity of state
law works great confusion and partial disaster to the interests
of commerce, not only because some states are loss careful in
their creation and control of corporations than others, and so
work harm to their own citizans, but also because loosely in-
corporated companies created 1>y the laws of one state may do
business and eseape proper responsibility in another state.
907. In the criminal law, again, variety works social dam-
age, tending to concentrate crime where laws are lax, and to
undermine by diffused percolation the very principles which
social experience has established for the control of the vicious
classes. So, too, in laws concerning debt, special exemptions
or special embarrassments of procedure here, there, and eveiy-
where impair that delicate instnmient, credit, upon whose per-
fect operation the prosperity of a commercial nation depends.
008. Bankruptcy. — One of the inoii leriout \egt\ eiiibarraMroent*
al ihu present time (188H) ia the lack ot a national bankrupt law.
Since Die repeal or the bankrupt Uw of 1607 (1B78) Congn-ai ha*
neglected to exerciae lt« eonBlilutional right to legiilate on the inbjeet
'if bankruptcy. The eoneequeDce i* that, in (he abtence of aay action
in the matter bj tlie states, the relalioni of debtor and fredilot bare
fallen into dire coDftuion. This it due, however, to no fault of the
• syilem, of courae, but only to the neglect of Cungreaa.
909. Proposals of Reform. — It in m view of such a state
of affairs, srich a multiformity and complexity of law touching
matters which ought, for the good of the country, to be uni-
m^m^Kk
J
THE GOVERNMENT OF THE tTNITED STATES.
+95
fonnly and simply regulated throughout the Union, that vari-
ona extensions of tlie sjjhere of the f&leral government have
been proposed by sanguine reformers, who would have all in-
terests which need for their advancement uniform niles of law
given over to the eare iif C'ounriiss hy fonstitutional amendment.
910, Evils of the Case easily exaggerated. — Of course the
extent of the legal friction and confusion complained of may
easily be exaggerated. It is in most i:aaes a. confusion of detail •-
and of procedure rather than of principle or substance, and has
more exasperations for the lawyer than for the layman. Un-
questionably there is vastly more uniformity than diversity.
All the states, as I have said, have built up their law upon the
ancient and common foundation of the Common Law of Eng-
land, the new states borrowing their legislation in great part
from the old. Nothing could aiford clearer evidence of thia
than the freedom with whit-h, in the courts of nearly every
state in the Union, the decisions of the courts of the other
states, and even the decisions of the English courts, are cited
as suggestive or illustrative, sometimes also as authoritative,
precedent. Everywhere, for instance, the laws of property
rest upon the same bases of legal principle, and everywhere
those laws have been similarly freed from the burdens and in-
equalities of the older system from which they have been
derived. Everywhere there ia the same facility of transfer,
the same virtual abolition of all the feudal chai-acteristics of
tenure, the same separation between the property interests of
man and wife, the same general rules as to liens and other
claims on property, the same principles of tenancy, of dispo-
sition by will, of intestate inheritance, and of dower. Every-
where, too, contracts, common carriage, sales, negotiable paper,
partnership, rest upon similiir principles of practically uni-
versal recognition. We feel the conflicts, because we suffer^
under their vexations ; while we fail to realize and appreciate
the uniformities because they are normal and have come to
seem matters of course. It must be acknowledged, moreover,
496 THE GOVERNMEKT OF THE UNITED STATES,
that even witliiii tlie area of irritatiou there are strong correc-
tive fofMS at work, a growing moral sentiment and a healthy
fashion of imitation, promising the initiation and propikgation
of reform. As the country grows socially and politically, its
tendency is to compaet, tu have a common thought and commoa
practices : as it compacts, likeuesses will hi'- emphasized, divet-
aities jMired and worn away.
on. LoulilAna, nmong Ihe itatei, and New Mexico, ainoiiK the ter-
ritoriea, elnnd npnrl irilli a peculiar law of tlieir owu, unlilce tlie law of
ttie rcRl uf the alutcs, liecnuae based upou the civil law of Fritnce Mid
Spain, which is Konmn Inw flllereil throaph the hiBlorirs of the Itomance
naiion«. IncviinUy, however, the Inns ol theic cxceptinnnl nlatea hare
appmximatcd in aume degree ii> tlie legal ayBteiiia of the rest of the
UnioD; and they will draw etill oloeec to tliem in the future.
912. Inter-^tate Law : Commerce. — In a country being
thus compacted, thus miule broader than its states In its feel-
ings and iuterests, thus turned away from the merely local
euterjirise of its early industrial history to the national com-
merce and production of the present generation, state lines
must coincide with the lines of very few affairs which are
not political: there- must be many calls for the adjusting
weight of an authority larger than that of any single state.
Most such interests, happily, are commercial in their nature,
and with the regulation of inter-state commerce Congress has
always been charged. It was to give Congress this power,
indeed, that the great constitutional convention was called:
inter-atate commerce was one of the chief sources of the alarm-
ing friction between the states which marked that time of crisis.
It is by the operation of this power that the great railroad
systems of the country, and the endless telegraph lines, have
come under the giianllanship, and, so far as Congress haa
chosen, under the regulation of the federal govemini-nt. Fed-
eral law cannot touch agencies of commerce which lie wholly
within a single state ; but there are nowadays very few such
ageDoies, and the jurisdiction of Congress over commCFce,
THE GOVERNMENT OF THE UNITED STATES. 497
where it does exist, is exclusive of all interference by the
states. Federal law controls all navigable waters which con-
stitute natural highways of inter-state traffic or intercourse,
whether directly or only through their conuections ; it extends
to such waters, not only, hut also to the control of the means
by which commerce must cross them in its land passage, to
the construction, that is, of bridges over navigable waters for
the facilitation of land traffic. It excludes every state tax or
license law, every state regulation whatever, that in any way
affects by way of restriction or control any movement of com-
merce or intercourse between the states.
913. Posts and Telegraphs. — Directly supplementary to
the power of Congress over inter-state commerce is its power to
establish {>ost-Dffic«s aud post-roads. This has been interpreted
to bestow upon Congress the right to facilitate telegraphic inter-
course between the states I>y taking measures to break down
exclusive privileges granted by a state ; and it must undoubtedly
be taken as rounding out ti> a perfect wholeness the control
of the general government over the means of communication
between state and state.
S14. Of coDTW, too, tliia is a JDrisdiction which iDlut neccisirilj ad-
Tance with lergthening stricica as the movemeuta of our already vaat
commerce become yearlj even wider atitl and more rapid. It hai been
made, indeed, to carrjr alio a promiac even of federal ownerthip of the
telegraph ajatem of the country, and of ■ rerv much more eztenaire
rejnilation o( railway nianagenient than haa yet been ventured upon.
The mont ai|(niScant step yet taken was, of courae, the creation, in 1R8T,
of an Inler-alatG Commerce CommiaBion charged with the prevention of
nnjual diecrimlnations in railroad ratee eilller for freight or passage.
This Commimion haa already become one of the niosl important judi-
cial bodies of the nation, and illustralca a very important experiment
in federal control (aec. 11^0).
915. Citizenship. — Citizenship in the United States illus-
trates the double character of the gov-enunent. Whoever
possesses citizenship in this country is a citizen both of the
United States and of the state iu which he lives. He cannot
498 THE GOVBRNMENT OF THE UNITED STATES.
be a citizen of the United States alone^ or only of a state ; he
must be a citizen of both or of neither : the two parts of his
citizenship cannot be separated. The responsibilities of citi-
zenship, too, are both double and direct. Under our federal sys-
tem punishment for the violation of federal law falls directly
upon individuals, as does punishment for the violation of state
law ; the obligation of obedience is in both cases direct : every
citizen must obey both federal law and the law of his own state.
His citizenship involves direct relations with the authorities
of both parts of the government of the country, and connects
him as immediately with the power of the marshals of the
United States as with the power of the sheriff of liis own
county.
916. The population of the United States is probably less stationary
in its residence than the population of any other country in the world,
and frequent changes of residence have led to great facilitations of the
transfer of citizenship from one state to another. A very brief term of
abode in a new home in another state secures the privileges of citizen-
ship there : but in transferring his state citizenship a citizen does not,
of course, at all affect his citizenship of the United States. The term
of residence required for the acquirement of the privilege of suffrage
varies from three months to two years and a half, but is in most cases
one year.
917. Elements of Confuaion. — A very considerable amount of
obscurity, it must be admitted, surrounds the question of citizenship
in the United States. The laws of our states have so freely extended
to aliens the right to hold property, and even the right to vote after a
mere declaration of intention to become naturalized citizens (see sec.
937), — have, in brief, so freely endowed aliens with all the most sub-
stantial and distinguishing privileges of citizenship, — that it has become
extremely difficult to draw any clear line, any distinction not merely
formal, between citizens and aliens. Of course if a person not formally
naturalized exchanges residence in a state, in which he was allowed the
privileges of citizenship, for residence in a state in which those privi-
leges are denied him, he can complain of no injustice or inequality.
The Constitution of the United States commands that "the citizens of
each state shall be entitled to all privileges and immunities of citizens
in the several states " ; but only federal law admits to formal citizen-
The goVeknmEnt op the unitkd states.
4S10
■hip, and only formai citizenship can give lo an; one, whereTer he may
go. a right to llic priTilcgsa and iitimunilips ol cltiicnship. The luf-
frage in partiuular is a privilege whjfh each stale may grant upon lerms
of iti own choosing, provided only that thuie termi be not inconalKent
with a republican farm of goremtneDt (aec. 037).
918. Naturalization. — Natundlzatioii is the name given to
the acquirement of citizenship by an alien. The power to pre-
soribe uniform rules of uaturalization reata with Congress alone,
by grant of the Constitution. The states cannot make rules
of their own in the matter, though they may, singularly and
inconsistently enough, admit to the privileges of citizenship
on what terms they please (sec. 937). The national natural-
ization law requires that the person who wishes to become a
citizen must apply to a court of law in the state or territory in
which he desires to exercise the rights of citizenship for formal
papers declaring him a legal citizen ; that before receiving such
papers he must take oath to be an orderly and loyal citizen and
renounce any title of nobility he may have held ; and that in
order to obtain such papers he must liave lived in the United
States at least hve years, and in the state or territory in which
he makes application at least one year ; and at least two years
before his application he must have declared In court under
oath his intention to become a naturalized citizen.
It is not neceasary fur a person who came into the United States to
Ure three years before coming of age lo make >ilch a sworn declaralion
of Ilia intention to become a ciiiceii. H a man who has inude sworn
declaration in due form of aiicli intention diea before taking out hia
papers of naturatizalion, his widow and minor children may become
citizens by merely taking tlic nvccasaTy oath of citizenship at the proper
tltne. The children of persons wlio become naturalized, if they live in
the United States, and are under twenty-one years of age when their
parenta take the OBlh of cittzcnsbip, become citizens by virtue of the
naturaliEStion of their pare nil.
Old. In Oeimany and Switzerland, it will be remembered, the
itatea [ndiiidually admit to citizenship on tlieir own terma, »nd state
citizenship carrici with it federal tiiizenship (seL'i. 437, biO), The
European itales have not, however, any of the problems of imturaliia-
i
600 THE GOVKENMENT OF THE UNITED STATUS.
tion which confront and confound us in the United States. The whole
world is not coming to them as it Is coming to us.
920. CitiBenship under a Conledaration. — The possetsion of a
national naturalization law ii one of the practical political features
which distinguish our general government from the government of a
mere confederation. The states which compose it are the onl j ' citizens '
of a confederation : for the individual there is no federal, citizensh ip ;
and the transfer bj an individual of his citizenship from one state to
another within the confederation is as much a mere matter of inter-
national comity as if the states were not bound together bj anj com-
mon law.
921. Central GoTemments of the States. — The governments
of the states depend for their structure and powers, of course,
entirely upon written fundamental law, upon constitutions
adopted by the people at the suggestion of conventions con-
sisting of their representatives, — upon documents which we
may call popular charters. It was, as I have said, upon the
models and precedents furnished by the governments of the
thirteen original sftates that the fedcKil government was con-
structed, and this was one of the features copied : the state
governments, no less distinctly than the federal government,
rest upon fundamental law proceeding from an authority higher
than themselves.
922. A very great uniformity of structure is observable
among the central governments of the states in all general
features. One of the most obvious points of resemblance be-
tween them is the complete separation and perfect co-ordination
of the three great departments of governmental action, — the
legislative, the executive and the judicial ; and those are set
/ apart and organized under the state constitutions with a very
much greater particularity than characterizes the provisions
of the federal constitution.
923. The State Legislatures : Their Powers. —The state
constitutions supplement the constitution of the Union, pro-
viding for the exercise of all powers not bestowed by the fed-
eral charter ; and the legislatures of the states may be said, in
THE OnVERNMKKT OF THE TTNITEU STATES.
501
general terms, to possess al! law-iaaiciiig powers not given to Con-
gress. But this is by no means a complete statement of the case.
State const itutions contain strict limitations of puwer no less
than does the Constitution of the United States. Some powers
tliere are which are altogether withheld : they cannot under
our system be exercised by any existing authority : they have
been granted neither to Congress nor to the legislatures of the
Btates. Such, for example, is the power to grant to any jKreon
or class of persona exclusive political privileges or immunities,
the power to bestow hereditary privileges or honors, and the
power to abridge iu any way the eipial rights to life, liberty,
and property which all our state coustitutions are careful to set
forth in more or less elaborate Bills of Rights. These may
safely be said, however, to be powers which no state legislature
would dream of exercising, inasmuch as they would have to be
exercised, if exercised at all, iu the face of a public opinion
which would certainly refnse re-election to any legislator who
should violate the priaciples of republican government so
strenuously worked out in our history, from Magna Charta
down, and now so wai'mly cherished by all classes of our \ieo-
ple that no denial of them could stand upon our statute books
a single twelvemonth. These are merely limitations put upon
reaction.
924. LimitatlDiis of Length of Session, etc. — There are
other limitatioTiB, however, of a very different character con-
tained in our state constitutions : limitations meant specially
to control the action of legislatures within the sphere of their
proper and luidoubted powers, and lUKiuestionably based uiwu
a general distrust of the wisdom, if not of the honesty, of leg-
islators. Thus our constitutions very commonly forbid all
private or siiecial legislation, confining legislatures to the pas-
sage of general laws applying uniform rules to all persons
and all cases alike. They limit, moreover, in very many cases,
the length and frequency of legislative sessions, providing
that the legislature shall convene, for instance, uidy once in
502 THE GOVKKNMENT OF THE UNtTKD STATES.
every period of two years, and shall continue its biennial ses-
sion for not more than a certain number of days, except under
special or exceptiona] conditions, when extra sessions may be
called by the governor or regular sessions extended by a special
two-thinls or three-fiftlia vote. Many constitutions contain,
also, minute provisions concerning the conduct of legislation,
forbidding the introduction of bills later than sucii and such a
day of a limited session, prescribing the general form of bills,
limiting their suliject-matter to a single objeot ea«h, and even
commanding the manner of tlieir consideration.
9iio. Other Limitations. — More than this, as we have seen,
there are certain cla-sses of legislative provisions which have
been removed beyond the cognizance of legislatures by being
put into the constitutions themselves : such as exemptions of
certain classes of property from seizure for private debt (gener^
ally called "Homestead exemptions"), 'prohibition' provis-
ions, etc. The embodiment of sueh measures in constitutions is,
as I have said (sees. S!>4, 895), only a means of putting them
l)eyond legislative interference, — is a limitation of the same
indirect sort as a Bill of Rights. It is usual, also, for our
state constitutions to limit the power of legislatures to create
corporations, by provisions which direct the passage of general
laws of incorporation to be applied in a formal administrative
manner by the courts, to which applications for incorporation
are to be made.
92(!. The period to which the duration of legialative lesaiona li re-
■tritlud Taries from forty d«ya (Colorado, Georgia) to ninety Jny»
(HaryUnil and Virginia), the mnat usual period being sixty day*, it
i) DOteworlhy that only fuiii' of the original thirteen stalcB have pat s
reitriutioa upon the aeislona of their legiilaturea. Eight of theae thir-
teen liaite, however, on the other hsnd. reatricteil either wholly or in
part the power to paaa private or apecial legiaUtinn, — the pairer, Au
i». In make apecial rule* for tpe^ial caaea or for parilcuUr indlviiluala.
It is nevertheless true that it ii in 'the newer state*, for the nrosl pari,
llial the atriclpat and most eiteniive limitation* of legUlatlve power are
lo be found.
THE GOVERNMENT OF THE UNITED STATES. 503
92T. State Legislatures not Sovereign Bodies. — It will
liuB be aeen that our stiite lygLalatures ara not in any sense
'eovereign ' bodies : the only sovereign authority lies with the fc
people. There is a certain serviceable clearness of view to be
had by regarding the state goveminents as corporations : theii
legislatures arc latv-making bodi&t acting within the gifts of
charters, and by these charters in most cases very strictly cir-
cumscribed in their action. It is this fact which gives so
unique a place of power under our Bysteni to the courts, the
authoritative interpreters of the fundamental law to which all
legislation and all executive action must conform.
928. Legislative Organization — In all the states the legis-
lature consists of two houses, a senate and house of represen-
tatives, and in most of them the term of senators is four years,
that of representatives two years, one-half of the senate being
renewed every two years at the general elections. There is
no such difference in character, however, between the two
bouses of the state legislatures as exists between the Senate
and the House of Representatives of tlie United States. Con-
necticut, as we have seeu (sec. 8I!9), furnished the suggestion
upon which the framers of the federal constitution acted in
deciding upon the basis and character of representation in the
two federal houses ; for in the Connecticut legislature of that
time the house represented the towns, as the confederate units
of the state, while the senate represented the people directly.
Even Connecticut has now abandoned this arrangement, how-
ever, and in almost all the states representation in both housas
is baaed directly upon population, the only difference between
the senate and house Iteing that the senate consists of fewer
members representing larger districts. Often, for instance,
each county of a state is entitled to send several representa-
tives to the lower house of tiie Legislature, while several coun-
ties are combined to form a senatorial district.
026. Reasona tor Two Houses In State LeglslatorSB. — There
it, cODiequenttj, no auch reason for having tno housea id Ibe statei hb
604 THE GOVERNMENT OF THE UNITED STATES.
exists in the case of the federal goyernment. The object of the federal
arrangement is the representation of the two elements upon which the
national government rests, namely, the popular will and a federal onion ^
of states. The state legislatures hare two houses simply for purposes
of deliberateness in legislation, in order, that is, that legislation may
be filtered through the debates of two co-ordinate bodies, representing
slightly differing constituencies, though coming both directly from the
people, and may thus escape the taint of precipitation apt often to attach
to the conclusions of a single all-powerful popular chamber. The double
organization represents no principle, but only an effort at prudence.
930. The reason for our having double legislatures cannot, however,
be so simply explained. It is compounded of both deliberate and his-
torical elements. Its historii^al grounds are sufficiently clear : the sen-
ates of our states are lineal descendants of the councils associated with
the colonial governors, though of course they now represent a very dif-
ferent principle. The colonial councils emanated from the executive,
and may be said to have been parts of the executive, while our senates,
of course, emanate from the people. Then, too, there was the element
of deliberate imitation of English institutions. One hundred years ago
England possessed the only great free government in the world ; she
was, moreover, our mother-land, and the statesmen who formed our con-
stitutions at the revolution naturally adopted that English fashion of
legislative organization which has since become the prevailing fashion
among all liberalized governments. Possibly, too, they were influenced
by more ancient example. The two greatest nations of antiquity had
had double legislatures, and, because such legislatures existed in an-
cient as well as in modem times, it was believed that they were the only
natural kind.
931. Historical Precedents. — Greeks, Romans, and English alike,
of course, had at first only a single great law-making body, a great sen-
ate representing the elders or nobles of the community, associated with
the king, and, because of the power or rank of its members, a guiding
authority in the state. In all throe nations special historical processes
produced at length legislatures representing the people also; the popu-
lar assemblies were, on one plan or another, co-ordinated with tlie aris-
tocratic assembly, and presently the plan of an aristocratic chamber
and a popular chamber in close association appeared in full develop-
ment. We copied the English chambers when they were in this stage
of real co-ordination; before her legislature had sustained that great
change, which Greece and Rome also had witnessed, whereby all real
power came to rest again with a single body, the popular assembly.
THE (;OVERNMENT OK
I'MITED STATES. .505
03a. Terms of Senators Bud RepreaentatiTea. — Among lliv ulOcr
statea of llie union there it a more notii:i>nble variply of Inw a» lo Ihe
(crnis of lenalom nnd reprceenlatircB limn it to be founii on n compuri-
toii of Ihe tonBtitiitiniis of Ihe newer staicB. tn MuHgndiuseiis and
Bhode Islnnd, for inaunce, llie terna of both genMors and repreitnta-
tives is 11 linKlp year only. In New Jersey >enrvtor» are elected for
three yean, one-lliird of Ihe lenate being reneweit erery year at lh«
eleelinn for repreBcnlflliveB, whose term in Nev Jersey is but one year.
A large number o( the states, however, both new and old, limit the term
of senators to two years, the term of rcpreaentativea ; while in Louisi-
ana reprcsentatlrea arc given the same term as senators, namely, four
years.
S33, Names of tbe Houaea. — There la some variety among the
states as rtj^arda Ilie name by which the lower house of the legialainre
ia known. In New York the populnr house is calteil " the Aaaembly " ;
in Virginia, the " House of Delegates "; in New Jersey, Ihe " Gi-neral
Assembly," — a name generally given in most of the states to the two
bouses taken together.
QM. The qualifications required of senatora and repre.seu-
tativea vary widely in the different states, but not in any essen-
tial jtoint of principle. It is universally required, for example,
that members uf the legislature sball he citizens; it is very
generally required that they shall be residents of the states,
sometimes that they shall be residents of the districts, for
which they are elected ; and it is in almost all cases required
that a member of the legislature shall have reached a certain
age. Variety appears in these provisions only in respect of
particulars, of detail.-i, as to the length of time citizenship or
residence shall have l>een acquired before election, the particu-
lar ^e necessary, etc.
The age required varies in Che esac of senators from twentynme lo
thirty years, in the cue of rcpresonUttirea from (wenty-one to twenty-
fire.
Only in Delaware is a property quulification prescribed. In
that state no one can be a senator who is not possessed of a
freehold estate of two hundred acres or of personal or mixed
estate worth £1000.
506 THE GOVERNMENT OF THE UNITED STATES.
935. Legislative Procedure. — The same general rules of
organization and procedure are observed in the constitution
and business both of Congress and of the state legislatures.
The more numerous branch is in all cases presided over by an
ofl&cer of its own election who is called the ' Speaker ' ; the sen-
ate sits under the presidency, generally, of a Lieutenant Gov^
emor, who occupies much the same place in the government
of the state that the Vice President of the United States
occupies in the national government : he is contingent substi-
tute for the governor.
936. Standing Committees. — The houses of the state leg-
islatures, too, being separated from the executive in such a
way as to be entirely deprived of its guidance, depend upon
standing committees for the preliminary examination, digestion,
and preparation of their business, and allow to these commit-
tees an almost unquestioned command of the time and the
conclusions of the legislature. The state legislatures of the
early time, as I have said, served as models for Congress ; they
and the legislatures of the later states, made like them, have
retained substantially that first plan of organization, following
the rules of parliamentary practice universally observed among
English-speaking peoples; and they and Congress alike have
had in the main the same development : as they have grown
larger they have grown more dependent upon their advisory
parts, their committees.
In several States the constitutions themseWes command the reference
of all bills to committees and forbid the passage of any measure which
has not been referred and reported upon.
937. The Suffrage. — The suffrage is in all the states given
by constitutional provision to male citizens twenty-one years
of age; but it does not in all the states stop there. Many
of the states extend the privilege of voting also to every
male resident of foreign birth who is twenty-one years of age
and has declared his intention to become a 4aturalissed citizen ;
THE GOVERNMENT OF THE UNITED STATES.
and ten states grant it to every male citizen or 'inliabitanl'
of voting age. The laws of almost all the states require resi-
dence in the state for a certain length of time previous to the
election in which the privilege is sought to be exercised (the
period varies all the way from three months to two years and
a half), as a condition precedent to voting; most require a
certain length of residence in the county also where the privi-
lege is to be exercised; some a certain length of residence in
the voting precinct. Many states require all voters to have
paid certain taxes; but no state has a property qualification
properly so-called,
S38. In CounecticDt and MaaiachDBetls the lUfTnige is conflned to
thoK who on read the laws of ihe state. It ii conimon, of courae,
throughout the coiinlrj to Exutudc triniinala, iDaanc pereom, idioia, and
ID lereral alales Ihe privilege is withheld from tliose who het on eiec-
tlom. In Florida betting on an election not onl^ exdudei from Ihe
election in connettion wiih which the offence it commitled, but is pan-
ished, upon conriclion, by entire and permanent di«tr«nobi»ement. A
number of itatei alto shut out duelliati.
939. The privilege of voting in achool elections ia given to women in
Haisachuaetta, Minnesota, and Colorado, tboitgb the constitutions of
all the states without exception dedarc the snfErage to be restHcled, in
general, to mules. In the three territories of Washington,' Wyoming,
and Utah, women are allowed to vole in all elections. In Kanaas the]'
have the elective franchise in municipal etectiona.
* 940. The State Courts. — A very great variety of course
exists among the laws of the several states regarding the con-
stitution, functions, and relative subordination of the courts.
A genera! sketch of the state courts must, therefore, be made
in very broad outline, Perhaps in this department of state
law, as in others, there may be said to be, despite a bewildering
variety of detail, sofB-cient unity of general feature to warrant
a generalized description, and to render unnecessary the unsat-
isfactory expedient of choosing the institutions of a single
'Washington Territory bet-nmc a state Jiity 1. 18BE
along witli Montana, North Dakota, and ^uch Dakota.
being admitted
508 THE GOVERNMENT OF THE UNITED STATES.
state as in some broad sense typical^ and describing them
alone.
941. The courts of our states are in no sense organs of fed-
eral justice, as the courts of the Grerman states are (sec. 436) ;
they have an entirely independent standing and organization
and an entirely independent jurisdiction. Their constitution
and procedure are in no way affected by federal law, — except
of course by way of limitation; — their sphere is a sphere
apart. The series of courts in each state, therefore, is com-
plete : every state has its supreme court, as well as its inferior
tribunals, and appeals lie from the state courts to the courts of
the United States only in cases involving federal law or in
cases where the character of the parties to the suit does not
give any state court complete jurisdiction (sees. 888, 1082,
1083).
942. One of the most characteristic features of our state
courts is what I may call their local attachment In most cases
the judges are not appointed by any central authority but are
elected by the voters of the district or circuit in which they
hold court : they, like members of legislatures, may be said
to have ^ constituents.' Their responsibility is thus chiefly a
responsibility to the electors, a popular rather than official
responsibility. The courts are held together in a common
system and to a common duty by law, therefore, not by disci-^
pline or official subordination to superior judicial authorities.
The courts may be said to be local rather than central organs ;
they are integrated only by the course of appeal, by the
appellate autliority of the higher over the lower courts in
points of law.
943. This localization of the organs of goTernment, in their origin as
well as in their functions, is a general characteristic of American polit-
ical organization, — a characteristic which appears most conspicuously
in the arrangements of local government, which is, as we shall see, not
so much organized as left to organize itself under general statutes for
whose enforcement no central machinery is provided,
lOVERNMENT OF THE UNITED STATES. 509
944. Common Law Courts. — There are, usually, four
griulea of jurisdiction in the judicial systems of the states, with
four grades of courts corresponding. There are generally (1)
Justices of the /"cap*, who have jurisdiction over all petty jxilice
offences and over civil suits for trifling sums ; who conduct
preliminary hearings in cases of grave criminal offence, com-
mitting the aecuaed, when there is prima fade proof of guilt, .
for trial by a higher court ; and who are, in general terms, con-
servators of the peace. They a«t separately and have quite
lost the high judicial estate which atill belongs to the English
Justices, from whom they take their name. Their decisions
are in almost all cases subject to ap^ieals to iiigher courts.
Hajor'* ponrts in the
diction, BO far >* crimina
ot the Fraoe.
946. (2) County or Unnlclpal Courts, which hear appeals
from Justices of the Peace and from Mayor's courts, and
whoso own original jurisdiction is one steji higher than that of
the Justices, including civil ca^es iuvolving considerable sums,
and criminal cases generally not of the gravest character.
Often, however, c^ourti of tht« graile, especially ihe munluipat courts
of the larger toons, are giTen a miK^li higher jurisdii'tinn unci are co-
(irdinaled in some respects witli coiirta uf the next higher gra'te, the
Sup«Tinr Courts.
In Meiv York, New Jersej, and Kentucky the county courts ration
the English name of Qnarler Sessions.
946. (3) Superior Courts, which hear appeals from the
county and municiiKil courts, and generally from all inferior
courts, and which are themselves courts of high original juris-
diction of the most general character in both civil atid criminal
cases, They may be said to be the general courts which give
I to the courts ot lower grade their name of ' inferior.' County
and municipal courts, as their names imply, sit only for certain
small districts; but the districts over which superior courts
have jurisdiction usually cover a wide area, necessitating the
i
MO THE CnVERNMENT OF THE UNITED STATES.
sitting of each such court in several places in suooeasioo. lu
other words, aiiperior courts are generally circuit courts, aa
in many fltates they are called.
' Circitil courti ' is, inilteil, tlie luuit geoertlly lued Dime (or couru
of (Ilia i^dc, thai ii. for the principal courta of the itale ; though in
klmnit as many slntet Ihej aiv called ' districl courta,' In moat of the
' ilalpa theae courta hai«, of conrae, apecial judge! of their own ; but in
Hsine and Nen llampahire thej are held b; the judge* of the aupremc
MT. In aome atatca civil ii teparnted from criminal juriidiclion in
Ihia Brade, and diaUnct courta are created foe each. Thus in New York
there are Circuit courts which licar ciril cauaes and courla of Oyer ttnd
Terminer, immedialclj' subordinated to a court of General Seaaions, for
the hearing of criminal cues ; and !n Texfta there sj-e District cgurta for
dvil cauaea, Diatrict Criminal courts for c-riminal casea. In Peiuiajl-
Tania courts of Quarter Sesaiona are the courts of general criminal joria-
diction, aa in England, civil caosea going to the courts of Coutmoo Pleaa.
Delawsre liaa criminal courts called courts of Gaol Delivery.
948. (4) Supreme Courts, which in most of the atatea have
no original jurisdiction at all, but only appellate juriadiction,
hearing appeals in all classes of ca^es (except such aa involve
only tritliug offences or small sums of money) from the supe-
rior courts and from various inferior courts.
MO, (6) In five states there are ivpfemeit courta aboTe the ' anprenw.'
Thus in New York a Court of Appeals revises errora made in certain
caaes hj the supreme conn ; in New Jersey there Is a auprMii« court
above the circuit, which is itself of high appellate juriadiction, and a
Court of Errora and Appeala above tlic aupreme; in Louiaiana Ih«
order is reversed and there is a supreme court above a court of ap-
peals ; in Illinois a aupreme court above certain district " appellata
courts " : and in Kentucky a court of appeala above a supreme court
which is called 'superior' simply. In Texas there are two co-onUnat*
aupreme courts : one, called the aupreme. for the hearing of clril caaM
only, the other, called the court of appeala, tor the hearing of criminal
cases and of civil cases brought up from the county courta.
960. Decisions rendered by the aupreme court of (he IMatrici of Co-
lambia are aulijecl to rcviaion by the supreme court of the (Jnltnl StaUa.
THB GOVERNMENT OF THE UNITED STATES.
511
O&l. The name 'uourt of apppnis' ia found also in Maryland. Vir-
ginia, and West Virginin.
952. Tn five nf the original states (New Hampihirc, Mauachusetli,
Rhode Island, New York, Ni'w Jeney), and in Maine, tlie supreme courts
liave, anomaioutilj' enoug1i,ur''yi'naIas well at HppellaCe jurisdiction in all
cases ; but in the newer states such a.n arrangement ia neier found.
0&3. In several of the larger cities of tlie country Iliere are complete
sets of courls. reproducing the stale judiciary in small. Thus in Balti-
more, for example, there are city courts from the lowest grade up to a
"Supreme Bench of Baltimore City."
954. Courts of Equity. — " Eqtiity " ia defined, under the
legal systems of England and the United States, as "that por-
tion of remedial justice which is exclusively administered by
a court of equity, as contradistinguished from that portion of
remedial justice which is exclusively administered by a court
ot common law " (Story). In other words, it is that portion
of remedial justice whifh was administered in England by the
Chancellors, who were ' the keepers of the king's conscience,'
and from whose court, as if from the king's sense of justice,
there issued writs from time to time for the remedy of wrongs
for which the common law maile no adequate provision (sees.
666, 1189, 1190), The early Chancellora were ecclesiaatics
imbued with Roman law as it had come down through the
medium of the canon law, and bath in their hands and in those
of their lay succeaaora of later times, who were the heirs of
their principles and prerogatives, equity law and procedure
became a very different thing from the law and procedure of
the common law courts (sec. y.W ).
9.^. Fusion of Lav and Equity. — As time has gone on
equity and law liave been largely fused, even in England, just
as the jus gentium and the jus civile became merged in the
development of the Roman law (sees. 206, 208, 212, 216) ; and
in most of the states of the Union the same courts exercise
both equitable and common law jurisdiction. In several states
the whole procedure, even, iu both jurisdictions has been made
practically identical, and law ia tint distinguishable from
512 THE GOVERNMENT OF THE UNITED STATES.
equity. Generally, however, the distinctive procedure has
been preserved, and only courts of the superior and supreme
grades have been given equitable jurisdiction, — jurisdiction,
that is, over cases in which the remedy is equitable. In
Alabama, Delaware, Michigan, Mississippi, New Jersey, Ten-
nessee, and Vermont there are still special chancery courts.
956. Equity processes of trial differ from common law processes,
outwardly, chiefly in the fact that the testimony is written instead of
oral, and that decisions of fact as well as of law rest with the judge
instead of with a jury. For its special subject-matter equity jurisdic-
tion generally embraces such matters as trusts, mistakes, frauds, etc. —
matters hardly tangible by ordinary remedies.
957. Probate Courts. — In most of the states there are spe-
cial probate courts, — special courts, that is, charged with juris-
diction over the proof of wills, the administration of estates,
the appointment of guardians, administrators, etc., the care of
the estates of wards, and, in general of the proper disposition
of the property of persons deceased. In many states, however,
these functions are left to the ordinary courts of law.
058. In England this probate jurisdiction was, from the first until a
very recent date, a prerogative of the ecclesiastical courts, and in two
of our states the probate courts retain the names of the officers who
exercised this function in the place of the bishop : in Greorgia the court
is called the court of the 'Ordinary,' in New York the 'Surrogate's,'
court. In New Jersey, with a reminiscence of the same origin, it is
called the ' Prerogative ' court. In several states, on the other hand,
it is known, by virtue of one side of its function, as the * Orphan's '
court.
059. Judges. — The judges of most of the state courts are
clecited, generally by the people, in a few cases by the legisla-
ture ; only in Delaware are they appointed by the governor,
though in several states they are nominated by the governor and
appointed by and with the advice and consent of the Senate.
Supreme court judges are usually elected by the people of the state
at large ; circuit, district, county, municipal, and other judges by the
electors of the area in which they serve.
The (iOVEHNMENT UF THE UNITED STATES. 513
The terms of judges range till the way from two years to a
tenure during good behavior.
060. In New Hampiliire, Delaware, nnd Maaiaulmactts nil judges of
the higher cuurle huld during good beliariur ; and in lihode IsUnd, and
the Didrict of Columbia also, judges of the supreme courl hatv n like
life tenure.
Of course the length of Ihe terni varies with the grade of the court, the
tendency being to give longer terms to the judgua of the higher courts.
961. The qualiflcatioas required of judges by state law are
not stringent. Only some eight or ttiue of the states require
by law any identification of tbeir judges with the legal profes-
sion; and only six require 'learning in the law'; though of
course, custom and public opinion generally confine the choice
of judges to professional lawyers. Generally a certain age is
required of judges (varying, where there is such a requirement,
from twenty-five to thirty-five years), besides, in most cases,
citizenship and residence in the state or circuit.
As a rule single judges hold all tlie courts except the highest.
Supreme courts have a more or less numerous ' bench.'
962. The ministerial officers of tbe state courts, the abenffs,
are generally not a|ipoiiited by the judges or responsible to
them, but elected by the people and answerable to 'constit-
uents,' just as the judges themselves are. Even the clerks of
the courts are often elected.
Oea. The poiiHon of shiTiff thus differs very materially from the
position of a United Sutes marshaL (see. lOUl), the BherifTa counu-rpart
in the federal judicial system. The uiarshal is appointed by the Presi-
dent of the United States, and ii responsible to a central authority, is
part of a centralizeil organization of justice. The sheriff, on the con-
trary, is (he oi^an of un extremely decentralized, an almost ditinte-
graled, urganizalion of justice.
The bailiffs, the sheriffs deputies, are usually the appointees of the
sheriff.
9C4. The State Executives. —The Executives of the states
are the least distinct parts of state organization, the le;ist sua-
514
THE GOVKKNMENT OF THE FSITEII STATES.
ceptible of being adequately piotiired in outline, or indeed in
any broad and general way. Under our system of state law
the executive officers of a state government are neither the
servants of the legislature, as in Switzerland, nor the responsi-
ble guides of the legislature, as in England, nor the real con-
trolling authority iii the execution of the laws, as under our
own federal system. The Executive of a state has an impor-
tant representative place, as a type of the state's legal unity ;
it has a weighty function of superintendence, is the fountain
of information, the centre and source of advice, the highest
organ of administration to the general eye; but it cannot be
said to have any place or function of guiding power. Execu-
tive power is diffused by our law throughout the local organs
of government ; only a certain formal superintendence remEuns
with the authorities at the state capitals.
Of courae thU do«> Dot tpply to the governor'* iMo power, — tbfti
coDtaini real energy, — but onlj- tu executive funtliouB pra|wr; UiHe
are localixed, not cenlralized, titer the extremest pittt«m.
965. Xot all of the states have the same central executive
officers. All, of course, have governors ; twenty-seven hare
lieutenant governors; all have secretaries of state; all have
treasurers ; almost all have attorneys-general ; and a majority,
superintendents of education. Many have also autliton j eleven
have comptrollers, and fifteen boanis of education ; four (Uas-
sachusetts. New Hamgisliire, Maini>, North Carolina) associate
councils with their governors.
006. For the reft, tliere ire minor cilHecn nf Tiriiius function* in ibe
different ■[■(«« ; luperiniendenla of |>riitini, fur in*liince, i^Kialntra of
liml offli'oi. luperintendmli of labor, burtnux of agriL-ulturv, curoinia-
■loneri of minei. conimislionere of iraiiii|;raliou. elc. Tiler* ii, of
course, no uniformity betwi'en the iidiiiitiiatratians of the itatM u
reitarda Iheia ipecial offlcea; different atntea nndertHke liiffemit fane-
Uona, new or old, and ori>al« new, or riv.vo old. offlci'a aei-ordinsl/.
9G7. The governor's term cf office is in almost all of Uu
states either two or four yeLirs, although Massachusetts and
THE GOVERNMENT OF THE UNITED STATES. 515
Rhode Island give their governora a term of but a single year,
while New York and New Jersey elect theirs for three. The
tieuteD ant-governor, where such an officer is elected, has the
same term as the governor, and is generally required to have
the same qualifications.
1168. These qiudijications consist, almost always, of citizen-
ship of from two to twenty years standing, residence within
the state of from one to ten years, and ^e of from twenty-five
to thirty years.
In Maine it is requirpd ih>t the gOTcmar shall be a natiiit-horn citi-
zen. UiBSBchuietts impiiiea upon candirlntci for her goTeratir'i chfttr
> properly qualillFalion. namely, the pooesiion in his own right of
freehold property lying within (he state, and worth i 1000.
969. The terms of the other principal state officers are
usually the same as the term of the governor, though it is not
uncommon to give to treasurers, secretaries of state, attorneys-
general, and auditors a longer tenure. The qualifications re-
quired of the different officers are of course of the most various
nature.
In New York, though the goTemor and lieutenant-goTemor hold (or
three jean, the other officers of tlate are given terms of only two
970. The conititulions of many of the ilHtei Hill exhibit the jealousy
of l0D|t terms of office which wm bo eharact eristic of the eilreme detno-
LTalLC feeling genernted in Ihc colonies by the tonstant friction between
the representatives of the people and officials who owed their offices,
not la election, but to royal appoinlnient. The constiTutinn of Missis-
sippi forbids the holding of any office for life or during good behavior :
seven slates limit official tenure to a maximum period of seven years ;
Texas makes two years the maximum : and Massachusetts, Virginia,
and Maryland give express constitutional sanction to ro(a(i'on /n office.
9TI. Many states effect suoh a limitation with reference to the tenure
o( the governor's office by proviBinns setting bounds to the re-eligibility
of the governor. Thus some eidude their governors from successive
terms ; others allow only a single term to any one man within a specific
period of, say, eight years; wbile slitl olhert withhold re-«Ug{bilit7
altogether.
516
THB c;oVEHNMENT OF THE UNITED STATES.
972. Contrast between State and Federal Executives. —
The federal executive waa, as we have seen (sec. 869), consti-
tuted in quite close accordance with the models of previous
state organization; but the imitation can sc.u'cely t>e said to
have gone further than the adoption of the suggestion that the
United States should have a single governmental head, a presi-
dent, because the states had tried and approved a single presi-
dency. For the rest, the president was given the eharacter,
as regards his relations with the other officials of the federal
system, rather of an English sovereign than of a state governor.
Certainly the contrast between the official place and power of
the president and the place and power of the state governors
of the present day is a very sharp and far-reaching contrast
indeed. The president of the United States is the only exec-
utive officer of the federal government who is elected; all
other federal officials are appointed by him, and are respOD&ible
to him. Even the chief of them bear to him, in theory xt
least, only the relation of advisers ; thoi^h in fact, it must be
acknowledged, they are in effect his colleagues. Of state i
cials assoiriated with the governor it may, on the other hand, be
said that both in law and in fact they are colleagues of the gov-
ernor, in no sense his agents or subordinates, except perhaps
in mere formal preeedenee. They, like himself, are elected by
the people ; he is in no way concerned in their cboic«. Nor do
they serve him after election. They are not given liim as
advisers ; they are, on the contrary, co-ordiiuited with him.
Xorth Carolina, indeed, calls her chief officers of state a 'cabi-
net ' ; but they are not dependent upon each other even in
counsel, and they are quite as independent of the governor t
Congress is of the president. The only means of removal to
which the principal officers of the states aru subject is, ordi-
narily, itnpeackmenl, to which the governor also is equally
exposed. Both they and he may be charged with official
crimes and misdemeanors by the house of representatives aod
1, convicted, and removed by the senate of thi- stata Their
THE Government ok the tinited states. 517
only other responsibility is to the courts of law, tu which, like
any other citizens, they are answerable, after removal from
office, for actual breaches of law. Governor, treasurer, secre-
tary of state, attoniey-fjeneral, — all state officers alike, serve,
not other officers, but the people, who elected them ; upon the
people they are dependent, not upon each other ; they consti-
tute no hierarchy, but stand upon a perfect equality.
973, Id Delaware, Kcnlucky, M«rjlBini, Ne« Jersey, Feootylranltt,
WbbI Virginia, and Teitia, llie aeerelariea of slale are appoinled by tLe
gavernur, BUbjecl to confictiialion t>y Ihc Bcnale; in several atatea the
attorn ey-gencral alao ii appointed ; nor ii it uncomnion (or the itate
anperintendenl of education lo be an appointee of the gaTcmor.' and
thete facte olTer apparent coiilradictian to the alati'ment thai tlie aeveral
coDllilUFDt pans of the alnle exeuulivfi atand alwsya apart in complete
independenee and co-ordination, — especially when it is addpd that in
one. or two ilale* uflioers ao important aa Ilie lecretary of state and the
■ttomey-general hold during the pltatNre of fkt goiKmor. But theae caaei
canatltut« in fact no real exceptiona : for the duties of audi offlcera, after
their appointment, are preacribed hy constitutional |iruti>ion or by stat-
ute, not by the governor; and the governor may remove t htm, not at
hia whim, but for just legal cauae only. In brief, tbuugli appointed by
him, they do not depend upon him.
974. Real Character of a Sta.te 'Executive.' — The gover-
nor therefore, is uot the 'Executive '; he is but u single piece
of the executive. There are other pieces co-ordinited with
him over which he has no direi-t official control, an.l which are
of less dignity than he, only because they have no power to
control legislation, aa he may do by the exercise of his veto,
and because his position is more representative, perhaps, of
the state government as a whol^, of the people of the state as
a unit. Indeed it may be doubted whether the governor and
other principal officers of a state government can even when
taken together he correctly described as 'the executive,' since
the actual execution of the laws does uot rest with them but
with the local officers chosen by the towns and counties and
bound to the central authorities of the state by no real bonds
518
THE GOVERNMENT OF THE UNITED STATES.
of responsibility whatever. Throughout all the states there u
a. significant distiuctioQ, a real separation, between ' state ' and
' local ' officials ; local officials are not regarded, that is, as atate
officers, but aa officers of their districts only, responsible to
constituents, not to central authorities. In all the states,
probably without exception, the sheriffs and other county offi-
cers, the county treasurers, clerks, surveyors, commissioners,
etc., and the town and city officials also, as well as the judges
of the courts and the solicitors or district attorneys who repre-
sent the public authority before the courts, are chosen by the
voters of limited areas, and are regarded, for the most part, as
serving, not the state, but their jxtrl of the state. Minor 'state'
officers there are, — minor officers, that is, who serve ministe-
rially the central offices, — and these are often appointed by
the governor ; but it is exceptional for the governor to control
iu any real sense the officials, the local authorities, by whom the
laws are in fact put into actual operation. The president of
the United States is the veritable chief and master of the offi-
cial forces of the federal government ; he appoints and in most
oases can remove, for cause, all federal marshals, district attor-
neys, revenue officers, post-office officials. But the governor of
a state occupies no such position ^ nor does any high 'stats'
official; the central offices of a state constitute a system of
supervision and report often, but seldom a system of control.
0T5. In Michigan, il ii true, >11 officuli not legialstiTe or judicUl maj
be renioTed by the gorprnor for juBt legal caiue; ID New York, t<Ki,
iheriffs, cnronerB, diitrict Rltornej'i, and countj clerka are remoTable
bf tlie aame nuthoHly, and in Wiicomin aberiSi, coronen, diitrict
BlComeyi, and regiilran of deed* ; but luch proTiaions are exceptional,
and are not aciiompRnied by any real integration of local goTermnent
by a ayalem of continuom central control, GoTerament remaini dia-
jointod. — atill lies in leparated parts.
9T0. RelatloiiB of the tiocalto th« Central Oigana of Oorem-
msnt iu tb« States. — It ia iharactcriatic of our ataie organiution,
therefore, that the oounliea, townships, and cities into which the atatea
arcdiiided for purpo(«iot local guvernuienl do not serve aaorganaof the
1
THE GOVERNMENT OF THE UNITED STATES.
519
I
■tnlGB exactly, hut nthcr ai itiilep«ii(l«nt aTgBDumi,cauaIituted what Ihey
are by aliile Inn, indeed, but after being setup, left to iheiiiaetrfra almoat
ai entirely a; if the^ were self'Conati taied. They elect their own officer!
and go Ilicir own paoei i% enfort^ing the general lawa of llie stale.
977, We have not, therefore, local ' tttf-goBemaent,' in the aeniie in
which FrofesBor Gneist has found that term to be properly used when
employed in the light of ill Teutonic history ; we bare, instead, separate
■oval lell-direution which ii not the application of gorurnmenl, but tlie
play of independent action. Our local areas are not guvemed, \a brief ;
they act far themseWes. Self-goT«rnnient implies, when used in it*
strict liiatorical meaning, that the offlcer* of local administration are
offlcen of the ilat<, of the central authority, wliaiever may be the
machinery of their appointment, and that their reipnnsibilily is central,
not to their neighbors merely. The only sense in which the local uiiii«
of our state organization are goeemtd at all is this, that they act under
general laws which are made, not by themaelves, but by the central
legislature! of the slates. Theee law* are not executed by the central ei-
ecutife authoriiiea, or under tlieir control, hut only by local authorities
acting in semi- independence. Tbcy are, so tossy, left to run thcmielTes.
978. The Governor. — The usual duties of a state governor
may be conveniently summed up under four general heads ;
(1), as towards the legislature, it is his duty to transmit to the
bouses at each regular session, and at such other times as may be
required, full information coneemiug the state of the eommon-
wealth, and to recommend to tbem suuh measures as seem to
him necessary for the public good. It is also his duty in case of
necessity for such a. step, or upon the requisition of a sufficient
number of legislators, to summon the houses to extra session.
(2) He is commander-in-chief of the state militia, and as such
is bound to see, not only that foreign invasion is repelled, but
also that internal order is preserved. (3) He exercises the clem-
ency of the state towards condemned persons, having the right
to grant pardons to persons convicted of crime, to remit fines
and penalties, under certain conditions, and to remove political
disabilities incurred in consequence of conviction of crime;
though he exercises these high prerogatives subject always to
a definite responsibility to public opinion and to the laws.
520 THE QOVERNKBNT OF THE XTNITED STATES.
In MHiie ttatet, mm notmbly in PenntylTania, the power of granting |imr-
dona ia giren to the goremor, howerer, only in form, the sanction being
made seoetaary of a Board of Pardons, whose action is semi- judicial.
(4). In all the states except four (IVelaware, Rhode Island,
Ohio, North Carolina) the governor's assent is made necessary
to the validity of all laws not passed over his dissent by a
special legislative vote upon a second consideration made in fall
view of the governor's reasons for withholding his signature.
079. All bills which the governor signs, or upon which he does not
take anj action within a certain length of time, become law; those
which he will not sign he must return to the legislature with a state-
ment of his objections. Generally he must return bills which he thus
rejects to the house in which they originated, though in Kansas he must
return them always to the House of Representatires.
980. The Tote by which a bill may be passed orer the gorernor's
Teto raries Tery widely among the states. In Connecticut a mere ma-
jority suffices for its second passage ; in other states a three-fifths rote
is required, in some a two-thirds TOte ; sometimes a majority of elected
members (instead of a special number within a mere quorum) must
concur in a second passage ; and sometimes two-thirds of the elected
members. In Missouri it is provided that the votes of two-thirds of
the elected members shall be necessary in the house in which the meas-
ure originated, while a mere majority of the other house will suffice.
981. In thirteen of the states the governor is given the power to
veto particular items in appropriation bills ; as regards all other bills
his approval or disapproval must cover all of the measure or none of it.
982. The Secretary of State. — The title ' Secretary of State '
borne by a conspicuous ofl&cer in each of the states is very apt
to mislead those who have studied first the English executive
or the functions of our own minister of foreign affairs. The
federal Secretary of State is first of all an executive minister,
only secondarily a secretary ; and the five principal Secretaries
of State in England are equally without prominent secretarial
functions. They are one and all executive heads of department.
083. The federal Secretary of State is entitled to his official name
chiefly by virtue of certain minor duties seldom thought of by the pub-
lic in connection with the Department of State. He has charge of the
THK GOVERSMENT OF THE UNITED STATES. 521
■cal uf the United States ; ho pregerces the originals of all Uws anil of
all urdi'ra, rciolntiunn, or votci of the houie* which hare received the
force of law ; he f urniahes to Congress. hesiiJcs consular and diplomatic
reports, lists of passengers arrived in the United States from foreign
064. The chief clencal features of the office which the fi<e Principal
Secretaries of Stale in England theoretically ihiire (see. 193) would
o be represented b; the necessity of tisc countersignature of tome
one of them to the validitjr of the sign-niaiiual.
985. The Secretaries of State in the eon imon wealths of our
Union, on the contrary, can show substantial cause for holding
their title ; the making and keeping of records iu the central
duty of their oifii^e. It is usually their duty to register the *"
official acta of the governor, to enroll and puhlish tlie Acts of
the Legislature, to draw up all commissions issued to public
officers, to keep all official bonds, to record all state titles to
property, to keep anil affix, where authorized, the seal of the
monwealth, ti^ preserve carefal reconls of the boiuidariPS of
the various civil districts (the counties, townships, etc.) of the
state, and to give to all who legally apply duly attested copies
of the public dociunents in their keeping. In brief, the Secre-
tary's office is the public record office. »
OBQ. Often other duties are Resigned to the Secretary of State. In
one stale, for instance, he is constituted Internal Improvement Com-
missioner; in another Surveyor- general. But such addiliunal functions
arc not, of course, chnract eristic of his office.
067. It is to the Secretary of State in each commonwealth that the
votes of the state's electors for President and Vice President are re-
turned ; it is he who transmits them to the president u( the Senate to
be opened in the joint seision of the two houses.
966. Votes in state elections also are generally returnable to the
Secretary of State's office, and the Secretary nf Stale is very commonly
one of the state canvassersof election returns. Such duties manifestly
How very naturally from the general duties of his office.
989. The Comptroller, or that equivalent officer, the state
Auditor, is public acci mutant. It ia hia function to examine
and pass upon all claiius presented under existing provisions
i
i
522 THE GOVERNMENT OF THE UNITED STATES,
of law against ttie state ; to audit the accounts of all officer*
charged with the collection of the revenue of the state, fHing
their vouchers, and requiring of them the necessary bonds, and
crediting them with all sums for which they present the state
Treasurer's receipt; to ensure uniformity in the assessment
and collection of the public revenue by preparing and furnish-
ing to the local fiscal officers the proper forms and instructions ;
to issue warrants for all legal disbursements of money from the
treasury of the state, keeping a careful account with the state
treasurer; to submit his books and accounts at any time to ex-
amination by the legislature : in a word, to regulate the assess-
nient, collection, and disbursement of the public moneys.
990. The State Treasurer may be sairl simply to keep th«
public moneys subject to the warrants of the Comptroller.
Without such warrant he can pay out nothing.
Ofll. Theie, ni*nir?«M7, are not offli-eg at control. The Comptroller,
for example, ean generally proceed agninat local Dical ofDcera through
the local law-represcntntivei of lite time, the local stales-altortie;
the ordinary court*, for the purpose of acouring the ncceaanry bonda,
when ihcic are not prompllj or prnperl; given, or u( enforcing tlie paj'
ment of moncya wiiliheld or uncollected ; and he may loatae teat of Iho
validity or sufBciciicy of officinl bonds by any mean* "ithin hia reach ;
bnt he haa none but this judiuial control, tbii indirect control, that ii,
cierciied llirougb the courts urer officers wliu refuse bond or wl.o neglect
the forma and inaiructiona ifaacd to them regarding the aaieHiment and
collection of tales. The whole machinery of control is local, noi central,
— through court* and *ta lea-attorney* who are tbein*elre* elected by iJie
■ame parsons. In town or county, by whom the collecting officers aro
cho*«n. The local fiscal officers are not, in other words, offlcen of lh»
state Treasury, but officer* of the town* and counties whom the slaw
employs as its ngentt.
993. The State Superintendent of Education often occupies
a somewhat differi'iit position. It is his prerogative to pnv
scribe the qualiticatious of teachers and the inethodi! by which
they are to be selpcted ; he exercises a thorough inspection of
the schools throughout the state ; often he is given power to-
THE GOVERNMENT OP THE UNITED STATES.
secure proper reports of school work through specml inspectors
ap()oiiited to at^t insteaii of local Buperintendents whose reijorts
are irregular or unsatisfactory. School administration is rec-
ognized to require a. certain degree o£ centralization of author-
ity, and so to constitute a legitimate exception to the general
rules as to the constitution of executive power in the states.
Still, even the power of a state Superintendent of Education
does not often go very much beyond mere supervision. The
powers of district or township school directors remain in most
caaes very absolute as regards tUe management of the schools.
They are governed by statute, not by the state Superintendent.
POS. CoiutltQtlonal DUtnsfon of tbe Bxecnttve Power. — The
conjlitulioni of at least si-vcn of ilic Btalei make very frsnk confession
of the clifFuBJon of executive Hutlioritj' upon wliicli 1 have dwell si
characterletic of our stale system. Thus the constitution of AUbBlna
provides that the eiecutivi! power " thall consist of the governor, Secre-
wry o( Stale, slate treasurer, stale auditor, attorney -gene ml, and super-
intendent of education, and the sheriff for eauii eounty." The coosll-
tQtioDs of Arkansas, Colorado. Illinois, Minnesotn, Pennsylvania, and
Texas, make similar enumerations, with the exception of the sheriff*
of the counties. Tb« Florida conatitulion of 16(18 provided that the
governor should be " assisted by a cabinet of administrative officers "
appointed by himself, subject to the conErmation of Ihe Scnuie ; but
clothed these offlceri with function* whieli made them in fact not
colleagnei.
lost of Ihe other states declare the executive
power to be vested in the governor, but are hardly through with nut-
lining his functions before they provide for Ihe erection of exevulive
departments among which the greater part of executive power sliall be
parcelled out; so that the arrangement is, in effect, that of those states
which declare the e.tccutire oBlce to be 'in commission ' by enumerating
Hie officers who are to divide its duties.
9M. Full Iiegal. but no Hierarchical, Control. —This, then, is
the sum of the whole matter : the control of law is llinrough and com-
plete : statutes leave to no officer, either centra! or local, any cnnsider-
•ble play of discretionary power : «n far as possible they command every
ofBcer in every act of his mliiiiiiialration. But no hierarchy stands be-
tween any officer and the law. The aeveral functiona of eiecative power
524 THE GOVERNMENT OF THE UNITED STATB8.
arc (egregHteil, — ^nth official, bo to sHy, aerrei hU own fUtnte. So
tliurough is the coTilrnl ntlempUd hy legislation, — bdcI io potent
nmoni; as is Ihe legal linhit and conscience. 1 1 ip I an 'abiding lense,—
tlinl no offitial control, no hiernrfliiL'al orgnnizalion has been thought
necessary.
Local Govkknmknt.
i)9o. General Characteristics. — The large freedom of action
und broad scope of function given to local authorities is tbe
(tistinguishing characteristic of the American system of govern-
ment. Law is central, in the sense of being uniform and the
command of the central legislature in each state ; and its pre-
scriptions are niinute ; but function and executive power are
local. There ia a single comprehensive statutory plan, but a
host of unasHociated deputies to carry it into effect, an infinite
variety in the local application of its principles. General laws
are given to the localities by state legislation, and these laws
are generally characterized by a very great degree of particu-
larity and detail of provision; but no central authority has
executive charge of their application : each locality must see
to it for itself that they are carried out.
996. Duties of Local Government. — The duties of local
government include I'olicc, Sanitation, the Care of the Poor,
the Support and Administration of Sclirwls, the Constructioa
and Maintenance of Roads and Bridges, tbe Licensing of
Trades, tlie Assessment and Collection of Taxes, besides the
Administration of Justice in the lower grades, the maintenance
of Court Houses and Jails, and every other affair that makes
for the peace, comfort, and local good government of the various
and differing communities of each commonwealth. In many
places libraries are included among the institutions given into
the charge of the officers of local government. Of course local
officers look to state law for their authority ; hut practically
state administration represents only the nnlfying scheme of
local government. Local administration is the administnttioa
of the state.
THK GOVEKNMBNT OF THE UNITED STATES. 525
d97. Local Varieties of Organization. — Almost without
exception the states which have b«cii a-lded to the original
thirteen by whom the Union was formed have derived their
local institutions, whether by inheritance or by imitation, from
the mother-states of the Atlantic seaboard. Wherever New
England settlers have predominated the lowiiship has taken
quick rootage and had a strong growth ; wherever Southern
men have gone the county has found favor above other forms
of local oi^anization ; wherever the people from the two sec-
tions have met and mixed, as In the early days they met and
mixed in New Jersey and Pennsylvania, the same combination
or mixture of institutions that is characteristic of the middle
Atlantic states is found in full prominence. But in all cases
the new foundations in the west have this common feature :
they have all been in a greater or less degree artificially con-
trived. Towns have not grown up in the northwest for the
same reasons that led to their growth in New England, in the
days when isolation was necessary and when isolation of course
involved compact and complete aelf-govemmcnt (sees. 835-837) ;
they have, on the contrary, been deliberately constructed in
imitation of New England models. Neither have western
counties been developed by processes of pioneer agricultural
expansion such as made the irregular, and in a sense geograph-
ically natural, counties of Virginia (sees. 841-843) : they
have, on the contrary, been geometrically laid off in the exact
squares of the government survey because the settlers wanted
to reproduce by statute the institutions which in their old
homes have been evolved by slow, unpremeditated colonial
growth. The institutions of the admitted states, in a word,
were transplanted by enactment, whereas the institutions of
the original states were almost unconscious adaptations of
old custom. It by no means follows that these newer insti-
tutions lack naturalness or vigor: in most cases they lack
neither, ^ a self-reliant race has simply re-adapted institutions
common to its ixilitieal habit; but they do lack the indjvidu-
626 THE GOVERNMENT OP THE UNITED STATES.
ality and the native flavor often to be found in the institutions
in whose likeness they have been made.
998. The differences of institution, then, which show them-
selves in the east between local government in New England,
local government in the South, and local government in the
central belt of Atlantic states extend also into the west.
There, too, we find the three types, the township type, the
county type, and the compound type which stands between
the two ; but the compound type is in the west naturally the
most common : the westerner has had the sagacity to try to com-
bine the advantages of all the experiments tried in the older
states, rejoicing in being fettered by no hindering traditions,
and profiting by being restrained by no embarrassing incapac-
ity for politics.
Keeping these facts in mind, it will be possible to consider
without confusion, the Township, the County, the School Dis-
trict, the Town, and the City as elements of local government
in the United States. The different place and importance
given to each of these organs in different sections may be
noted as we proceed.
999. The Township : Its Historical Origin. — The town-
ship is entitled to be first considered in every description of local
government in the United States not only because it is a pri-
mary unit of administration, but also by reason of its impor-
tance and because of its ancient and distinguished lineage. It
is a direct lineal descendant from the primitive communal
institutions which Caesar and Tacitus found existing in the
vigor of youth among the peoples living in the ancient seats
of our race. The New England town was not an American
invention ; and the settlers upon the northern coasts did not
adopt the town system simply because they were obliged to
establish themselves in Isolated settlements in a harsh climate
and among hostile native tribes. We have seen (sees. 835-6)
that they kept together in close settlements for religious pur-
poseS; for mutual defence^ and for purposes of trade^ and that
THE (JOVBRNMBNT OF THE UNITED HTATE8. 527
their settlements were completely isolated by stretches of wild
primeval forest; but their form of govemmeut, or at least the
talent and disposition for it, they brought with them, an inheri-
tance of untold antiquity, Their political organization was
simply a spontaneous reproduction of the ancient Germanic
Mark (sees. 222, G52). In most cases they regarded the land
upon which they settled as the property of the community,
just as their remote barbarian ancestors had done; like those
ancestors, they divided out the land among families and indi-
viduals or worke<l it in common as might be decided by public
vote in general assembly, in ojien 'folk-moot' we may call
it. "This same 'town-meeting,' as they styled it, voted the
common discipline, elected the officers, and made the rules
of common government ; each group of colonists constituted
themselves a state with a sovereign primary assembly. They
re-established, too, the old principles of folk-land. Whether
they tilled their lands in common or not, they had always a
communal domain, part of which was ke])t as open Common
for the general pastun^, and the rest of which was given over
in paroels, from time to time, for settlement. They were
inventing nothing; they were simply letting their race habits
and instincts have natural play. Their methods showed signs
at almost every point, of course, of having been filtered through
intervening English practices; but they rested upon original
Teutonic principles.
1000. The pxL-eptionB In the principle of talk-land occutrp^ nrhere.
■1 in the Hnnford. Windior. snd Wethersfirld gettlementa on the Con-
tiecliL-ul, the land «>> held, not in comnion b; the civil communiljt.
bat ill common by ■ tort of oorporation of joint owners under whoie
luperTiiinn the new coloniei were eitabliihed. Thele joint ownem were
quite diilitiL't from communal authoritiei.^
KKtl. Absorption of the Town in Larger Units of Goveni-
ment.— It was towns of this primitive pattern that were drawn
together ultimately into the New England colonies of the later
I Bee Andrew!, Tlir Bietr Toimt of Connrcticut (Jolina Hopkins Studio,
Seventh Serie*).
528 THE GOVERNMENT OF THE UNITED STATES.
time by the processes I have already described (sec. 838) ; and
of course in becoming parts of larger organizations they lost
to some extent their independence of movement, as well as in
some slight degree their individuality also. In some cases,
as for instance in the coalescence of ' Connecticut ' and New
Haven (sec. 849), the establishment of central state leg:isla-
tive control over the towns took the shape of a mere confirma-
tion to them of their old functions and privileges, and in this
way fully recognized their elder and once sovereign place in
the historical development of the commonwealth ; but it in all
cases necessarily resulted in their virtual subordination. It
led also to the creation of new areas of local government.
Towns were grouped, at first for judicial purposes only, into
counties, and the counties came in time to furnish a more con-
venient basis for certain administrative functions once vested
exclusively in the smaller areas. Great cities, too, presently
grew up to demand more complex, less simply and directly
democratic, methods than those of the towns. But no change
has seriously threatened town organization with destruction :
it is still the most characteristic and most vital element of
local government in New England; and it still has substan-
tially the same officers, substantially the same functions that
it possessed at its foundation in America.
1002. Of course an influx of foreigners has in many places disturbed
and eren impaired the town system, and the cities, which draw to them-
seWes so rapidly the rural population, but which are too big for the
primitive methods of town goyemment, are powerful disintegrating
elements in the midst of the old organization ; but the new adaptation
and development of the township in the west, and the tendency to in-
troduce it in some parts of the south, seem still to promise it honor and
length of days.
1003. Town-meeting. — The sovereign authority, the motive
power, of town government is the Town-meeting, the general
assembly of all the qualified voters of the town, which has
reminded so many admiring observers of the ancient Grecian
THE GOVERNMENT OF THE UNITED STATK3.
529
I
imd Konian popular aasembliea and of the Landngemeinde of
Switzerland. The regular session of this aiiseiulily is held
once a year, usually io the Spring,' but extra sessions are held
from time to time throughout the year as occasion arises, due
notice being given both of the time of meeting and of the
exact business to be considered. Town-meeting elects all
officers, — its regular annual session being the session for elec-
tions,— and decides every affair of local interest.' It is pre-
sided over by a ' Moilerator ' and attended by the town officers,
who must give full account of their administration, and who
muat set before the Meeting a detailed statement of the sums
of money needed for local government. These sums, if ap-
proved, are voted by the Meeting and their collection ordered,
on the prescrilted l>a£is of assessment. Everything that the
officials and committees of the town have done is subject to be
criticised, everything that they are to do is subject to be regu-
lated by the Meeting.
1004. The Town Officers. — The officers of the town are
certain 'Selectmen,' from three to nine in number, according
to the size and needs of the town, who constitute the general
executive authority for all matters not otherwise assigned ; a
Town Clerk, who is the keeper of the town records and regis-
ters ; a Treasurer ; Assessors, whose duty it b to make valua-
tion of all proptTty for tax assessment ; a Collector of the taxes
voted by the Meeting or required by the county and state
authorities ; a School Uummittee ; and a variety of lesser offi-
eers of minor function, such as Constables, together with cer-
tain committees, such as library trustees, etc. Generally there
are also overseers of the poor and surveyors of highways.
1005. To this corps of officers all the functions of local gov-
ernment belong. The county authorities cannot enter their
' Id Connecticut in tlie autumn.
■ Iq some of ilie coast towns (lownshipi),*! nolRblf in Connectfcnt, tlie
reflation o( the um of the oy«ter bed* t( a lerj prominent queition in
town-ineetint;.
630 THE GOVERNMENT OF THE UNITED STATES.
domain, but must confine themselves to the judicial duties
proper to them and to such administrative matters as the lay-
ing out of inter-town roads, the issuing of certain county
licenses, the maintenance of county buildings, etc., for the
due oversight of which larger areas than the town seem nec-
essary. County expenses are defrayed by taxes raised by the
towns : the county authorities apportion such taxes, but lay
none.
In Rhode Island the only county officlali are those connected with
the administration of justice.
1006. The Township of the Northwest. — The town may,
therefore, be said to exist in New England in its historical
character and simplicity, overshadowed here and there by great
cities, and everywhere modified and partially subordinated by
the later developments of state and county. In the Northtvest,
whither New England emigrants have gone, it has entered
another phase and taken on another character, — a character
which may perhaps foreshadow its ultimate organization should
the country have at any future time the uniform practices of
local government now dimly promised by certain incipient
forces of institutional interchange and imitation.
1007. In the first place, the Northwestern township is more
thoroughly integrated with the county than is the New Eng-
land township : county and township fit together as pieces of
the same organism. In New England the township is older
than the county, and the county is a grouping of townships
for certain purposes ; in the Northwest, on the contrary, the
county has in all cases preceded the township, and townships
are divisions of the county. The county may be considered as
the central unit of local government : townships as differentia-
tions within it.
1008. The county preceded the township because the county
furnishes, for our people, the natural basis of organization for
a scattered agricultural population ; the township came after-
wards, at the suggestion of the New England settlers, as the
■IHH GOVEKNMKNT Ol-' THE UNiTKD STATUS. 531
natural organ iza^t ion for a population become more numerous
and drawn together iuto closer association.
1009. Its Origin. — As all the best iiuthorities on this sub-
ject have pointed out, school organization supplied the begin-
nings of the township system in all the more newly settled
portions of the country, und Is now protlucing the seeds of it
in the South. The western township has sprujig out of the
school as the New England township of the earliest days sprang
out of tiie church. The government surveyor, who has every-
where preceded final settlement in the west, has in all cases
mapped out the land in regular square plots which, for con-
venience, he has called ' towiisliips,' and in every township
Congress has reserved a square mile of land for the endow-
ment of schools. This endowment had to be administered by
the settlers, school organization had to be effected, the name
township had already been given to the district so endowed,
and there was, therefore, naturally school organization on the
basis of the township. From this there eventually issued an
equally natural growth of local [lolitical institutions.'
lUlO, Spread of Township Organization. — The develop-
ment of the township has progressed almost in direct ratio
with the development of locaJ government : in many sections
of the country, even where population is dense, county organ-
ization is still made to suffice for such districts as have not
assumed the structure and privileges of village or city incor-
poration, but wherever any special effort haa been made to
perfect local rural organization for administrative purposes,
the township has been accepted aa the best model of politi-
cal association.
1011, It hna receiTed its wideit Kcceplance in aoch middle Btatei >•
Ne» Tark Bod PenD>;lTiinl«, and in Ibe grekt NorthweiWrn itatei of
UichigaD, Wiiuooiio, Illinois, and MinneioU. Elaewherr, in the Middle
Wetl, in Ohio, Indima, and Knnsaa. (or example ; and in Buch stales uf
> 8e« p, 10 of Loeal Ganrnrnent in IllinoU, by Dr. Albert Shaw (John«
Hopkini Sludiea in Ilistoritnl and Political Science, first Seri«i).
582 THB GOVERNMENT OF THE UNITED 8TATE8.
the far West as California, it is less fully deyeloped, and occapiea a
much more subordinate place as compared with the Conn^. The
County, indeed, may be said to be the preyalent unit of local goTem-
ment in California, as well as in Oregon, Nebraska, and Neyada.
1012. Township Organization. — The organizaH(yii of the
township outside of New England, of course, varies with its
development. Where it is most vigorous there is the town-
meeting exercising powers strictly defined and circumscribed
by statute and somewhat less extensive than the powers of
town-meeting in New England, but still covering a multitude
of local interests and representing a very real control. Where
it is less developed there is no town-meeting, but instead only
the processes of popular election to local office. In all cases
the ' selectmen ' have disappeared : at least we find no officers
bearing their name, and no officers possessing exactly their
functions. Where the township is most completely organized
we find one or more * supervisors ' standing at the front of
township administration, who are clothed with the duties of
overseers of the poor, who exercise oftentimes a certain control
over the finances of the township, and who are, in general func-
tion, the presiding and directing authorities of the adminis-
tration.
1013. In Michigan and Illinois a single supervisor presides over each
township ; and in the former state each supervisor is also tax assessor,
while in the latter he is treasurer. In Wisconsin and Minnesota there
are three supervisors in each township ; in Ohio three nearly equivalent
officers called ' trustees.'
1014. Where there are several supervisors or trustees in the
township, it is common to associate them together as a Board,
and under such an arrangement they very closely resemble the
New England board of selectmen in their administrative func-
tions. Township boards also exist under the laws of some
states in which there is but a single supervisor for each town-
ship, being composed, usually, besides the supervisor, of such
officers as the town clerk and the Justices of the Peace.
i
THE GOVERNMENT Of THE UNITED STATES.
In MIcllig&n «Lich a board hai raCher extenaive superriiory powen :
in IlUnoU it ii a eoiiiiiiidee of audit simply.
1016. The number of township ofBcera of course varies with
the degree of development to whicli the towuship system has
attained. lu Ohio, where the system is still more or less in
germ, there are, besides the three trustees, no township officers
save a clerk and a treasurer. In Michigan, even, where the
township system is fully accepted, there is neither an assessor
nor a collector of tiix^s, the supervisor acting as assessor and
the treasurer as collector. In Illinois, on the other hand, there
is always a very full corps of oflfioers : supervisor, collector, as-
sessor, clerk, commissioners of highways, school trustees, jus-
tices of the peace, constables, etc.
1016. The term of all offlcen except jtutiuei of the peaire, ruad and
tcbool commiiBi oners, and constables, is genersllybut ft single year, u
in New Kngland ; llie terms of the utlier offii^era named are often three
lOlT. Wberc there is a lown-meeling the offiters are elected by it ;
where there is no town-meeting they are of course chosen by ballot.
1018. The Township in the Middle Atlantic Statei. — Of
course it is reversing the historical order to sfwak of the town-
ships of the middle Atlantic states after discussing the town-
Bhips of the newer west ; but it is not reversing the order of
convenient exposition. The processes of formation are plainly
visible in the west ; in the east they are more complex and
obscure, being the formations of history rather than of legis-
lation.
1019. The New York townsliip is like the to«-nships of
Michigan and Illinois in its struuture and functions ; but like
because it is an original, not because it is a c(ij)y. Over it
presides a single supervisor who is the treasurer and general
financial officer of the area. It has its clerk, its assessor, its
collector, its commissioners of highways, its constables, its jus-
tices of the peace. It has ah o special overseers of the poor.
An annual town-meeting, under the presidency of the justices
534 TH£ OOVEBNMBNT OF THE UNITED STATES.
of the peace, or of the town clerk, elects all officers, passes
sundry by-laws, votes taxes for schools and poor-relief, and
constitutes the general governing authority.
In counties containing 300,000 or more inhabitants there is a pro-
Tision for the election af township officers by ballot.
1020. The Pennsylvania Township. — The New York town-
ship system suggested the system of the states about the lakes,
and stands nearest in the order of development to the town-
ship of New England. The township of Pennsylvania, on the
other hand, suggests the township system of the next lower belt
of western states. In it there is no town-meeting, but only an
executive machinery. A board of two or three supervisors hold-
ing for a term of three years presides over the township, and
has as its most prominent function the care of highways. For
the rest, there are the usual officers, with the somewhat uncom-
mon addition of three auditors. Where the township is charged
with the care of the poor, two special overseers are elected.
1021. OrisinB of Local Government in the Middle States. —
Local goYernment in New York, Pennsylvania, Delaware, and most of
New Jersey runs back, as to a common source, to the system established
in colonial times by the Duke of York as proprietor. Under that sys-
tem the township was the principal organ of local government. Its
officers were certain constables and overseers ; and above the township
was only an artificial 'Riding' presided over by a sheriff. Certain
(General Courts levied highway and poor rates, appointed overseers of
highways, etc. After the period of the Duke's proprietorship, the de-
velopment of local government in the several parts of his domain
exhibited a considerable variety. The township retained its importance
in New York, but further south, particularly in Pennsylvania, the
county gained the superior place.
1022. The Township in the South. — Wherever, in the
south, the principle of local taxation for local schools has been
fully recognized, there the township has begun to show itself,
at least in bud. Virginia, the oldest of the southern states,
and in most respects the type of all the rest in institutional
TBK GOVERNMENT Or THE UNITED STATES. o3o
development, has, since 1870, liaJ the township system in full
flower.
1023. In tbe Virginia townships si in Iboie of the middle west,
there U no (awii-nieetiog, — »Vl offlcere, Uown even to the constable, are
elected at the poUi, Bach township has ita aiiiijiv supervisor, liut, fts in
Michigan, the guperyisor Iib« «uthority only as A member o( a township
board, on wliicli the commiaaioner of roada and the asseasor are asao-
uiated with him. This board is llie auditing and general financial
authority of tbe townahip, liaa charge of higbwnja. has the usual care
ol the township property, and the usual general oversight. The clerk of
the township is ex ofidn treasurer, and must eounlersign the warrants
of the board. There are apeciat oreraeera of the poor, hat county puor-
housea receive- pa opera acnt from the townships. For the rest, there is
tbe usual collector, justice of the peace, and conatuble. As in New
York, the supervisors of the townshipi collectively constitute the gov-
erning board ur tiie county. ,
North Carolina, also, and West Virginia have adopted to some extent
the township system.
The diviBiuD of ])ower between township and county can be
most intelligibly discussed in connection with the following
outline of county organization.
1024. The County. — The natural history of the county is
best studied in the south, whei-e, despite the partial, and in
Virginia the complete formal, adoption of townahip organiza-
tion, the county remains tbe chief, and almost tbe only organ
of local order and government. We have seen (sees, 841, 842)
how natural a basis of goTeruin«nt it was for a. wide-spreail
agricultural populatiou, Tbe county was imported into the
west by southern settlers, but also found there at first its
natural reason for existence in a similarly JilTused population.
New England immigration and new conditions of industrial
and social combination have created the township within the
county in tbe west, as they promise to create it In the south,
also (see sec. 1032),
1025. In all cases it would seem the county was originated
fur judicial purposes, as an area in and for which courts were
to be held, though in such confederate colonies as Connecticut
536 THE GOVERNMENT OF THE UNITED STATES
it was also in part the outgrowth of the union of different
groups of once independent towns. In the south the county
became also the single area for the administrative organization
of local government, being given the functions elsewhere di-
vided between the county and lesser areas like the township.
In New England certain general functions of a limited charac-
ter have been conferred upon it by subtraction from the town*
ships. In the northwest, county and township have been
created almost simultaneously and side by side, and are care-
fully integrated.
1026. The American county was of course in the first instance a
frontier copy of the English shire ; but, of course, the American county
affords no analogy in its growth to the growth of its English prototype.
The English shire in a great many instances traces its history back to
the time when it was a separate Saxon kingdom, and may be said to
haye as natural boundaries as France; American counties, on the other
hand, have all been deliberately ' laid out,' as judicial and administra-
tive subdivisions, and have no independent historical standing.
1027. The southern county, which undertakes all of local
administration, has, of course, a complete set of officers. At
its head is a small board of county commissioners. Acting
under the general superintendence of the commissioners there
are generally a county treasurer, auditor, superintendent of
roads, superintendent of education, and superintendent of the
poor. On its judicial side, the county has its sheriff, its clerk,
its ordinary or surrogate, its coroner, and its states-attorney,
the latter generally acting for a judicial district inclusive of
several counties. The functions of the county, of course, em-
brace the oversight of education, the maintenance of jails and
poor-houses, the construction and repair of highways, and all
local matters. County officers are in almost all instances
elected by popular vote. Under the southern county system
the sheriff is commonly tax-collector.
1028. Where the township exists there is great variety of
county organization, almost the only point of common likeness
THE GOVEBNMEST OP THE UNITED STATES, 5S7
being the orgimizatioti of justice. The county always has its
sheriff, and generally its separate courts with the usual coro-
ner and clerk. The variety, exists in the domain of admiaia-
trativB structure. Sometimes, as in New York, Michigan, and
Illinois, the county ailministrative authority is a board com-
posed of the supervisors of all the townships; sometimes, as
in Pennsylvania and Minnesota, the county authority is a
board of three commissioners. In Wiseooain the county board
consists of members each of whom is cliosen by two or more
townships. Where the county is giveu least power, as in
New England, its administrative functions hardly extend be-
yond the maintenance of such county buildings as the jail and
court-house, the granting of certain licenses, and the partial
supervision of the highway system. In New York and the
northwest the county authorities often undertake the relief
of the poor, sometimes exercise an extensive control over the
debtKJontracting privileges of the smaller areas, often audit
the accounts of local officers, and supervise taxation for pur-
poses of equalization.
Where townships cxitl, Ihen, the diTision of funcliDiig may be laid
to he as foUowe : the township is the area for the adiiiini»traliuii of
Khooli, tor the relief of the poor (unlesi by popuUr tale this function
i) given to the county), police, coastructian and roaintenaooe of high-
wmyi, sanitation; the county is the area for the administration of jus-
tice, (or the maintenance of jails, courthouses, and sometimes pnor-
hoiues, for tax equalization, and often for the exercise of certain other
general sujicrvisory powers,
1029. Villages, Boroughs, Cities. — Counties and town-
ships are areas of rural organization only j with the compacting
of population in great towns and cities other and more elabo-
rate means of organization become necessary, and a great body
of constitutional and statutory law has grown up in the states
concerning the incorporation of such urban areas. There is no
mimicipal corporations act in any of our states such as that
tmder which, in EugUnd, cities of all sizes may acquire the
638 THE GOVERNMENT OF THE UNITED STATES.
privileges and adopt the organization of full borough govern-
ment (see. 794) : the largest towns are left, under our system,
to depend for their incorporation upon special acts of legisla-
tion. The great cities of the country consequently exhibit a
great variety of political structure, and even cities in the same
state often differ widely in many material points of organiza-
tion and function.
1030. The electors or freeholders of less populous districts
are, however, in most of the states empowered to obtain a sim-
ple sort of urban organization and considerable urban powers,
by certain routine processes, from the courts of law ; villages
(as they are called in New York), boroughs (as they are styled
in Pennsylvania), Uyums (as they are sometimes designated in
the south), ^ cities of the lesser grades (in states where they are
classified according to population), may usually get from the
courts as of course, upon proof of the necessary population
and of the consent of freeholders or electors, the privilege of
erecting themselves into municipal corporations under general
acts passed for the purpose ; just as private joint-stock compar
nies may get leave to incorporate upon showing to the court
evidence of the possession of the necessary membership, stock,
or paid-up capital.
1031. The town or borough ii of course, however, a public, not a
priyate, corporation, receiring hy delegation certain powers of govern-
ment ; and many states have left with their legislatures the power to
create all public corporations by special act. The incorporation of
towns is not, therefore, universally governed by general statute.
1032. The Authorities of urban districts thus erected into
separate corporations succeed, generally, to all the powers
of township officers within their area and constitute a local
body apart, though no town or city ever altogether ceases to
be a part of the county in which it lies. It continues to pay
^The name town when used in New England always means, not an
urban district, but a township.
THE GOVKRNMENT OP 1
UNITED STATES.
I
county taxes and its electors ooutinue to take their part i;i
the choice of county officials. The special organization which
these statutory towns receive is -unlike that of either county
or township principally in this, that they have at the front of
their government a representative, quasi-legislative, body, an
elected council, that is, which within its sphere ia a law-mak-
ing authority.
1033. A common model of organlKatlon is : a m&yor, prealdenl,
or chlff burgesa ; a small council of truslirts, given extensive power of
rnakiiig by.lawt, considerable power -of taxation for Incal improvemenu
u well HI for local ad mini at ration, and other powers of local direction
which quite aharpl; differentiate it from tlie merely execatire boarda
o(t«n found in the townsbipi and always found in the counliei ; a
elerk ; a collector; a alreet conimisBioner ; Bometimes
I of tbe poor; and generallj Much other minor offlucn at the
eoancil aee fit to ajipoint.
1034. Organization of Government in Cities. — The differ-
ence between the organization of these smaller urban areas
and the organization of great cities is a difference of complexity
not only but often also a difference of kind. Cities, we havo
seen (sec. 953), are often given a separate judicial organiza-
tion, being made in effect separate judicial circuits or coutities,
with their own courts, sheriffs, coroners, and state-attorneys.
They are given also, of course, larger CJauncils, with larger
powers ; a larger corps of officers ; and greater independence
than other local areas possess.
1035. Tbe council of a great cLt; usuatlj consista of two ieciinns
or ' homes,' — a board of aldermen and a board of romninn roiinri/nii'ii,
differing very mucli a* the two liomes of a stale legislature differ,
in the number and aizc of llie districta which their member* represent.
In the cities of New York State, however, there ia but a single legisla-
tive chamber, culled ■ninetlnies the Board of Aldermen, sometiinei the
Common Council.
1030. Theae boards always conatitule the law-mnktng (or rather
on'manee-making) and taxing: power of the city ; and alwaya until recent
yeara they hare been conalituled OTeraeers of administration also, by
being given the power to control it not only by withholding moneys,
640 THE GOVERNMENT OF THE UNITED STATES.
but also through direct participation in the power of appointment to tin
minor city offices, — all those, that is to say, not filled by popular eleo
tion. The chief officers of every city have usually been elected, bm
all others have, as a rule, been appointed by the mayor subject to con
firmation by the city council. The tendency of all very recent legitlm-
tion with reference to the constitution of city goyemmenta has been tc
concentrate executive power, and consequently executive responsibility
in the hands of the mayor, leaving to the council only its ordinance
making power and its function of financial control. Some of the most
recent charters have even extended the appointing power of the mayoi
so as to include the most important executive offices of the city admin
istration. It has been found impossible to prevent corrupt inflaencei
determining the action of councils upon appointments. A numeroai
body will, just because it is numerous, be practically irresponsible, and
where there is irresponsibility, the temptation to immorality soffen
little check.
1037. School Administration. — Wherever the public school
exists there we find the School District the administrative
area for educational purposes. Where the county system pre-
vails the county is divided into school districts; where the
township system prevails the township is divided into school
districts. In every case there are district directors or trustees
who control school administration, and control it so absolutely
as to prevent in great part the existence of any uniform
system of education for the whole state ; but where the town-
ship system prevails there is generally more participation on
the part of the people, gathered in district-meeting, in school
administration, and generally a fuller power of local taxation.
1038. In New England recent years have been witnessing the disap-
pearance of the school district in some states, and its absorption by
the township. Thus in Maine and in Connecticut school administration
is in many places being transferred from district to township officers,
and the township is thereby being made the school area. This absorp-
tion is left, however, to local option.
1039. In the Northwest schools usually receive support
from three distinct sources : from the land granted to each
school district by the federal government ^ from a general state
I
THE HOVEKNMENT OF THE UNITED MTATES.
541
tax for education, whose proceeds are distributed aiiiony the
tdwiiskips, to be further distributed by the township authorities
among the districts ; and from district taxes levti^d by the dis-
trict directors. In New England there is generally state and
township taxation for the support of the schools. In the south,
under the county system, there is state taxation only, for the
most part, save in certain exceptional localities, and in the
greater towns,
1040. Nowhere is there sii£Bci«nt centralization of controL
State superintendents or other central educational authorities
are without real administrative powers; county superinten-
dents seldom have much authurity; township trustees or
committees, as a rule, have little more than a general super-
vision and power of advice; usually the directors of the
smallest area have the greater [>art of the total of administrar
tive authority, applying their qnola of even the state taxes
according to their own discretion. The result is, variety in
the qualifications of teachers, variety in the method of their
choice, variety in courses of study, vai-iety in general efficiency.
1041. Tazatioii. — The most striking feature regarding t-
local taxation in the United States is, the strict limitations
put upon it by statute. Commonly no local authorities can
tax beyond a certain fixed percentage of the appraised value
of the property of their district. Under the county system,
requisition is made upon the officers of the counties for the
taxes voted by the legislature for state purposes, and the
county boards raise them, together with the county taxes, upon
the basis of the county assessment. Where the township
exists, the process goes one step further : requisition is made
upon the townships for both the state and county taxes, and
the townships raise these, together with their own taxes, upon
the basis of the assessment made by their own assessors.
1042. An effort is made in most of the states, however, to
equalize assessments. Some county authority acts as a board
of eqtialitatioii with reference to the assessments returned by
J
542 THB GOVERNMBNT OF THB UNITED 8TATB8.
the assessors of the several townships, and above the equaliza-
tion boards of the counties there is generally a state bcmrd of
equalization, whose duty it is to harmonize and equalize, upon
appeal, taxation in the several counties. Appeals always lie
from the local assessors to these boards of equalization. The
system is, however, only partially successful. It has proved
practically impossible, under the present system of localized
authority, to avoid great varieties and inequalities of assess-
ment: local officials try to cut down the shares of their
districts in the general taxes as much as possible.
1043. Qeneral Remarks on Local Gtovaniment. — Seyeral fem-
tures observable in our systems of local goTernment taken as a whole
are worthy of remark. (1) In the first place, outside of the towns and
cities, the separately incorporated urban districts, there is a marked ab-
sence of representative, law-making bodies. Universally local officers
and boards have merely executive powers and more within narrow limits
set by elaborate statute law.
(2) In the second place, where there are local law-making bodies,
they act under strict constitutional law : under charters, that is, poe-
sessing thus a strong resemblance, of kind, to state legislatures them-
selves.
(3) In the third place, central control of local authorities exists only
in the enforcement, in the regular law courts, of charters and general
laws : there is nowhere any central Local Government Board with dis-
cretionary powers of restriction or permission.
(4) In the fourth place, relatively to the central organs of the state,
local government is the roost vital part of our system: as compared
either with the federal government or with local authorities, the central
governments of the states lack vitality not only, but do not seem to be
holding their own in point of importance. They count for much in
legislation, but, so far, for very little in administration.
The Federal Government.
1044. The Constitution of the United States does not con-
tain all the rules upon which the organization of the federal
government rests. It says that there shall be a Congress which
shall exercise the law-making power granted to the general
THE GOVERNMENT OF THE UNITED STATES. f48
government ; a President who shall be oharged with the exe-
cution of the laws passed by Congress ; and a Supreme Court
which shall be the highest court of the land for the determi-
nation of what is lawful to be done, either by individuals, by
the state governments, or by the federal authorities, under the
Constitution and laws. It prescribes also in part the organiza-
tion of Congress. But it does not command how Congress
shall do its work of legislation, how the President shall be
enabled to perform his great function, or by what machinery
of officers and subordinate courts the Supreme Court shall be
assisted in the exercise of its powers. It leaves all detail of
operation to be arranged by statute : and statute accordingly
plays a very important part in the organization of the govern-
ment.
The Constitution thus furnishes only the great foundations of the
system. Those foundations rest upon the same firm ground of popular
assent that supports the several constitutions of the states. Framed by
a federal convention and adopted by representative conventions in the
states, it stands altogether apart from ordinary law both in character
and sanction.
1045. Amendment of the Constitution. — The Constitution
cannot be amended without the consent of two-thirds of Con- .
gress and three-fourths of the states. Amendments may be
proposed in one of two ways: either (a) two-thirds of the
members of each house of Congress may agree that certain
amendments are necessary ; or (6) the legislatures of two-thirds
of the states may petition Congress to have a general conven-
tion called for the consideration of amendments, and such a
convention, being called, may propose changes. In both cases
the mode of adoption is the same. Every change proposed
must be submitted to the states, to be voted upon either by
their legislatures or by state conventions called for the pur-
pose, as Congress may determine. Any amendment which is ^
agreed to by three-fourths of the states becomes a part of the
Constitution. ^
544 THE GOVERNMENT OF THE UNITED STATES.
The fifteen amendments so far made to the Constitution were mil pro-
posed by Congress. No general constitutional conrention has been called
since the adjournment of the great body by which the Constitution was
framed in 1787.
1046. None of the written constitutions of Europe are so difficolt
of alteration as our own. In Germany, as we hare seen (sec 404), a
prorision changing the imperial constitution passes just as an ordinary
law would pass, the only limitation upon its passage being that fourteen
negative votes in the Bundesrath will defeat it (14 out of 68). In France
(sec. 318) constitutional amendments pass as ordinary laws do, except
that they must be adopted by the two houses of the legislature acting,
not separately in Paris, but jointly at Versailles, as a National Assembly.
In Switzerland such amendments must pass both houses of the federal
legislature and must also be approved, in a popular vote, by a majority
of the voters, and by a majority of the Cantons (sec. 666). In Eng-
land the distinction between constitutional law and statute law can
hardly be said to exist (see sec. 730).
See, also, for a further exposition of constitutional differences between
modem states. Chap. XII.
1Q47. The Federal Territory. — The territory of the United
States is of two different sorts : there is ( a) the District of
Columbia, which the nation owns as the seat of its government,
and the arsenals and dock-yards, which it has acquired from
the states for military purposes; and (6) the great national
property, the territories, which the federal authorities hold in
trust for the nation as a seed-bed for the development of new
states.
1048. The District of Columbia. — It would have been in-
convenient for the federal government to have no territory of
its own on which to build its public offices and legislative halls,
and where it could be independent of local or other state regu-
lations. The Constitution itself therefore provided that Con-
gress should have exclusive authority within any district not
more than ten miles square which any state might give the
federal government for its own uses. Acting upon this hint,
Maryland and Virginia promptly granted the necessary terri-
tory, it having been decided to establish the seat of gorem-
THE GOVEKNMENT OK THE UNITED STATES. 546
meat upon the Potomac. The hwiue-laDd of the fcdei-al gov-
ernment, thus acquired, was laid out under the name of the
District of Columbia .' there the public buildings were erected,
and there, after the removal of the government offices thither
u 1800, the city of Washington grew up.
1040. The first Coni^reii of the United Suiei met m New York
City; there the. first I'reiident was inaugurated, >ni] the orgtniHtion
o( the new goTeminent eff8i:ted. In 1790 it waa determined lh«i Hie
federal uffluere ihould live and Cong-reae meet in Pliiladttphia (aa the
Conlineotal Congreseee anil (lie congresa of the Confedenitiun had
done) for ten years; afUT that, in the district specially set apart for
the use of the federal govemment.
1050. The creation of lliia federal liome-plot ii a feature peculiar to
our own federal arrangenienia. Berlin, of caur«e, i» the capital of
PruMia, not the exeluaiie seat, or in any sense tlie property, of the
imperial goTcrnmcnt. Berne, loo, in cantonal, not federal, ground. Our
government Kould liBTe been in the same ease aa thoae of Germany
and Switzerland had our federal authorities remained the guesta of
New York or PennsyWania.
1051. The UTeral arMtnali and dott-i/ardt eatabliehed by the federal
government in different pans of the Union arc built upon land granted
to the federal government by the stales in which they lie for such special
use, and remain the property of that governmeol only so long aa used
for the purposes contemplated in the grants.
1062. The Territories. — As the different parts of our vast
national domain have been settled it has been divided, under
the direction of Congress, into [Kirtious of various sizes, gener-
ally about the area of the larger states, though sometimes
larger than any state save Texas. These portions have been
I called, for want of a better nam«, Territories, and have been
given governments constituted by federal statute. First they
have been given governors and judges appointed by the Presi-
dent ; then, as their population has become numerous and suffi-
ciently settled in its ways of living, they have been given leg-
islatures chosen by their own people and clothed with the
power to make laws subject to the approval of Congress ; finally,
upon becoming still more developed, they have been granted as
A
J
546 THE GOVEKKHBNT OF THE 0KITED StATBS.
full law-making powers as the states. The territorial stage of
their development passed, the most important of them hare
one by one been brought into the Union as states.
Until 1803 the only territoiy of the United Sutes consisted of the
Undt this side the Mississippi which had belonged to the thirteen orig-
inal states indiridnallj, and had by them been granted to the general
goTemment. In 1803 the vast tract known as ' Louisiana ' was bought ;
in 1848, by conquest, and in 1852, bj negotiation, the Pacific coaat lands
were acquired from Mexico ; in 1846 the right of the United States to a
portion of ** the Oregon country " was finally established.
1053. The post-offices, federal court chambers, custom houses,
and other like buildings erected and owned by the general goTemment
in rarious parts of the country are held by the goTemment upon the
ordinary principles of ownership, just as they might be held by a private
corporation. Their sites are not separate federal territory.
1054. Congress. — As in the states, so in the federal govern-
ment, the law-making power is vested in a double legislature,
a Congress consisting of a Senate and a House of Representa-
tives. Unlike the two houses of a state legislature, however,
the two houses of Congress have distinct characters : the Senate
differs from the House not only in the number of its members,
but also in the principle of its composition. It represents
the federal principle upon which the government rests, for
its members represent the states. The House of Representa-
tives, on the other hand, represents the national principle upon
which also the government has now been finally established,
without threat of change : its members represent the people.
1055. The Senate. — The Senate consists of two represen-
tatives from each of the states of the Union. It has, therefore,
the states being forty-two in number, eighty-four members.*
Each senator is elected, for a term of six years, by the legisla-
ture of the state which he represents ; and a state legislature
is free to choose any one as senator who has been a citizen of
1 Since the admission of Washington, Montana, North Dakota, and
South DakoU, which became states Not. 2-12, 1889.
THE QOVBBNMfiNT OF THE UNITED STATES. 647
the United States nine years, who has reached the age of
thirty, and who is at the time of the election a resident of the
state which he is chosen to represent.
1056. The Constitation directed that, itnmediatelj after coming to-
gether for its first session, the Senate should divide its members, bj
lot, as nearly as it could into three equal groups ; that the members of
one of these groups should vacate their seats after the expiration of
two years, the members of another after the expiration of four years,
and the members of the third after the expiration of six years ; after which
arrangement had been accomplished, the term of evfery senator was to be
six years as provided. It was thus brought about that one-third of the
membership of the Senate is renewed by election every two years.
The result is, that the Senate has a sort of continuous life, — no one
election year affects the seats of more than one-third of its members.
1057. The Senate is, as I have said, the federal house of
Congress, its members represent the states as the constituent
members of the Union. They are not, however, in any sense
delegates of the governments of the states. They are not
subject to be instructed as to their votes, as members of the
German BundesraJth are, by any state authority (sec. 405),
not even by the legislatures which elected them ; each senator
is entitled and expected to vote according to his own individ-
ual opinion. Senators, therefore, may be said to represent,
not the governments of the states, but the people of the states
organized as corporate bodies politic.
1058. There is no rule which obliges senators from the same state to
vote together, after the fashion once imperative in the Congress of our
own Confederation (sec. 866), and still imperative in the German
Bundesrath (sec. 406), — each senator represents his state, not in part-
nership, but singly.
1050. The equal representation of the states in the Senate, of course,
more strictly conforms to the federal principle than does the unequal
representation characteristic of the Oerman Bundesrath (sec. 406) ; but
the rule observed in Germany, that the representatives of each state
must vote together, must, in turn, be allowed to be more strictly con-
sistent with the idea of state representation than is the rule of individucl
voting followed in our Senate.
548 THE GOVBBNMENt OF THE UKITE^ SI^ATES.
1060. The Vice-President of the United States is president
of the Senate. Unless the President die, this is the only fono*
tion of the Vice-President. He is not a member of the Senate,
however ; he simply presides over its sessions. He has a vote
only when the votes of the senators are equally divided upon
some question and his vote becomes necessary, therefore, for
a decision. If the President die, he becomes President.
1061. Organization of the Senate. — The Senate makes its
own rules of procedure, the Vice-President being of coarse
bound to administer whatever rules it adopts. Naturally the
internal organization of the body is the matter with which its
rules principally concern themselves, and the most important
feature of that organization is the division of the members of
the Senate into standing committees ; into small groups, that
is, to each of which is entrusted the preparation of a certain
part of the Senate's business. The Senate itself would not, of
course, have time to look into the history and particulars, the
merits and bearings, of every matter brought before it ; these
committees are, therefore, constituted to act in its stead in
the preliminary examination and shaping of the measures to
be voted on. Whenever any proposal is made concerning any
important question, that proposal is referred to the standing
committee which has been commissioned to consider questions
of the particular class to which the proposed action belongs.
The committee takes the proposal and considers it, in connec-
tion with all other pending proposals relating to the same sub-
ject, and reports to the Senate what it thinks ought to be done
with reference to it, — whether it is advisable to take any
action or not, and if it is advisable to act, what action had best
be taken.
Thus there is a Committee on Finance, to which aU qnestiont affect-
ing the revenue are referred ; a Committee on Appropriations, which
advises the Senate concerning all rotes for the spending of moneys; a
Committee on Railroads, which considers all railroad questions ; a Com-
mittee on Foreign Affairs, which prepares for consideration all questions
touching our relations with foreign governments, etc., etc.
THE GOVERNAfENT OF THE UNITED STATES. 549
1062. Influence of the Standing Committees. — Its stand-
ing committees have, of course, a very great influence upon
the action of the Senate. The Senate is naturally alwiiys in-
clined to listen to tlieir advice, for each committee necessarily
knows much more about the subjects assigned to it for cotisid-
eratioH than the rest of the seoa-tors can know. Its committee
orgaidzation may be said to be of the essence of the legislative
action of the Senate : for of coarse the leadership to which a
legislative body consigns itself is of the essence of its method
and must affect, not the outward form merely, but the whole
character also of its action. Under every great system of gov-
ernment except our own, leadership in legislation belongs for ^
tlie most part to the ministers, to the Executive, which stands
nearest to the business of governing ; it is a central, and, as
evidenced by its results, extremely important characteristic
of our system tliat our legislatures lead themsetwa, or, rather,
that they are led along the several lines of legislation by sepa-
rate and disconnected groups of their members.
1063. The Senate and the Executive. — One of the chief uses of
the conunUtees U la oblnin infornialion for Ihe SeuBle conceniin); Ihe
affairs ol the governmenl. But, inaamuch ss the exeuutivc brunch of
the government is quite separate from Congress, it la often rery ditBcuIt
for the Sennte to And out through its cominttleeg all iliat it wishes lo
knoir about the condition nt afltnira in the execulire deparliucnls. The
action of the two house* upon some questioni must of course be greatly
Influenced, and should be greatly iofluenced, by what they ean leam uf
admin iatrative experience in the depurcmenta in sui^h nmtiers, and the
Senate, as veil as the House alio, lias the right to astc what questions
• it pleaeea of executive offloera, eith«r through its comniillees or by re-
quiring n written report to be made directly lo itself by aome head of
department. Upon flnancial qnestiuns, for example, the Senate or its
Finance Committee must conilanLty wiah la know the experience of
the Treasury. But it is not always easy to gel legislative qiieitiona
fully and correctly anawered : for tlie offieera of the goTernment are in
no way responsible to eilher houae for their offleial conduct : Ihsy be-
long to an entirely separate and independent branch of llie t^vernment ;
only such high crimca and misdemeanora sa lay tbeui open lo impeach-
i
650 THE GOVERNMENT OF THE UNTTBD STATES.
ment expose them to the power of the houses. The committees are,
therefore, frequentlj prevented from doing their work of inquiry well,
and the Senate has to act in the dark. Under other systems of gOTem-
ment, as we hare seen (sees. 327, 328, 422 et seq., 464, 538, 686-9, etc.)»
the ministers are always present in the legislative bodies to be ques-
tioned and dealt with directly, face to face.
1064. The Preiident Pro Tempore. — It is the practice of the
Senate to make itself independent of all chances of the Vice-President's
absence by electing statedly from its own membership a president pro
tempore, to act in case of the absence or disability of the Vice-President.
1065. The House of Representatives. — The House of Rep-
resentatives represents, not the states, but the people of the
United States. It represents them, however, not in the mass,
but by states ; representation is apportioned among the states
severally according to population, and no electoral district
crosses any state boundary.
1066. Apportionment of Representatives. — Congress itself
decides by law how many representatives there shall be ; it
then divides the number decided upon among the states ac-
cording to population ; after which each state is divided by
its own legislature into as many districts as it is to have repre-
sentatives, and the people of each of these districts are entitled
to elect one member to the House. The only limitation put by
the Constitution itself upon the number of representatives is,
that there shall never be more than one for every thirty thou-
^ sand inhabitants. The first House of Representatives had, by
direction of the Constitution itself, sixty-five members, upon
the proportion of one to every thirty-three thousand inhabi-
tants. The number lias, of course, grown, and the proportion
decreased, with the growth of population. A census is taken
every ten years, and the rule is to effect readjustments and a
redistribution of representation after every census.
At present there are three hundred and fifty -six members in the House,
and the states are given one member for every 173,900 of their inhab-
itants. In cases where a state has many thousands more than an even
number of times that many inhabitants, it is given an additional mem-
THE OOV£BNM£NT OF THB UNIT£D STATES. 551
ber to represent the balance. Thus, if it have four times 154,326
inhabitants, and a very large fraction over, it is given five members
instead of four only. If any state have less than 154,325, it is given
one member, notwithstanding, being entitled to at least one by con-
stitutional provision.
There are at present seven states which have but one representative
apiece; namely, Delaware, Colorado, Nevada, Oregon, Washington,
Montana, and North Dakota. But these states, like the rest, have two
senators each.
The reason for allowing a state an extra representative when there
is a large fraction remaining over after a division of its population by
the standard number 154,325, is, of course, that the apportionment of
representatives is made according to states, and not by an even allot-
ment among the people of the country taken as a whole, and that under
such a system a perfectly equal division of representation is practically
impossible. Congress makes the most equitable arrangement that is
practicable each time that it re-apportions the membership of the House
upon the basis of the decennial census which Congress directs to be
taken for this purpose in pursuance of a special constitutional command.
1067. Elections to the House. — Any one may be chosen a
representative who has reached the age of twenty-five years,
has been a citizen of the United States for seven years, and
is at the time of his election an inhabitant of the stat^ from
one of whose districts he is chosen. The term of a representa-
tive is two years : and two years is also the term of the whole
House ; for its members are not chosen a section at a time, as
the senators are ; the whole membership of the House is re-
newed every second year. Each biennial election creates 'a
new House.'
1068. Although the Senate has a continuous life, we speak habitu-
aUy of different ' Congresses,' as if a new Congress, instead of a new
House of Representatives merely, were chosen biennially. Thus the
Congress of 1887-'80 was known as the fiftieth Congress, because the
House of Representatives of that period was the fiftieth that had been
elected since the government was established.
1069. Federal law does not determine who shall vote for
members of the House of Bepresentatives. The Constitution
552 THE GOVERNMENT OF THE UNITED STATES.
provides, simply, that all those persons in each state who are
qualified under the constitution and laws of the state to vote
for members of the larger of the two houses of the state leg-
islature may vote also for members of the House of Repre-
sentatives of the United States. The franchise is regulated,
therefore, entirely by state law.
1070. In the fourteenth amendment to the Constitution (passed
1860-^68) a rerj great pressure is, by intention at least, brought to bear
upon the states to induce them to make their franchise as wide as their
adult male population. For that amendment provides that, should any
state deny to any of its male citizens who are twenty-one years of age
the privilege of voting for members of the more numerous branch of
its own legislature (and thus, by consequence, the privilege of voting
for representatives in Congress), for any reason except that they have
committed crime, its representation in Congress shall be curtailed in
the same proportion that the number of persons so excluded from the
franchise bears to the whole number of male citizens twenty-one years
of age in the state. This provision has in practice, however, proved of
little value. It is practically impossible for the federal authorities to
get at the facts necessary to ascertain any such proportion.
1071. Organization of the House. — The House, like the
Senate, has its own rules, regulative of the number and duties
of its officers and of its methods of doing business; and these
rules, like those of the Senate, are chiefly concerned with the
creation and empowering of a great number of standing com-
mittees. The committees of the House are not, however,
elected by ballot, as the committees of the Senate are ; they
are appointed by the presiding officer of the House, the
^Speaker'; and this power of the Speaker's to appoint the
committees of the House makes him one of the most powerful
officers in the whole government. For the committees of the
House are even more influential than those of the Senate in
determining what shall be done with reference to matters
referred to tliem; they as a matter of fact have it in their
power to control almost all the acts of the House. The Senate,
being a comparatively small body, has time to consider fully
TBE GOVERNMENT OF THE UNITED STATES. 558
the reporte of its committees, aiid generally manages to control
ita own coneluaionB. But the House is too large to do much
delating : it must \ie guided by its committees or it must do
nothing. It Is this fact which makes the Speaker's power of
apiKiintment so vastly important : he determines who shall be
on the coramittees, and the pommitteea determine what the
House shall do. He nominates those who shape legislation.
1072. The appointine power of the Speaker often mnkes his eleetion
a very eiciling part of the bueineiB of eai:h new House : for he is alnayi
■elected, of course, witli reference la wLat he will do in conitituting the
principal comiiiittees.
1073. Th<^ IIouBc of RepreneiilatiTe* la not giren a presideiil hy the
Constitution, as ihe Senate is. It elfcts its own presiding officer, whose
name, of ' Speaker.' is laktii from tlie usa^ of tlic English Uouae of
Cominona, whose president wa« ■□ called because whenever, in the old
days, ilie Comnioni went into Ihe presence of the king for Ihe purpose
of laying some matter before him, or of aniwering a summuiis from
him, their president was llu-ir apolseBman or Speaker. This name is
used also in the legislative bodies of all the English colonies, — wherever,
indeed, English trgislntive practices have been direcll}' iolieriu-d.
1074. The House has so manj' atan<Iing L'ommittees tliat every repre-
sentative is a member ol one or anollier of them. — but many of Ihe
commillecs have little or nothing to do: some of them, though 11111
regularlf appointed, have no duties assigned Ihem b; tbc rules. The
most important committee is that on A ppropriations, which lias charge
of the general money-si^nding bills introduued every year to meet tlic
expenses of the guveninicnt, and which, by virtue of ita power under
the rules to bring its reports to the consideration of the House at any
time, to the thrusting aside of whatever tnnller, virtually dominates the
House by controlling its use of its lime. Speeisl appruprialion hills,
wliicU propose in provide moneys (or the expenses of ainglc depart-
ments,— as, for example, the Navy Department or the War Depart-
menl, — are, by a recent rule of the House, taken out of the hands of
the Committee on Appropriations and given to Ihe eommittees on the
special departments concerned, Senrcely less important Ihan Ihe Com-
mittee on Appropriations, though searcely so busy as il, is the Com-
mittee on Ways and Means, wtiich lias cliarge of questions of taxation.
It is, of eourse, lo the appointment of such eommittees that the Speaker
payi mosl allenlion. Through thenn his influence is most (Kilenl,
664 THE GOVERNMENT OF THE UNITED STATES.
1076. Some members of the House are considered to be entitled, be-
cause of their long service and experience in Congress, to be put on im-
portant committees, and on erery committee there must berepresentatires
of both parties in the House. But these partial limitations upon the
Speaker's choice do not often seriously hamper him in exercising hit
preferences.
1076. The House has to depend, just as the Senate does,
upon its standing committees for information concerning the
affairs of the government and the policy of the executive
departments, and is just as often and as much embarrassed
because of its entire exclusion from easy, informal, and regular
intercourse with the departments. They cannot advise the
House unless they are asked for their advice ; and the House
cannot ask for their advice except indirectly through its com-
mittees, or formally by requiring written reports.
1077. Acts of Congress. — In order to become a law or Act
of Congress a bill must pass both houses and receive the sig-
nature of the President. Such is the ordinary process of legis-
la,tion. But the President may withhold his signature, and in
that case the measure which he has refused to sanction must
receive the votes of two-thirds of the members of each house,
given upon a re-consideration, before it can go upon the statute
book. The President is given ten days for the consideration
of each measure. If he take no action u^wn it within the ten
days, or if within that period he sign it, its provisions become
law; if within the ten days he inform Congress by special
message that he will not sign the bill, returning it to the house
in which it originated with a statement of his reasons for not
signing it, another passage of the measure by a majority of
two-thirds in each house is required to make it a law.
There are, therefore, three ways in which a bill may become law :
either (a) by receiving the approval of a majority in each house, and
the signature of the President, appended within ten days after its pas-
sage by the houses ; or (6) by receiving the approval of a majority in
each house, and not being acted upon by the President within ten days
after its passage ; or (c) by receiving the approval of two-thirds of etch
THE GOVERNMENT OF THE CNITED STATES. 555
bonie after hsTing heea refueed signiilure bj the President within ten
days sfler it» passage hy a majorilf in eacli lious?. t( Congresa ad-
journ befure the c^pirniion of the ten day* allowed the Preiidcnl to
consider bills sent liim, auth bills lapse untei* be has aigned tliem be-
fore the adjournment.
1078. Neither houae can do any busineaa (except send for
absent members or adjouru) unless a majority of its members
are present, — a majority being in the case of all our leglsla-
tares, both state and federal, the iieeessary (p/onini.
1079. In the practice of inme foreign legiaUturei the qnerutn ii
much leia than a majority of Ibe memberi. In ilie Engliah Elouie of
Ciimmona, fur Inatanee. It ia only forty memberi, although the total num-
ber of membera of the Home of Cnmtnons ii ail hundred and leventy.
1080. When it ia aiiid that under certain circuniatancea a bill muit
be paaied by a »ote of two-tliinis in order to beitime a law, it ia under-
stood to mean that it muat be rotetl for by two-tbirda of the membera
preieiU, not neceasarily by that proportion of the whole membership of
the body. In the caie of hills which the President refusea to sign, how-
eTcr, the Constitution expreaaly says that it oaonot be made law nnleaa
a second time passed by Iwo^liirili of rath Houst,
1081, A bill may 'originate' in either house, unless it be a
bill relating to the raising of revenue. In that ease it must
originate in the House of Representatives, though the Senate
may propose wliat amendments it pleases to a revenue bill, as
to any other which comes to it from the House.
Of course, if one of the houses pass a bill, and the other house amend
it, the changes so proposed must be adnpteil by the houae in which the
bill originaied before it can be sent to the President and be made a law.
When the two houses disagree about amendments they appoint con-
ference commitleea ; that is to say, each house appoints a uommillee to
conanit with a aimilar committee appointed by the other bouse, to aee
what can be done toward* bringing about an agreement between the
two houses upon the points in diapote.
1082. The Federal Judiciary : itsjurisdiction.— The Judi-
ciary of the United States consists of a Supreme Court, Cir-
cuit Courts, and District Courts. Its organization and func-
tions rest more than do those of either of the other branches
656 THE GOVERNMENT OF THE UNITED STATES.
of the general goyernment upon statute merely, instead of
upon constitutional provision. The Constitution declares that
" the judicial power of the United States shall be vested in one
supreme court, and in such inferior courts as the Congress may,
from time to time, ordain and establish," and that '^ the judges,
both of the supreme and inferior courts, shall hold their offices
during good behavior and shall, at stated times, receive for
their services a compensation which shall not be diminished
during their continuance in office." It provides also that the
judicial power of the federal government shall extend to all
cases in law or equity which may arise under the Constitution,
laws, or treaties of the United States ; to all cases affecting
ambassadors, other public ministers, and consuls ; to all admi-
ralty and maritime cases ; to controversies in which the United
States is a party, controversies between two or more states,
between a state and citizens of another state (the state being
the suitor), between citizens of different states, between citi-
zens of the same state claiming lands under grants from differ-
ent states, and between a state or its citizens and foreign states,
citizens, or subjects. And it directs that in cases affecting
ambassadors, other public ministers and consuls, and in cases
in which a state is a party the supreme court shall have origi-
nal jurisdiction ; while in all other cases it is to have appellate
jurisdiction only, " with such exemptions, and under such regu-
lations, as the Congress shall make."
1083. The judicial power of the federal govemment is thus made
to embrace two distinct classes of cases : (a) those in which it is mani-
festly proper that its authority, rather than the authority of a state,
should control, hecmise of the nature of the questions involved: for instance,
admiralty and maritime cases, navigable waters being within the exclu-
sive jurisdiction of the federal authorities, and cases arising out of the
Constitution, laws, or treaties of the United States or out of conflicting
grants made by different states, (b) Those in which, because of the na-
ture of the parties to the suit, the state courts could not properly be allowed
jurisdiction, cases affecting, for instance, foreign ambassadors, who are
accredited to the government of the United States and with whom out
THE GOVBRNMBNT OF THB UNITED STATES. 557
onlj relations are national relationt, whose privileges rest upon the
sovereignty of the states they represent ; or cases in which the state
courts could not have complete jurisdiction because of the residence
of the parties ; for instance, suits arising between citizens of different
states.
It is always open to the choice of a citizen of one state to sue a
citizen of another state in the courts of the latter*s own domicile, but
the courts of the United States are the special forum provided for such
cases.
1084. Power of Congress over the Judiciary. — But these
provisions of the Constitution leave Congress quite free to
distribute the powers thus set forth among the courts for whose
organization it is to provide, and even, if it so chooses, to leave
some of them entirely in abeyance. In other words, the Con-
stitution defines the sphere of the judicial power of the United
States, while Congress determines how much of that sphere
shall be occupied, by what courts and in what manner, subject
to what rules and limitations.
With regard to the organization of the judiciary Congress deter-
mines not only what courts shaU be created inferior to the supreme
court, but also of what number of judges the supreme court shall con-
sist, what their compensation and procedure shall be, and what their
specific duties in the administering of justice. It might also determine,
should it see fit, what qualifications should be required of all occupants
of the supreme bench.
1085. The Existing Federal Courts. — In pursuance of
these powers. Congress has passed the Judiciary Act of Sep-
tember, 1789, and the Acts amendatory thereto upon which
the national judiciary system now rests. As at present con-
stituted, the supreme court consists of a chief justice and eight
associate justices. It is required to hold annual sessions in
the city of Washington, — sessions which begin on the second
Monday of each October, — any six of the justices constitut-
ing a quorum. Next below the supreme court are a set of
circuit courts. These are, in theory, courts held in different
parts of the country by the justices of the supreme court sit-
658 THE GOVERNMENT OF THE UNITED STATES.
ting separately; but in reality the business of the supreme
court is so great in amount and so engrossing in character that
the justices can by no means regularly attend the sessions
of the circuit courts. The area of the United States (exclu-
sive of the territories) is divided into nine circuits, one justice
of the supreme court is assigned, by the appointment of the
court itself, to each of these circuits, and in addition special
circuit judges are appointed who act quite independently of
the justices, often holding court separately, in another part of
the circuit, at the same time that the justices are themselves
holding circuit court. The circuits are divided into districts,
which, like Congressional districts, never cross state lines;
and for each of these districts there has been established a
district court. Some of the less populous states constitute each
a single district; others are divided into two, while still
others furnish sufficient business to warrant their being divided
into three. The district courts are the lowest courts of the
federal series. The circuit courts sit in the several districts of
each circuit successively, and the law requires that each justice
of the supreme court shall sit in each district of his circuit at
least once every two years.
1086. The division of Juxltdiction between the circuit and district
courts is effected by act of Congress ; and, inasmuch as Congress has
not seen fit to rest in the courts complete jurisdiction orer aU cases
arising under the Constitution, laws, and treaties of the United States,
but has given to each court power in certain specified cases, and left the
rest in abeyance, it would be impossible to give in brief compass a
detailed account of the jurisdiction of the several courts. It must
suffice for present purposes to say, that the district courts are given
cognizance of certain civil cases within the grant of the Constitution,
subject to appeal to the circuit courts when the sum involved exceeds
$50; that they have exclusive jurisdiction of admiralty and maritime
cases, an appeal lying to the circuit courts ; and that as regards crimes
punishable by federal law, their jurisdiction is concurrent with that of
the circuit courts, except in case of capital offences, over which the
circuit courts alone have jurisdiction. The circuit courts are given
appellate jurisdiction over the district courts ; original jurisdiction in
THE GOVEUNMENT OF THE DNITED STATES.
1
I
I
o59
I *uch HS are canMmplnteil by the Coostitution when Ihe
I iliapute exceeds fMO in value; nnd unlimited criouDal jurii-
diction over cases falling williin the piLrTiew of federal law.
1087. In oriminal oasM there ia, generally apeaking, no appeal,
lo civil uaaes, appeal from the diairict to the circuit courts can be taken
only when the matter in diapule exceeds < 60 in value, from the drcuit
9 lo the supreme court onlj when it exeeeiia 9^000, except that
caiei of certain exceptional, specified claHes may be appealed without
respect lo the amount involved. Any CBie which involvea the iuterpre-
lation of the Conadlution can be taken lo the lupreme court, howevet
■mall the Bum in dispute.
1088. All Judges of the Daited States are appointed by the
President, with and by the coii-seot aud advice of the Sen-
iite, to serve during good behavior. There are in ail sixty
federal judicial districts, and for each of these a special dis-
trict judge is apijointed, though in large, thiuly populated sec-
'^ns of thi? country it has sonietinies been customary to have
Jone judge hold court in several districts.
1089. Federal judges of the inferior eourti are, so to aay, iut«T-
chaogeahle. When necessary, a district judge can go into another
district than his own and either aid or replace the district judge there ;
a district judge may alio, when it aeeiria necesaary for the dispatch of
business, sit hb circuit jndgu ; and a eircuit judge may, in his turn, upon
occasion hold district court. This aeeniB Che less anomalous when it Is
remembered that the earliest arrangement was, for the district judges
' ta hold circuit court always in the absence of the justices of the supreme
court from circuit, or in conjunction with them, nnd that special circuit
judges were appointed only because of the uecessity for more judges
consequent upon a rapid increase of federal judicial business,
lOeO. The salary of the chief justice of the United States ia 1 10,600,
that of each of the other juaiicca, 8 10,000. Circuit court jndge* re-
ceive 9S000, and district judges from 9:3600 to 86000.
, 1091, The District Attorney and the Marshal. — Almost
rery district has its own federal district attorney and its own
STjiifed States marshal, both of whom are appointed by the
president. It ia the dnty of the federal district attorney to
roaecute all offenders against the criminal laws of thi- United
560 THE GOVERNMENT OF THE UNITED STATES.
States, to conduct all civil cases instituted in his district in
behalf of the United States and to appear for the defence in
all cases instituted against the United States, to appear in
defence of revenue officers of the United States where thej
are sued for illegal action, etc. The marshal is the ministerial
officer of the federal circuit and district courts. He executes
all their orders and processes, arrests and keeps all prisoners
charged with criminal violation of federal law, etc., and has
within each state the same powers, within the scope of United
States law, that the sheriff of that state has under the laws of
the state. He is the federal sheriff.
1092. The orden and processes of a state court are binding and
operatire only within the state to which the court belongs ; the orden
and processes of United States courts, on the contrary, are binding and
operatiTe orer the entire Union.
1093. The courts of the Distiiot of Colnmbia and oi the tml-
tories are courts of the United States, but they are not federal courts ;
they bear, so far as their jurisdiction is concerned, the character of
state and federal courts united. The only laws of the territoriet and of
the District of Columbia are laws of the United States, inasmuch as the
legislatures of the territories act under statutory grant from Congress.^
The territorial legislatures are, so to say, commissioned by Congress ;
and the laws which they pass are administered by judges appointed by
the President.
1094. The territorial courts and the courts of the District of Colum-
bia do not come within the Tiew of the Constitution at all. With refer-
ence to them Congress acts under no limitations of power whateTcr.
The rule of tenure during good behavior, for example, which applies to
all judges of the United States appointed under the Constitution, does
not apply to judges of the territories or of the District of Columbia.
The term of office of territorial judges is fixed at four yean. The
federal courts sitting in the states, and the United States courts estab-
lished in the territories, ought not to be thought of as parts of the same
system, although the supreme court is the highest tribunal of appeal
for both.
1 Congress early enacted that the people of the District of Columbia
should continue to lire under the laws which had preriously had force in
the District when owned by Virginia and Maryland.
THB OOVERKMENT OF THB UKITED STATES. 561
1095. The procedure of a federal court follows, as a rule,
the procedure of the courts of the state in which it is sitting ;
and state law is applied by the courts of the United States in
all matters not touched by federal enactment. Juries are con-
stituted, testimony taken, argument heard, etc., for the most
part, according to the practice of the state courts ; so that, so
far as possible, both as regards the outward forms observed
and the principles applied, a federal court is domestic, not for-
eign, to the state in which it acts.
1096. It is not within the pririlege of Congress to delegate to the
coorts of the stmtes the functions of courts of the United States ; for
the Constitution distinctly prorides that, besides the supreme court,
there shall be no court authorized to exercise the judicial powers of the
United States except such as Cong^ress ** may, from time to time, ordain
and egtablish" The adoption of state courts by Congress is, of course,
excluded by plain implication. A rery interesting contrast is thus
established between the federal judicial system of the United States
and the federal judicial systems of Germany and Switzerland (sees.
436, 669).
1097. The Federal Ezecutiye. — "The executive power,"
says the Constitution, " shall be vested in a President of the
[Jnited States of America," who " shall hold his office during
a term of four years." As a matter of fact, of course, it has
proved practically impossible for a single man actually to exer-
cise the whole executive power ; the President is assisted by
numerous heads of departments to whom falls so large a part
of the actual duties of administration that it has become sub-
stantially correct to describe the President as simply presiding
over and controlling by a general oversight the execution of
the laws; which is doubtless all that the sagacious framers
of the Constitution expected.
The Vice-President has no part in the executive function.
He is the President's substitute, and is chosen at the same time
and in the same manner that the President is chosen.
1096. Blection of a President. — The choice is not direct
562 THE oovEBSMEarr of the ukixed statbs.
by the people, bat indiiect, throogk electors chosen bj the
people. In each state there are elected as many electors as
the state has representatives and senators in Congress^ the
^^ electoral vote" of each state being thus equal to its total
representation in Congress.
The electors are roted for on the Tuesday following the lirsl
of Noremher in the year which immediately precedes the
a presidential term. They assemble in the sereral state capitals to
their rotes on the first Wednesday of the December following. Their
rotes are counted in the houses of Cangress sitting in joint sessioo on
the second Wednesday of the following Febmary. The Preaident is
inangnrated on the fourth of March next.
1099. Practical Operation of the Plan : the Party Conven-
tions. — The theory of this arrangement is that each elector
really exercises an independent choice in the votes which he
casts, voting for the men whom his own judgment has selected
for the posts of President and Vice-President. In fact, how-
ever, the electors only register party decisions made during the
previous summer in national conventions. Each party hotds
during that summer a great convention composed of party dele-
gates from all parts of the Union, and nominates the candidates
of its choice for the presidency and vice-presidency. The elec-
tors, again, are, in their turn, chosen according to the selections
of party conventions in the several states ; and the party which
gains the most electors in the November elections puts its can-
didates into office through their votes, which are cast as a matter
of course in obedience to the will of the party conventions.
The party conventions are by far the most important part of
the machinery of election.
1100. Qualifications for the Office of President. — '' No per-
son, except a natural born citizen, or a citizen of the United
States at the time of the adoption of this constitution shall be
eligible to the office of president ; neither shall any person be
eligible to that office who shall not have attained to the age of;
thirty-five years, and been fourteen years a resident within the
trtB govbbnMbnt of *hb ukitbd states. 568
United States." ^ In respect of age there is here only a slight
advance upon the qualification required of a senator ; in respect
of citizenship it is of course very much more rigorous than in
the case of members of Congress.
1101. It is provided bj the Constitution that the compensation re-
ceired by judges of the United States shall not be diminished during
their terms of office ; concerning the President, whose tenure of office
is much briefer, it i» provided that his compensation shall neither be
diminished nor increased during his term.
1102. Duties and Powers of the President. — It is the duty
of the President to see that the laws of the United States are
faithfully executed; he is made commander-in-chief of the
army and navy of the United States, and of the militia of the
several states when called into the actual service of the United
States ; he is to regulate the foreign relations of the country,
receiving all foreign ministers and being authorized to make
treaties with the assent of two-thirds of the Senate ; and he is
to appoint and commission all officers of the federal govern-
ment. The Constitution makes all his appointments subject
to confirmation by the Senate ; but it also gives Congress the
power to remove from the superintending view of the Senate
the filling of all inferior official positions by vesting the ap-
pointment of such subordinate officers as it thinks proper in
the President alone, in the courts of law, or in the heads of
departments. As a matter of fact, legislation has relieved the
Senate of the supervision of the vast majority of executive
appointments. The confirmation of the Senate is still neces-
sary to the appointment of ambassadors, other public ministers,
and consuls, of judges of the courts of the United States, of the
chief departmental officials, of the principal post-office and
customs officers, — of all the more important servants of the
general government : but these of coTirse constitute only a
minority of all the persons receiving executive appointment :
the majority are appointed without legislative oversight.
^ Conttittttion, Art. II. » sec. i., par. 5.
564 THB GOVEBNMEKT OF THB UKITBD STATES.
1103. The nnfortaiiAte, the demoralizing inflaences which haye beea
allowed to determioe executive appointments since President Jackson's
time hare affected appointments made subject to the Senate's confirma-
tion hardly less than those made without its co-operation : senatorial
scrutiny has not proved effectual for securing the proper constitution
of the public service. Indeed, the "courtesy of the Senate/' — the so-
called '' courtesy " by which senators allowed appointments in the several
states to be regulated by the preference of the senators of the predomi-
nant party from the states concerned, — at one time promised to add
to the improper motives of the Executive the equally improper mottvet
of the Senate.
1104. Reform of Methods of Appointment to Federal
Offices. — The attempts which have been made in recent
years to reform by law the system of appointments have not
been directed towards the higher offices filled with the consent
of the Senate, but only towards those inferior offices which are
filled by the single authority of the President or of the heads
of the executive departments ; have touched in their results,
indeed, only the less important offices. The Act which
became law in Jime, 1883, and which is known as the " Pen-
dleton Act," may be said to cover only ' employees ' : it does
not affect, that is, any person really in authority, though it does
affect a large body of federal servants. It provides, in brief,
for the appointment by the President, by and with the advice
and consent of the Senate, of a CivU Service Commission con-
sisting of three persons, not more than two of whom shall be
adherents of the same political party, under whose recommen-
dation as representatives of the President, selections shall
be made for the lower grades of the federal service upon the
basis of competitive examination. It forbids the solicita-
tion of money from employees of the government for political
uses and all active party service on the part of members of the
civil administration: it endeavors, in short, to '^take the civil
service out of politics."
1105. The carrying out of those portions of the Act which relate to
the method of choosing public oi&cers is, however, entirely subject to
THE GOVERNMENT OF THE UNITED STATES. 565
the pleasure of the President. The Co Diti ration Testa in him l)ie power
of appointment, aulijec^t to no liinilaiion except the possible idvice and
coDient of the Senile. Any Act whicli aMunies to prescribe the mnn-
Der in which the President stisU mako his choline of public serranls
tnuat, therefore, be merely adfiiory : the President ma; aeeept its itirec-
Uona or not as he pleases. The only force that can liold him to the
observance of its principle is Ihe force of public opiniun.
1106. Tlie Piaaldaatial SttoaMalon. ~ In ease of Ihe remoral,
death, resi^piation, or disability nf both the President and Vii'e-Presi-
dent, the office of President is tu be filled ad iHierini by the Secretary
of State, or, if he cannot act, by the Secretary of the Treasury, or. in
case he cannot act, by llie Secretary of War ; and su on, in succession,
by the Attorney General, the Poslaiaiier General, the Secretary of the
Navy, or the Secretary of the Interior. None of these officers can act,
however, unless he have the qaaliScations as to age, citizenship, and resi-
dence required by the Constitution of occupants of the presidential chair.
Until this arrmigemenl was made, by act of Congress in 1888, the
'succession' passed first to the president pro leuiport of the Senate,
and, failing him, to the Speaker of the House of Representatives. This
was found inconvenient because there are intervals now and again when
tbere is neither a president pro lempore of the Senate nor a Speaker of tlie
1107. Relationsof the Executive to Congress. —The only
provisions contained in the Constitution concerning the rela-
tion of the President to Congress are these: that "he shall,
from time to time, give to the congress informatioQ of the
state of the union, and recommend to their consideration sucli
measures as he shall judge necessary and expedient " ; and that
" he may, on extraordinary occasions, convene both houses, or
either of them," iu extra session, "and, in case of disagree-
ment between them, with respect to the time of adjournment,
he may adjourn them to such time as he shall think proper "
(Art. II., see. iii.). His power to inform Congress concerning
the state of the union and to recommend to it the passage of
measures is exercised only in the sending of annual and special
written ' messages.'
1108, Washington and John Adams interpreted Ihe clause to mean
that they might address Congress in person, as the sovereign in Eng-
THE GOVBKNAIENT OF THE UNITED STATUS.
land m*; do; their annua! connniinicationB to CongreBi im« tpoken
•itdresee*. But Jeffvnoa, the third President, being an ineScvtiTe
speaker, lliii liabit was Jiicontinned and the tuhion of mitten mca-
ligei wna inaugurated and flnnl; eilabliihed. (Compare lec. STII,)
I'uisiblj, Imd llie PreBident not so closed Ibe mailer agiinut new odjuit-
ments, Ihla cUiuc ot the Conatitutioa might legilimalel; bave breu
iiiule the foundation for a mucli more habitual and iaformal, and ?el
lit the lame time much more public and reeponsible, interi'bange ot
opinion between tlie Executirc and Cungreii. Having been inlerpreled,
bowerer, to exclude Ihc l^sidenl from any but the most formal and
ineffectual utterance of perfunctory advice, our federal execnliTe and
kgiilalnre have been shut off from co-operation and mntual confidence to
an extent to wbicb no other modern ■yitem furniihes a pRrallel. In aU
other madern govcrnmenta the heads of tbe adminiitratire deportnMniU
are giren the right to sit in the legislative bod/ and to lake part in iU
proceedings. The legislaiure and executive are thus associated in inch
a way Ihnt the miniiitcrs ot stato can lend the houses without dictating
to Ihem, and the ministcra themselves be controlled without being nia-
undenlood, — in such a way that llie two parti of the government wUoh
aliouid be most closelj cu-ordicialed, tlie part, namely, by which the
laws are made and the part by which the laws are executed, may be kept
in dole harmony and intimate co-o)>eratinn, with the rciult of givhiK
coherence to the action of the oae and energy to the aclion of tbe otlier.
1 109. The Executive Departments. — The Constitution does
not provide for the creation of executive departments, but it
tiikea it for granted that aucli departments vrill be founded.
Thuu it says (Art. II., see. ii., par. I, 2) that the President
" may require the opinion, in writing, of the principal officer in
eanb of the executive departments, upon any subject relating
to the duties of their respective offices," and that Congress
may vest the appointment of such inferior officers as it may
see fit " in the heads of departments." The executive depart-
ments eonsequently owe their creation and organization to
statute only.
1110. The first Congress erected four Bucb departments,
namely, the departments of State, of the Treasury, of War,
and of Justice. In 1798 the management of the navy, which
liad at first been included in the duties of the War Departiaent,
THE GOVERNMENT OP THE ITNITBD STATES. 567
was entrusted to a special Department of the Navy ; in 1829
the post office, which had been a subdivision of the Treasury,
was created an independent Department; and in 1849 a De-
partment of the Interior was organized to receive a miscellany
of functions not easy to classify, except in the feature of not
belonging properly within any department previously created.
A similar character, it is interesting to remark, may be attributed to
some corresponding department, bearing either tliis name or a name of
like significance, in almost erery other modern government. There is
everywhere a department of state to receive functions not otherwise
specially disposed of.
1111. In 1889 there was added to these a Department of
Agriculture. We have, thus, at presisnt, eight executive de-
partments, viz. : (1) A Department of StatCi which is what
would be called in most other governments our " foreign office,"
having charge of all the relations of the United States with
foreign countries.
1112. (2) A Department of the Treasury, which is the
financial agency of the government, and whose functions cover
the collection of the public revenues accruing through the cus-
toms duties and the taxes on whiskey and tobacco, their safe
keeping and their disbursement in accordance with the appro-
priations from time to time made by Congress ; the auditing of
the accounts of all departments ; the supervision and regulation
of the national banks and of the currency of the United States ;
the coinage of money ; and the collection of certain industrial
and other statistics.
This Department, therefore, contains within it the treasury and comp-
trolling functions which in the states are separated.
1113. To this Department is attached also the Bureau of Printing
and Engraving, by which all the printing of the paper currency, bonds,
and revenue stamps of the government is done.
1114. (3) A Department of War, which has charge of the
military forces of the Union ;
668 TEUB GOVBRKMBNT OF THE UNITED STATES.
1115. (4) A Department of the Navy, which has charge
of the naval forces of the general government ;
1116. (5) A Department of Justice, from which emanates
all the legal advice of which the federal authorities stand in
need at any time, and to which is entrusted the supervision of
the conduct of all litigation in which the United States may
be concerned. To it are subordinate all the marshals and
district attorneys of the United States, — all ministerial, non-
judicial law officers, that is, in the service of the government.
It may be compendiously described as the lawyer force of the
government. It is presided over by an Attorney General, all
the other departments, except the Post Office, being under
' Secretaries. '
1117. (6) A Post Office Department, under a Postmaster
(Jeneral, which is charged with the carrying and delivery of
letters and parcels, with the transmission of money by means
of certain ' money orders ' and notes issued by the Department,
or under cover of a careful system of registration, and with
making the proper postal arrangements with foreign countries.
These arrangements with foreign countries maj be made without the
full formalities of treaty, the consent of the President alone being neces-
sary for the ratification of international agreements made by the Post-
master Greneral for tlie facilitation of the functions of the Department.
The United States is a member of the Universal Postal Union, to which
most of the civilized countries of the world belong. The central ofllce
of this Union is under the management of the Swiss administration.
Its administrative expenses are defrayed by contribution of the various
governments belonging to the Union.
1118. (7) A Department of the Interior, which has charge
(i.) Of the taking of the Census, as from time to time ordered
by Congress in accordance with the provision of the Constitu-
tion (Art. I., sec. i., par. 3) which makes it the duty of Con-
gress to have a census taken every ten years as a basis for the
redistribution of representation in the House of Representa-
tives among the several states ; (ii.) Of the management of
THE GOVERNMENT OF THE UNITED STATES. 669
the public lands {General Land Office)^ (iii.) Of the govern-
ment's dealings with the Indians, a function which is exercised
through a special Commissioner of Indian Affairs in Washing-
ton and various agencies established in different parts of the
Indian country.
It is throagh this Indian Bureau, for example, that all laws concern-
ing the settlement, assistance, or supervision of the tribes are adminis-
tered, as well as all laws concerning the payment of claims made npon
the federal government for compensation for depredations committed
by the Indians, and laws touching the distribation and tenure of land
among the Indians.
(IV.) Of the paying of pensions and the distribution of bounty
lands, a function which it exercises through a special Commis-
sUmer of Pensions ; (v.) Of the issuing and recording of patents
and the preservation of the models of all machines patented :
for the performance of these duties there is a Patent Office;
(vi.) Of the keeping and distribution of all public documents
(Superintendent of Public Documents) ; (vii.) Of the auditing
of the accounts of certain railway companies, to which the
United States government has granted loans or subsidies, and
the enforcing of the laws passed by Congress with reference to
such roads (Office of the Commissioner of Railroads) ; (viii.)
Of the collection of statistical and other information concern-
ing education, and the diffusion of the information so collected
for the purpose of aiding the advance and systematization of
education throughout the country ( The Office of Education) ;
(ix.) Of the superintendence of the government hospital for
the insane and the Columbia Asylum for the Deaf and Dumb.
Many of these subdivisions of the Interior, though in strictness sub-
ject to the oversight and control oif the Secretary of the Interior, have
in reality a very considerable play of independent movement.
1119. (8) A Department of Agriculture, which is charged
with furthering in every possible way, by the collection of
information not only, but also by the prosecution of scientific
570 THE GOVERNMENT OF THE UNITED STATES.
investigation with reference to the diseases of plants, etc., the
agricultural interests of the country, and under which there is
maintained a special Forestry Division,
1120. Set apart to themselves, and therefore without repre-
sentation in the Cabinet, there are (1) The DepartTnent of
Labor, which is charged with the collection and publication
of statistical and other information touching the condition and
interests of laborers, — information, for instance, bearing upon
the relations of labor and capital, hours of labor, the hous-
ing of laborers, rates of wages and methods of payment, the
food and expenses of laborers, etc. (2) The Interstate Com-
merce Commission, a semi-judicial body by which the federal
statutes forbidding unjust discriminations in railway rates in
interstate freight or passenger traffic, prohibiting certain sorts
of combinations in railroad management, etc., are interpreted
and enforced. (3) The Civil Service Commission by which
the Act mentioned in sec. 1104 is administered. (4) The Cam-
mission of Fish and Fisheries, whose duty it is to make the
necessary investigations and prosecute the necessary measures
for the preservation, improvement, and increase of the stock
of fish in our rivers and lakes and on our coasts.
Some Representative Authorities.
On the institutional development of the colonial period :
Hildrethy R., " History of the United States from the discovery of
America to the End of the Sixteenth Congress" (1821). First
Series. 3 vols. 8vo. New ed. N. Y., 1879.
Bancroft, (George, " History of the United States," from the dLscovery
of America to the adoption of the federal Constitution. 0 vols.
8vo. X. Y.
Doyle, J. A., " English Colonies in America," to the end of the seven-
teenth century. 3 vols. 8vo. N. Y., 1882, 1888.
THE GOVERNMENT OF THE UNITED STATES. 571
Lodge, H. C, "A Short History of the English Colonies in America."
N. Y., 1881.
Frothingham, " The Rise of the Republic of the United States." Bos-
ton, 1872.
Curtis, G. T., " History of the Origin, Formation, and Adoption of
the Constitution of the United States." 2 vols. N. Y., 1854, 1858.
In this connection only the first volume is pertinent.
Scott, E. G., *< Development of Constitutional Liberty in the English
Colonies of America." N.Y., 1882.
On the formation of the Union :
Curtis, G. T., as above. Vol. IL
Bancroft, George, as above. Vol. VI.
Fiske, John, "The Critical Period of American History." Boston,
1888.
Johnston, Alexander, " The First Century of the Constitution," in the
New Princeton Review, September, 1887.
McMaster, J. B., " History of the People of the United States." Vol.
I. N. Y., 1883.
Pitkin, Timothy, " Political and Civil History of the United States of
America from their Commencement to the Close of the Adminis-
tration of Washington." 2 vols. 8vo. New Haven, 1828.
Adams, H. B., "Maryland's Influence upon Land Cessions to the
United States," in Johns Hopkins University Studies in Histori-
cal and Political Science. Third Series, No. I.
American Statesmen Series: volumes on John Adams and Thomas
Jefferson, by /. T, Morse, Jr. ; on Alexander Hamilton and on
George Washington by H, C. Lodge ; on Patrick Henry by M. C,
Tyler ; and on James Madison by 5. H. Gay,
On institutional development under the Constitution :
HUdreth, R., as above. Second Series. 3 vols.
SchouLer, James, " History of the United States of America under the
Constitution." 4 vols. Washington, 1880-1887.
V. Hoist, H., " The Constitutional and Political History of the United
States." Translated from the German by A. B. Mason, J. J.
Lalor, and Paul Shorey. 5 vols. 8vo. Chicago, 1876-1887.
Johnston^ Alexander, " History of American Politics." N. Y., revised
ed., 1882.
572 TKK GOVMKfUEST OF TSB LJIUBO STAI
eraikm." Bortoo. 1877.
Bemiamy T. H., -Tkirtj Tens' Tiev; or, A HiftorT oC Uk
<rf the Ameiiean Garenuiieiit for TkhtT Yean,
Tob. 8to. X. T., 1851-1856.
Awterieam Siatenmem Serin : TobflKS oo J. Q. Adams hj J, T.
Jr.; odT.il Beotoo aod oo Gauteiiieur Morris bj
tU>mer>dl; oo J. C. Calhowi bj if. r. H^UfL; oo H. Clmj bj Cmi
SdkMTz; oo A. GaUjUiii br /. A. SleremM: oo A. Jaffcsoo hr IF.
G. Smmmer; oo John ManhsU bj ^. B. Magrwier; oo J. Moo-
roe bj D. C. Oilman; oo J. Randolph bsr U. A^amu; on M.
Van Baren br E. M, Skepard; and oo D. Webiter br H. C.
Lod^.
RooteveU, Theodore, ''The Winninf oi the Wert." 2 toIb. X. T..
1880.
Wuuar, Justin (editor), ^ XarratiTe and Critical History ol AnHriea."
Vol. VIL Boston, 1888. Contains fnU bibliographieal notes.
Sumner, W. G., "^ Politics in America, 177&-1876." A eeoteonial
sommary. North Awkeriean RerieWy J»n%MMrj, 1878, p. 47.
On the character of the federal goTemment under the Constitotion :
The controrersial literature preceding and sooompanjing the War
of Secession may be found, representatively, in
Jeffertoriy Thomas, " Works."
Adams, John, ** Works."
Calhoun, J. C, " Works."
Webster, Daniel, " Speeches."
Stephens, Alexander, " A Constitational View of the War between the
States." 2 vols. 8vo. Philadelphia, 1868.
Centz, P. C. (B. J. Sage). *^The Republic of Republics." Boston,
4 ed., 1881.
Hurd, J. C, " The Theory of Our National Existence." Boston, 1881.
Brownson, O. A., " The American Republic ; its Constitution, Ten-
dencies, and Destiny." N. Y., 1866 and 1886.
Disassociated with the issues of the Civil War are the following :
Hie Federalist, by Alexander Hamilton, James Madison, and John
Jay.
THE GOVERNMENT OP THE UNITED STATES. 578
Story, Joseph, *< Commentaries on the Constitution.'* Edited by
T. M. Cooley,
Cooley, T. M., " Treatise on the Constitutional Limitations which rest
upon the Legislative Power of the States of the American Union/*
Boston, 2 ed., 187L
<* The General Principles of Constitutional Law in the United
States of America." Boston, 1880.
V. Hoist, H., '* Das Staatsrecht der Vereinigten Staaten von America "
in Marguardsen^s '^Handbuch des Oeffentlichen Rechts.'* Frei-
burg in B., 1885. Translated under the title, ^^The Constitu-
tional Law of the United States of America.*' By A. B. Mason.
Chicago, 1887.
de Tocqueville, A., " Democracy in America." Translated by Henry
Reeve. Tendon, new ed., 1875.
Dicey, A. V., *' Lectures Introductory to the Study of the Law of the
Constitution." London, 1886. This book, though a commentary
on the English Constitution, contains much excellent comment
also on our own.
Bryce, James, *'The American Commonwealth." 2 vols. London,
1888.
Maine, Sir H. S., "Popular Grovernment." N, Y,, 1886, especially
Chap. IV.
Wilson, Woodrow, " Congressional Government, A Study in Ameri-
can Politics." Boston, 1885,
On the governments of the States and Local Government :
Jameson, J. F., "Introduction to the Constitutional and Political
History of the Individual States." In the Johns Hopkins Uni-
versity Studies in Historical and Political Science. Fourth
Series, No. V.
Poore, Ben : P., " Federal and State Constitutions, Colonial Charters,
and other Organic Laws of the United States." 2 vols. Wash-
ington, 1877.
Stimson, F. J., " American Statute Law." A Digest. Boston, 1886.
Johns Hopkins University Stxidies in Historical and Political Science :
First Series: "An Introduction to American Institutional His-
tory," by E. A, Freeman; "The Germanic Origin of New Eng-
land Towns," by H. B. Adams; "Local Grovernment in Illinois,"
Rli THE OOTEBN3CBNT OF THE UNITED STATES.
bj A. Shaw; "Saxon Tithingraea in Amenca," sod "Xom
CoHHtables in America," by H. B. Adanu; " Loeti Go*«mtD
ill Michigan and the Northwest," h\ B. W. BemiM; "Pwish
stitulions of Maryland," by E. Ingle; "Old MoryUmd Uouoi
by John Johiuon ; "Vill^e Communities ofCiqwAiiDe and Safei
by Jf. B. Adana; "The U«o«ais of a New England State,"
AUzandtr Johtaton; "Local Government and Free Scboob
South Caroliua," by B. J. Ramage. Second Seriet: "Sani
Adams, the Man of the Town Meeting," by J. K. Uom^r ; "
■titutional Beginnings in a Western State," by Jet*t Ma-
"Town and County Government in the Englirii ColoDJes
North America," by B. Cionninj. Third Seriet: " Virginia Lo
Institutions," by E. Ingle; "Local Institutions of HarylaiKl,''
L. W. Wilhelm; "Influence of the Proprietors in founding i
State of New Jersey," by A wlin Scolt ; " American Constitntioii
by Horace Davit. Fourth Seriet; "Town Govemiuent in Rht
Island," by W. E. Fotlrr; "The Narragausett Planten," by
Channing; " Pennsylvania Boroughs," by W, P. Holtwatt; "T
Puritan Colony at Annapolis, Maryland," by D. R. Randt
" The Land System of the New England Colonias," by M. Eg
/"arl-er, Joel, 'Jaffrey Address.' 1873. "Origin, Organization, i
Influence of the Towns of New England," in Procaedings Mi
Hist. Soc., June, IHW.
Carter, C. 11., " Connecticut Boroughs." New Haven Hist. Soc., \
IV.
Spencer, D., " Local Government in Wisconsin." Wis. Hist. Soc
Collections, Vol. 11-
" Shires and Shire Towns in the South." Lij^itxeoll't Sfagtai
AuKHst, IBa2.
F<-r</,W.C.. "The American Citiien's Manual." Parti. N.T., 18
llonmer,.!. K., "Samuel Adams," in American Statesmen Series. B
ton, 18S5.
XIL
SUMMARY: CONSTITUTIONAL AND ADMINIS-
TRATIVE DEVELOPMENTS.
-»«i}9$o«-
1121. Continuity of Development. — From the dim morning
hours of history when the father was king and priest down to
this modem time of history's high noon when nations stand
forth full-grown and self-governed, the law of coherence and
continuity in political development has suffered no serious
breach. Human choice has in all stages of the great world-
processes of politics had its part in the shaping of institutions ;
but it has never been within its power to proceed by leaps and
bounds : it has been confined to adaptation, altogether shut out
from raw invention. Institutions, like morals, like all other
forms of life and conduct, have had to wait upon the slow, the
almost imperceptible formation of habit. The most absolute
monarchs have had to learn the moods, observe the traditions,
and respect the prejudices of their subjects ; the most ardent
reformers have had to learn that to outrun the sluggish masses
was to render themselves powerless. Revolution has always
been followed by reaction, by a return to even less than the
normal speed of political movement. Political growth refuses
to be forced; and institutions have grown with the slow
growth of social relationships ; have changed in response, not
to new theories, but to new circumstances. The evolutions of
politics have been scarcely less orderly and coherent than those
of the physical world.
576 SUMMARY.
1122. The order discoverable in institutional develop-
ment is not of course the order of perfect uniformity : institu-
tions, like the races which have developed them, have varied
infinitely according to their environment. Climate^ war, geo-
graphical situation have shaped them : the infinite play of
human thought, the infinite many-sidedness of human charactei
have been reflected in them. But the great stages of develop-
ment have remained throughout clear and almost free from
considerable irregularities. Tested by history's long measure-
ments, the lines of advance are seen to be singularly straight.
1123. Course of Development in the Ancient World. — If
the bond of kinship was at first clear and unmistakable, it
must ere long have become much less defined in the broadened
Family. When the Family became merged in the still wider
Community, solidarity remained and a strong sefise of kinship,
but the reality of kinship had no doubt largely departed, and
law had begun to take on a public character, to bear the sanc-
tion of all rather than the sanction of a single supreme person.
Kinship was typified still in the hereditary character of the
kingship ; but the king was now the representative of the com-
munity rather than its master. The Community developed
into the city-state : and further than this the ancient peoples
did not go. In Rome and in the great city-states of Greece
the conception of citizenship supplants the idea of kinship : the
State becomes virtually personified in the thought of the
time : it is the centre of civic affection and the object of all
civic virtue : the public officer rules not in his own name but
in the name of the State. Around Rome at last there grows
up a vast Empire ; but it is Rome^s Empire, — the world has
fallen into the hands of a city, and the only citizenship that
Caracalla can bestow is the citizenship of Rome. This city-
statehood is the last word of the ancient world in politics.
1124. The Feudal System and the Modern Monarch. —
When the Grermans emerge we have the State in a new aspect.
Nations are moving in arms, and the Host is now the State.
SUMMARY. 677
Commanders of Hosts are the kings of the new order of things.
The Host settles on the lands of the old Roman dominions,
and that military tenure is developed which we have learned
to call the Feudal System. This Feudal System, when it has
worked its perfect work, in such countries as France and Ger-
many, brings forth still a third type of kingship : we presently
have the king who oums his kingdom as supreme feudal lord :
the king who, having absorbed fief after fief, at last possesses
his kingdom by a perfected legal title, whose realm is his
estate. This is the king who becomes the sole source of law
and of justice, the king who, in our day, grants out of his
abundant grace rights and constitutions to his people.
1125. England's Contribution. — Where the Feudal System
fails of its full fruitage, as in England, where freehold estates
are not blotted out, where tenure of the king as overlord is a
theory but never a reality, and where local self-government ob-
tained a lasting rootage in the national habit, political devel-
opment takes another course. There political liberty abides
continually, in one form or another, with the people, and it is
their operative power which gives to liberty expansion, and
which finally creates the constitutional state, the limited mon-
archy, the free self-governing nation. Out of the fief grew the
kingdom ; out of the freehold and local self-government grew
the constitutional state ; out of the constitutional state grew
that greatest of political developments, the free, organic, self-
conscious, self-directing nation, with its great organs of popular
representation and its constitutional guarantees of liberty.
1126. The Romans and the English. — In this history of
development two nations stand forth pre-eminent for their
political capacity : the Eoman nation, which welded the whole
ancient world together under one great organic system of gov-
ernment, and which has given to the modern world the ground-
work of its systems of law; and the English nation, which
gave birth to America, which has " dotted over the whole sur-
face of the globe with her possessions and military posts," and
578 StTMMABT.
from which all the great nations of our time have borrowed
much of their political thought and more of their political
practice. And what is most noteworthy is this, that these
two nations closely resemble each other, not only in the
mental peculiarities which constitute the chief element of
their political strength, but also in the institutional foundar
tions which they have successively laid for their political
achievements.
1127. Likenesses between the Two Imperial Nations. —
Both have been much stronger in creating and working insti-
tutions than in explaining them : both of them have framed
such a philosophy as they chose to entertain ' after the fact ' :
neither has been too curious in examining the causes of its
success or in working out logical sequences of practice. Above
all, neither has suffered any taint of thoroughness to attach
itself to its political methods. Slowly, and without much con-
cern for theories of government, each has made compromise
its method, adaptation its standing procedure. Illogical, unim-
aginative their mode of procedure must be said to have been
throughout, a mode for slow, practical men, without speed or
boldness. Revolution has never fallen within their calcula-
tions ; even change they have seldom consciously undertaken.
If old institutions must i)erish, they must perish within the
Roman or English system by decay, by disuse, not by deliber-
ate destruction : if new institutions must he constructed, they
must be grafted on the old in such wise that they may at least
seem to be parts of the same stock, and may partake as largely
as may be of that one vitalizing sap, old custom. As the
Roman Senate, from being the chief motive power of the
state, came at last to exercise only such prerogatives as
the people and the people's officers suffered it to retain, so
the English House of Lords, from being the single coadjutor
of the king in legislation, has been reduced to a subordinate
part which it plays only upon sufferance, and all without any
sudden or premeditated step of revolution. As the consular
SUMMABY. 579
power in Borne was slowly pared down to be dealt out in parts
to plebeian officials, so has the royal power in England been
piece by piece transferred to the hands of ministers, the peo-
ple's representatives. The whole political method of the two
peoples is the same : the method of change so gradual, so tem-
pered with compromise and discretion, so retarded and moder-
ated by persistent habit that only under the most extraordinary
pressure is it ever hastened into actual revolution.
1128. Popular Initiatiye in Rome and England. — Doubt-
less much of this likeness of temperament and method is due
to the fact that both in Eome and in England it has been the ;
nation, and not merely a small governing class, which has
been behind political change. The motive power was popular (
initiative : the process of change was the labored process of ^^
legislation, the piece-meal construction which is to be com-
pounded out of the general thought. Measures have had in
both oases to be prepared for the general acceptance; and
popular action, wherever it is the wont for the people to act,
is always conservative action. A king's law-making is apt to
be rapid, thorough, consistent; but a nation's law-making,
devised and struggled for piece by piece, cannot be. The ple-
beians in Home, fighting inch by inch towards the privileges
which they coveted, the people in England making their way
by long-protracted efforts towards the control they desired to
exercise, have had to advance with painful slowness, and to be
content with one piece at a time of the power they strove for.
1129. Rome's Change of System under the Empire.—'
With the full establishment of imperial forms of government
Bome lost the conservative habit of her republican period.
The methods of the first emperor, indeed, were slow and
cautious in the highest degree : Augustus avoided all show or
name of imperial power: carefully regardful of republican
sentiment and spirit, which he knew to be not yet extinct, he
simply accumulated to himself one by one every republican
ofiiee, professing the while merely to exercise for somewhat
/
580 SUMMARY.
extended periods, — periods which steadily lengthened iron
terms of years to tenure for life, — but by free gift of th<
Senate and people, the old offices of self-government. Bu^
later emperors were by no means so careful or so considerat4
of popular prejudices : their power was open, bold, oftentimes
even wanton. And with these changes in the nature of th<
government came of course radical changes in political method
there came the wilful creation of new offices known to nc
Roman custom, the constant breach of old practices hallowec
by immemorial Roman habit, — the whole familiar process, ir
brief, of arbitrary power. What Rome gained thus in disci
pline, in military efficiency, she lost of course in politica
capacity. For that capacity so characteristic of the Romani
and the English, the capacity namely for political organization
is beyond question inseparably connected with popular initia
tive, with national self-direction, with self-government.^
1130. Fundamental Contrast between English and Romai
Political Method. — The most striking contrast between th<
English and the Romans consists in a vital and far-reach
ing difference in political organization. What I have sait
touching the national action of the two peoples, the slow, con
servative concert of the people as a whole in the originatioi
and effectuation of policy (sees. 1127-8) must be understoo<
in different senses in the two cases. It was true of the Romani
only during the period of the Republic, and while the Romai
people could take a direct part in affairs. The Teuton broughi
into force, particularly in England, the principle of represeiita
lion, that organization by representative assemblies whiel
enabled the people to act over wide areas through trusted mer
elected to sj)eak and act in their stead, and which thus enablec
the organization of the nation to extend without loss oi
vitality. Of such methods the Roman knew nothing. Onh
1 The student ought of course to test in detail this likeness between
Rome and England. I can here only indicate in the most rapid way the
line of study.
SUMMABY. 581
the people of the city of Rome backed and gave form to
Roman legislation, for the Roman had conceived of no system
of action by a delegation of the law-making power. The^qual
and concerted action of widely diffused populations through
the instrumentality of representation was utterly unknown to
the ancient world. The county court with its reeve and four
selected men from each township, the parliament with its
knights from the shire and its burgesses from the towns,
instrumentalities so familiar everywhere now that the world
has gone to school to the English in politics, were for a long
time peculiar to England in their best features. They were
the peculiar fruit of Teutonic political organization where that
organization had grown most apart from the Roman influence,
in England, not on the Continent, penetrated as the continental
lands were everywhere by the Roman example. Rome had
had no similar means of holding her vast populations together
in active political co-operation and living union. Therefore, as
her conquests spread, her system became more and more cen-
tralized and autocratic. The English could hold populations
together, however large they might be, by means of representa-
tive assemblies ; but the Roman, who knew no method of
admitting scattered peoples to a part in the central govern-
ment, who knew no popular assemblies except those in which
all citizens should be actually present and vote, could hold an
extended empire together only by military force and the stern
discipline of subordination.
This has much to do with the next topic.
1131. The Development of Legislatures. — Perhaps the
most distinguishing feature of modern as compared with
ancient politics is the difference between the sphere, the mode,
and the instrumentalities of legislation now, and the character
and methods of legislation among the classical nations. Repre-
sentative law-making bodies are among the commonplace
institutions of the political world as we know it : but no such
assembly, as I have already said, was ever dreamed of by any
582 SUMKABT.
ancient politician. The ancient world was absolutely without
representative assemblies, and knew nothing of the principle
of representation. Every citizen either took direct part in
legislation or took no part in it at all : if he could attend the
assembly he could use his vote; if he could not, his rote was
simply of no use to him. There was no thought of the possi-
bility of his acting by proxy. Aristotle believed, consequently,
that no free state could exist with a wide territory or a popu-
lation so scattered as to be unable to attend the assemblies.
The Koman citizen outside of Eome, away from her assemblies,
had privileges but had no operative powers.
What the Greeks and Bomans did not know at all the
Teuton seems to have known almost from the first : represen-
tation is one of the most matter-of-course devices of his native
polity, and from him the modern world has received it.
1132. Our early colonial history furnishes at least two rerj curious
examples of a transition from primary to representatire assemblies. The
earliest legislature of Maryland was a primary assembly composed of
all the freemen of tlie colony ; to the next assembly some were allowed
to send proxies ; and before representation was finally established there
appeared the singular anomaly of a body partly representatire, partly
primary, at least one freeman insisting upon attending in person (Doyle,
I., pp. 287-200). The other example is to be found in the history of
Rhode Island, whose citizens for some time insisted upon meeting at
Newport in primary assembly for the purpose of electing the persona
who were to represent them in the colonial legislature, thus as it were
jointly inaugurating the session, to use Mr. Foster's words, and then
leaving the legislature " to run for itself for the remainder of the time "
(W. E. Foster, Town Government in Rhode Island^ p. 26).
1133. The Powers of a Representative. — But only very
modern times have settled the theory of a representative's
power. The strong tendency among all vigorously political,
all self-reliant self-governing peoples has been to reduce their
representatives to the position and functions of mere delegates,
bound to act, not under the sole direction of their own judg-
ments, but upon instruction from their constituents. The
&vm^^AXj. 588
better thought of later times has, however, declared for a
far different view of the representative's office, has claimed for
the representative the privilege of following his own judgment
upon public questions, of acting, not as the mouthpiece but
rather as the fully empowered substitute of his constituents.
1134. Scope of Modem Legislation. — The question is of
the greater importance because of the extraordinary scope of
legislation in the modem state, and of the extreme complexity
nowadays attaching to all legislative questions. Time was,
in the infancy of national representative bodies, when the rep-
resentatives of the people were called upon simply to give or
refuse their assent to laws prepared by a king or by a privi-
leged class in the state; but that time is far passed. The
modern representative has to judge of the gravest affairs of
government, and has to judge as an originator of policies. It
is his duty to adjust every weighty plan, preside over every
important reform, provide for every passing need of the state.
All the motive power of government rests with him. His task,
therefore, is as complex as the task of governing, and the task
of governing is as complex as is the play of economic and social
forces over which it has to preside. Law-making now moves
with a freedom, now sweeps through a field unknown to any
ancient legislator ; it no longer provides for the simple needs
of small city-states, but for the necessities of vast nations,
numbering their, tens of millions. If the representative be a
mere delegate, local interests must clash and contend in legis-
lation to the destruction of all unity and consistency in policy ;
if, however, the representative be not a mere delegate, but a
fully empowered member of the central government, coherence,
consistency, and power may be given to all national move-
ments of self-direction.
1135. The Making, Execution, and Interpretation of Law.
r— The question of the place, character, and functions of legis-
lation is in our days a very different question from any that
faced the ancient politician. The separation of legislative,
OM SUXMART.
judicial^ and execatire functions is a quite modem deTelop-
ment in politics, and we hare questions to settle oomseming
the integration of these three functions which could not hare
arisen in any ancient state. In the early days when the £amily
was the state ; in the later days when the political organiza-
tion, although it had lost the father's omnipotent jorisdiction,
still rested upon the idea of kinship ; and even in still later
times when forms of government inherited from these primi-
tive conceptions still persisted, all the functions of government
were vested in a single individual or in a single body of indi-
viduals, in a father-king or in an assembly of elders. Even
in highly developed free states like Athens do adequate or
complete recognition of any essential difference in the charac-
ter of the several duties of the judge, the executive officer, and
the law-maker is discoverable. It was a very modem concep-
tion that governmental functions ought to be parcelled out
according to a careful classification. The ancient assembly
made laws, elected officers, passed judgment upon offenders
against the laws, and yet was conscious of no incongruity. It
was before the day when anyone could be shocked by such a
confusion of powers.
1136. Modern ])olitician8 are, however, greatly shocked by
such confusions of function. They insist, as of course, that
every constitution shall separate the three 'departments' of
government, and that these departments shall be in some real
sense independent of each other ; so that if one go wrong the
others may check it by refusing to co-operate with it. In no
enlightened modern system may the legislator force the judge,
or the judge interfere with the ])rivileges of the legislator, oi
judge or legislator wrongly control the executive officer.
1137. Charters and Constitutions. — This division of powers
between distinct branches of government has l)een greatly em-
phasized and developed by the written constitutions so charac-
teristic of modern f)olitical ])ractice. These constitutions have by
no means all had the same history, and they differ as widely in
8UMMABY. 585
character as in origin ; but in every case they give sharp defi-
niteness to the organs and methods^ of government which illus-
trate the most salient points of modem political development.
Our own constitutions, as we have- seen (sec. 860), originated in
grants from the English crown, for which were substituted, in
the days following the war for Independence, grants by the
people. Originally royal, they are now national charters : and
they have been kept close to the people, firmly based upon
their direct and explicit sanction. The constitutions of Switz-
erland bear a like character : proceeding from the people, they
rest in all points upon the people's continuing free choice.
1138. In France, on the contrary, the people have as yet
had no direct part in constitution-making. French constitu-
tions have in all cases been both made and adopted by con-
stituent assemblies : at no stage are the people called upon for
their opinion, — not even after the constitution has been for-
mulated : its adoption, like its construction, is a matter for the
constituent assembly alone : it is given to the people, not ac-
cepted by them. The j)resent constitution of the Republic was
even framed and adopted by a convention which could show no
claim to have been elected as a constituent assembly (sec. 311).
1139. Creation vs. Confirmation of Liberties by Constitu-
tion. — This process, of the gift of a constitution to the people
by an assembly of their own choice, may be said to be interme-
diate between our own or the Swiss practice, on the one hand,
and the practice of the monarchical states of Europe, on the
other, whose constitutions are the gift of monarchs to their
people. In many cases they have been forced from reluctant
monarchs, as Magna Charta was wrung by the barons from
John: but whether created by stress of revolution, as in so
many states in 1848 (sec. 396), or framed later and at leisure,
as in Prussia (sec. 396), they have been in the form of royal
gifts 'of right, have not confirmed but created liberties and
privileges.
1140. Our own charters and constitutions have, on the con-
586
traiTy been little more than formal statements of rights and
immunities which had oome to belong to Eng^dshmen quite
independently of royal gift or favor. The Acts of Pariiament
upon which the governments of snoh modem English colonies
as Canada and Australia rest do scarcely more, aside from their
outlining of forms of gOTemmenty than extend to the colonists
the immemorial privileges of Elnglishmen in England. And so
our own colonial charters, besides providing for governors,
courts, and legislatures, simply granted the usual rights of
English freeman. Our constitutions have formulated our politi-
cal progress, but the progress came first. European constitu-
tions, on the other hand, have for the most part created the
rights and immunities, as well as the popular institutions,
which they embody : they institute reform, instead of merely
confirming and crystallizing it.
1141. The Modem Federal State: Contrasted with Con-
federations.— In no part of modem political development have
written constitutions played a more important, a more indis-
pensable r61e than in the definite expression of the nice balance'
of institutions and functions upon which the carefully adjusted
organism of the modern federal state dej)ends. The federal
state, as we know it, is a creation of modern polities. Ancient
times afford many instances of confederated states, but none
of a federal state. The mere confederations of ancient and of
modern times, however long preserved, and of however distin-
guished history, were still not states in the proper sense of the
term.
The most prominent example of a confederation in ancient times
was the celebrated Achaean League. In modem times we hare had the
early Swiss confederation, the several German confederacies, and our
own short-lived Confederation.
They were composed of states, and their only constituent
law was treaty : they were themselves, as confederacies, with-
out sovereign power: sovereignty remained unimpaired with
their component states. Their members did not unite : they
SUMMARY. 587
simply agreed to act in concert touching certain matters of
common interest.
1142. The modem federal state, on the contrary, is a single
and complete political personality among nations : it is not a
mere relationship existing between separate states, but is itself
a State. To use two expressive German terms, a confederation
is a 8taatenbund merely, while a federal state is a Bundesstaat,
Confederation and federal state have this peculiarity in com-
mon, they are both constituted by the association of distinct,
independent communities ; but under a confederation these
communities practically remain distinct and independent, while
within a federal state they are practically welded together into
a single state, into one nation.
1143. Under both forms, however, it has proved possible to make
provision for the association upon the best terms of mutual help and
support of comrnunities unlike in almost every feature of local life,
and even of communities diverse^ in race, without any surrender of their
individualitj or of their freedom to develop each its characteristic life.
Nothing could well be conceived more flexible than a system which can
hold together German, French, and Italian elements as the Swiss con-
stitution does.
1144. Distinguishing Marks of the Federal State. — The
federal state has, as contrasted with a confederation, these dis-
tinguishing features : (a) a permanent surrender on the part
of the constituent communities of their right to act indepen-
dently of each other in matters which touch the common inter-
est, and the consequent fusion of these communities into what
is practically a single state. As regards other stat-es they have
merged their individuality into one national whole : the lines
which separate them are none of them on the outside but all
on the inside of the new organism, (b) The federal state pos-
sesses a special body of federal law, a special federal jurispru-
dence in which is expressed the national authority of the com-
pound state. This is not a law agreed to by the constituent
communities : as regards the federal law there are no constituent
588 SUMMARY.
communities : it is the spoken will of the new community, the
Union, (c) There results a new conception of sovereignty.
There exists in the federal state no completely sovereign body,
and the functions of sovereignty are parcelled out among
authorities national and local. In certain spheres of state action
the authorities of the Union are entitled to speak the common
will, to utter laws which are the supreme law of the land ; in
other spheres of state action the constituent communities still
act with the full autonomy of completely independent states.
The one set of authorities is no more sovereign than the other :
the attributes of sovereignty are, so to say, ^ in commission.'
1145. All modem federal states have written constitutions ;
but a written constitution is not, of course, an essential char-
acteristic of federalism, it is only a feature of high convenience ;
such delicate co-ordinate rights and functions as are charac-
teristic of federalism must be carefully defined: each set of
authorities must have its definite commission.
1146. It is not certain that the federal state, as thus described, is not
a merely temporary phenomenon of politics. It is plain from the
history of modern federal states, — a history as yet extremely brief, —
that the strong tendency of such organization is towards the transmuta-
tion of the federal into a unitary state. After union is once firmly
established, not in the interest only but also in the affections of the
people, the drift would seem to be in all cases towards consolidation.
1147. Existing Parallels and Contrasts in Organization. —
The differences which emerge most prominently upon a com-
parison of modern systems of goveniraent are differences of
administrative organization chiefly and differences in the rela-
tionship borne by Executives to Legislatures.
1148. Administrative Integration: Relation of Ministers
to the Head of the Executive. — One of the chief points of in-
terest and importance touching any system of administration
is the relations which the ministers of state bear to the head
of the Executive. Of course much of the consistency and
success of policy depends upon the presence or absence of a
SUMMABY. 589
single guiding will: if ministers be without real leadership,
they are probably without energy or success in policy, if not
positively at odds with each other.
1149. Under our own system the heads of departments are
of course brought together into at least nominal unity by their
common subordination to the President. Although they are,
as we have seen (sec. 1097), rather the colleagues than the ser-
vants of the President, his authority is yet always in the last
resort final and decisive : the secretaries have had very few
powers conferred upon them by Congress in the exercise of
which they are not more or less subject to presidential over-
sight and control. The President is in a very real seiTse head
of the Executive. In France and England, on the contrary,
the nominal head of the Executive is not its real head. Not
the President or the sovereign but the Prime Minister speaks
the decisive word in administration and in the initiation of
policy, — and the Prime Minister only so far as he can carry
his colleagues with him. The headship of the President and
the sovereign is in large part formal merely, being real only in
proportion to the influence given them by their interior position
as regards affairs. The influence of the Prime Minister is the
vital integrating force. Perhaps it is safe to say that only in
Grermany, among constitutional states, have we an example of
a supreme guiding will in administration. The Emperor's own
will or that of the v^ce-regent Chancellor is the real centre and
source of all policy \ .the heads of department are ministers
of that will. And there is of course under such a system an
energy and coherence of administrative action such as no other
system can secure. The grave objection to it is the absorption
of so much vitality by the head of the state that its outlying
parts, its great constituent members, the people, are drained
of their political life.
1150. Relations of the Administration as a Whole to the
Ministers as a Body. — Scarcely less important from an ad-
ministrative point of view than; the relations of the ministers
thwJfhe
fiM SUMMARY.
to the head of the Executive is the relation of the administra-
tion as a whole, both central and local, to the ministers as a
body. We have seen ( sees. 974, 993) that in the common-
wealths of our own Union there is in this regard practically
no administrative integration, that the central officers of ad-
ministration do not as a rule constitute a controlling but only
a superior sort of clerical body In our federal organization
we have the President as supreme chief, but the cabinet as a
body does not usually exercise any concerted control over ad-
ministration taken as a whole. Its counsellings are confined
for the most part to political questions : administrative ques-
tions are decided separately, by each department for itself
the only real central authority in administrative matters being
the President's opinion, not the counsel of his ministers. As
regards points of administrative policy each department is a
law unto itself. In England we find a slightly greater degree
of administrative control exercised by the Cabinet as a body.
A " Treasury minute,'' for instance, is required for any redivis-
ion of business among the departments, and such redivisions
are presumably matters of agreement in Cabinet council. But
even in England the administrative control of the Cabinet is
rather the result of the political responsibility of the Cabinet
than of any conscious effort to integrate administration by
the constitution of a body which shall habitually regulate, by
semi-judicial processes, the main features and often even the
details of executive mans^ement. In France and Prussia, on
the contrary, such an effort is made, and is made with effect.
In France, besides a Cabinet of ministers whose function is
wholly political, there is a Council of ministers whose single
office is systematic administrative oversight, the harmonizing
of methods, the proper distribution of business among the de-
partments, etc. (sec. 325) ; and above this Council of ministers,
again, there is a Council of State, a judicial body whose part it is
to accommodate all disputes and adjust all conflicts of jurisdic-
tion between the departments, as well as to act as the supreme
SUMMARY. 591
administrative tribunal (sec. 353). In Prussia there is a like
system : a StacUsministerium which to a certain extent combines
the duties given in France to the Council of Ministers and to
the Council of State, and also a Council of State which is by
degrees being elevated to high judidal functions (sec.. 460).
1151. The Administration and the Legislature. — The re-
lations borne by the Administration, the branch which executes
the laws, to the Legislature, the branch which makes the laws, of
course touch the essence of a system of government. Legisla-
tion and administration ought under every well-devised system
to go hand in hand. Laws must receive test of their wisdom
and feasibility at the hands of administration : administration
must take its energy and its policy from legislation. Without
legislation administration must limp, and without administra-
tion legislation must fail of effect. The vital connection
between the two is well illustrated in the matter of money
appropriations for the support of administration. Legislators
hold, and properly hold, the purse-strings of the nation : only
with their consent can taxes be raised or expended. Without
the appropriations for which they ask, administrators cannot
efficiently perform the tasks imposed upon them : but without
full explanation of the necessity for granting the sums asked and
of the modes in which it is proposed to spend them legislators
cannot in good conscience vote them. A perfect understanding
between Executive and Legislature is, therefore, indispensable,
and no such understanding can exist in the absence of rela-
tions of full confidence and intimacy between the two branches.
1152. The absence of such a cooperative understanding has
led in France to the gravest financial impotency on the part of
the government. The Chambers trust almost nothing concern-
ing appropriations to the authoritative suggestion of the min-
isters. The great Budget Committee (sec. 332) not only
examines and revises but also at pleasure annuls or utterly,
reverses the financial proposals of the ministers : the ministers
are for the most part left entirely without power, and there-
592
fore entirely without rei^SSMKiQ^^E the matter^ and appro-
priations follow the whim of the Chambers rather than the
necessities of administration. In England the ministers are
allowed to insist upon the appropriation of the sums they ask
for, because they are held strictly responsible to Parliament
for the policy involved in every financial proposal : the means
of raising the money desired Parliament is to a certain extent
at liberty to suggest without implying distrust of the minis-
ters; but the amounts the ministers ask for must be voted
unless Parliament wishes the ministers to resign. Confidence
and responsibility go hand in hand (sees. 686, 689). Under our
own system there is practically no comnjerce between the heads
of departments and Congress : the administration sends in esti-
mates, but the Appropriations Committees of the houses decide
without ministerial interference the amounts to be granted.
1153. Of course the relations existing between the Execu-
tive and the Legislature equally affect every other question of
policy, from mere administrative questions, such as the erec-^
tion of new departments, increases of clerical force, or the re-
distribution of departmental business, to the gravest questions
of commerce, diplomacy, and war. The integration or sepa/
ration of the Executive and the Legislature may be made an
interesting and important criterion of the grade and character,
in this day of representative institutions, of political organiza-
tion in the case of existing governments. Thus in England we .
have complete leadership in legislation entrusted to the minis-
ters, and to complete leadership is added complete responsibil-
ity (sees. 6S6y 689). In France we have partial leadership
(financial matters being excluded) with entire responsibility
(sec. 327). In Prussia, leadership without responsibility (sec
422) ; and in Switzerland the same (sec. 533). Under our
own system we have isolation /)/ws irresponsibility, — isolation
and therefore irresponsibility. At this point more widely than
at any other our government differs from the other govern-
ments of the world. Other Executives lead ; ours obeys. .
xnr.
NATURE AND FORMS OF GOVERNMENT.
V
— ►oc^:©*-
1154. Government Rests upon Authority and Force.--
The essential characteristic of all government, whatever its
form, is authority. There must in every instance be, on the
V one hand, governors, and, on the other, those who are governed.
And the authority of governors, directly or indirectly, rests in
all cases ultimately on force. Government, in its last analysis,
is organized force. Not necessarily or invariably organized
armed force, but the will of one man, of many men, or of a
community prepared by organization to realize its own pur-
poses with reference to the common affairs of the community.
Organized, that is, to rule, to dominate. The machinery of
government necessary to such an organization consists of in-
strumentalities fitted to enforce in the conduct of the common
affairs of a community the will of the sovereign man, the
sovereign minority, or the sovereign majority.
1155. Not necessarily upon Obvious Force. — This analy-
sis of government, as consisting of authority resting on force,
is not, however, to be interpreted too literally, too narrowly.
The force behind authority must not be looked for as if it were
always to be seen or were always being exercised. That there
is authority lodged with ruler or magistrate is in every case
evident enough ; but that that authority rests upon force is not
always a fact upon the surface, and is therefore in one sense
not always practically significant. In the case of any particular
gOYemment, the force upon which the authority of its officers
594 NATURE AND FORMS OF GOVEBNMKEirr.
rests may never once, for generations together, take the shape
of armed force. Happily there are in our own day many
governments, and those among the most prominent, which
seldom coerce their subjects, seeming in their tranquil noise-
less operations to run themselves. They in a sense operate
without the exercise of force. But there is force behind them
none the less because it never shows itself. The strongest
birds flap their wings the least. There are just as powerful
engines in the screw-propeller, for all she glides so noiselessly,
as in the side-wheeler that churns and splashes her way
through the water. The better governments ofjgur day —
those which rest, not upon the armed strength of governors,
but upon the free consent of the governed — are without open
demonstration of force in their operations. They are founded
upon constitutions and laws whose source and sanction are the
will of the majority. The force which they embody is not the
force of a dominant dynasty nor of a prevalent minority, but
the force of an agreeing majority. And the overwhelming
nature of this force is evident in the fact that the minority
very seldom challenge its exercise. It is latent just because
it is understood to be omnipotent. There is force behind the
authority of the elected magistrate, no less than behind that
of the usurping despot, a much greater force behind the Presi-
dent of the United States, than behind the Czar of Russia.
The difference lies in the display of coercive power. Physical
force is the prop of both, though in the one it is the last, while
in the other it is the first resort.
1156. The Governing Force in Ancient and in Modem
Society. — These elements of authority and force in govern-
ment are thus quite plain to be seen in modern society, even
when the constitution of that society is democratic ; but they
are not so easily discoverable upon a first view in primitive
society. It is common nowadays when referring to the affairs
of the most progressive nations to speak of ' government by
public opinion, ' ' government by the popular voice ' ; and such
NATURE AND FORMS OF GOVERNMENT. 595
phrases possibly describe sufficiently well all full-grown demo-
cratic systems. But no one intends such expressions to conceal
the fact that the majority, which utters 'public opinion,' does
not prevail because the minority are convinced, but because
they are outnumbered and have against them not the ' popular
voice ' only, but the ' popular power ' as well — that it is the
potential might rather than the wisdom of the majority which
gives it its right to rule. When once majorities have learned
to have opinions and to organize themselves for enforcing
them, they rule by virtue of power no less than do despots
with standing armies or concerting minorities dominating un-
organized majorities. But, though it was clearly opinion
which ruled in primitive societies, this conception of the might
of majorities hardly seems to fit our ideas of primitive systems
of government. What shall we say of them in connection
with our present analysis of government ? They were neither
democracies in which the will of majorities chose the ways of
government, nor despotisms, in which the will of an individual
controlled, nor oligarchies, in which the purposes of a minority
prevailed. Where shall we place the force which ^ lay behind
the authority exercised under them ? Was the power of the
father in the patriarch^ family power of arm, mere domineer-
ing strength of will ? What was the force that sustained the
authority of the tribal chieftain or of that chief of chiefs, the
king ? That authority was not independent of the consent of
those over whom it was exercised ; and yet it was not formu-
lated by that consent. That consent may be said to have been
involuntary, inbred. It was bom of the habit of the race. It
was congenital. It consisted of a custom and tradition, more-
over, whidh bound the chief no less than it bound his subjects.
He might no more transgress the unwritten law of the race
than might the humblest of his fellow-tribesmen. He was
governed soaxoely less than they were. All were under bondage
to strictly presoribed ways of life. Where then lay the force
which sanctioned the authority of chief and sub-chief and
596 NATURE AND FORMS OF GOVERNMENT.
father in this society ? Not in the will of the mler : that was
bound by the prescriptions of custom. Not in the popular
choice : over that too the law of custom reigned.
1157. The Force of the Common Will in Ancient Society.
— The real residence of force in such societies as these can be
most easily discovered if we look at them under other circum-
stances. Nations still under the dominion of customary law
have within historical times been conquered by alien conquer-
ors ; but in no such case did the will of the conqueror have
free scope in regulating the affairs of the conquered. Seldom
did it have any scope at all. The alien throne was maintained
by force of arms, and taxes were mercilessly wrung from the
subject populations; but never did the despot venture to
change the customs of the conquered land. Its native laws
he no more dared to touch than would a prince of the dynasty
which he had displaced. He dared not play with the forces
latent in the prejudices, the fanaticism of his subjects. He
knew that those forces were volcanic, and that no prop of
armed men could save his throne from overthrow and destruc-
tion should they once break forth. He really had no author-
ity to govern, but only a power to despoil, — for the idea of
government is inseparable from the conception of legal regu-
IcUion. If, therefore, in the light of such cases, we conceive
the throne of such a society as occupied by some native prince
whose authority rested upon the laws of his country, it is
plain to see that the real force upon which authority rests under
a government so constituted is after all the force of public opin-
ion, in a sense hardly less vividly real than if we spoke of a mod-
ern democracy. The law inheres in the common will : and it is
that law upon which the authority of the prince is founded.
He rules according to the common will : for that will is, that
immemorial custom be inviolably observed. The force latent
in that common will both backs and limits his authority.
1158. Public Opinion, Ancient and Modem. — The fact
that the public opinion of such societies made no choice of
NATURE AND FORMS OF GOVERNMENT. 597
laws or constitutions need not confuse for us the analogy
between that public opinion and our own. Our own approval
of the government under which we live, though doubtless
conscious and in a way voluntary, is largely hereditary — is
largely an inbred and inculcated approbation. There is a
large amount of mere drift in it. Conformity to what is estab-
lished is much the easiest habit in opinion. Our constructive
choice even in our own governments, under which there is no
divine canon against change, is limited to modifications. The
generation that saw our federal system established may have
imagined themselves out-of-hand creators, originators, of gov-
ernment ; but we of this generation have taken what was given
us, and are not controlled by laws altogether of our own making.
Our constitutional life was made for us long ago. We are like
primitive men in the public opinion which preserves, though
unlike them in the public opinion which alters our institutions.
Their stationary common thought contained the generic forces
of government no less than does our own progressive public
thought. ^
1159. The True Nature of Government, y^hat, then, in
the last analysis, is the nature of government ? If it rests upon
authority and force, but upon ^jitbority which depends upon
thi acquiescence of the general will and upon force suppressed,
latent, withheld except under extraordinary circumstances,
what principle lies behind these phenomena, at the heart of
government ? The answer is hidden in the nature of Society
itself. Society is in no sense artificial ; it is as truly natural
and organic as the individual man himself. As Aristotle said,
man is by nature a social animal ; his social function is as
normal with him as is his individual function. Since the
family was formed, he has not been without politics, without
political association. Society, therefore, is compounded of
the common habit, an evolution of experience, an interlaced
growth of tenacious relationships, a compact, living, organic
whole, structural, not mechanical.
^ ^ 698 NATURE AND FORMS OP GOVERNMENT.
1160. Society an Organisniy 6ovenunent*an Organ. — Got-
eminent is merely the executive organ of society, the organ
through which its habit acts, through which its will becomes
operative, through which it adapts itself to its environment
and works out for itself a more effective life. There is dear
reason, therefore, why the disciplinary action of society upon
the individual is exceptional ; clear reason also why the power
of the despot must recognize certain ultimate limits and
bounds ; and clear reason why sudden or violent changes of
government lead to equally violent and often fatal reaction and
revolution. It is only the exceptional individual who is not
held fast in his obedience to the common habit of social duty
and comity. The despot's power, like the potter's, is limited ^
by the characteristics of the materials in which he works, of
the society which he manipulates ; and change which roughly
breaks with the common thought will lack the sympathy of
that thought, will provoke its opposition, and will inevitably
be crushed by that opposition. Society, like other organisms,
can be changed only by evolution, and revolution is the antip-
ode of evolution. The public order is preserved because oraer
inheres in the character of society.
1161. The Forms of Government : Their Significance. —
The forms of government do not affect the essence of govern-
ment : the bayonets of the tyrant, the quick concert and supe-
rior force of an organized minority, the latent force of a self-
governed majority, — all these depend upon the organic char-
acter and development of the community. " The obedience of
the subject to the sovereign has its root not in contract but in
force, — the force of the sovereign to punish disobedience ; " *
but that force must be backed by the general habit (sees. 1200-
1206). The forms of government are, however, in every way
most important to be observed, for the very reason that they
express the character of government, and indicate its history.
1 John Morley, Rousseau, Vol. II., p. 184.
NATURE AND FOBMS OF GOVERNMENT. 599
They exhibit the stages of political development, and make
clear the necessary constituents and ordinary purposes of gov-
ernment, historically considered. They illustrate, too, the
sanctions upon which it rests.
1162. Aristotle's Analysis of the Fornis of Government. —
It has been common for writers on politics in speaking of the
several forms of government to rewrite Aristotle, and it is not
easy to depart from the practice. For, although Aristotle's
enumeration was not quite exhaustive, and although his de-
scriptions will not quite fit modem types of government, his
enumeration still serves as a most excellent frame on which
to hang an exposition of the forms of government, and his
descriptions at least furnish points of contrast between ancient
and modern governments by observing which we can the more
clearly understand the latter.
1163. Aristotle considered Monarchy, Aristocracy, and De-
mocracy (Ochlocracy) the three standard forms of government.
The first he defined as the rule of One, the second as the rule of
the Few, the third as the rule of the Many.* Off against th&e
standard and, so to say, heaUhfuX forms he set their degenerate
shapes. Tyranny he conceived to be the degenerate shape of
Monarchy, Olig^chy the degenerate shape of Aristocracy, and
Anarchy (or moh-rule) the degenerate shape of Democracy.
His observatfon of the political world about him led him to
believe that there was in every case a strong, an inevitable
tendency for the pure forms to sink into the degenerate. » 4j^
1164. The Cycle of Degeneracy and Revolution. — He out-
lined a cycle of degeneracies and revolutions through which,
as he conceived, every State of' long life was apt to pass. His
idea was this. The natural first form of government for every
state would be the rule of a monarch, of the single strong man
with sovereign power given him because of his strength. This
monarch would usually hand on his kingdom to his children.
^ Not of the absolute majority, as we shall see presently when contrast-
ing ancient and modern democracy (sees. 1170, 1173).
600 NATURE AND FOBMS OF GOVERNMENT.
They might confidently be expected to forget those pledges
and those views of the public good which had bound and
guided him. Their sovereignty would sink into tyranny. At
length their tyranny would meet its decisive check at some
Runnymede. There would be revolt; and the princely lead-
ers of revolt, taking government into their own hands, would
set up an Aristocracy. But aristocracies, though often public-
spirited and just in their youth, always decline, in their later
years, into a dotage of selfish oligarchy. Oligarchy is even
more hateful to civil liberty, is even a graver hindrance to
healthful civil life than tyranny. A class bent upon subserv-
ing only their own interests can devise injustice in greater
variety than can a single despot : and their insolence is always
quick to goad the many to hot revolution.^ ^To this revolution
succeeds Democracy. • But Democracy too has its old age of
degeneracy — an old age in which it loses its early respect for
law, its first amiability of mutual concession. It breaks out
into license and Anarchy, and none but a Csesar can bring it
back to reason and order. The cycle is completed. The
throne is set up again, and a new series of deteriorations and
revolutions begins.
1165. Modem Contrasts to the Aristotelian Forms of Gov-
ernment.— The confirmations of this view furnished by the
history of Europe since the time of Aristotle have been striking
and numerous enough to render it still oftentimes convenient
as a scheme by which to observe the course of political history
even in our own days. But it is still more instructive to con-
trast the later facts of political development with this ancient
exposition of the laws of politics. Observe, then, the differ-
ences between modern and ancient types of government, and the
likelihood that the historian of the future, if not of the present
and the immediate past, will have to record more divergencies
from the cycle of Aristotle than correspondences with it.
1166. The Modern Absolute Monarchy. — Taking the Rus-
sian government of to-day as a type of the vast absolute Mon-
,r
NATUBE AND FOBMS OF GOVERNMENT. 601
archies which have grown up in Europe since the death of
Aristotle, it is evident that the modern monarch, if he be in-
deed monarch, has a much deeper and wider reach of power
than had the ancient monarch. The monarch of our day is a
Legislator; the ancient monarch was not. Ancient society
may be said hardly to have known what legislation was. Cus-
tom was for it the law of public as well as of private life : and
custom could not be enacted. At any rate ancient monarchies
were not legislative. The despot issued edicts — imperative
commands covering particular cases or affecting particular
individuals: the Eoman emperors were among the first to
promulgate ' constitutions/ — general rules of law to be ap-
plied universally. The modern despot can do more even than
that. He can regulate by his command public affairs not only
but private as well — can even upset local custom and bring
/dl his subjects under uniform legislative control. Nor is he
in the least bound to observe his own laws. A word — and
that his own word — will set them aside: a word will abolish,
a word restore, them. He is absolute over his subjects not
only — ancient despots were that — but over all laws also —
which no ancient despot was.
1167. Of course these statements are meant to be taken with certain
importapt limitations. The modem despot as well as the ancient is bound
by the habit of hia people. He may change laws, but he may not change
life as easily ; and the national traditions and national character, the
rural and commercial habit of his kingdom, bind him very absolutely.
The limitation is not often felt by the monarch, simply because he has
himself been bred in the atmosphere of the national life and uncon-
sciously conforms to it (sees. 1200-1206).
1168. The Modem Monarchy usually * Limited.' — But the
present government of Russia is abnormal in the Europe of
to-day, as abnormal as that of the Turk — a belated example
of those crude forms of politics which the rest of Europe has
outgrown. Turning to the other monarchies of to-day, it is at
once plain that they present the strongest contrast possible to
602 NATURE AND FOBMS OF GOVERNMENT.
any absolute monarchy ancient or modem. Almost without
exception in Europe, they are ' limited ' by the resolutions of
a popular parliament. The people have a distinct and often
an imperative voice in the conduct of public afiEairs.
1169. Is Monarchy now succeeded by Aristocracy? — And
what is to be said of Aristotle's cycle in connection with
modem monarchies ? Does any one suppose it possible that
when the despotism of the Czar falls it will be succeeded by
an aristocracy ; or that when the modified authority of the
emperors of Austria and Germany or the king of Italy still
further exchanges substance for shadow, a limited class will
succeed to the reality of power ? Is there any longer any place
between Monarchy and Democracy for Aristocracy? Has it
not been crowded out ?
1170. English and Ancient Aristocracy contrasted. — In-
deed, since the extension of the franchise in England to the
working classes, no example of a real Aristocracy is left in the
modern world. At the beginning of this century the govern-
ment of England, called a 'limited monarchy,' was in reality
an Aristocracy. Parliament and the entire administration of
the kingdom were iu the hands of the classes having w^ealth
or nobility. The members of the House of Lords and the
crown together controlled a majority of the seats in the House
of Commons. England was ' represented ' by her upper classes
almost exclusively. That Aristocracy has been set aside by
the Reform Bills of 1832, 1867, and 1885; but it is worth
while looking back to it, in order to contrast a modem type of
Aristocracy with those ancient aristocracies which were pres-
ent to the mind of Aristotle. An ancient Aristocracy con^^t-
tilted tihe state ; the English aristocracy merely controlled the
state. Under the widest citizenship known even to ancient
democracy less than half the adult male subjects of the state
shared the franchise. The ancient Democracy itself was a
government by a minority. The ancient Aristocracy was a
government by a stilj narrower minority; and this narrow
NATURE AND FORMS OP GOVERNMEXT. 608
minority monopolized office and power not only, but citizenship
as well. There were no citizens but they. They were the
State. Every one else existed for the state, only they were
part of it. In England the case was very different. There
the franchise was not confined to the aristocrats ; it was only
controlled by them. Nor did the aristocrats of England con-
sider themselves the whole of the State. They were quite
conscious — and quite content — that they had the State vir-
tually in their possession ; but they looked upon themselves
as holding it in trust for the people of Great Britain. Their
legislation was, in fact, class legislation, after a very narrow
sort; but they did not think that it was. They regarded
their rule as eminently advantageous to the kingdom; and
thevmiquestionably had, or tried to have, the real interests
of/die kingdom at heart. They led the state, but did not
v^nstitute it.
^ 1171. Present and Future Prevalence of Democracy. — If
Aristocracy seems about to disappear. Democracy seems about
universally to prevail. Ever since the rise of popular educa-
tion in the last century and its vast development since have
assured a thinking weight to the masses of the people every-
where, the advance of democratic opinion and the spread of
democratic institutions have been most marked and most sig-
nificant. They have destroyed almost all pure forms of Mon-
archy and Aristocracy by introducing into them imperative
forces of popular thought and the concrete institutions of
popular representation ; and they promise to reduce politics to
a single pure form by excluding all other governing forces and
institutions but those of a wide suffrage and a democratic rep-
resentation, — by reducing all forms of government tb Democ-
racy.
1172. Differences of Form between Ancient and Modern
Democracies. — The differences of form to be observed between
ancient and modem Democracies are wide and important.
Ancient Democracies were * inuuediate ' j ours are ' mediate^'
/
604 NATUBE AND FORMS OF GOVEBNMBNT.
that is to say, represejUcUive, Every citizen of the Athenian
State — to take that as a type — had a right to appear and
vote in proper person in the popular assembly, and in those
committees of that assembly which acted as criminal courts; the
modem voter votes for a representative who is to sit for him in
the popular chamber -r- he himself has not even the right of
entrance there. This idea of representation — even the idea of
a vote by proxy — was hardly known to the ancients ; among us
it is all-pervading. Even the elected magistrate of an ancient
Democracy was not looked upon as a representative of his fellow-
citizens. He was tJie States so far as his functions went^ and so
long as his term of office lasted. He could break through all law
or custom, if he dared. It was only when his term had expired
and he was again a private citizen that he could be called to
account. There was no impeachment while in office. To our
thought all elected to office — whether Presidents, ministers,
or legislators — are representatives. The limitations as to the
size of the state involved in the absence from ancient concep-
tion of the principle of representation is obvious. A State in
which all citizens were also legislators must of necessity be
small. The modern represeutiitive state has no such limita-
tion. It may cover a continent.
1173. Nature of Democracy, Ancient and Modem. — The
differences of nature to be observed between ancient and mod-
ern Democracies are no less wide and important. The ancient
Democracy was a class government. As already pointed out,
it was only a broader Aristocracy. Its franchise was at
widest an exclusive privilege, extending only to a minority.
There were slaves under its heel ; there were even freedmen
who could never hope to enter its citizenship. Class subordina-
tion was of the essence of its constitution. From the modern
Democratic State, on the other hand, both slavery and class
subordination are excluded as inconsistent with its theory, not
only, but, more than that, as antagonistic to its very beings
Its citizenship is as wide as its native population ^ its suffrage .
@=i
NATURE AND FORMS OP GOVERNMENT. 606
as wide as its qualified citizenship, — it knows no non-citizen
class. And there is still another difference between the Democ-
racy of Aristotle and the Democracy of de Tocqueville and
Bentham. The citizens of the former liyed for the State ; the
citizen of the latter lives for himself, and the State is for him.
The modem Democratic State exists for the sake of the indi-
vidual ; the individual, in Greek conception, lived for the State.
The ancient State recognized no personal rights — all rights
were State rights ; the modem State recognizes no State rights
which are independent of personal rights.
1174. Growth of the Democratic Idea. — In making the last
statement embrace ' the ancient State ' irrespective of kind and
* the modem Sf ate,' of whatever form, I have pointed out what
I conceive to be the cardinal difference between all the ancient
forms of government and all the modern. It is a difference
which I have already stated in another way. The democratic
idea has penetrated more or less deeply all the advanced
systems of government, and has penetrated them in conse-
quence of that change of thought which has given-%e the
'individual an importance quite independent of his member-
ship of a State. I can here only indicate the historical steps
of that change of thought ; I cannot go at any length into its^
causes.
1175. Subordination of the Individual in the Ancient State.
— We have seen that, in the history of political society, if
we have read that history aright^ the rights of government —
the magistracies and subordinations of kinship — antedate
what we now call the rights of the individual. A man was at
first nobody in himself ; he was only the kinsman of somebody
else. The father himself, or the chief, commanded only
because of priority in kinship : to that all rights of all men
were relative. Society was the unit ; the individual the frac-
tion. Man existed for society. He was all his life long in
tutelage ; only society was old enough to take charge of itself.
The state was the only Individual
606 NATUBB AND FORMS OF GOVERNMENT.
1176. Individualism of Christianity and Teutonic InstitOF
tions. — There was no essential change in this idea for centn-
ries. Through all the developments of government down to
the time of the rise of the Boman Empire the State continued,
in the conception of the western nations at least, to eclipse the
individual. Private rights had no standing as against the
State. Subsequently many influences combined to break in
upon this immemorial conception. Chief among these infln-
ences were Christianity and the institutions of the Grerman
conquerors of the fifth century. Christianity gave each man
a magistracy over himself by insisting upon his personal, indi-
vidual responsibility to Grod. For right living, at any rate,
each man was to have only his own conscience as a guide. In
these deepest matters there must be for the Christian an indi-
viduality which no claim of his State upon him could right-
fully be suffered to infringe. The German nations brought
into the Romanized and partially Christianized world of the
fifth century an individuality of another sort, — the idea of
allegiance to individuals (sec. 228). Perhaps their idea that
each man had a money-value which must be paid by any one
who might slay him also contributed to the process of making
men units instead of state-fractions ; but their idea of personal
allegiance played the more prominent part in the transformar
tion of society which resulted from their western conquests.
The Roman knew no allegiance save allegiance to his State.
He swore fealty to his imperator as to a representative of that
State, not as to an individual. The Teuton, on the other hand,
bound himself to his leader by a bond of personal service which
the Roman either could not understand or understood only to
despise. There were, therefore, individuals in the German
State : great chiefs or warriors with a following {comiUUua) of
devoted volunteers ready to die for them in frays not directed
by the state, but of their own provoking (sees. 22^228).
There was with all German tribes freedom of individual move-
ment and combination within the ranks, — a wide play of iudi-
NATURE AND FORMS OF GOVERNMENT. 607
vidual initiative. When the German settled down as master
amongst the Romanized populations of western and southern/^
Europe, his thought was led captive by the conceptions of the
Roman law, as all subsequent thought that has known it has
been, and his habits were much modified by those of his new
subjects; but this strong element of individualism was not
destroyed by the contact. It lived to constitute one of the
chief features of the Feudal System.
1177. The Transitional Feudal System. — The Feudal
System was made up of elaborate gradations of personal alle-
giance. The only State possible under that system was a
disintegrate state embracing not a unified people, but a nation
atomized into its individual elements. A king there might be,
but he was lord, not of his people, but of his barons. He was
himself baron also, and as such had many a direct subject pledged
to serve him ; but as king the barons were his only direct sub-
jects ; and the barons were heedful of their allegiance to him
only when he could make it to their interest to be so, or their
peril not to be. They were the kings of the people, who owed
direct allegiance to them alone, and to the king only through
them. Kingdoms were only greater baronies, baronies lesser
kingdoms. One small part of the people served one baron,
another part served another baron. As a whole they served
no one master. They were not a whole : they were jarring,
disconnected segments of a nation. Every man had his own
lord, and antagonized every one who had not the same lord as
he (sees. 238-243).
1178. Rise of the Modem State. — Such a system was, of
course, fatal to peace and good government, but it cleared the
way for the rise of the modem State by utterly destroying the
old conception of the State. The State of the ancients had
been an entity in itself — an entity to which the entity of the
individual was altogether subordinate. The Feudal State was
merely an aggregation of individuals, — a loose bundle of sepa-
rated series of men knowing no common aim or action. It not
608 NATUBE AND FOBMS OF GOYEBNMENT.
only had no actual unity : it had no thought of unity. National
unity came at last, — in France, for instance, by the subjuga-
tion of the barons by the king (sec. 253) ; in England by the
joint effort of people and barons against the throne, — but
when it came it was the ancient unity with a difference. Men
were no longer State fractions ; they had become State inte-
gers. The State seemed less like a natural organism and more
like a deliberately organized association. Personal allegiance
to kings had everywhere taken the place of native membership
of a body politic. Men were now subjects, not citizens.
1179. Renaissance and Reformation. — Presently came the
thirteenth century with its wonders of personal adventure and
individual enterprise in discovery, piracy, and trade. Follow-
ing hard upon these, the Renaissance woke men to a philo-
sophical study of their surroundings — and above all of their
long-time unquestioned systems of thought. Then arose
Luther to reiterate the almost forgotten truths of the indi-
viduality of men's consciences, the right of individual judg-
ment. Ere long the new thoughts had penetrated to the
masses of the people. Reformers had begim to cast aside
their scholastic weapons and come down to the common folk
about them, talking their own vulgar tongue and craving their
acquiescence in the new doctrines of deliverance from mental
and spiritual bondage to Pope or Schoolman. National litera-
tures were born. Thought had broken away from its exclu-
sion in cloisters and universities and had gone out to challenge
the people to a use of their own minds. By using their minds,
the people gradually put away the childish things of their days
of ignorance, and began to claim a ]:>art in affairs. Finally,
systematized popular education has completed the story. Na-
tions are growing up into manhood. Peoples are becoming old
enough to govern themselves.
1180. The Modem Force of Majorities. — It is thus no ac-
cident, but the outcome of great permanent causes, that there
is no more to be found among the civilized races of Boxopa
NATURE AND FORMS OP GOVERNMENT.
609
any satisfactory example of Aristotle's Monarchies and Aris-
tocracies. The force of modern governments is not now often
the force of minorities. It is getting to be more and more the
force of majorities. The sanction of every rule not founded
upon sheer military despotism is the consent of a thinking
people. Military despotisms are now seen to be necessarily
ephemeral. Only monarchs who are revered as seeking to
serve their subjects are any longer safe upon their thrones.
Monarchies exist only by democratic consent.
1181. New Character of Society . r— And, more than that,
the result has been to give to society a new integration. The
common habit is now operative again, not in acquiescence and
submission merely, but in initiative and progress as well. So-
ciety is not the organism it once was, — its members are given
freer play, fuller opportunity for origination ; but its organic
character is again' prominent. It is the Whole which has
emerged from the disintegration of feudalism and the speciali-
zation of absolute monarchy. The Whole, too, has become
self-conscious, and by becoming self-di):ective has set out upon
a new course of development.
XIV.
LAW: ITS NATURE AND DEVELOPMENT.
1182. What Is Law ? — In the nature and deyelopment of
Law three things stand revealed; namely, the nature, the
functions, and the history of government. Law is the will of
the State concerning the civic conduct of those under its au-
thority. This will may be more or less formally expressed : it
may speak either in custom or in specific enactment. Law
may, moreover, be the will either of a primitive family-com-
munity such as we see in the earliest periods of history, or of
a highly organized, fully self-conscious State such as those of
our own day. But for the existence of Law there is needed
in all cases alike (1) an organic community capable of having
a will of its own, and (2) some clearly recognized body of rules
to which that community has, whether by custom or enactment,
. given life, character, and effectiveness. The nature of each
State, therefore, will be reflected in its law ; in its law, too,
will appear the functions with which it charges itself ; and in
its law will it be possible to read its history.
1183. The Development of Law : its Sources. — Law thus
foUows in its development, with slow, sometimes with uneven,
but generally with quite distinct steps, the evolution of the
character, the purposes, and the will of the organized com-
munity whose creation it is. The sources whence it springs,
therefore, are as various as the means by which an organic
community can shape and express its will as a body politic.
LAW: ITS NATURE AND DEVELOPMENT. 611
1184. 1. Costom.^ — Of course the earliest souroe of Law is
custom, and custom is formed, no one can say definitely how,
except that it is shaped by the co-operative action of the whole
community, and not by any kingly or legislative command.
It is not formed always in the same way ; but it always rests
upon the same foundation, upon the general acceptance of a
certain course of action, that is, as best or most convenient.
Whether custom originate in the well-nigh accidental formation
of certain habits of action or in a conscious effort on the part
of a commimity to adjust its practices more perfectly to its
social and political objects, it becomes, when once it has been
formed and accepted by the public authority, a central part of
Law. It is difficult, if not impossible, to discover the exact
point at which custom passes from the early* inchoate state in
which it is merely tending to become the express and determi-
nate purpose of a community into the later stage in which it
becomes Law ; but we can say with assurance that it becomes
Law only when it wins the support of a definite authority
within the community. It is not Law if men feel free to
depart from it.
1186. Under the reign of ciiBtoniary law that state of things actuallj
did exist which modern law still finds it convenient to take for granted :
everybody knew what the law was. The Teutonic hundred-moots, for
example (sec. 654), the popular assemblies which tried cases under the
•arlj polity of our own ancestors, declared the law bjr the public voice ;
the people themselves determined what it was and how it should be
applied. Custom grew up in the habits of the people ; thej consciously
or unconsciously originated it ; to them it was known and bj them it
was declared.
1186. 2. Religion. — In the earliest times Custom and Re-
ligion are almost indistinguishable; a people's customs bear
on every lineament the likeness of its religion. And in later
stages of development Beligion is still a prolific source of Cus-
1 1 adopt here the claMiflcation usual in English writings on Jurispru-
dence. See, e.^., T. £. Holland, Jurisprudence, pp. 48 et seq.
612 LAW: ITS NATURE AND DBVBLOPMHNT.
torn. No primitiye community contained any critic who oould^
even in his secret thought, separate Law from Beligion. All
rules of life bore for the antique mind the same sanction (sec.
30). There were not in its conception rules moral and roles
political : morals and religion were indistinguishable parts of
one great indivisible Law of Conduct. Beligion and Politics
soon, indeed, came to have different ministers. In name often,
if not always in fact, the priest was distinct from the magis-
trate. But throughout a very long development, as we have
seen (sees. 50, 58, 69, 197), the magistrate either retained
priestly functions or was dominated by rules which the priest
declared and of which the priest was the custodian.
Thus the early Uw of Rome wm little more than a body of technicml
religious rules, a system of means for obtaining individual rigfati
through the proper carrying out of certain religious formnUB (sec 197) ;
and it marked the beginning of the movement of Roman law towards
a broad and equitable system of justice when these rules of procedure
were changed from sacerdotal secrets into pubUc law by the publica-
tion of the Twelve Tables.
1187. 8. Adjudication. — One of the busiest and one of the
most useful, because watchful, open-minded, and yet conserva-
tive, makers of Law under all systems has been the magistrate,
the Judge. It is he who in his decisions recognizes and adopts
Custom, and so gives it the decisive support of the public
power ; it is he who shapes written enactments into suitability
to individual cases and thus gives them due flexibility and a
free development. He is the authoritative voice of the com-
munity in giving specific application to its Law : and in doing
this he necessarily becomes, because an interpreter, also a
maker of Law. Whether deliberately or unconsciously, in
expounding and applying he moulds and expands the Law. It
is his legitimate function to read Law in the light of his own
sober and conscientious judgment as to what is reasonable
and just in custom, what practicable, rational, or equitable in
legislation.
LAW: ITS NATURE AND DEVELOPMENT. 613
1188. It is this 'judge-made' law which is to he found, and is there-
fore so diligently sought for, in the innumerable law Reports cited in
our courts. Except under extraordinary circumstances, our courts and
those of England will always follow decisions rendered in similar cases
by courts of equal jurisdiction in the same state. A fortiori do they
follow the decisions of the highest courts: by these they are in a
sense bound. In the courts of the continent of Europe, on the other
hand, decisions are listened to as important expressions of opinion, but
not as conclusive authority : are heard much as our own courts or those
of England hear the decisions of courts of other states acting under
like laws or similar circumstances.
1189.. 4. Equity. — Equity too is judge-made Law; but it
is made, not in interpretation of, but in addition to, the laws
which already exist. The most conspicuous types of such
Law are the decisions of the Koman Prsetor (sees. 201, 202)
and those of the English Chancellor (sec. 666). These decis-
ions were meant to give relief where existing law afforded
none. The Praetor declared, for instance, that he would allow
certain less formal processes than had hitherto been permitted
to secure rights of property or of contract, of marriage or
of control, etc. The English Chancellor, ii> like manner, as
keeper of the king^s judicial conscience, supplied remedies in
cases for which the Common Law had no adequate processes,
and thus relieved suitors of any hardships they might other-
wise suffer from the fixity or excessive formality of the Com-
mon Law, and enabled them in many things to obtain their
substantial rights without technical difficulty.
1190. After the official decrees of the Prsetors had heen codified by
the Pnetor Salvius lulianus, in the time of the Emperor Hadrian, and
still more after they had been embodied in the Code of Justinian, the
Corpus Jurii Civility the Prsetor's * equity * became as rigid and deter-
minate as the law which it had been its function to mend and ameliorate.
In the same manner, our own State codes, many of which have fused
law and equity in the same courts and under common forms of proced-
ure (sec. 965), have giren equity the sanction and consequently the
fixity of written law. The English Judicature Act. also, of 1873, merg-
ing, as it does, the Common-law and Equity courts into a single homo-
614 LAW: ITS NATUBK AND DEVELOPMENT.
geneous sjstein (sec. 732), shows at least a strong tendency in the
same direction to exist in England. The adjustments of Equitj are
less needed now that legislation is ever active in mending old and
creating new law and, when necessary, new procedure.
In the same case with Equity must be classed the numerous so^MtUed
' fictitious actions ' which were the invention of the Common-law courts
and which, by means of imaginary suitors or imaginary transactions,
duly recorded as if real, enabled things to be done and rights acquired
which would have been impossible under any genuine process of the
Common Law.
1191. 6. Scientific Discussion. — The carefully formed opin-
ions of learned text-writers have often been accepted as decis-
ive of the Law : more often under the Boman system, however,
than under our own (sees. 211-213), though even we have our
Cokes, our Blackstones, our Storys, and our Kents, whom our
courts hear with the greatest possible respect.
1192. 6. Legislation. — That deliberate formulation of new
Law to which the name Legislation is given is for us of the
modern time, of course, the most familiar as well as the most
prolific source of Law. For us Legislation is the work of rep-
resentative bodies almost exclusively ; but of course representa-
tion is no part of the essential character of the legislative act.
Absolute magistrates or kings have in all stages of history
been, under one system or another, plenipotent makers of laws.
Whether acting under the sanction of Custom or under the
more artificial arrangements of highly developed constitutions,
father or praetor, king or archon has been a law-giver. So, too,
the assemblies of free men which, alike in Greece and in Rome,
constituted the legislative authority were not representative,
but primary bodies, like the Landsgemeinden of the smaller
Swiss cantons.
1193. Representation came in with the Germans ; and with
the critical development of institutions which the modem
world has seen many new phases of Legislation have appeared.
Modern Law has brought forth those great private corporations
whose by-laws are produced by what may very fitly be called
LAW: ITS NATURE AND DBVBLOPMBNT. 615
private legislative action. We have, too, on the same model,
chartered governments, with legislatures acting under special
grants of law-making power (sees. 826, 886, 887, 890, 1137).
Legislation has had and is having a notable development,
and is now the almost exclusive means of the formulation of
new Law. Custom of the older sort, which gave us the great
Common Law, has been in large part superseded by acts of
legislatures; Religion stands apart, giving law only to the
conscience ; Adjudication is being more and more restricted by
codification ; Equity is being merged in the main body of the
Law by enactment; Scientific Discussion now does hardly
more than collate cases : all means of formiilating Law tend
to be swallowed up in the one great, deep, and broadening
source. Legislation.
1194. Custom Again. — Custom now enters with a new
aspect and a new method. After judges have become the
acknowledged and authoritative mouthpieces of Equity and
of the interpretative adaptation of customary or enacted Law ;
after scientific writers have been admitted to power in the
systematic elucidation and development of legal principles;
even after the major part of all law-making has fallen to the
deliberate action of legislatures, given liberal commission to act
for the community. Custom still maintains a presiding and
even an imperative part in legal history. It is Custom, the
silent and unconcerted but none the less prevalent movement,
that is, of the common thought and action of a community,
which recognizes changes of circumstance which judges would
not, without its sanction, feel, or be, at liberty to regard in
the application of old enactments, and which legislators have
failed to give effect to, by repeal or new enactments. Laws
become obsolete because silent but observant and imperative
Custom makes evident the deadness of their letter, the inap-
plicability of their provisions. Custom, too, never ceases to
build up practices legal in their character and yet wholly out-
side formal Law, constructing even, in its action on Congresses
616 LAW: ITS NATURE AND DBVEIiOPMBNT.
and Parliaments, great parts of great constitutions (sees. 688,
1099, 1107). It constantly maintains the great forces of prec-
edent and opinion which daily work their will, under every
form of government, upon both the contents and the adminis-
tration of Law. Custom is Habit under another name ; and
Habit in its growth continually adjusts itself, indeed, to the
standard fixed in formal Law, but also compels formal Law to
conform to its abiding influences. Habit may be said to be
the great Law within which laws spring up. Laws can extend
but a very little way beyond its limits. They may help it to
gradual extensions of its sphere and to slow modifications of
its practices, but they cannot force it abruptly or disregard it
at sdl with impunity.
1105. The history of France during the present century affords a
noteworthy example of these principles in the field of constitutional law.
There we have witnessed this singular and mstructive spectacle : a people
made democratic in thought by the operation of a speculative political
philosophy has adopted constitution after constitution created in the
exact image of that thought. But they had, to begin ¥rith, absolutely
no democratic habit — no democratic custom. Gradually that habit
has grown, fostered amidst the developments of local self-direction ;
and the democratic thought has penetrated, wearing the body of prac-
tice, its only vehicle to such minds, to the rural populace. Constitu-
tions and custom have thus advanced to meet one another — constitu-
tions compelled to adopt precedent rather than doctrine as their basis,
thought, practical experience rather than the abstract conceptions of
philosophy ; and habit constrained to receive the suggestions of written
law. Now, therefore, in the language of one of her own writers, France
has " a constitution the most summary in its text " (leaving most room,
that is, for adjustments), " the most customary in its application, the roost
natural outcome of our manners and of the force of circumstances "
that she has yet possessed.^ Institutions too theoretical in their basis
to live at first, have nevertheless furnished an atmosphere for the French
mind and habit : that atmosphere has affected the life of France, — that
life the atmosphere. The result some day to be reached will be normal
liberty, political vitality and vigor, civil virility.
1 Albert Sorel, Montesquieu (Am. trans.), pp. 200, 201.
LAW: ITS NATURB AND DEVELOPMENT. 617
1196. Typical Character of Roman and English Law. —
Koman law and English law are peculiar among the legal
systems of western Europe for the freedom and individuality
of their development. Rome's juB civile was, indeed, deeply
modified through the influence of the jua gentium ; it received
its philosophy from Greece, and took slight color from a hun-
dred sources; and English law, despite the isolation of its
island home, received its jury system and many another sug-
gestion from the continent, and has been much, even if uncon-
sciously, affected in its development by the all-powerful law
of Rome. But English and Roman law alike have been much
less touched and colored than other systems by outside influ-
ences, and have, each in its turn, presented to the world what
may be taken as a picture of the natural, the normal, untram-
melled evolution of law.
1197. The Order of Legal Development. — As tested by
the history of these systems, the order in which I have placed
the Sources of Law is seen to be by no means a fixed order of
historical sequence. Custom is, indeed, the earliest fountain
of Law, but Religion is a contemporary, an equally prolific,
and in some stages of national development an almost identical
source ; Adjudication comes almost as early as authority itself,
and from a very antique time goes hand in hand with Equity.
Only Legislation, the conscious and deliberate origination of
Law, and Scientific Discussion, the reasoned development of
its principles, await an advanced stage of growth in the body
politic to assert their influence in law-making. In Rome,
Custom was hardly separable from Religion, and hid the
knowledge of its principles in the breasts of a privileged sac-
erdotal class; among the English, on the contrary. Custom
was declared in folk-moot by the voice of the people, — as pos-
sibly it had been among the ancestors of the Romans. In
both Rome and England there was added to the influence of
the magistrate who adopted and expanded Custom in his judg-
ments the influence of the magistrate (Praetor or Chancellor)
618 law: its natueb and development.
who gave to Law the flexible principles and practices of Equity.
And in both^ Legislation eventually became the only source of
Law.
1198. But in Eome Legislation grew up under circumstances
entirely Roman, to which English history can afford no par-
allel. Rome gave a prominence to scientific discussion such
as never gladdened the hearts of philosophical lawyers in Eng-
land. The opinions of distinguished lawyers were given high,
almost conclusive, authority in the courts,; and when the days
of codification came, great texts as well as great statutes and
decrees were embodied in the codes of the Empire. The leg-
islation of the popular assemblies, which Englishmen might
very easily have recognized, was superseded in the days of the
Empire by imperial edicts and imperial codes such as the his-
tory of English legislation nowhere shows; and over the
formulation of these codes and edicts great jurists presided.
The only thing in English legal practice that affords a parallel
to the influence of lawyers in Rome is the cumulative author-
ity of judicial opinions. That extraordinary body of prece-
dent, which has become as much a part of the substance of
English law as are the statutes of the realm, may be considered
the contribution of the legal profession to the law of England.
1199. Savigny would hare us seek in the history of every people for
a childhood in which law is full of picturesque complexities, a period
of form for form's sake and of symbols possessed of mystic si^ificance ;
a period of adolescence in which a special class of practical jurists
make their appearance and law begins to receive a conscious develop-
ment; a full young manhood in which legislation plays a busy work of
legal expansion and improvement ; and an old age amusing itself with
external and arbitrary changes in legal systems, and finally killed by the
letter of the law.^
1200. The Forces Operative in the Development of Law.
— The forces that create and develop law are thus seen to be
1 Bluntschli, Geschichte der neueren Staatiwissenschajl, ed. 1881, pp. 627,
628.
I-iAW: ITS NATUBB AND DBVELOl^MBNT. 619
the same as those which are operative in national and political
development. If that development bring forth monarchical
forms of government, if the circumstances amidst which a
people's life is cast eradicate habits of local self-rule and es-
tablish habits of submission to a single central authority set
over a compacted state, that central authority alone will formu-
late and give voice to Law. If, on the other hand, the nar
tional development be so favorably cast that habits of self-
reliance and self-rule are fostered and confirmed among the
people, along with an active jealousy of any too great concen-
tration of only partially responsible power. Law will more
naturally proceed, through one instrumentality or another,
from out the nation : vox legis, vox popvli. But in the one
case hardly less than in the other Law will express not the
arbitrary, self-originative will of the man or body of men by
whom it is formulated, but such rules as the body of the nation
is prepared by reason of its habits and fixed preferences to
accept. The function of the framers of Law is a function of
formulation rather than of origination : no step that they can
take successfully can lie far apart from the lines along which
the national life has run. Law is the creation, not of indi-
viduals, but of the special needs, the special opportunities, the
special perils or misfortunes of communities. No * law-maker '
may force upon a people Law which has not in some sense
been suggested to him by the circumstances or opinions of the
nation for whom he acts. Rulers, in all states alike, exercise
the sovereignty of the community, but cannot exercise any
other. The community may supinely acquiesce in the power
arrogated to himself by the magistrate, but it can in no case
make him independent of itself.
1201. Here again France famishes our best illustration. We have
a vivid confirmation of the truths stated in such an event as the estab-
lishment of the Second Empire. The French people were not duped
by Loois Napoleon. The facts were simply these. They were keenly
conscious that they were making a failure of the self-government which
620 law: its nature and development.
they were just then attempting ; they wanted order and settled rule in
place of fears of revolution and the existing certainty of turbulent
politics ; and they took the simplest, most straightforward and evident
means of getting what they wanted. The laws of Napoleon were in
a very real sense their own creation.
1202. The Power of the Community must be behind Law.
— The law of some particular state may seem to be the com-
mand of a minority only of those who compose the state : it
may even in form utter only the will of a single despot; but
in reality laws which issue from the arbitrary or despotic au-
thority of the few who occupy the central seats of the state can
never be given full effect unless in one form or another the
power of the community be behind them. Whether it be an
active power organized to move and make itself prevalent or
a mere inert power lying passive as a vast immovable buttress
to the great structure of absolute authority, the power of the
community must support law or the law must be without effect.
The bayonets of a minority cannot long successfully seek out
the persistent disobediences of the majority. The majority
must acquiesce or the law must be null.
1203. This principle is strikingly illustrated in the inefficacy of the
English repressive laws in Ireland. The consent of the Irish community
is not behind them, though the strength of England is, and they fail
utterly, as all laws must which lack at least the passive acquiescence of
those whom they concern.
1204. There can be no reasonable doubt that the power of Russia's
Czar, vast and arbitrary as it seems, derives its strength fVom the Rus-
sian people. It is not the Czar's personal power ; it is his power as head
of the national church, as semi-sacred representative of the race and
its historical development and organization. Its root« run deep into
the tenacious, nourishing soil of immemorial habit. The Czar repre-
sents a history, not a caprice.
Temporary, fleeting despots, like the first Napoleon, lead nations with
them by the ears, playing to their love of glory, to their sense of dignity
and honor, to their ardor for achievement and their desire for order.
1205. Roman Law an Example. — The law of Rome
affords in this respect an admirable example of the normal
law: its natubb and development. 621
character of law. It was the fundamental thought of Roman
law that it was the will of the Roman people. The political
liberty of the Roman consisted in his membership of the state
and his consequent participation, either direct or indirect, in
the utterance of law. As an individual he was subordinated
to the will of the state ; but his own will as a free burgess was
a part of the state's will : the state spoke his sovereignty. He
was an integral part of the organic community, his own power
found its realization in the absolute potestas et majestas papuli.
This giant will of the people, speaking through the organs of
the state, constituted a very absolute power, by which the
individual was completely dominated; but individual rights
were recognized in the equality of the law, in its purpose to
deal equally with high and low, with strong and weak ; and
this was the Roman recognition of individual liberty.
1206. The Power of Habit. — Much of the truth with
reference to the character and sanctions of law may be obscured
by a failure to make just analysis of the part played by Habit
in giving efficacy to enactment. Legislators, those who exer-
cise the sovereignty of a community, build upon the habit of
their so-called ' subjects.' If they be of the same race and
sharers of the same history as those whom they rule, their
accommodation of their acts to the national habit will be in
large part unconscious : that habit runs in their veins as in the
veins of the people. If they be invaders or usurpers, they
avoid crossing the prejudices or the long-abiding practices of
the nation out of caution or prudence. In any case their
activity skims but the surface, avoids the sullen depths of the
popular life. They work arbitrary decrees upon individuals,
but they are balked of power to turn about the life of the
mass : that they can effect only by slow and insidious meas-
ures which almost insensibly deflect the habits of the people
into channels which lead away from old into new and different
methods and purposes. The habit of the nation is the material
on which the legislator works ; and its qualities constitute the
622 LAW: ITS NATUBE ASJ> DEVELOPMENT.
limitations of his power. It is stubborn material, and danger*
ous. If he venture to despise it, it forces him to regard and
humor it ; if he would put it to unaccustomed uses, it balks
him ; if he seek to force it, it will explode in his hands and
destroy him. The sovereignty is not his, but only the leader-
ship.
1207. Law's Utterance of National Character. — Law thus
normally speaks the character, the historical habit and devel-
opment of each nation. There is no universal law, but for
each nation a law of its own which bears evident marks of
having been developed along with the national character,
which mirrors the special life of the particular people whose
political and social judgments it embodies (sec. 1196). The
despot may be grossly arbitrary ; he may violate every princi-
ple of right in his application of the law to individuals ; he
may even suspend all justice in individual cases ; but the law,
the principles which he violates or follows at pleasure, he
takes from the people whom he governs, extracts from their
habit and history. What he changes is the application merely,
not the principles, of justice ; and he changes that application
only with reference to a comparatively small number of indi-
viduals whom he specially picks out for his enmity or dis-
pleasure. He cannot violently turn about the normal processes
of the national habit.
1208. Germanic Law. — We have in Germanic law an
example of the influence of national character upon legal
systems as conspicuous as that afforded by Roman law itself,
and the example is all the more instructive when put alongside
of the Roman because of the sharpness of the contrasts
between Roman and Germanic legal conceptions. Although
so like the Romans in practical political sagacity and common-
sense legal capacity, the Germans had quite other conceptions
as to the basis and nature of law. Their law spoke no such
exaltation of the public power, and consequently no such
intense realization of organic unity. The individt^al German
LAW: ITS NATITBE AND DEVELOPMENT. 628
was, so to say, given play outside the law ; his rights were not
relative, but absolute, self-centred. It was the object of the
public polity rather to give effect to individual worth and lib-
erty than to build together a compact, dominant community.
German law, therefore, took no thought for systematic equal-
ity, but did take careful thought to leave room for the fullest
possible assertion of that individuality which must inevitably
issue in inequality. It was a flexible framework for the play
of individual forces. It lacked the organic energy, the united,
triumphant strength of the Roman system ; but it contained
untold treasures of variety and of individual achievement. It,
no less than Roman law, rested broadly upon national charac-
ter ; and it was to supply in general European history what
/the Roman system could not contribute.
1209. Sovereignty : Who gives Law ? — If, then, law be a
product of national character, if the power of the community
must be behind it to give it efficacy, and the habit of the com-
munity in it to give it reality, where is the seat of sovereignty ?
Whereabouts and in whom does sovereignty reside, and what
is Sovereignty ? These, manifestly, are questions of great scope
and complexity, and yet questions central to a right under-
standing of the nature and genesis of law. It will be best to
approach our answers to them by way of illustrations.
In Engl£uid, sovereignty is said to rest with the legislative
power : with Parliament acting with the approval of the Crown,
or, not ^'disuse aiA honored legal Action, with the Grown act-
ing witUr the asasnt of Parliament. Whatever an Act of Par-
liament prescribes is law, even though it contravene every
principle, constitutional or only of private right, recognized
before the passage of the Act as inviolable. Such is the
theory. The well-known fdct is, that Parliament dare do
nothing that will even seem to contravene principles held to
be sacred in the sphere either of constitutional privilege or
private right. Should Parliament violate such principles, their
action would be 'repudiated by the nation^ their will, failing
624 LAW: ITS NATUBB AND DEVELOPMBNT.
to become indeed law, would pass immediately into the limbo
of things repealed ; Parliament itself would be purged of its
offending members. Parliament, then, is master, is an utteier
of valid commands, only so far as it interprets, or at least does
not cross, the wishes of the people. Whether or not, therefore,
it be possible to say with the approval of those who insist upon
maintaining the rules of a strict abstract logic that the sov-
ereignty of Parliament is limited de JurCy that is, in law, it is
manifestly the main significant truth of the case that parlia-
mentary sovereignty is most imperatively limited de fouiOy in
fact. Its actual power is not a whit broader for having a free
field in law, that is, above the fences, so long as the field in
which it really moves is fenced high about by firm facts.
1210. Again, it is said, appai^ntly with a quite close r^ard
for the facts, that in Eussia sovereignty is lodged with the
Czar, the supreme master ^' of all the Russias." That his will
is law Siberia attests and Nihilism recognizes. But is there
no de facto limitation to his supremacy ? How^far could he go
in the direction of institutional construction ? How far could
he succeed in giving Russia at once and out of hand the insti-
tutions, and Russians the liberties, of the United States and its
people ? How far would such a gift be law ? Only so far as
life answered to its word of command. Only so far as Rus-
sian habit, schooled by centuries of obedience to a bureau-
cracy, could and would respond to its invitation. Only so fox,
in a word, as the new institutions were accepted. The meas-
ure of the Czar's sovereignty is the habit of his people ; and
not their habit only, but their humor also, and the humor of
his officials. His concessions to the restless spirit of his army,
to the prejudices of his court, and to the temper of the mass
of his subjects, his means of keeping this side assassination or
revolution, nicely mark the boundaries of his sovereignty.
1211. Sovereignty, therefore, as ideally conceived in legal
theory, nowhere actually exists. The sovereignty which does
exist is something much more vital, though, like most living
0
LAW: ITS NATURE AND DEVELOPMENT. 626
things, much less easily conceived. It is the will of an organ-
ized independent community, whether that will speak in acqui-
escence merely, or in active creation of the forces and conditions
of politics. The kings or parliaments who serve as its vehicles
utter it, but they do not possess it. Sovereignty resides in
the community ; but its organs, whether those organs be
supreme magistrates, busy legislatures, or subtle privileged
classes, are as various as the conditions of historical growth
have commanded.
1212. Certain Legal Conceptions Universal. — The corre-
spondence of law with national character, its basis in national
habit, does not deprive it of all universal characteristics.
Many common features it does wear among all civilized peo-
ples. As the Romans found it possible to construct from the
diversified systems of law existing among the subject peoples
of the Mediterranean basin, a certain number of general max-
ims of justice out of which to construct the foundation of their
jus gentium^ so may jurists to-day discover in all systems of
law alike certain common moral judgments, a certain evidence
of unity of thought regarding the greater principles of equity.
There is a common legal conscience in mankind.
ThuB, for example, the sacredness of human life; among all Aryan
nations at least, the sanctitj of the nearer family relationships ; in all
systems at all developed, the plainer principles of ' mine * and ' thine * ;
the obligation of promises ; many obvious duties of man to man sug*
gested by the universal moral consciousness of the race, receive recog'
nition under all systems alike. Sometimes resemblances between
systems the most widely separated in time and space run even into
ceremonial details, such as the emblematic transfer of property, and into
many details of personal right and obligation.
1213. Law and Ethics. — It by no means follows, however,
that because law thus embodies moral judgments of the race
on many points of personal relation and individual conduct, it
is to be considered a sort of positive concrete Ethics, — Ethics
crystallized into definite commands towards which the branch
626 LAW: ITS NATURE AND DBVELOPllENT.
of culture which we call ^ Ethics ' stands related as theory to
practice. Ethics concerns the whole walk and conversation
of the individual, it touches the rectitude of each man's life,
the truth of his dealings with his own conscience, the whole
substance of character and conduct, righteousness both of act
and of mental habit. Law, on the other hand, concerns only
man's life in society. It not only confines itself to controlling
the outward acts of men ; it limits itself to those particular
acts of man to man which can be regulated by the public
authority, and which can be regulated in accordance with uni-
form rules applicable to all alike and in an equal degree. It
does not essay to punish untruthfulness as such, it only annuls
contracts obtained by fraudulent misrepresentation and makes
good such pecuniary damage as the deceit may have entailed ;
it does not censure ingratitude or any of the subtler forma of
faithlessness, it only denounces its penalties against open and
tangible acts of dishonesty ; it does not assume to be the
guardian of men's character, it only stands with a whip for
those who give overt proof of bad character in their dealings
with their fellow-men. Its limitations are thus limitations
both of kind and of degree. It addresses itself to the regula-
tion of outward conduct only : that is its limitation of kind ;
and it regulates outward conduct only so far as workable and
uniform niles can be found for its regulation : that is its limi-
tation of degree.
1214. Mala Prohibita. — Law thus plays the role neither
of conscience nor of Providence. More than this, it follows
stantlards of jK)licy only, not absolute standards of right and
wrong. Many things that are wrong, even within the sphere
of social conduct, it does not prohibit; many things not
wrong in themselves it does prohibit. It thus creates, as it
were, a new class of wrongs, relative to itself alone : mala pro-
hibiUi, things wrong because forbidden. In keeping the com-
mands of the state regarding things fairly to be called indif-
ferent in themselves men are guided by their legal conscienoe.
LAW : ITS NATURE AND DBVELOPMENT. 627
Society rests upou obedience to the laws : laws determine the
rules of social convenience as well as of social right and wrong ;
and it is as necessary for the perfecting of social relationships
that the rules of convenience be obeyed as it is that obedience
be rendered to those which touch more vital matters of conduct.
Thus it cannot be said to be inherently wrong for a man to marrj
his deceaied wife's sister ; but if the laws, seeking what is esteemed to
be a purer order of family relationships, forbid such a marriage, it be-
comes malum pro/ubitum : it is wrong because illegal.
It would certainly not be wrong for a trustee to buy the trust estate
under his control if he did so in good faith and on terms manifestly ad-
vantageous to the persons in whose interest he held it ; but it is contrary
to wise public policy that such purchases should be allowed, because
a trustee would have too many opportunities for unfair dealing in such
transactions. The law will under no circumstances hold the sale of a
trust estate to the trustee valid. Such purchases, however good the
faith in which they are made, are mala prohibita.
Or take, as another example, police regulations whose only object is
to serve the convenience of society in crowded cities. A street parade,
with bands and banners and men in uniform is quite harmless and is
immensely pleasing to those who love the glitter of epaulettes and brass
buttons and the blare of trumpets ; but police regulations must see to it
that city streets are kept clear for the ordinary daily movements of the
busy city population, and to parade without license is malum prohibitum.
1215. In all civilized states law has long since abandoned
all attempts to regulate conscience or opinion ; it would find
it, too, both fruitless and unwise to essay any regulation of
conduct, however reprehensible in itself, which did not issue
in definite and tangible acts of injury to others; but it does
seek to command the outward conduct of men in their palpa-
ble dealings with each other in society. Law is the mirror of
active, organic political life. It may be and is instructed by
the ethical judgments of the community, but its own prov-
ince is not distinctively ethical ; it may regard religious prin-
ciple, but it is not a code of religion. Ethics has been called
the science of the well-being of man, law the science of his
right civil conduct. Ethics concerns the development of
628 LAW: ITS NATURE AND DBVELOPMfiNT.
character; religion, the development of man's relations with
God ; law, the development of men's relations to each other in
society. Ethics, says Mr. Sidgwick, <4s connected with poli-
tics so far as the well-being of any individual man is bound
up with the well-being of his society."
1216. Intemational Law* — The province of international
law may be described as a province half way between the
province of morals and the province of positive law. It is law
without a forceful sanction. There is no earthly power of
which all nations are subjects; there is no power, therefore,
to enforce obedience to rules of conduct as between nation
and nation. International law is, moreover, a law which rests
upon those uncodified, unenacted principles of right action, of
justice, and of consideration which have so universally ob-
tained the assent of men's consciences, which have so univer-
sal an acceptance in the moral judgments of men everywhere,
that they have been styled Laws of Nature (sees. 208-9), .but
which have a nearer kinship to ethical maxims than to posi-
tive law. "The law of nations," says Bluntschli, "is that
recognized universal Law of Nature which binds different
states together in a humane jural society, and which ^Iso
secures to the members of different states a common pro-
tection of law for their general human and international
rights." * Its only formal and J^efiiiite foundations aside from
the conclusions of those writers who, like Grotius and Vattel,
have given to it distinct statements of what they conceived to
be the leading, the almost self-evident principles of the Law
of Nature, are to be found in the treaties by which states,
acting in pairs or in groups, have agreed to be bound in their
relations with each other, and in such principles of intema-
tional action as have found their way into the statutes or the
established judicial precedents of enlightened individual states.
More and more, intemational conventions come to recognize
1 D<u Vdlkerrecht, sec. I.
LAW: ITS NATURE AND DEVBLOPMBNT. 629
in their treaties certain elements of right, of equity, and of
comity as settled, as always to be accepted in transactions
between nations. The very jealousies of European nations
have contributed to swell the body of accepted treaty princi-
ples. As the practice of concerted action by the states of the
continent of Europe concerning all questions of large interest,
the practice of holding great Congresses like those of Vienna
in 1815, of Paris in 1856, and of Berlin in 1878 has grown
into the features of a custom, so has the body of principles
which are practically of universal recognition increased. In-
ternational law, says Dr. Bulmerincq, " is the totality of legal
rules and institutions which have developed themselves touch-
ing the relations of states to one another." *
1217. International law is, therefore, not law at all in the
strict sense of the term. It is not, as a whole, the will of any
state : there is no authority set above the nations whose com-
mand it is. In one aspect, the aspect of Bluntschli's defini-
tion, it is simply the body of rules, developed out of the
common moral judgments of the race, which ought to govern
nations in their dealings with each other. Looked at from
another, from Dr. Bulmerincq's, point of view, it is nothing
more than a generalized statement of the rules which nations
have actually recognized in their treaties with one another,
made from time to time, and which by reason of such prece-
dents are coming more and more into matter-of-course accept-
ance.
These rules concern the conduct of war, diplomatic intercourse, the
rights of citizens of one country living under the dominion of another,
jurisdiction at sea, etc. Extradition principles are settled almost always
by specific agreement between country and country, as are also, of course,
commercial arrangements, fishing rights, and all similar matters not of
universal bearing. But even in such matters example added to example
is turning nations in the direction of uniform principles, such, for in-
1 Das Vdlkerrecht (in Marquardson's Handbuch, Vol. I.), sec. I. of the
mofiograph.
680 LAW: ITS NATUBE AND DBVELOPMBNT.
stance, as this, that political offences shall not be included amoDf ex*
tradi table crimes, unless they inyolve ordinary crimes of a rery heinous
nature, such as murder.
1218. Laws of Nature and Laws of the State. — The
analogy between political laws, the laws which speak the will
of the state, and natural laws, the laws which express the
orderly succession of events in nature, has often been dwelt
upon, and is not without instructive significance. In the one
set of laws as in the other, there is, it would seem, a uniform
prescription as to the operation of the forces that make for life.
The analogy is most instructive, however, where it fails : it is
more instructive, that is, to note the contrasts between the
laws of nature and laws of the state than to note such like-
ness as exists between them. The contrasts rather than the
resemblances serve to make evident the real nature of politi-
cal regulation. "Whenever we have made out by careful
and repeated observation,'' says Professor Huxley, "that
something is always the cause of a certain effect, or that cer-
tain events always take place in the same order, we speak of
the truth thus discovered as a law of nature. Thus it is a
law of nature that anything heavy falls to the ground if it is
unsupported. . . . But the laws of nature are not the causes
of the order of nature, but only our way of stating as much
as we have made out of that order. Stones do not fall to the
ground in consequence of the law just stated, as people some-
times carelessly say ; but the law is a way of asserting that
which invariably happens when heavy bodies at the surface of
the earth, stones among the rest, are free to move." What-
ever analogies may exist between such generalized statements
of physical fact and the rules in accordance with which men
are constrained to act in organized civil society it may be
profitable for the curious carefully to inquire into. What it
is most profitable for the student of politics to observe is the
wide difference between the two, which Professor Huxley very
admirably states as follows: "Human law consists of com-
LAW: ITS NATURE AND DBVELOPMENT. 681
mands addressed to voluntary agents, which they may obey or
disobey ; and the law is not rendered null and void by being
broken. Natural laws, on the other hand, are not commands,
but assertions respecting the invariable order of nature ; and
they remain law only so long as they can be shown to express
that order. To speak of the violation or suspension of a law
of nature is an absurdity. All that the phrase can really
mean is that, under certain circumstances, the assertion con-
tained in the law is not true ; and the just conclusion is, not
that the order of nature is interrupted, but that we have made
a mistake in stating that order. A true natural law is a uni-
versal rule, and, as such, admits of no exception." * In brief,
human choice enters into the laws of the state, whereas from
natural laws that choice is altogether excluded: they are
dominated by fixed necessity. Human choice, indeed, enters
every part of political law to modify it. It is the element of
change; and it has given to the growth of law a variety, a
variability, and an irregularity which no other power could
have imparted.
1219. Limitations of Political Law. — We have thus laid
bare to our view some of the most instructive characteristics
of political law. The laws of nature state effects invariably
produced by forces of course adequate to produce them ; but
behind political laws there is not always a force adequate to
produce the effects which they are ^designed to produce. The
force, the sancHoHy as jurists say, which lies behind the laws
of the state is the organized armed power of the community :
compulsion raises its arm against the man who refuses to obey
(sec. 1154). But the public power may sleep, may be inatten-
tive to breaches of law, may suffer itself to be bribed, may be
outwitted or thwarted : laws are not always ' enforced.' This
element of weakness it is which opens up to us one aspect at
least of the nature of Law : Law is no more efficient than the
^ These pauages are taken from Professor Huxley's Science Primer .
IntrodueUnry,
632 LAW: ITS NATUBE AND DEVELOPMENT.
state whose will it utters. The law of Turkey shares all tl
imperfections of the Turkish power ; the laws of England I
speak in their enforcement the efficacy of English govemmei
Good laws are of no avail under a bad government ; a wea
decadent state may speak the highest purposes in its statut
and yet do the worst things in its actual administration. Coi
monly, however, law embodies the real purposes of the sta<
and its enforcement is a matter of administrative capacity
of concerted power simply.
1220. Public Law. — The two great divisions under whit
law may best be studied are these : (1) Public Law, (2) P:
vate Law, Public law is that which immediately concerns tl
being, the structure, the functions, and the methods of tl
state. Taken in its full scope, it includes not only what ^
familiarly know as constitutional law, but also what is kno^
as administrative law, and all that part of criminal law whi<
affects crimes against the state itself, against the communil
as a whole. In brief, it is that portion of law which detc
mines a state's own character and its relations to its citizens.
1221. Private Law. — Private law, on the other hand,
that portion of positive law which secures to the citizen h
rights as against the other citizens of the state. It seeks
effect justice between individual and individual ; its sphere
the sphere of individual right and duty.
1222. It is to the Romans that we are indebted for a first parti
recognition of this important division in the province of Law, thouj
later times have given a different basis to this distinction. 1 say * j
debted because the distinction between public and private law has ti
most immediate connections witli individual liberty. Without it, i
have the state of affairs that existed in Greece, where there was i
sphere which was not the state's (sec. 1236) ; and where the sphere
the state's relations to the individual was as wide as the sphere of tl
law itself. Individual liberty can exist only where it is recognized th
there are rights which the state does not create, but only secures.
1223. Jurisprudence. — Jurisprudence is a term of muc
latitude, but must be taken strictly to mean the Science i
LAW: ITS NATURE AND DEVELOPMENT. 633
Law. The science of law, of course, is complete only when it
has laid bare both the nature and the genesis of law : the na-
ture of law must be obscure until its genesis and the genesis
of the conceptions upon which it is based have been explored ;
and that genesis is a matter, not of logical analysis, but of his-
tory. Many writers upon jurisprudence, therefore, have in-
sisted upon the historical method of study as the only proper
method. They have sought in the history of society and of
institutions the birth and development of jural conceptions,
the growths of practice which have expanded into the law of
property or of torts, the influences which have contributed to
the orderly regulation of man's conduct in society.
1224. In the hands of another school of writers, however,
jurisprudence has been narrowed to the dimensions of a science
of law in its modern aspects only. They seek to discover, by
an analysis of law in its present full development, the rights
which habitually receive legal recognition and the methods by
which states secure to their citizens their rights, and enforce
upon them their duties, by positive rules backed by the abun-
dant sanction of the public power. In their view, not only is
the history of law not jurisprudence, but, except to a very
limited extent, it is not even the material of jurisprudence.
Its material is law as it presently exists : the history of that
law is only a convenient light in which the real content and
purpose of existing law may be made plainer to the analyst.
The conclusions of these writers are subject to an evident lim-
itation, therefore; their analysis of law, being based upon
existing legal systems alone and taking the fully developed
law for granted, applies to law in the earlier stages of society
only by careful modification, only by more or less subtle and
ingenious accommodation of the meaning of its terms.
1225. Historical jurisprudence alone, — a science of law,
that is, constructed by means of the historical analysis of law
and always squaring its conclusions with the history of society,
«— can serve the student of politics. The processes of analy ti-
634 law: its nature and development.
cal jurisprudence, however, having been conducted by minds
of the greatest subtlety and acuteness, serve a very useful
purpose in supplying a logical structure of thought touching
full-grown systems of law.
1226. The Analytical Account of Law. — In the thought
of the analytical school every law is a command, *'an order
issued by a superior to an inferior." " Every positive law is
'set by a sovereign person, or sovereign body of persons, to
a member or members of the independent political society
wherein that person or body of persons is sovereign or supe-
rior.' " In its terms, manifestly, such an analysis applies only
to times when the will of the state is always spoken by a defi-
nite authority ; not with the voice of custom, which proceeds
no one knows whence ; not with the voice of religion, which
speaks to the conscience as well as to the outward life, and
whose sanctions are derived from the unseen power of a super-
natural being ; nor yet with the voice of scientific discussion,
whose authors have no authority except that of clear thought ;
but with the distinct accents of command, with the voice of
the judge and the legislator.
4
1227. The Analytical Account of Sovereignty. — The analytical
account of sovereignty is equally clear-cut and positive, l^aws, " being
comYnands, emanate from a determinate source," from a sovereign au-
thority; and analytical jurisprudence is very strict and formal in its
definition of sovereignty. A sovereign "is a determinate person, or
body of persons, to whom the bulk of the members of an organized
community arc in the habit of rendering obedience and who are them-
selves not in the habit of rendering obedience to any human superior."
It follows, of course, that no organic community which is not in-
dependent can have a law of its own. The law of the more fully
developed English colonies, for example, though it is made by the
enactment of their own parliaments, is not law by virtue of such enact-
ment, because those parliaments arc in the habit of being obedient to
the authorities in London and are not themselves sovereign, therefore.
The sovereignty which lies back of all law in the colonies is said to be
the sovereignty of the parliament of England.
1228. It would seem to follow that otur own federal aqthoritiet are
LAW: ITS NATURE AND DEVELOPMENT. 636
Borereign. They are a determinate bodj of persons to whom the bulk
of the nation is habitually obedient and who are themseWes obedient
to no human superior. But then what of the authority of the states in
that great sphere of action which is altogether and beyond dispute their
own (sec. 889), which the federal authorities do not and cannot enter,
within which their own people are habitually obedient to them, and in
which they are not subject to any earthly superior ? It has been the
habit of all our greater writers and statesmen to say that with us
sovereignty is dirided ; but the abstract sovereignty of which the legal
analyst speaks is held to be indivisible: it must be whole. Analysis,
therefore, is driven to say that with us sovereignty rests in its entirety
with that not very determinate body of persons, the people of the
United States, the powers of sovereignty resting with the state and federal
authorities by delegation from the people.
The difficulty of applying the analytical account of sovereignty to
our own law is in large part avoided if law be defined as " the command
of an authorized public organ, acting within the sphere of its compe-
tence. What organs are authorized, and what is the sphere of their
competence, is of course determined by the organic law of the state ;
and this law is the direct command of the sovereign." ^ The only diffi-
culty left by this solution is that of making room in our system for both
Oa sovereign people of the single state and a sovereign people of the Union.
1229. Summary. — Law, then, is the determinate will of
the state concerning the civic conduct of those under its
authority. Spoken first in the slow and general voice of cus-
tom, it speaks at last in the clear, the multifarious, the active
tongues of legislation. It grows with the growth of the com-
munity : it cannot outrun the conscience of the community and
be real, it cannot outlast its judgments and retain its force.
It mirrors social advance : if it anticipate the development of
the public thought, it must wait until the common judgment
and conscience grow up to its standards before it can have
life ; if it lag behind the common judgment and conscience, it
must become obsolete, and will come to be more honored in
the breach than in the observance.
^ This definition I have taken the liberty of extracting from some
very valuable notes on this chapter kindly furnished me by a friend
who upon this subject speaks authoritatively.
686 law: its nature and developmsnt.
Several Representative Authorities.
Robertson, E., Article ^ Law/ Encyclopcedia Britannica. 9th ed.
Savigny, ** Beruf unserer Zeit fur Gresetzgebung und Rechtswiflsen-
schaft."
Ihering, v., "Geist des Romischen Rechts."
Holland, T. E., " Elements of Jurisprudence." 4th ed. Oxford, 1888.
Austin, John, " Lectures on Jurisprudence, the Philosophy of Positive
Law." 2 vols.
Maine, Sir H. S., "Ancient Law," and "Early History of Institutions,"
Lectures XII., XIII.
Heron, D. C, "Introduction to the History of Jurisprudence." Lon-
don, 1880.
Bluntschli, J. C, " Allegemeines Staatsrecht." 6th ed. Stuttgart,
1885.
Holtzendorff, F. v., " Encyklopadie der Rechtswissenschaft." I^pzig,
1882.
Jellinek, Georg, " Gesetz und Verordnuug," Freiburg in B. 1887.
I
XV.
THE FUNCTIONS OF GOVERNMENT,
•<*S*Co«
1230. What are the Functions of Government ? — The ques-
tion has its own difficulties and complexities : it cannot be
answered out of hand and in the lump, as the physiologist
might answer the question, What are the functions of the
heart ? In its nature government is one, but in its life it is
many : there are governments and governments. When asked,
therefore, What are the functions of government ? we must ask
in return, Of what government ? Different states have differ-
ent conceptions of their duty, and so undertake different
things. They have had their own peculiar origins, their own
characteristic histories ; circumstance has moulded them ; neces-
sity, interest, or caprice has variously guided them. Some
have lingered near those primitive institutions which all once
knew and upheld together ; others have quite forgotten that
man ever had a political childhood and are now old in complex
practices of national self-government.
1231. The Nature of the Question. — It is important to
notice at the outset a single general point touching the nature
of this question. It is in one aspect obviously a simple
qiiestion of fact; and yet there is another phase of it, in which
it becomes as evidently a question of opinion.
The distinction is important because over and over again the
question of ^t has been confounded with that very widely
different question, What ought t?ie functions of government to
bef The two questions i^hould be kept entirely separate in
688 THE FUNCTIONS OP GOVERNMENT.
treatment. Under no circumstances may we instructively or
safely begin with the question of opinion : the answer to the
question of fact is the indispensable foundation to all sound
reasoning concerning government, which is at all points based
upon experience rather than 'ipon theory. The facts of gov-
ernment mirror the principles of government in operation.
What government does must arise from what government is :
and what government is must determine what government
ought to do. The present chapter, therefore, will confine it-
self to the question of fact : the question of opinion will be
broached and partially answered in Chapter XVI.
1232. Classification. — It will contribute to clearness of
thought to observe the functions of government in two groups,
I. The Constituent Functions, II. The MinistraiU. Under the
Constituent I would place that usual category of governmental
function, the protection of life, liberty, and property, together
with all other functions that are necessary to the civic organ-
ization of society, — functions which are not optional with
governments, even in the eyes of strictest laissez faire^ — which
are indeed the very bonds of society. Under the Ministrant I
would range those other functions (such as education, -posts
and telegraphs, and the care, say, of forests) which are under-
taken, not by way of governing, but by way of advancing the
general interests of society, — functions which are optional,
being necessary only according to standards of convenience or
expediency, and not according to standards of existence ; func-
tions which assist without constituting social organization.
Of course this classification is based primarily upon objective and
practical distinctions and cannot claim philosophic completenets.
There may be room for question, too, at to whether tome of the
functions which I class as Ministrant might not quite at properly hare
been considered Constituent; but I must here, of courte, timply act
upon my own conclusions without rearguing them, acknowledging by
the way that the line of demarcation is not always perfectly clear.
"The admitted functions of government,'' said Mr. Mill, ** embraot
a much wider field than can easily be included within the ring-fence of
THE FUNCTIONS OP QOVSRNMENT. 689
any Festrictiye definition, and it is hardly possible to find any ground
of justification common to them all, except the comprehensiye one of
general expediency."
1233. I. The Constituent Functions :
(1) The keeping of order and providing for the protection of
persons and property from violence and robbery.
(2) The fixing of the legal relations between man and wife
and between parents and children.
(3) The regulation of the holding, transmission, and inter-
change of property, and the determination of its liabili-
ties for debt or for crime.
(4) The determination of contract rights between individuals.
(5) The definition and punishment of crime.
(6) The administration of justice in civil causes.
(7) The determination of the political duties, privileges, and
relations of citizens.
(8) Dealings of the state with foreign powers : the preserva-
tion of the state from external danger or encroachment
and the advancement of its international interests.
These will all be recognized as functions which are obnoxious
not even to the principles of Mr. Spencer,* and which of course
persist under every form of government.
1234. II. The Ministrant Functions. — It is hardly possible
to give a complete list of those functions which I have called
Ministrant, so various are they under different systems of gov-
ernment; the following partial list will suffice, however, for
the purposes of the present discussion :
(1) The regulation of trade and industry. Under this head I
would include the coinage of money and the establish-
ment of standard weights and measures, laws against
forestalling, engrossing, the licensing of trades, etc., as
well as the great matters of tariffs, navigation laws, and
the like.
^ As set forth in hit pamphlet, Man versus the State,
640 THE FUNCTIONS OF GOVERNMENT.
(2) The regulation of labor.
(3) The maintenance of thoroughfares, — including state man-
agement of railways and that great group of undertak-
ings which we embrace within the comprehensive terms
^ Internal Improvements ' or ^ The Development of the
Country.'
(4) The maintenance of postal and telegraph systems, which
is very similar in principle to (3).
(5) The manufacture and distribution of gas, the maintenance
of water-works, etc.
(6) Sanitation, including the regulation of trades for sanitary
purposes.
(7) Education.
(8) Care of the poor and incapable.
(9) Care and cultivation of forests and like matters, such as
the stocking of rivers with fish.
(10) Sumptuary laws, such as 'prohibition' laws, for ex-
ample.
These are all functions which, in one shape or another, all
governments alike have undertaken. Changed conceptions of
the nature and duty of the state have arisen, isruing from
changed historical conditions, deeply altered historical circum-
stance, and part of the change which has thus affected the idea
of the state has been a change in the method and extent of the
exercise of governmental functions ; but changed conceptions
have left the functions of government in kind the same.
Diversities of conception are very much more marked than
diversities of practice.
1235. Tlie following may be mentioned among minittrant functaoDfl
not included under any of the foregoing heads, and yet undertaken by
more than one modern government : the maintenance of MTings-bankt,
especially for small sums (e.g., the English postal savings-bank),- the
issuance of loans to farmers, and the maintenance of agricultural in-
stitutes (as in France), and the establiihroent of insurance for working*
men (as in Crermany).
THE FUNCTIONS OF OOVBBNMENT. 641
1236. History of Governmental Function : Province of the
Ancient State. — Notable contrasts both of theory and of
prapJfiGg separate governments of the ancient omnipotflnt from-
govenm^tTS ^^^j^gJBQJgm ftnnatitut^Qi![gj_ typ^- The^ancient
statfi^^tanding-Yfiry nftaj^ as \t ^j^j in its thoyqht, ^ that time^
still more remote, when the State was the Kin, knew nothing
of individual rights as contrasted with the rights of the state.
" The nations of Italy," says Mommsen, " did not merge into
that of Rome more completely than the single Eoman bur-
gess merged in the Roman community." And Greece was
not a whit behind Rome in the absoluteness with which she
held the subordination of the individual to the state.
1237. This thought is strikingly visible in the writings of Plato and
Aristotle, not only in what they say, but also, and eren more, in what
they do not say. The ideal Republic of which Plato dreams is to pre-
scribe the whole life of its citizens ; but there is no suggestion that it_
is to bejel4n;Lnnder oover of any new- i?nn<'pptiftp a^ tn yhat the state
DQ^y le^timAtely^jdoi — it is only to make novel experiments in legisla-
tion under the old conception. And Aristotle's objection to the Utopian
projects of his roaster is not that they would be socialistic (as we should
say), but merely that they would be unwise. He does not fear that in
such a republic the public power would prove to have been exalted too
high; but, speaking to the policy of the thing, he foresees that the
citizens would be poor and unhappy. The state may do what it will,
but let it be wise in what it does. There is no one among the Greeks
to deny that it is the duty of the state to make its citizens happy and
prosperous; nay, to legislate them happy, if legislation may create fair
skies and kind fortune ; the only ser**^"* <^nari'<»]jnflnnarp«^f^pg,»Hnn
Mh^ laws>rcJto b< %ri«d iu thtseudl
1238. Roman Conception of Private Rights. — Eoman
principles, though equally extreme, were in some respects dif-
ferently cast. That superior capacity for the development of
law, which made the Romans singular among the nations of
antiquity, showed itself in respect of the functions of govern-
ment in a more distinct division between public and private
rights than obtained in the polity of the Greek cities. An ex-
642 THE FCTNCTIONS OF QOYERNMBNT.
amination of the conception of the state held in Rome reyeals
the singular framework of her society. The Roman family
did not suffer that complete absorption into the City which so
early overtook the Greek family. Private rights were not in-
dividual rights, but family rights : and family rights did not
so much curtail as supplement the powers of the community.
The family was an indestructible organ of the state. The father
of a family, or the head of a gens, was in a sense a member of
the official hierarchy of the City, — as the king, or his counter-
part the consul, was a greater father : there was no distinction
of principle between the power .of^-king or ggngul^^MJ the
poipceiLjQi.aJathe^; it gas^a mere difference of^sphere, %, divis-
ion of functions.
A son was, for instance, in some things exempt from the authority
of the City only because he was in those things still subject, because his
father still liyed, to the dominion of that original state, the family.
There was not in Rome that separation of the son from the family at
majority which characterizes the Greek polity, as it now characterifet
our own. The father continued to be a ruler, an hereditary state oflScer,
within the original sphere of the family life, the large sphere of indi-
ridual privilege and property.
1239. This essential unity of state and family furnishes us
with the theoretic measure of state functions in Rome. The
Roman burgess was subordinated, not to the public authority
exactly, but rather to the public order, to the conservative in-
tegrity of the community. He was subject to a law which
embodied the steady, unbroken habit of the State-family. He
was not dominated, but merged.
1240. Powera of the Roman Senate. — The range of state power
in ancient times, as a range broken only by limits of habit and conren-
ience, is well illustrated in the elastic functions of the Roman Senate
during the period of the Republic^ With an unbroken life which kept
it conscious of erery tradition and familiar with every precedent ; with
established standards of tested experience and cautious expediency, it
was able to direct the movements of the compact society at whoae sum-
^
THE Fin!rCXI0K8 OF GOVBRNBfBNT. 643
mit it tat, ag the brain and contciousness direct the rooyements of the
human body ; and it is evident from the freedom of its discussions and
the frequency of its actions upon interests of every kind, whether of
public or of prirate import, that the Koman state, as typified in its
Senate, was in its several branches of family, tribe, and City, a single
undivided whole, and tliat its prerogatives were limited by nothing save
religious observance and fixed habit. Of that individual liberty which
we cherish it knew nothing.
1241. Government the Embodiment of Society. — As little
was there in Greek politics any seed of the thought which
would limit the sphere of governmental action by principles
of inalienable individual rights. Both in Greek and in Eoman
conception government wa8» as old as society, — was indeed
nothing less than the express image and embodiment of soci-
ety. In government society lived and moved and had its
being. Society and government were one, in some such sense
as the spirit and body of man ave one : it was through govern-
ment, as through mouth and eyes and limbs, that society real-
ized and gave effect to its life. Society's prejudices, habits,
superstitions did indeed command the actions of government ;
but only because society and government were one and the
same, not because they were distinct and the one subordinate
to the other. In plain terms, then, the functions of govern-
ment had no limits of principle, but only certain limits of
wont and convenience, and the object of administration was
nothing less than to help society on to all its ends : to speed
and facilitate all social undertakings. So far as full citizens
of the state were concerned, Greek and Roman alike was what
we should call a socialist; though he was too much in the
world of affairs and had too keen an appreciation of experi-
ence, too keen a sense of the sane and possible, to attempt the
Utopias of which the modern socialist dreams, and with which
the ancient citizen's own writers sometimes amused him. He
bounded his politics by common sense, and so dispensed with
^the rights of man.'
.X
644 THE FUNCTIONS OF GOVBRNIUBNT.
1242. Feudalism: Functions of GoFemment Functions
of Proprietorship. — Individual rights, after having been first
heralded in the religious world by the great voice of Christi-
anity, broke into the ancient political world in the person of
the Teuton. But the new politics which the invader brought
with him was not destined to establish at once democratic
equality : that was a work reserved for the transformations of
the modern world. Meantime, during the Middle Ages, gov-
ernment, as we conceive government, may be said to have suf-
fered eclipse. In the Feudal System the constituent elements
of government fell away from each other. Society was drawn
back to something like its original family groups. Conceptions
of government narrowed themselves to small territorial connec-
tions. Men became sovereigns in their own right by virtue of
owning land in their own right. There was no longer any con-
ception of nations or societies as wholes : union there was none,
but only interdependence. Allegiance bowed, not to law or tO'
fatherho9d, but to ownership. The functions of government
under such a system were' simply the functions of proprietor-
ship, of command and obedience ; " I say unto one, Go, and he
goeth; and to another, Come, and he cometh; and to my servant,
Do this, and he doeth it." The public function of the baron was
to keep peace among his liegemen, to see that their properties
were enjoyed according to the custom of the manor (if the
manor had been suffered to acquire custom on any point), and
to exact fines of them for all privileges, whether of marrying,
of coming of age, or of making a will. The baronial con-
science, bred in cruel, hardening times was the only standard
of justice ; the baronial power the only conclusive test of pre-
rogative.
This was between baron and vassal. Between baron and
baron the only bond was a nominal common allegiance to a
distant king, who was himself only a great baron. For the
rest there was no government, but only diplomacy and war-
fare. Government lived where it could and as it could, and
THE FUKCTIOM8 OF GOVERNMENT. 64^
was for the most part divided out piecemeal to a thousand
petty holders. Feuds were the usual processes of justice.
. 1243. The Feudal Monarchy. — The. monarchy which grew
out of the ruins of this disintegrate system concentrated au-
thority without much changing its character. The old idea,
bom of family origins, that government was but the actives
authority of society, the magistrate but society's organ, bound
by society's immemorial laws, had passed utterly away, and
government had become the personal possession -of one man.
The ruler did not any longer belong to the state ; the state be-
longed to him : he was himself the state, as the rich man may
be said to be his possessions. The Greek or Koman official
was wielded by the community. Not so the king who had
swept together into his own lap the powers once broadcast in
the feudal system : he wielded the community. Government
breathed with his breath, and it was its function to please him.
The state had become, by the processes of the feudal develop-
ment, his private estate.
1244. Modem De-socialization of the State. — The reac-
tion from such conceptions, slow and for the most part orderly
in England, sudden and violent, because long forcibly delayed,
on the Continent, was of course natural, and indeed inevitable.
When it came it was radical ; but it did not swing the political
world back to its old-time ideas ; it turned it aside rather to
new. It became the object of the revolutionist and the demo-
crat of the new order of things to live his own life : the
ancient man had had no thought but to live loyally the life of
society. The antique citizen's virtues were not individual in
their point of view, but social ; whereas our virtues are almost
entirely individual in their motive, social only in some .of their
results.
In brief, the modem State has been largely de-socialized.
The modem idea is this : the_8tate no longer absorbs the indi-
vidual ; Jt only serves him : Jibe state, a^ it appears in its
organ, the government, is the representative of the individual,
646 THE FUNCTIONS OF QOVEBNKBNT.
and not his representative even except within the definite
commission of (constitutions; while for the rest each man
makes his own social relations. 'The individual for the
State' has been reversed and made to read, 'TheStatftJor
the individiiaL '
1245. More Changes of Conception than of Practice.—
Such are the divergencies of conception separating modem from
ancient jwlitics, divergencies at once deep and far-reaching.
How far have such clianges of thought been accompanied bj
changes of function ? By no means so far as might be ex-
pected. Apparently the new ideas given prevalence in politics
from time to time have not been able to translate themselves
into altered functions but only into somewhat curtailed func-
tions, breeding rather a difference of degree than a difference
of kind. Even under the most liberal of our modern constitu-
tions we still meet government in every field of social endeavor.
Our modern life is so infinitely wide and complex, indeed, that
we may go great distances in any field of enterprise without
receiving either direct aid or direct check from government;
but that is only because every field of enterprise is vastly big
nowadays, not because government is not somewhere in it : and
we know that the tendency is for governments to make them-
selves every wliere more and mon* conspicuously present. We
x\vi\ (ronscious that we are by no means in the same case with
th(i Greek or Roman : the state is ours, not we the state's.
But we know at the same time that the tasks of the state have
not been much diminished. Perliaps we may say that the
matter stands tlius : wliat is c]iangt»d is not the activities o^
govenimeut but only thi^ morals, tht* conscience of government.'
Government may still b(* doing substantially the same things
as of oM ; hut an aherccl conception of its responsibility deeply
modifi«'s tin' mni in whirh it thioa them. S(x;ial convenience and
advancement are still its ultimate standard of conduct, just as
if it were still itself th.* omnipotent im{)ersonation of society,
the master of the individual ; but it has adopted new ideas as
y
THE FUNCTIONS OF GOVERNMENT. 647
to what constitutes social convenience and advancement. Its
aim is to aid the individual to the fullest and best possible
realization of his individuality, instead of merely to the full
realization of his sociality, Tts pinn ja f.n nrPHfa flip. Vv>«f. q^
fairftfiii-r ftppf)rt||pif;iPg inv f.hp in/livulnal ; pnrl if. ling Hiannvprprl
thq.t thQ way to ^1<^ ^1^^" '" ^y ^^ TnPQTiq ifgplf !;(> ^iti/^^i ^pli n *\ *r
administration of the individual by old-time futile methods oj
1246. Functions of Government much the Same now as
always. — This is indeed a great and profound change ; but it
is none the less important to emphasize the fact that the
functions of government are still, when catalogued, fpyind to
be much the same both in number and magnitude that they
always were. Government does not stop with the protection
of life, liberty, and property, as some have supposed ; it goes
on to serve every convenience of society. Its sphere is limited
only by its own wisdom, alike where republican and where
absolutist principles prevail.
1247. The State's Relation to Property, — A very brief
examination of the facts suffices to confirm this view. Take,
for example, the state's relation to property, its performance
of one of the chief of those functions which I have called
Constituent. It is in connection with this function that one
of the most decided contrasts exists between ancient and
modem political practice ; and yet we shall not find ourselves
embarrassed to recognize as natural the practice of most ancient
states touching the right of private property. Their theory was
flYtrpme^ hntj nn^idft nf ^ipirfn, th^ir jirm^t.irBWgLa modera^te.
1248. In Sparta* — Consistent, logical Sparta may serve as
the point of departure for our observation : she is the standing
classical type of exaggerated state fimctions and furnishes the
most extreme example of the antique conception of the rela-
tions irf the state to.moperty. In the early periods of her
history at least, besides being censor, pedagogue, drill sergeant,
and housekeeper to her citizens, she was also univ(5rsal land-
648 THB FUNCTIONS OP GOVERNMENT.
lord. Thf rfi wafi aiJifltinH reminiflm^nrfi in h^r prartiiM* ^f thih
time when the state was the family, and as such the sole owner
of property. She was regarded as the original proprietor of
all the land in Laconia, and individual tenure was looked upon
as rather of the nature of a usufruct held of the state and at
the state's pleasure than as resting upon any complete or inde-
feasible private title. «
1249. Peculiar Situation of the Spartans. — There were in SparU
special reasons for the persistence of sucli a system. The Spartans had
come into Laconia as conquerors, and the land had first of all been
tribal booty. It had been bboty of which the Spartan host as a whole,
as a State, had had the diriding, and it had been the purpose of the
early arrangement to make the division of the land among the Spartan
families as equal as possible. Nor did the state resign the right of dis-
position in making this first distribution. It remained its primary care
to keep its citizens, the favored Spartiatae, upon an equal footing of
fortune to the end that they might remain rich in leisure, and so be the
better able to lire entirely for the service of the state, which was honor-
able, to the avoidance of that pursuit of wealth which was dishonorable.
The state, accordingly, undertook to administer the wealth of the
country for the benefit of its citizens. When grave inequalities mani-
fested themselves in the distribution of estates it did not hesitate to
resume its proprietary rights and effect a reapportionment : no one
dreaming, the wliile, of calling its action confiscation. It took various
means for accomplishing its ends. It compelled rich heiresses to marry
men without patrimony ; aitd it grafted the poor citizen upon a good
estate by means of prescribed adoption. No landed estate could be
alienated either by sale or testament from the family to which the state
had assigned it unless express legislative leave were given. In brief, in
respect of his property the citizen was both ward and tenant of the state.
1250. Decay of the System. — As the Spartan state d^
cayed this whole system was sapped. Estates became grossly
unequal, as did also political privileges even among the favored
Spartiataj. But these changes were due to the decadence of
Spartan power and to the degeneration of her political fibre in
days of waning fortune, not to any conscious or deliberate sur-
render by the state of her prerogatives as owner, guardian,
THB FUNCTIONS OF GJOVERNMENT. 649
«
and trustee. She had grown old and lax simply ; she had not
changed her mind.
1251. In Athens. — When we turn to Athens we experience
a marked change in the political atmosphere, though the Athe-
nians hold much the same abstract conception of the state.
Here men breathe more freely and enjoy the fruits of their
labor, where labor is without reproach, with less restraint.
Even in Athens there remain distinct traces, however, of the
family duties of the state. She too, like Sparta, felt bound to
dispose properly of eligible heiresses. She did not hesitate to
punish with heavy forfeiture of right (atimia) those who
squandered their property in dissolute living. There was as
little limit in Athens as in Sparta to ^the theoretical preroga-
tives of the public authority. The freedom of the citizen was
a freedom of indulgence rather than of right : he was free be-
cause the state refrained, as a privileged child, not as a sov-
ereign under Kousseau's' Law of Kaljure.
1252. In Rome. — When we shift our view to republican
Kome we do not find a simple city omnipotence like that of
Greece, in which all private rights are sunk. The primal con-
stituents of the city yet abide in shapes something like their
original. Koman society consists'of a series of interdependent
links: the family, the gens, the city. The aggregate, not the
fusion, of these makes up what we should call the state. But
the state, so made up, was omnipotent, through one or other
of its organs, over the individual. Property was not private
in the sense of being individual ; it vested in the family, which
was, in this as in other respects, an organ of the state. Prop-
erty was not conceived of as state property, because it had
remained the undivided property of the family. The father,
as a ruler in the immemorial hierarchy of the government, was
all-powerful trustee of the family estates. Individual owner*
ship there was none.
1253. Under Modern Governments. — We with some jus-
tice felicitate ourselves that to this omnipotence of the ancient
650 THE FUNCTIONS OP GOYERNBCEKT.
state in its relations to property the practice of our own goT*
emments offers the most pronounced contrasts. But the point
of greatest interest for us in the present connection is this,
that these contrasts are contrasts of poliq/, not of power. To
what llngths it will go in regulating property rights is for
each government a question of principle, which it must put to
its own conscience, and which, if it be wise, it will debate in
the light of political history^: but every government must
regulate property in one way or another. If the ancient state
was regarded as the ultimate owner, the modem state is re-
garded as the ultimate heir of all estates. Failing other claim-
ants, property escheats to the stale. If the modem state does
not assume, like the ancient, to administer their property upon
occasion for competent adults, it does administer their prop-
erty upon occasion for lunaUcs and mmors. The ancient state
controlled slaves and slaveryfwle^^dern state has been quite
as absolute : it has abolished slaves and slavery. The modem
state, no less than the ancient, sets rules ana limitations to
inheritance and bequest. Most of the more extreme and hurt-
ful interferences with rights of private ownership government
has abandoned, one_nj^y susj^ect, rather because of difficulties
of administration than because of difficulties of -conscience.
It is of the nature of the state to regulate property rights;
it is of the policy of the state to regulate them more or less.
Administrators must regard this as one of the Constituent
functions of political society.
1254. The State and Political Rights. — Similar conclu-
sions may be drawn from a consideration of the contrasts which
exist in the field of that other Constituent function which con-
cerns the determination of political rights, — the contrasts
between the status of the citizen in the ancient state and the
status of the citizen in the modern state. Here also the contraat,
as between state and state, is not one of power, but one of
principle and habit rather. Modern states have often limited
as narrowly as did the ancient the enjoyment of those political
THE FUNCTIONS OF GJOVERNMBNT. 661
privileges which we group under the word Franchise, They
too, as well as the ancient states, have admitted slavery into
their systems ; they too have commanded their subjects with-
out moderation and fleeced them without compunction. But
for all they have been so omnipotent, and when they chose so
tyrannical, they have seldom insisted upon so complete and
unreserved a service of the state by the citizen as was habitual
to the political practice of both the Greek and the Koman
worlds. The Greek and the Roman belonged each to his state
in a quite absolute sense. He was his own in nothing as
against the claims of .his city upon him : he freely acknowl-
edged all his privileges to be but concessions from his mother,
the commonwealth. Those privileges accrued to him through
law, as do ours ; but law was to him simply the will of the
org^anic community, never, as we know it in our constitutions,
a restraint upon the will of the organic community. He knew
no principles of liberty save only those which custom had built
up : which inhered, not in the nature of things, not in abstract
individuality, but in the history of affairs, in concrete practice.
His principles were all precedents. Nevertheless, however
radically different its doctrines, the ancient state was not a
whit more completely master touching laws of citizenship than
is the state of to-day.
1255. As regards the State's Ministrant Functions. — Of
the Ministrant, no less than of these Constituent functions
which I have taken merely as examples of their kind, the same
statement may be made, that practically the state has been
relieved of very little duty by alterations of political theory.
In this field of the Ministrant functions one would expect the
state to be less active now than formerly : it is natural enough
that in the field of the Constituent functions the state should
serve society now as always. But there is in fact no such dif-
ference : govemmeni does now whateper experience permits or the
times demand; and though it does not do exactly the same
things it still does substantial]^ the "iUBA Uad of things that
65Sf THE FUNCTIONS OF GOVERNMENT.
the ancient state did. It will conduce to clearness if I set
for«li my illustrations of this in the order of the list of Minis-
trant functions which I have given (sec. 1234).
1256. The State in Relation to Trade. — (1) All nations
have habitually regulated trade and commerce. In the most
remote periods of which history has retained any recollection
the regulation of trade and commerce was necessary to the
existence of government. The only way in which communities
which were then seeking to build up a dominant power could
preserve an independent existence and work out an individual
development was to draw apart to an absolutely separate life.
Commerce, meant contact,; contact meant contamination: the
only way in which to develop chara)cter and achieve cohesion
was to avoid intercourse. In the classical states this stage is
of course passed and trade and commerce are regulated for
much the same reasons that induce modem states to regulate
them, in order, that is, to secure commercial advantage as
against competitors or in order to serve the fiscal needs of the
state. Athens and Sparta and Rome, too, regulated the com
trade for the purpose of securing for their citizens full store of
food. In the Middle Ages the feuds and highway brigandage
of petty lords loaded commerce with fetters of 'the most haras-
sing sort, except where the free cities could by militant com-
bination keep open to it an unhindered passage to and fro
between the great marts of North and South. As the mediae-
val states emerge into modern times we find trade and com-
merce handled by statesmen as freely as ever, but according
to the reasoned i)olicy of the mercantilist thinkers ; and in our
own days according to still other conceptions of national advan-
tage.
1257. The State in Relation to Labor. — (2) Labor, too,
has always been regulated by the state. By Greek and Boman
the labor of the handicrafts and of agriculture, all Tp%nn^l
toil indeed, was for the most part given to slaves to do ; and
of course law regulated the slave. In the Middle Ages ths
THE FUNCTIONS OF GOVERNMENT. 658
labor whicli was not agricultural and held in bondage to feu-
dal masters was in the cities, where it was rigidly ordered by
the complex rules of the guild system, as was trade also and
almost all other like forms of making a livelihood. Where, as
in England, labor in part escaped from the hard service of
the feudal tenure the state stepped in with its persistent
" statutes of laborers " and sought to tie the workman to one
habitation and to one rate of wages. * The rustic must stay
where he is and must receive only so much pay,' was its
command. Apparently, however, all past regulation of labor ,
was but timid and elementary as compared with the l3'^^^\'^!^*|i,
legislation about to be tried by the governments of our own \
day. The birth and development of the modern industrial
system has changed every aspect of the matter ; and this fact
it is which reveals the true character of the part which the
state plays in the case. The rule would seem to be that in
proportion as the world's industries grow must the state ad-
vance in its efforts to assist the industrious to advantageous
relations with each other. The tendency to regulate labor
rigorously and minutely is as strong in England, where the
state is considered the agent of the citizen, as it was in Athens,
where the citizen was deemed the child and tool of the state,
and where the workman was a slave.
1258. (3) Regulation of Corporations. — The regulation of
corporations is but one side of the modem regulation of the in-
dustrial system^ and is a function added to the antique list of
governmental tasks.
1259. (4) The State and Public Works. — The maintenance
of thoroughfares may be said to have begun with permanenti
empire, that is to say, for Europe, with the Eomans. For the
Bomans, indeed, it was first a matter of moving armies, only
secondarily a means of serving commerce; whereas with us
the highway is above all things else an artery of trade, and
armies use it only when commerce stands still at the^sound of
drum and trumpet. The building of roads may therefore b^
654 THE FUNCTIONS OF GOVERNMENT.
said to have begun by being a Constituent function and to have
ended by becoming a Ministrant function of goveminent. But
the same is not true of other public works, of the Roman aque-
ducts and theatres and baths, and of modem internal improve-
ments. They, as much as the Roman tax on old bachelors, are
parts, not of a scheme of governing, but of plans' for the ad-
vancement of other social aims, — for the administration of
society. Because in her conception the community as a whole
was the only individual, Rome thrust out as of course her
magnificent roads to every quarter of her vast territory, con-
sidered no distances too great to be traversed by her towering
aqueducts, deemed it her duty to clear river courses and facili-
tate by every means both her commerce and her arms. And
the modem state, though holding a deeply modified conception
of the relations of government to society, still follows no very
different practice. If in most instances our great iron high-
ways are left to private management, it is oftener for reasons
of convenience than for reasons of conscience.
1260. (5) Administration of the Conveniences of Society.
— Similar considerations of course apply in the case of that
modern instrumentality, the public letter-post, in the case of
the still more modern manufacture of gas, and in the case of the
most modern telegraph. The modern no less than the ancient
government unhesitatingly takes a hand in administering the
conveniences of society.
1261. (6) Sanitation. — Modern governments, like the gov-
ernment of Rome, maintain sanitation by means of police in-
spection of baths, taverns, and houses of ill fame, as well as
by drainage ; and to these they add hospital relief, water sup-
ply, quarantine, and a score of other means.
1262. (7) Public Education. — Our modem systems of pub-
lic education are more thorough than the ancient, notwithstand-
ing the fact thaj we regard the individual as something other
than a mere servant of the state, and educate him first of all
focJiinaself.
THE FUNCTIONS OF GOYBBNMBNT.
656
1263. (8) Sumptuary Laws. — In sumptuary laws ancient
states of course far outran modern practice. Modern states
have of course foregone most attempts to make citizens vir-
tuous or frugal by law. But even we have our prohibition
enactments j and we have had our fines for swearing.
1264. Summary. — Apparently it is safe to say with regard
to the functions of government taken as a whole that, even as
between ancient and modem states, unifnrinit'niii (if [ihu liiii
ftijl mitnnmbftr divornities of jpraetice. One may justly con-
clude, not indeed that the restraints which modern states put
upon themselves are of little consequence, or that altered
political conceptions are not of the greatest moment in deter-
mining important questions of government and even the whole
advance of the race ; but that it is rather by gaining practical
wisdom, rather by long processes of historical experience, that
states modify their practices ; new theories are subsequent to
new experiences
t.
\
XVI.
THE OBJECTS OF GOVERNMENT.
»o;9Co« —
1265. Character of the Subject. — Political interest and
controversy centre nowhere more acutely than in the question,
What are the proper objects of government ? This is one of
those difficult questions upon which it is possible for many
sharply opposed views to be held apparently with almost equal
weight of reason. Its central difficulty is this, that it is a
question which can be answered, if answered at all, only by
the aid of a broad and careful wisdom whose conclusions are
based upon the widest possible inductions from the facts of
political exiM?rionce in all its phases. Such wisdom is of
course quite beyond the capacity of most thinkers and actors
in the field of politics ; and the consequence has been thal^this
question, perhaps more than any other in the whole scope' of
political science, has provoked great wars of doctrine..
12GG. The Extreme Views Held. —What part shall gov-
ernment play in the affairs of society ? — '• that is the question
which has been the gauge of controversial battle. Stated in
another way, it is the very question which I postponed when
discussing the functions of government (sec. 1231), ^What,"
namely, ^ ought the functions of goven\ment to bef* On the one
hand there are extremists who cry constantly to government,
'Hands off,' ' laissez faire,' ^laissez pa^ser^ ! who look upon every.
act of government which is not merely an act of police with
jealousy, who regard government as necessary,but as a necessary
evil, and who would have government hold back from eveij^
THE OBJECTS OF GOVERNMENT. 657
thing which could by any possibility be accomplished by indi-
vidual initiative and endeavor. On the other hand, there are
those who, with equal extremeness of view in the opposite
direction, would have society lean fondly upon government for
guidance and assistance in every affair of life, who, captivated
by some glimpse of public power and beneficence caught in the
pages of ancient or mediaeval historian or by some dream of co-
operative endeavor cunningly imagined by the great fathers of
Socialism, believe that the state can be made a wise foster-
mother to every member of the family politic. Between these
two extremes, again, there are all grades, all shades and colors,
all degrees of enmity pr of partiality to state action.
1267. Historical Foundation for Opposite Views. — Enmity
to exaggerated state action, even a keen desire to keep that
action down to its lowest possible terms, is easily furnished
with impressive justification. It must unreservedly be admit-
ted that history abounds with warnings of no uncertain sound
against indulging the state with a too great liberty of inter-
ference with the life and work of its citizens, ^uch as there \
is that is attractive in the political life of the city states of
Greece and Rome, in which the publicjjQanQr was suffered to
be Q|9inipotent^ -:^their splendid public spirit, their incompara-
ble organic wholeness, ifieir^pe plav ofrival talents, serving
both the eommon thought and the common action, their variety,
their conception of piiHTc virtiie, these is also much to blame,.r—
their too.wwUm invasion ofjhat, privacy of the individual life
in which alone family virtue, can ^well secure, their callous
tyranny over minorities in matters which might have been left
to individual choice, their sacrifice of^personal independence
for the sake^of puMiC^olidarity^ thfiyL*-haaty_averagej*udg- .
ments, their too confident trust in^he £^blifij^Qice^^They, it \
is true, couTff not have had the individual liberty which we
cherish without breaking violently with their own history, with
the necessary order of their development ; but neither can we,
on the other hand, imitate them without an equally violent
658 THE OBJECTS OF GOVERNMENT.
departure from our own normal development and a reversion
to the now too primitive methods of their pocket republics.
1268. Unquestionable as it is, too, that mediaeval history
affords many seductive examples of an absence of grinding,
heartless competition and a strength of mutual interdepeedence,
confidence, and helpfulness between class and class such as
the modem economist may be pardoned for wishing to see re-
vived ; and true though it be that the history of Prussia under
some of the greater HohenzoUern gives at least colorable justi-
fication to the opinion that state interference may under many
circumstances be full of benefit for the industrial upbuilding of
a state, it must, on the other hand, be remembered that neither
the feudal system, nor the mediaeval guild system, nor the
paternalism of Frederic the Great can be rehabilitated now
that the nineteenth century has wrought its revolutions in
industry, in church, and in state ; and that, even if these great
systems of the past could be revived, we would be sorely puz-
zled to reinstate their blessings without restoring at the same
time their acknowledged evils. No student of history can
wisely censure those who protest against state paternalism.
1269. The State a Beneficent and Indispensable Organ of
Society. — It by no moans follows, however, that because the
state may unwisely interfere in the life of the individual, it
must be j)ronounced in itself and by nature a necessary evil.
It is no more an evil than is society itself. It is the organic
body of .socuiiti; : without it society would be hardly more than
a mere abstraction. If the name had not been restricted to a
single, narrow, extreme, and radically mistaken class of thinkers,
we ought all to regard ourselves and to act as socialists, believers
in the wholesomeness and beneficence of the body politic. ^ If
the history of society proves anything, it proves the absolute
naturalness of government, its rootage in the nature of man,
its origin in kinship, and its identification with all that makes
man superior to the brute creation. Individually man is but
poorly e^xuipped to dominate other animals : his lordship comes
(
THE OBJECTS OF GOVERNMENT. 659
by combination, his strength is concerted strength, his sover-
eignty is the sovereignty of union. Outside of society man's
mind can avail him little as an instrument of supremacy, and
government is the visible form of society : if society itself be
not an evil, neither surely is government an evil, for govern-
ment is the indispensable organ of society.
1270. Every means, therefore, by which society may be per-
fected through the instrumentality of government, every means
by which individual rights can be fitly adjusted and harmonized
with public duties, by which individual self-development may
be made at once to serve and to supplement social develop-
ment, ought certainly to be diligently sought, and, when found,
sedulously fostered by every friend of society. Such is the
socialism to which every true lover of his kind ought to adhere
with the full grip of every noble affection that is in him.
1271. Socialism and the Modern Industrial Organization.
— It is possible indeed, to understand, and even in a measure
to sympathize with, the enthusiasm of those special classes of
agitators whom we have dubbed . with the too great name of
* Socialists.' The schemes of social reform and regeneration
which they support with so inuch ardor, however mistaken they
may be, — and surely most of them are mistaken enough to
provoke the laughter of children, — have the right end in view :
they seek to bring the individual with his special interests,
personal to himself, into complete harmony with society with
its general interests, common to all. Their method is always
some sort of co-operation, meant to perfect mutual helpfulness.
They speak, too, a revolt from selfish, misguided individual-
ism ; and certainly modem individualism has much about it
that is hateful, too hateful to last. The modern industrial
organization has so distorted competition as to put it into the
power of some to tyrannize over many, as to enable the rich
and the strong to combine against the poor and the weak. It
has given a woeful material meaning to that spiritual law that
'^ to him that hath shall be given, and from him that hath not
f
660 TttB OBJBCtS Ol^ GOVBBNBiEirr.
shall be taken away even the little that he seemeth to have."^
It has magnified that self-interest which is grasping selfishness
and has thrust out love and compassion not only, but free com-
petition in part, as well. Surely it would be better, exclaims
the Socialist, altogether to stamp out competition by making all
men equally subject U3 the public order, to an imperative law
of social co-operation ! But the Socialist mistakes : it is not
competition that kills, but unfair competition, the pretence and
1/ form of it where the substance and reality of it cannot exist
1272. A Middle Ground. — But there is a middle ground.
The schemes which Socialists have proposed society assuredly
cannot accept, and no scheme which involves the complete con-
trol of the individual by government can be devised which dif-
fers from theirs very much for the better. A truer doctrine
must be found, which gives wide freedom to the individual for
his self-development and yet guards that freedom against the
competition that kills, and reduces the antagonism between
self-development and social development to a minimum. And
such a doctrine can be formulated, surely, without too great
vagueness.
1273. The Objects of Society the Objects of Govern-
ment. — GroVemment, as I have said, is the organ of society,
its only potent and universal instrument : its objects must be
the objects of society. What, then, are the objects of scxjiety f
What is society ? It is an organic association of individuals
for mutual aid. Mutual aid to what ? To self-development
The hope of society lies in an infinite individual variety, in the
freest possible play of individual forces : only in that can it
find that wealth of resource which constitutes civilization,
with all its appliances for satisfying human wants and mitigat-
ing human sufferings, all its incitements to thought and spurs
to action. It should be the end of government to accomplish
the objects of organized society : there must be constant adjust-
1 F. A. Walker's Political Economy ( Advanced Course }, sec. 846.
'4
THE OBJECTS OF GOVERNMENT. 661
ments of govemmental assistance to the needs of a changing
social and industrial organization. Not license of interference
on the part of government, only strength and adaptation of
regulation. The regulation that I mean is not interference : it
is the equalization of conditions, so far as possible, in all
branches of endeavor; and the equalization of conditions is
the very opposite of interference. *^
1274. Every rule of development is a rule of adaptation, a
rule for meeting ' the circumstances of the case ' ; but . the cir-
cumstances of the case, it must be remembered, are not, so far
as government is concerned, the circumstances of any individ-
ual case, but the circumstances of society's case, the general
conditions of social organization. The case for society stands^
thus : the individual must be assured the best means, the bestl
and fullest opportunities, for complete self-development : in no J
other way can society itself gain variety and strength. But
one of the m««&iil^pendable conditions of opportunity for
self-developmeiit^yv^elKiime^ albncf, society's controlling organ,
can supply. All combination which necessarily creates monopr
oly, which necessarily puts and keeps indispensable means of
industrial or social development in the hands of a few, and
those few, not the few selected by society itself but the few
selected by arbitrary fortune, must be unde j either the direct or
the indirect control of society. To society alone can the power
of dominating combination belong : and society cannot suffer
any of its members to enjoy such a power for their own private
gain independently of its own strict regulation or oversight.
1275. Natural Monopolies. — It is quite possible to distin-
guish natural monopolies from other classes of undertakings ;
their distinctive marks are thus enumerated by Mr. T. H.
Farrer in his excellent little volume on The State in its rela-
tion to Trade which forms one of the well-known English
Citizen series : ^
1 P. 71. Mr. Farrer is Permanent Secretary of the English Board of
Trade (sec. 694).
662 THE OBJECTS OF GOVERKMEKT.
^' 1. What they supply is a necessary/' a necessaryy that is,
to life, like water, or a necessary to industrial action, like rail-
road transportation.
" 2. They occupy peculiarly favored spots or lines of land.''
Here again the best illustration is afforded by railroads or by
telegraph lines, by water-works, etc.
" 3. The article or convenience they supply is used at the
place and in connection with the plant or machinery by which
it is supplied ; " that is to say, at the favored spots or along
the favored lines of land.
" 4. This article or convenience can in general be largely, if
not indefinitely increased, without proportionate increase in
plant and capital ; " that is to say, the initial outlay having
been made, the favored spot or line of land having been occu-
pied, every subsequent increase of business will increase
profits because it will not proportionately, or anything like
proportionately, increase the outlay for services or machinery
needed. Those who are outside of the established business,
therefore, are upon an equality of competition neither as re-
gards available spots or lines of land nor as regards opportuni-
ties to secure business in a competition of rates.
"5. Certain and harmonious arrangement, which can only
' be attained by unity, are paramount considerations." Wide
and systematic organization is necessary.
1276. Such enterprises iriTariablj gire to a limited number of per-
'' sons the opportunity to command certain necessaries of life, of comfort,
or of industrial success against their fellow countrymen and for their
own advantage. Once established in any field, there can be no real com-
petition between them and those who would afterwards enter that field.
No agency should be suffered to have such control except a public agency
which may be compelled by public opinion to act without selfish narrow-
ness, upon perfectly equal conditions as towards all, or tome agency
upon which the government may keep a strong hold of regulation.
1277. Control not necessarily Administration. -^ Society
can by uo means afford to allow the use for private gsAn and
THE OBJECTS OF GOVERNMENT. 663
without regulation of undertakings necessary to its own health-
ful and efficient operation and yet of a sort to exclude equality
in competition. Experience has proved that the self-iutefest
of those who have controlled such undertakings for private gain
is not coincident with th*e public interest: even enlightened
self-interest may often discover means of illicit pecuniary ad-
vantage in unjust discriminations between individuals in the
use of -such instrumentalities. But the proposition that the
government should control such dominating organizations of
capital may by no means be wrested to mean by any necessary
implication that the government should itself administer those
instrumentalities of economic! action which cannot be used exr^ '
cept as monopolies. In such cases, as Mr. Farrer says, ** there
are two great alternatives: (1) Ownership and management
by private enterprise and capital under regulation by the state.
(2) Owneiahip_and management by Grovemment, central or
local." Government regulation may in qiost cases suffice. In-
deed, such are the difficulties in the way of establishing and
maintaining careful business management on the part of gov-
ernment, that control ought to be preferred to direiit adminis-
tration in as many cases as possible, — in every case in which
control without administration can be made effectual.
1278. Equalization of Competition. — There are some things
outside the field of natural monopolies in which individual action 1 /j
cannot secure equalization of the conditions of competition ; and
in these also, as in the regulation of monopolies, the practice of
governments, of our own as well as of others, has been decisively
on the side of governmental^^:i|^lation. By forbidding ehilX
IfttolTfiiVy "^ p^rvigi ny |^' sanitary conditions of factories, by\
limiting the employmtKl of women in occupations hurtful to
their health, by instituting official tests of the purity or the
^quality of goods sold, by Jiffiiting hours of labor in certain
trades, by a hundred and one limitations of the power of un-
8crupulou£uor heartless men to out-do the scrupulous and\nerci*
ful in traoe wt inilustry^ government has assisted equity. Those
664 THE OBJECTS OF GOVERNMENT.
who would act in moderation and good conscience in cases
where moderation and good conscience, to be indulged, require
an increased outlay of money, in better ventilated buildings, in
greater care as to the quality of goods, etc., cannot act upon
their principles so long as more grinding conditions for labor
or more unscrupulous use of the opportunities of trade secure
to the unconscientious an unquestionable and sometimes even
a permanent advantage ; they have only the choice of denying
N^heir consciences or retiring from business. In scores of such
ckses government has intervened and will intervene ; but by
way, not of interference, by way, nt^^^, of nipking competitiop
equal between those who would rightfullv conduct entftrpnsft
basely conauci il. iz is in tnia way that
society protects itself AgMimt permanent injury and deteriora-
tion, and secures healthful equality of opportunity for self-
development.
1279. Society greater than Government. — Society^ it must
always be remembered, is vastly bigger and more important '
than its iustrument. Government. Government should serve y
Society, by no means rule or dominate it. Government shoulil ♦Jf ^
not be made an end in itself; it is a means only, — a means toi,</
be freely adapted to advance the best interests of the soei;y \^y
orgajiism. The State exists for the sake of Society, not Society(
for the sake of the State.
1280. Natural Limits to State Action. —AndJihatJihfiie
are gatuy^l a,nd imppratlYeJimits- to>4itati^ action naxma. who
Sjgripusly^idiefi.the^tructure of society can doubL The limit,
of state fiinpt-jfipq L<t thft limit pf uscessary. .coroperatinn on the
part of Society as a whole, the limit beyond which such com-
bination ceases to be imperative for the public good and be-
comes merelv.,.iiQrivenieiit for industrial or social enterprise.
Co-operation is necessary in the sense here intended when it
is indispensable to the equalization of the ^conditions of en-
deavor, indispensable to the maintenaAQ^ of uniform rules of
individual rights and relationships^ indiSpenlftible because to
/
/
4
THE OBJECTS OF GOVERNMENT.
665
omit it would inevitably be to hamper or degrade some for
the advancement of others in the scale of wealth and social
standing.
1281. There are relations in which men invariably have
need of each other, in which universal co-operation is the indis-
pensable condition of evep tnlftrahl^^ ovigf^npa Only _some
ufiiversal fl-nthnrity can make opportunities equal jis between
man and jnan. The divisions ^^ ^^^'' ^ni^ trb** ^^Tnhi'nofmTiy^
of ^mmerce, jaaay. for the most part be left to contract^ to frf>fl
individual arrangement, but the equalization of the conditions
which affect all alike may no more be left to individual initia^
tive than may the organization of government itself. Churches,
clubs, corporations, fraternities, guilds, partnerships, unions
have for their ends one or another special enterprise for the
development of man's spiritual or material well-being: they
are all more or less advisable. But the family and the state
have as their end a general enterprise for the betterment and
equalization of the conditions of individual development : they
are indispensable.
1282. The point at which public combination ceases to be
il^^eratiYeU3_-0i _fimirSft Jipt ailSr*Ppt.iV^]ft nf ^.]par inHinaf^nn in
gfifl(fff^V tArmft * hnt it ig not: nn t.hflf annnnnf. in/^iafinnf TVin
bounds nf faynily aitanpiation are not ind^^^^nfit bf^^n^^ trhfY
fure marked* only by thft immat^^^^y ^^ ^^" r^""f!: "'''^ ^ the
parfintal and filial affpftti^nffj — thiTiga not sl\] nf ^]\\nh aya
definp.d in the law, fr^ft mle tbg^t the gtate should do nothing
whiphjflj^q^lfVUy pnaHT^ajirn<Tlp>r^iiitfl.hlp. conditions tO Optional
<^gafw»tafinnq ift a^ anffimpnf.ly jjpgtr line of distinction between
governments and corporations. J Those who regard the state as
s^H npfnnnal, fiOpv^y|tif>T^^l i^pjnn "^^p^jj a mere pa.rtppr«hip^
npftTy wjde tJ^Q /\nnrn f.n thp. wOFftt ^^^"iq /if Qpf jalifl]}! UnleSS-
the state has a nPtr^^fi \fr]\^nh iq qnifo nlpgrly HpfinpH hj that
iTi^gariftbkj "Ti^versaL imn^i^ta^le mutu^\jnterdependence which
Tftpa hpynnf}^tbff fam^^y ^Iq^^i^Tia aurl nannnf. hp flaf.iafipH by
family ties, we have absolutely no criterion by which we can
666 THE OBJECT? OP GOVERNMENT.
limit, except arbitrarily, the activities of the state. The cri:.
the other hand, banishes such license of state action.
1288. The state, for instance, ought not to supervise private morals
because they belong to tbe sphere of separate individual responsibility,
not to the sphere of mutual dependence. Thought and conscience are
private. Jipinioa U optional. The atate. miy intervena Qnly where
conamon action^ uniform lag, are. indiapansaUe. Whatever is merely
convenient is optional, and therefore not an affair for the state,
fjjhurglkpn are gDiritually -ciMwrenient ; joint-stock companies aro. capi-
talistically convenient; h^it whpn tha ^tutt^ onngtHwtp* ;»e^if ^ ^hnnh i
^r_ajaa£rfi.^8ineaa assooiation il institutes a monopoly no better than t
ittbMa. l!^?.!ilJ_JJLJiftthinc ">'»«i» *■ "ot jn «"y ^^fi* hptb in^igp^ne^.Y
ble to social or industrial life and necessarily monopolistic. ^
1284. The Family and the State. — It is the proper object
of the family to mould the individual, to form him in the
-^v-^ period of immaturity in the practice of morality and obedience.
/ ^ Thi^ period of subordination over, he is called out into an
'^ '■ independent, self-directive activity. The ties of family affec-
^ — tion still bind him, but they bind him with silken, not with
/ iron bonds. He has left his * minoritv ' and reached his
^. ' majority.' It is the proper object of the state to give leave
to his individuality, in order that that individuality may add
its quota of variety to the sum of national activity. Family
/t discipline, is variable, selective, foraaative : it must lead the
/
I
mativ
b lea3!
individual. But the state must not lea3. It must create con-
'^ ^?N ditions, but not mould individuals. Its discipline must be
invariable, uniform, impersonal. Family methods rest upon
individual inequality, state methods upon individual equality.
Family order rests upon tutelage, state order upon franchise,
upon privilege.
1285. The State and Education. — In one field the state
would seem at first sight to usurp the family function, the
fiold, namely, of education. But such is not in reality the
case. Education is the proper office of the state {or two tea-
T^B OBJECTS OF GOVBRNMBNT. 667
sons, both of which come within the principles we have been
discussing. Popular education is necessary for the preserva-
tion of those conditions of freedom, political and social, which
are indispensable to free individual development. And, in the
second place, no instrumentality less universal in its power and
authority than government can secure popular education. In
brief, in order to secure popular education the action of society
as a whole is necessary ; and popular education is indispensa-
ble to that equalization of the conditions of personal develop-
ment which we have taken to be the proper object of society.
Without popular education, moreover, no government- ^-^at. rap^^q
upon__popular action^can long endurp: the people must be
schooled in the knowledge, and if possible in the virtues, upon
which the maintenance and success of free institutions depend.
No free government can last in health if it lose hold of the
traditions of its history, and in the public schools these tra-
ditions may be and should be sedulously preserved, carefully
replanted in the thought and consciousness of each successive
generation.
1286. Historical Conditions of Governmental Action.—
Whatever view be taken in each particular case of the right-
fulness or advisability of state regulation and control, one rule
there is which may not be departed from under any circum-
stances, and that is the rule of historical continuity. In po A
tics^ nothing radically novel may, safely be attempted. No
result of value can ever be reaciied in politics except through
slow and gradual development, the careful adaptations and nice
modifications of growth. Nothing may be done by leaps^ *
Jne ^j^.*fl
More than that, each people, each nation, must live upon t^ ^r
lines of its own experience. Nations are no more capablejpf^[;;;^$>*^
l^rrowing experience than indmdualg are. The histories of r|!^J[^
other peoples may furnish us with light, but they cannot im-^^^^
nish us with conditions of action. Every nation must con- ^^
stantly keep in touch with its past : it cannot run towards its
^iids around sharp corners.
6^
THE OBJECTS OF GOVERNMENT.
1287. Summary. — This, then, is the sum of the whole
matter : the end of government is the facilitation of the objects
of society. The rule of governmental action is necessaiy co-
operation ; the method of political development is conservative
adaptation, shaping old habits into new ones, modifying old
^means to accomplish new ends.-
INDEX.
SUPPLEMENTARY TO THE TOPICAL ANALYSIS.
[The references are to sectionf .]
Aocoimts, French Chamber of, origi-
nated, 292; Prussian Supreme Cham-
ber of, 4til.
Acheans. supremacy of, in Homeric
times, 125.
Adaptation the rule of political action,
1200 et seq., 120^1211, 1286.
Adjudication as a source of Law, 1187,
1188.
Administration, organization of Greek,
110 ; sphere of imperial, in Germany,
421, 427-436.
Administration and legislation, under
modem systems, 1161-1153.
' Administration,' the, of the Prussian
Government District, 481-48^^; its
President, 483; its methods of work,
482.
Administrative Courts, French, Ii53,
354; Prussian, 500-^)02; Swiss, 576.
Administrative system of the Prank-
ish monarchy, 359 et seq.
Agriculture, Department of (U.S.),
1119.
Albert the Bear, 383.
Alexander, Hellenization of the East
by. 134.
Amendment of French constitution
313, 317, 318; of the German consti-
tution, 404; of the Swiss federal,
506; of the Swedish constitution,
643; of the Norwegian conMitntion,
649 ; of American state constitutions,
896-903; of the American federal,
1045.
America, the English occujMttion of,
832.
Amphictyony, the Delphic, 123.
AmUgerichtt the Prussian, 491, 496.
499.
Ancestors, primitive worship of, 29, 30.
Appeal, French Courts of, 355; the
English Court of, 734.
Archon, creation of the office of, in
Athens, 08; number of archons in-
creased to nine, 69 ; the, EponymuSt
69 ; the, BasUeus^ 69 ; the, Polemar-
chv8f&); the, Thesmothetm, 69.
Areopagus, the Senate of the, relations
of Solon to, 77 ; powers of, curtailed
by Ephialtes, 91.
Argos, supremacy of, 127.
Aristides extends eligibility to office
to all classes of the people in Athens,
89.
Aristocracy, English and ancient con-
trasted, 1170.
Aristotle's analysis of the forms of
government, 11()2, 1163; his cycle of
degeneracy and revolution, 1164 ; in
the light of tlie modem facts of
politics, 1165 et seq.
Army, reform of Roman, by Servius,
146, 147 ; place and power of Roman,
under the Empire, 176; administra-
tion of German, 434 ; Swiss federal,
640; the Anstro-Hungarian, 697; in
Sweden and Norway, 631.
Arrondissementf the French, 347 ; scru-
tin d\ 316, 347.
Arrondissemental Council, French,
.•M7.
Arsenals and dockyards of the United
9tat«e, 1061.
670
INDEX.
Articles of Confederation, the, 866.
Aryan, the, family, G-8; a doubt as
to the, family, 9; tradition as to
descent and family relationship, 11.
Aryan Races, the, their significance
in the history of government, S, 3 ;
ancient Irish law, 7 ; relation of In-
dia to Aryan development, 6 ; donbt
about the early family among, 9.
Asia Minor, settlement of the coasts
of, by the Greeks, 115.
Assemblies, the colonial, in Virginia,
845 ; their development, 854, 855.
Assembly, the Athenian popular, insti-
tuted by Solon, 75, 76; payment for
attendance upon the Athenian, 90;
the Spartan, 102 ; summoned by the
Ephors, 104 ; relations of, to Lycur-
gus, 109 ; the French Constituent, of
the Revolution, 905, 306, 308 ; French
constituent, of 1871-76, 311; the
French National, 313, 317-320.
Athens, see Topical AncUyais ; tenure
of property in, 1251.
Audit, Court of, French, 354.
Auditor, The, of an American state,
089, 991.
Augustus, transmutation of republican
into imperial institutions by, 165-
170.
Australia, the governments of, 825.
Austria, originated in Ostmark, 363;
becomes duchy, 368 ; won by Rudolph
of Habsburg, 370; and the Empire,
374 e( seg.; in the German Confed-
eration, 395; out of Germany, 398;
see Topical Analysis.
Authority, government rests upon,
1154.
Baden, relations of, to other German
SUtes, 394, 397, 399, 401.
Baillit use and development of office
of. in France, 296, 297.
Bankruptcy, laws of, in U.S., 908.
liasileuSf the archon, 69.
Bavaria, relations of. to other German
states, 394, 307, 30^1.401 ; independent
administration of railways. 431; in-
dependent postal and telegraph ser-
vice, 432; and military administra-
tion, 434.
Benefice, the feudal, 238; in England
and France, 239.
Berlin, government of, 492.
Bemadotte, 620.
Bluntschli, Dr. J. C, definition of a
state, 16.
Board of Trade, the Engliah, 694.
Bohemia, acquisition of, by Austria,
580, 581; history of, 589-591.
Bonapartists, French, 311.
Boroughs, English, representation of,
in House of Commons, 667, 669, 706;
geographical relations of, to counties
in parliamentary representation, 709 ;
'County' boroughs, 762, 797; crea-
tion and constitution of» 794, 796;
judicial status of, 796; clssoes and
powers of, .797-801; Ameriean, 1030
et seq,
Bosnia. 586, 596.
Bourgeoisie, gift of, by French kings,
278.
Brandenburg, the Mark, 363, 383 et
seq. ; early organization of, 441-445;
process of centralization in, 446 ; see
Prussia, Topical Analysis.
Budget, the national, in England, 697;
the county, 774-776.
Budget Committee, the French, 332.
Bull, the Golden, names electors of
Holy Roman Empire, 371.
Bundesgericht, the Swiss. See Fed-
eral Court.
Bundesrath, the German, its compo-
sition and character, 406 ; representa-
tion of the states in, 406; functions
of. 407-410; its organization, 411,
412.
Bundesrath, the Swiss. See Federal
CounciL
Burggfaf, the, 442. 443.
Burke, Edmund, on the developmeat
of the colonial assemblies in America,
854.
Cabinet, the French, 322, SM; the
French departmental, 334; the Eng^
lish, its origin, 674; stages of its
development, 675 ; history of mbaa^ |
terial responsibility, 676, 677 ; as '
Execative. 67S, 700; the Qowmtign \
not a member of, 679; positiaB of,
G80 ; appointment of, 681 : its eoaipo-
sition, 682-685; its parliamentary
responsibility, 686, 687; iU legal
status, 688; its foncdon io legisla-
tion, 689.
Caesar, Julius, place in Roman consti-
tutional history, 164.
Canada, the Government of, 818-83*.
Cantonal Legislatures, the Swiss, 517,
518; Executives, in Switzerland, 52:t.
Cantons, the French, 348; the Swiss,
governments of, see Topical Analy-
sis.
Capets, concentration of feudal power
by the, 253, 269. 285, 286.
Carolingians, rise and influence of, 252.
Cassation Court, the French, 355;
courts of the Swiss cantons, 660;
chamber of the Swiss federal court,
575.
Censor, Roman, 156.
Centuries created by Servius, 146, 147;
participate in the choice of consuls,
148, 156 ; later civil functions of. 155.
Chambers, French, sovereignty of, 313 ;
as National Assembly, 317-320 ; gov-
ernment by the, 333; in case of un-
lawful dissolution of, 316.
Chancellor, the Imperial, in Germany,
422^24 ; in the Bvndesrath, 411, 425;
and the Vice Chancellor, 426; the
Swiss federal, 545.
Chancellor, the Lord, in England, 705,
737.
Chancery, English Court of, its origin,
666 ; division of the High Court, 732.
733.
Change, principles of, in primitive so-
ciety, 34, 36-45 ; effected by competi-
tion of customs, 37, 38; by migration
and conquest, 40, 41; by imitation
and by individual initiative, 42, 43.
Charles the Great promulgates version
of the Roman Law, 231, 251; estab-
lishes ' Holy Roman Empire,' 2B0.
Charters, American colonial, 848-H50;
political derelni— ft. 1137 ef «f .
Choice in the devekycat of iastits-
tiotts, 21 : of nilen a sup of dertkap-
■nent in priMitive wcietj. 44.
Chnrcb. tke Roaaa Catbolie asa «mfT.
ing foreein tke Middle Ages. 348. ^
Circle (Coimty). the Pntsstaa, 486-18: :
its Committee, 486, 501; its Diet,
487; the Austrian financial, 6ia
Cities, Imperial, of Holy Roman Em*
pire, 372; Prtfstian, government of,
490-493; English, government of.
See Boroughs ; American, 1090 et
seq. ; their organization. 1035-1037.
Citizen, approach of the ancient Greek
or Roman, to complete membership
of the state. 66.
Citizenship, begins to be dissociated
with kinship. 190; Roman, and the
law, 210; in the German Empire,
437, 919; in Switzerland, 526, 919;
in Austria-Hungary, 003 ; in Sioeden-
Norway, 635; in the U.S., 915, 916;
elements of confusion touching, 917;
naturalization, 918; under a con-
federation, 920.
' City,' the ancient, at first a confeder-
ate centre, 53-5<); contrasted with
modem centres of population. 53 ; a
confederacy of ' houses,* 55; religion
of the, 61 ; decay of the antique, 62;
absorbs its constituent parts. 64-^tfI ;
the, of Solon, iXl ; the. the centrn of
ancient politics, 1H8.
Civil Service Reform, 1103-1105; (kim.
mission, 1120.
Classes, the four property, creaUwl by
Solon, 73; the Ave proi»erty, cr(«atiwl
by Servius, 146, 147; non-rltl/.«<n, in
Athens, 93; in HjMirln, (W; in \Um\t^,
152; constitutional fnfliiAnre of, tii
Rome, 153-lMt; ingen«iral In afiH«ini
politics, 191.
Cllsthenes, ri»ior%nn iff, \u Ath«tns, Al •
87; suiecess of eonniUuiUnthl rri«»M-
nres of, MH.
Code, the, of f >rar/). 71 ; ih'i 1\rni Wtutnu,
the XIK TahlMi, Um; th«-, tft TIim^
dosfns, 215, 260; of Justliilsii, 915)
of Alarlc, 231. 2S6: ot Siglsmand,
231; of Nkpultfuu, am.
Cadiiis. lite lint king o( AUiens, c>T:
lanilly of. in tbe arcliuDship, liX.
< olonial Expansion, Knglith, SlI);
policy, 8I4-ttl«; courts, powers of,
Ki6i Envornora, powers of, VSS; or-
ganization in A'siD £nijlanii, 840;
eipaoBioD without nepaTBdoli In the
aoatli, 842; luoiotf in Uie Sontli,M3.
Colonial, English, government o[. see
Tvpieal Analyiis ; in New England,
S3S, 836. H37-840; in the South, 841-
846; the Middle, in America. 847;
development of constitutional libert?
in the American, Wi4~858; tbeir po-
litical sympathy, SST; separaleness
of their Koverunienlt, 864.
Coloniea, the Hreeli, and the Oreek
eoLonlal system, 118 ; oonitjtutioiu of
Oreek, 11!). 120 ; law of constitutional
modification among Greek, ISI.
Colombia, Distriot of, IMH. 1090; the
oonrta of. 1093, 1«>1.
ConiiEarti(.tbeTeuloDlc,2Je,Z2S; and
the feudal relatiooK, S3K.
Cumltiii curiata, 144; elects Tribunes,
154; survives changes, IBS; cc-iidiri-
atii, creation and character, 146. 147 ;
chooavs consuls, 146. 166; later pow-
ers of, l&S; iribittii absorbs leglsla-
Uve sovereignty, 1 55.
Commendation, feudal, 240.
Commerce, Interstate, regulation of,
in C.8.,9]a.
Commission, the French Departmen-
Ul, ,146.
Committees, French legislative, 330-
332; ol German BundfSF'ith, il2; of
German Stkhttan, 418 ;
Committees, Standing, In American
state legislatures. itaH; ol the fed-
eral SenaM (U.S.I, 1001-1063; of the
federal House of Representatives
CC5.), 1071-1078.
ComnuHi Law courts. In American
states, M4-953.
Common Pleas. English Court of. its
origin. 866.
Commons, House of. its origin. 6T1 ; its
original character. 707 ; connty and
borough representatlveB in. 7(^; re-
form of representation In, 7II>'71G;
elecHunand term of, 71S-7I!); sum-
moos, electoral writ, prorogation.
720-723; Drgaaization of, 724; hall
and seating of, 72S,
Communes, medimval rural, In France,
374 ; the modem French, their or-
ganization, functions, etc, 34!l-3n2;
the Fmssian rara1.44Q; tbeProBsian
dty, 490-193; the Swiss, 52G, eat;
the Austrian, 810; the Hnngariao,
613; the Swedish, 613; the Norwe-
gian, 046.
Competition, Eqnalliation of, 1278.
Comptroller, the, of an American state,
989,991.
Comptroller-General, position and
po^er of. in prc-revolutioniuy
France, 303.
Conceptions, certain legal, universal,
1212.
Confederacy of the Rhine, 3M, 401.
Confederation, principle of. in primi-
tive society, 02-67 ; a. oontraated
with a modern fsderal state, 1141-
1143.
Confederation, tbe SiBia, ita «dc(N
gence in Germany, 373; theOennnn,
ofl81fi,.'ffl9; the North Gcmuut, 997;
the Amerimn. of 1781. WUI ; Its ooti-
stItutloD.BG6: it»WpakDeBS,Slt7; dti-
zenahip under a, 920.
Contlicl of LiiWB in the V.S.. e04-VU>. ,
Conflicts, Frendi Tribunal of, 867;
Priiaaian Court of, 602; Swiaa Fed-
eral Assembly as n rourt of. S68.
Congress, tbe. of tbe Contederatloo.
866-067; of the U.S., lOM «I trg.;
Acts of. 1077-1081 ; nnd tbe Execu-
tive, 1063, 1076. 1107, 1108.
Connecticut, Charier of. 8411,
Conqnest, eflect of, on race habits and
in&tltntloDB,41; elf ects of , on Konui
constitution. 161. 157-160; eSeots of ,
upon Teutonic Institution*, 234-337;
effects of. npon Tentonic InslitDtloDs
inEni:liiiid,663.
Cof,nli.iplfbl,,Jii.
INDBX.
678
Conmium tributum plebis elects Trib-
nnes, 165.
Constantine, goyemmental reforms of,
181-184; separation of ciyil from
military command by, 181; territo-
rial division of the Empire by, 181-
182; civil provincial officers under,
181, 182; military provincial officers
under, 183; household offices estab-
lished by, 184.
Constituent functions of government,
1233, 1247-1264.
Ck)n8titution, the French, framing of,
311 ; character of, 312 ; amendment
of, 313, 317, 318; the Swiss, 610; its
character, 511, 612; its indefinite
grants, 613 ; its guarantee of canto-
nal constitutions, 514; its amend-
ment, 666; Austro-Hungariarit of
1867, 692, 594; the Swedish, oscil-
lating development of, 619; its
amendment, 643; the Norwegian,
621, 622; its amendment, 649; the
English, 730; of the U. S., and col-
onial precedents, 869-871; charac-
ter of the government formed by
. it, 872 et seg. ; powers granted by it
to the federal government, 890;
powers withheld by it from the
states, 891; powers left by it to
states, 892, 893; its general charac-
ter, 1045 ; its amendment, 1046.
Ck)nstitutional development, English,
as compared with American, 868 et
seq.
Constitutions, American state, non-
constitutional provisions in, 894-897,
926 ; amendment of, 898-903.
Consuls, Roman, creation of office of,
148; chosen by Comitia Centuriata,
148, 166; relations of, to Senate, 149,
150 ; steps towards the admission of
plebeians to office of, 166 ; under the
Empire, 166. 167, 170, n. ; of Itolian
towns, 276.
Contract, absence of the idea of, from
primitive society, 17 ; the, theory of
the origin of government, 18.
Control, Central, over local adminis-
trative bodies in France, 316, 347,
361, 362 ; in England, 800. 801. 806,
812; in American state governments,
973-977, 993, 994.
Control not necessarily administration,
1277.
Conveniences of society, the, adminis-
tration of, by the state, 1260.
Corporations, law-making by, 1193;
regulation of, by the state, 1268.
Corpus Juris Civilis, 216-217; study
of. in the Middle Ages, 216, 268; sub-
sidiary authority in Germany, 266.
Council of Elders under patriarchal
presidencies, 48, 49; representative
confederate character of, 67; the
Spartan, 101; election to Spartan,
103; probouletitic legislative func-
tions of Spartan, 101 ; judicial func-
tions of Spartan. 101. 104, 106; asso-
ciated with early Roman kings, 144.
Council of Ministers, French, 322, 325 ;
Prussian, 460.
Council of State, the French, origi-
nates in Feudal Court, 291, 292; its
development and dififerentiation,292 ;
its composition and functions, 363;
the Prussian, 468, 459; the Norwe-
gian, 644, 645.
Council of States {Standerath) , The
Swiss, its composition, 552, 553; its
functions, 555. 556.
Councils, the English County, their
constitution, 764-768; their powers,
770-777.
County, the English, and the Saxon
Kingdom, 656 ; representation of, in
House of Commons, 708 ; geographi-
cal relations of, to boroughs in par-
liamentary representation, 670, 709 ;
its historical rootage, 761; early
evolution of its organs, 752; see
Topical Analysis ; the, in the (/. S.,
1026-1027; in the South, H44, 102K;
where the township nxiiitN, 1029.
County Courts, the English, at present,
7»^741 ; the ancient, 761, 762.
Courts, the English law, their dnrivrv
tion, 666; their present cimi(Kmliion
and jnrifldiction, I'M H srq.i |M»wffrN
of English coUmlal, H26i \nU%f\^rmiik'
674
INDEX.
tion of federal law by American
state, 888, 1096; the, of American
states, 9i0-962; of the U.S., 1066
et 9eq. ; their procedure, 1096.
Crete, power and institutions of, 126.
Criminal law. diversities of, in U.S., 907.
Croatia, Slavonic village-communities
in, 7 ; acquired by Austria, 684.
CroatiarSlavonia, government of, 614.
Crown Colonies, government of the
present English, 827; in America,
863.
Crusades, the, and the mediseval towns,
279 ; and the mediseval French mon-
archy, 286.
Curies, the Roman, confederate part
in early politics, 144; exclusive As-
sembly of {Comitia curiata), elects
Tribunes, 164 ; survives change, 166.
Custom, the reign of, in primitive
society, 31. 32; and written law in
France, 267; local, and Roman law
in France, 261-266; as a source of
Uw, 1184. 1185. 1194, 1196.
Customs, dififerences of, in primitive
society, 35; antagonism between,
36; competition of, 37; prevalence
of 8uperior. 38.
Czar, the, of Russia, nature of his power.
1204, 1210.
Dalmatia. Slavonic village-communi-
ties in. 7 ; acquired by Austria, 586.
Danes, The, 615.
Decemvirs, The. 198.
Delegations, the Austro-Hungarian,
602.
Delos, the Confederacy of, and its in-
fluence upon the position of Athens,
129; transmuted into Athenian em-
pire, 130.
Delphi, centre of an amphictyony, 123;
inHuence of the Oracle at, 124 ; seat
of religious games, 128.
DemeSt new arrangement and combina-
tion of, by Clisthenes, 82, 83.
Aijuos (people), the primitive Greek,
composition and character of. 52.
Democracy, its present and future
prevalence. 1171; the modern, dif-
ferent in form from the ancieDt,
1172; and also in nature, 1173;
growth of the democratic idea. 1174.
Denmark, union of, with Sweden and
Norway, 617.
Departments of Administration,
French central, temp. Lonia Xiy.291,
296; organization of French, 334;
functions of French. 335; the GtT'
man imperial, 421-435 ; thePruMiaa,
467,463; the iStoiu federal, 534.636;
the Common, of AuHriO'Sunifary,
697; and the Delegations, 602; the
Austriante06; th» Swedish, eaO; the
Norwegian, 645; the English, 691
eiseq.; American federal, 110^1120.
Departments, the French, organized
by Napoleon, 306 ; their present or-
ganization, 338-346.
Deputies, French Chamber of, compo-
sition, etc, of, 316; dissolation of,
by President. 315, 320, 32L
De-socialization, modern, of the state,
1244.
Development of government, probable
early, see Topical Analysis; con-
tinuity of, 1121; order discoverable
in, 1123; course of, in the ancient
world, 1123 ; England's contributions
to, 1125 et seq. ; contributions of the
Romans to. 1126 et seq.
Diocletian, division of Empire by. 179.
180.
Discipline, the Spartan sUte, 107, 109.
Discussion begins to determine insti-
tutions, 192; Scientific, as a source
of Law, 1191.
Dispositio Achillea, the, 388.
Dissolution of French Chamber of Dep-
uties by the President, 316, 320. 321.
District, Prussian Government, 480-
484; its Committee, 484, 601; the
Prussian Magisterial, 488; Courts,
Prussian, 494 et seq. ; Courts, Prus-
sian Superior. 494 et seq. ; the Swiss.
524.
District Attorney, the U. S.. 1091.
Divorce, conflict of laws touching, in
U. 8.. 905.
Domains, Prussian Chamber for War
675
and, 448 et ieq., 491; fnsioii of the
administration of War and Domains
in Prossia, 4B0; Chambers. Prussian.
449.
Draco, his code, 71.
Durham, Lord, in Canada. 816.
East, Hellenization of. by Alexander,
134 ; character of Greek cirilisation
in the, 135, 136.
Economic Cooncil, the Prussian, 462.
' Economic laws,' in Sweden. 625.
Economic relations of Austria and
Hungary, 600.
Edict, the Prstor's, 202; of the Bo-
man proTincial governors, 207.
Education Department of the English
Privy Council. 699, 810.
Education, Public, plan of. in England.
811 ; a function of the state, 1262,
1286.
Elders, Council of, under patriarchal
presidencies, 48, 49; confederated
family chielii in the primitive coun-
cil, 57 ; loss of separate powers, 66 ;
the Spartan Council of, 101 ; election
of Spartan, 103; judicial functions
of the Spartan Council of, 101. 104,
106; probouleutic legislative func-
tions of, 101 ; loss of importance by,
190.
Elector, the Great, of Brandenburg,
391.
Electors, the German, 369, 371.
Elgin, Lord, on the powers of English
colonial governors, 828.
Emperor, the Austrian, as Emperor-
King, 595, 596 ; as monarch of Aus-
tria, 604, 607 ; power of, to legislate
in recess of Beichsrath, 608 ; as King
of Hungary, 611.
Emperor, the German. 402, 403 ; shares
sovereignty of the Empire only as
King of Prussia, 406.
Emperor, the Boman, creation of
oflSce and powers of, 165-169; na-
tionality of later incumbents of
office of, 175.
Empire, Athenian, ISO.
Empire, the German, origination of
pwent, a99L 401; goremment of,
see Topical Analytu,
Empire, ' Holy Boman,' establishment
and influence of, in Middle Ages,
290, 251 ; influence of. on spread of
Boman law in Germany, 266 ; history
of, 361 €t $eq. ; becomes exclusively
German, 375; in eighteenth century,
380; endof.38L
Empire, Boman. establishment of, 160,
164-169; causes which led to. 159-
163; growth of new offices under,
172, 177. 178, 181-185; division of
Boman into Eastern and Western,
136, 143, 186, 187; effect of, upon
politics, 196; unifying influence of
the Holy Boman, in the Middle Ages,
250, 25L
England, entrance of Roman law into,
267.
English, the, and the Romans com-
pared, U26-1128; contrasted, 1129,
1130.
English institutions, adaptation of. in
America, 833. 834. 858 nt teq. ; grew
by consolidation, 859.
Ephialtes, constitutional reforms of, in
Athens. 91.
Ephors, the Spartan, 104, 105.
Eponymui, the Archon, 69.
Equity, courts of, in American states.
954-966; fusion of, with common
law, 955; as a source of law, 1189,
1190.
Estates, Prussian Communal, 479.
Estimates, the, in England, 696.
Ethics, Law and. 1213.
Evpairid$, the Athenian, and the early
archonship, 69 ; and the party of the
plain, 70 ; as landlords and creditors.
72; preferred for office under the
Solonian constitution, 75; shut out
from exclusive privilege by Clis-
thenes. 82. 84, 86.
Elxchequer. English Court of. its origin.
666; the Chancellor of the, 697.
Executive, the Swiss cantonal, 523;
the Swiss federal, 527 et $eq. ; of an
American state. 964-071 ; contrasted
with federal, 972; its real character,
9T4-9r7 ; Heveml officare of, 978-993 ;
constltuUnnal diffusion of, SB!); no
hierarchy, 904; the federal (U, 8.).
109T el teq. ; rolationaot, to Congross.
tQB3, 10T6. HOT, 1108.
Bttradltlon, in Swiascuitolu, M2.
Punily, the. iM ortgin : was It patrl-
arohal. 6; the Greek and Koman,
S; the DOD-Aryan, its organization,
10 ; develupDient of the state from
Uie patriarchal , IS^ the piimnl unit
ol political organiiatioD, 36 ; and the
Fatbrr, the, authority of, necewary to
perfected goverameiit lu primltivH
iuiclot]',SA; early sunctlim of aathoi^
ity of. 2li; primitive priesthood of
the, 68, S9.
Federal Assembly, the Swiss. M6~
608.
Federal CoDncl), the Swim, .^28-538;
Its mixed fonclions, nSG-ti^: as an
administrative court. BTH.
Federal Court, the Swiss, Its origin,
811, 6M, OtiT; ilB oompOBitloB, D«8;
Its Jurisdiction, sm-mb.
Federal State, the modern, coiiira«l«d
with Con federatloDB, lUl-1143; dis-
tinguishing marks of tho modem,
1141-1140.
Federation the procese of growth in
America. fIBS.
Fen.lBllsm, a fu.sion of Germanic with
{toman Institutions and conceptions,
2K{; defined, 2:18; local differenoes
In moUiods of, 23»; results of, 241-
344; nnifylng tnfluenciH checklog,
34T-251 ; contralixing forces result'
ing from, 3Ki-2B4; and sovereignty,
243; and the towns, 244; effects of.
in Franco. 26S, 270-2T2; and the
OruBiwlea, 37!), 28l>; In Germany con-
trasted witli foudnllsm in Frani-e.
3S» ritrq.: In BwltierlHnd, «»: the
Norman, In England, ILW : the feudal
sjrslem in England, ivn; and the
modem monnrch, 1124: and the
functions nt govemm-nl, 1242. 1243.
1
down to time of Frederic the diteut,
449,
Folk-moot, the Euglish, GM.
Force at the basis of govemment, 1154
el scq, ; in ancii-nt and in modem
systems. IIM. I16T.
Foreign Affairs, in the German Empire,
437.
Forma of government, 1161 et leq.;
see Topkul Analytii.
France, entrance of Roman law into.
2li0-36e,
Francliiae, the parliamentary, in Pros-
sia, 4ij7, 468 ; porliameDtary. in Ans-
trlB. 607; Hnngarian, 613; Norwe-
gian, 616; in England, 708,710-711!;
the English county, 769 ; in the Eng-
lish parish, 784; in the English
Unions, 791 ; in the English boron^,
•KS; In the American states, »1T,
937-039; in federal elecUons (C.S.),
1069, 1070.
Frederic the Great, RW1, 393.
Frederic Barbarossa. 368.
Functions of Government, see Tbpfeaf
AnalytU.
Oalicla, ass.
Games, the various sacred, 128; influ-
ence of, in Greece, I2H.
Oeme/»(/<, Uie Swiss, see CommnOes.
General Council, the, of the Frencb
Department, 31G. 341-1144.
'Generality,' the French, 300; givfls
place to modem Department, 308.
Gfn«, see 'House.'
Germany, entranee of RnuiBn law Into.
'Jfifi.
Gnelst. Professor, influence of. upon
Pni^an administration, iCS.
Gods, private family and eity, in primt-
tlre times, 19.
Government, its origin in kitmbfp, t;
choice in the development of, 24; Its
beginnings In the discipline ol til*
patriarchal family. 20; an organ of
society, IliW. iSOS, 127H, 1370; H*
Tnpir.il Anolvm
INDEX.
677
term of office, 967; their qualifica-
tions, 968; their relations to other
state officials, 97^-976. 993; their
duties and powers, 978-981,
Gracchi, the. measures and fate of, 163.
Graft the, as an official under the
Prankish monarchy, 309, 360, 362.
Great Ck)uncil, the, of the Norman
kings, 659; evolution from it of Par-
liament, the Cabinet, and the courts
of law, 662 et seq.
Greater Britain, 831.
Greece, Governments of, see Topical
Analysis.
Greeks, original migrations of, 112;
influence of the Phoenicians upon
the, 113; remigrations and settle-
ment of the Mediterranean, 114-117 ;
colonial system of the, 118-121 ; union
and nationality among. 122 ; religious
community among, 123,124 ; political
AggregBitions of, 126-127 ; games and
festivals among, 128; eastern and
western, 136. 142; subjection of the.
to Rome, 143.
Guilds, the mediaeval trade, 246.
Gustaf Adolf, 619.
Gustaf Eriksson, 618.
Habit conditions legal development,
1200-1208.
Habsburg, first emperor of House of,
370 ; the, marriages, 378.
Hardenberg, Ck)unt, 462.
Helisea, institution of the. in Athens,
and character and functions of, 78 ;
expansion of, by Clisthenes, 86.
'Hellas,' meaning of the term, HI;
law of constitutional modification
in, 121 ; see Topical Analysis.
Hellenotamim, officers of the Delian
Confederacy, 129.
Helots, the Spartan, 97.
Helvetic Republic, the, 608.
Henry HI., of the Holy Roman Empire,
367.
Herzegovina, 686, 698.
High Court of Justice, the English,
732, 733, 738, 740, 743.
Hobbes. Thomas, the Leviathan of, 18 ;
views on the origin of political so-
ciety. 18 ; theory of a Law of Nature,
18 ; idea of an original state of war,
18.
Hohenstaufen, the, 368.
Hohenzollem. the, acquire Branden-
burg, 387.
Home Office, the English, 692.
Home Rule in Bohemia and Hungary,
689,690.
Hooker, Richard, Ecclesiastical Polity,
18 ; on the law of Nature in its con-
nection with the origin of society, 18.
' House.' the, or genst 12; a complete
organism within the ancient 'city,'
63 ; its junction with a phratry, 64 ;
a constituent member of the ' city.'
66 ; political disintegration of. 66, 66;
House of Representatives, see Repre-
sentatives, House of.
Household Officers, under the Roman
Empire, 177, 184; in the French
Monarchy, 291.
Houses, reasons for two legislative, in
England, 671; in U. S.. 928-931;
names of two legislative, in Ameri-
can states, 933.
Hundred, the English, and its ' moot,'
664.
Hungary, acquisition of, by Austria,
680, 683; relations of, to Austria,
687 ; see Topical Analysis.
Imitation, tribal and individual, a
force of change in primitive society,
42.43,
Impeachment, history of ministerial,
in England. 676; disappearance of,
in England, 677.
India, contains evidence of old Aryan
habit and organization. 6; govern-
ment of British, 829, 830.
Individualism, unknown in ancient
politics, 1176; introduced with
Christianity and the prevalence of
Teutonic institutions, 1176; relative
under feudal system, 1177 ; destroyed
by the modern monarchy in its first
forms, 1178 ; revived by Renaissance
and Reformation, 1179.
678
INDEX.
Initiatiye, individual, entrance and
influence of, in primitive society, 43.
Instruction, Superior Council of Pub-
lic, French, 354.
Intendant, the French, 299; origin
and development of the ofdce, 301 ;
and the Comptroller-General, 303.
Inter-Cantonal judicial comity in Switz-
erland, 577.
Interior, Department of the (U. S.),
1118.
International Law, 1216, 1217.
Interpellations in the French Cham-
bers, 328.
Interpretation, growth of Roman law
by. 199, 201, 202, 212, 213 ; as a source
of law, 1187, 1188.
Interregnum, the, in Holy Roman Em-
pire, 369.
Interrex, The Roman, 144.
Inter-state Commerce, regulation of,
in U. S., 912 ; the. Commission, 1120.
Ireland, the administration of, 704.
Irish Law, ancient, its significance, 7.
Joachim II., of HohenzoUern, 389.
Joint Councils, the, of Sweden and
Norway, 634.
Judges, election of American state, 959,
960; aud qualifications required of
them, 961 ; appointment and tenure
of federal, 1088; their relations to
each other, 1089 ; and their salaries,
1090.
Judices, the Roman, 200.
Juries, in England in civil cases, 742.
Jurisconsults, the Roman, under the
Empire. 213-216.
Jurisdiction (judicial) of the U. S.,
1082, 1083 ; of existing federal courts,
1085-1087.
Jurisprudence, 1223 et seq. ; analytical
school of. 1224, 1226-1228.
Jurists, the Roman. 211 ; their influ-
ence, 212; as jurisconsults, 213-216.
Jury-courts, expansion of the Athenian
popular, by Clisthenes, 85 ; payment
for service in the Athenian, 90; in-
creased, i>2 ; Roman, 200 ; the French.
356 ; Prussian {Hchvouryerichte) , 497.
Ju$ civile, 203; afiPected by the jut
gentium, 206, 209, 210, 212.
Jus gentium, originates with the Prm-
torperegrinue, its character, 201 ; not
international law. 205 ; influence of,
upon the jus civile, 206, 209, 210, 212;
grows in the Provinces, 207 ; receives
sanction from the * Law of Nature.'
208, 209; influence of the joriaoon-
sults upon the, 211. 212.
Jus resp&ndendi, the, 213.
Justice, tribal, under patriarchal prasi-
dencies, 49; administration of, in
Athens, 69, 77, 78, 85, 90, 91 ; admin-
istration of, in Sparta, 101, 104, 106;
administration of rural, in medisBval
France, 275; oentraliiAtion of the
administration of, in France, 260-
265,296.302,353-357; administration
of, in Germany, 410, 436; in Pmasia,
449, 491-503; in Switzerland, 538,
543; in the cantonal courts, 559-566;
in the Federal Court, 567-575; admin-
istrative cases, 576 ; in England, 731-
746; in the states of the American
Union, 940-962; under the federal
government (U. S.), 1082-1096.
Justice. Department of (U. S.). 1116.
Justices of the Peace. French, 318,
355; English, criminal jurisdiction
of, 743; in Quarter and Petty Ses-
sions, 744; character and repute,
745, 757; history of office of, 754,
755; administrative functions of,
before 1888, 756.
Kalmar, union of Denmark, Sweden
and Norway at. 617.
King, the Homeric Greek, 4&-51; his
part in legislation, 48; in tribal jus-
tice, 49 ; his priesthood, 50 ; charac-
tor of bis headship, 51 ; representa-
tive position of, 50 ; likeness of early
Roman, to early Greek, and differ-
ence, 144; method of electing early
Roman, 144; Roman, gives place to
consuls, 148 ; of Sweden-Norway, as
king of Sweden, 625, 637, 638: as
king of Norway, 626, 644 ; selection
of, in case of vacancy, 627 ; as joint
6T&
Mxht
of
631; olEa^laBda«ortof
iiiiidster,67B;
Cabineu 679; ami the
of miiiicten, 181, GH.
Kiiis>» the two Sprf n. tkrir ongaB.
100; their faboidiBaskM to tiae
Epton, 101; their jadkial fvactkML
106.
King's Beodi, EDgliih Coon of, its
origin. 666; diTinoB of the High
Court, 732, 733u
Kingship, ahofitioB of the, in Athcat
67 ; the new Teotowe, 235.
Kinship, the first hood of sociecj. 4«
21; persistenee of the idea of, ^:
fictitioiis, adoptioo, Sf : and rtli^jn
in primitiTe sodety, 29: snrriTals
of the idea of, 33; dissociated from
citizenship, 190.
Labor. Department of (US.) . 1120 ; tlie
state in relation to, 1257.
LagtMng, the Norwegian, 616, 617.
Land, the primitire state relat<>d to
no particolar, 14-16; manner in
which the relationship was derel-
oped, 14 ; identification of the mod-
em state with some particular, 16;
tenore of, in Sparta, 99. 1248; in
Athens, 1251 ; tenure of. among the
Teutons, 222 ; modified by conquest,
236,237.
Landammann, the Swiss, 523.
Landeshauptmann (or Lande$direk-
tor), Prussian, 476-478.
Landesherren, 362.
Landgemeinde, Prussian, 455.
Landraih, the German sheriff, 448,
460, 454, 456, 486, 487, 501.
Landigemeinde, of the Swiss cantons,
517.
Landtag f the Prussian, 465-470; the
Prussian Provincial, 476, 477; the
Austrian Provincial, G06, 609; of
Croatia-Slavonia. 614.
Law, the making, execution, and inter-
pretation of, 1135, 1136; its nature
and development, see Topical Anaiij'
sis.
Its
as mrfivts, SOl-tflA.
Law-giT«r. tbeoiy of aa orjjrnal, as
crcASor of t^ fias« I.-*.
Law, intcffvasicttaL 1^*X l^T.
Law. * perweal.' := ^ixzL :5^ : in Itahr.
Law. poJit>-al. Lmftazioos of. 1^9.
Law. private, effect of Roman npc*n
TeatoBir. S^il : content of. L221. 12±L
Law, pablic, effect of Roman upon
Teatoaic. 2»: contest c.f. 12LU U*l!2.
Law, Roatan, entrance of. into modem
legal systems, 255-3ST: s«« Topical
Analysis; iu typical character,
1196: spoke the will of the Koman
community and the Roman charac-
ter. 1206.
League, the Aduean. its history, 138;
its constitution, i:£«: the ftolian,
its character and constitution, 140,
141.
Leagues, the Hanseatic and Rhenish,
216.
Legislation in the Homeric patriarchal
presidency, 48; in Athens, 76; in
Sparta, 101. 102: in Rome, 144, 14(>,
149, 151, 155; under the Empire, 170;
growth of, in ancient city-states,
191; character of Roman imperial,
214 ; its codification, 215 ; course of,
in the French Chambers, 330-332;
in German Reichstag, 411) ; in Swiss
cantons, 516-522; joint, in Austria
and Hungary, 597, 000; in Sweden
and Norway, 633; in England, 689,
729; distrust of, in American states,
895; course of, in American states,
935, 936; course of in U.S. Congress,
1061-10(», 1071-1081 ; scope of mod-
ern, 1134; and administration under
modern systems, 1151-1153; as a
source of Law, 1192-1193.
Legislatures, Swiss cantonal, 51(Wil8;
of the American states, 92;MKW ; not
sovereign bodies, 927; devolopmunt
of. 1131-1134.
Legitimists, French, 311.
Lex Visigothorum, the, 266.
i^^M^
680
IKDBX.
Liberties, their creation vs. their con-
firmation by constitution, 1139, 1140.
Liberty, development of constitution-
al, in the American colonies, 854,
856.
Limits, natural, to state action, 1280-
1283.
Local government in France, 273-284,
296, 297, 299, 336 et seq. ; in Prussia,
44(M50, 454^56, 471 etseq, ; in Switz-
erland, 524 et seq. ; in Austria, 610 ;
in Hungary, 613; in Sweden, 616,
642 ; in Norway. 316, 648 ; in England,
748 et seq. ; in the U. S., 973-977, 993
et seq.
Local Government Board, The English,
694.
Locke, John, Civil Government ^ 18;
on the origin of the body politic, 18.
London, the government of, 807-809.
Lord Lieutenant, the English, 758.
Lords, House of, the Prussian, 465-469 ;
the Austrian, 607 ; the English, its
composition, 726; function of, in
legislation, 727 ; as a supreme court,
728, 736.
Lot, election by, introduced in Athens
by Ephialtes, 91.
Louis IX., translation of Roman law
and judicial reforms under, 2()0, 21K5 ;
centralization of local administra-
tion by, 296, 297; Jjonis XIV., per-
sonal government of. 298.
Louisiana, i)cculiar character of the
laws of, 911.
Lycurgus, part of, in the development
of Spartan institutions, 109.
Macedon, mastery of, in Greece, 133;
conquests and influence in the East,
134-i;^>.
McMahon, Marshal, 311.
Magistrate, the i)olitical, replaces the
hereditary, 45.
Magnates, House of, the Hungarian,
012.
Majorities, force of, in modern poli-
tics, 1180.
^fala Prohibita, 1214.
Manors, Prussian, 455.
Marios. 164.
ifarAr^a/, the Frankish, 363 ; indepoi-
dence of, in Brandenburg, 385.
Marshal, the U. S., 1091, 1092.
Massachusetts, charter of, 848.
Maximilian I. of Holy Roman Empire,
375 ; reforms of, 376, 377.
Mayor of the Palace, the Aostrasian,
252.
Mayor, of the French Ck>mmaneB, 349,
360.
Mediterranean, the Greek, 116.
MetcjRci, the Athenian, 93.
Middle Ages, government daring the,
see Topical Analysis.
Migration of communities, effect of,
on customs and institutions, 40, 41.
Military leadership among the Teu-
tons. 225.
Ministerial System, the French. 291,
295; at present, 322-329; the Prus-
sian, 457, 460, 463.
Ministers, French Council of, 322, 325 ;
relations of French to legislature,
327-329 ; Prussian do., 460 ; relations
of Prussian to legislature, 464 ; the
Swiss, 528, 534, 535; their relations
to the federal legislature, 533; the
Austrian, 605; the Hungarian, 611;
the Swedish, 638; the Norwegian,
644, 645; the Ejifjlish, see Cabinet,
The English ; relations of Atnerican
federal, to Congress, 1063, 1076 ; rela-
tion of, to head of the executive in
modern governments, 1148, 1149;
relations of, to administration as a
whole, 1150; relations of, to modem
legislatures, 1151-1 ir»3.
Ministrant functions of government,
12.%!, 1255-1263.
Ministries, the French, 323, 334, 335;
development of the Prussian, 451,
457; present Prussian, 457, 463;
Swiss federal. 534. 535 ; the common,
of Austria and Hungary, 597; and
the Delegations, 602; the Aostiiaii,
605; the Swedish, 639; the
gian, 645: the English, 601 i*j
under the federal
1109-1120.
Mlnistr; of 8Mte ISlaaltmlniHerium), '
Uie Pros^BD, 4a>.
Moiiardif , cluuacl«r o/ prlmltire
Greek, 4S-1U; the modern ulmolulf, j
ll(X>,116T; the modern, lu ua I )y ' lim-
ited,' IWH; uol now succeeded by
arUtocnicy. IltKI; ilie feudal, its
cbsracler, 1313.
Monopolies, untanl, 1270, 137(1.
Moravia, SNS.
Morley, John, quoted M to the origlD
of goTGminenl, 34.
Mosaic iniUtatloDs. Inflnence of, on
European deTelopmont, Zm.
Monlcipal Council, tlie Frerfl,, SCO.
3S1; ttas Pruuiau, 4B1. 4U-2; the
Engliih, TQ6; the American, WIS.
1037,
MuDlclpalltles, EnKlisb, T93-M6.
Napoleon, codlficalloa of French law
by. 3B1 ; reconitruetlon of French
adminiattatioD by, 307, 308;. la Ger-
many. 3B1, Wt.
National AMemblj, the French. SIJ-
320.
National Character spoken in Law. ISfl
National Idea, the, in L'. 9. growth of.
870 el s?g.
Nationality among the Greeks. 122;
and state sovereignty tn Switier-
land. 61S.
Natnre, Law of. received by B'lnuo
lawyers from the Greek Sloirs. 3GK;
laws of, and laws ot the state, ISHt,
1219.
Mature and fnnnn or goTeroineTit, see
Topiral Aruili/iii.
Navy, Depnnmeni of tbe (U.S.). ltL'>.
Kew Melico, law of, !>ll.
JfoMOjiAyfaces (gnardiao* ot Um law),
EX. 681
Objects of govemneni. the, ••• Topi-
cal Analgfil.
Octavini, see Auiiaslns.
OtUlithing. the Norwetrfati, 646, 647.
Opinion, effivis of. npon character of
the fovernnieot ot tlie U. S., ST3 et
leq.
opinion, publk, ancient i^mparcd with
modeni. lUHi.
Organlxalion of govrtnment (admln-
iHtrative), exiininf! parallels and
contrasts in. 1H7 'I '-f.
Origin of govemmeni. proliaMe, see
Tifpical A nalyiit.
Orleaoists, Frencb. 311.
Onmaric. tbelAoMrlal 3S3. 380.
OMracbm. iD«itDted in Athena by
CliitheDM, Its nator^ mm! operation,
87.
Otto, the Great, 36S.
7S6.
tteUameot, the Ei>|:lii>b. it* esrfy m'f
Intiua, (WI-WO: (--liMis of tbe two
bouH* t^, All ; aul the niiulsten.
tun, en. ma. on.'w w ibnt -,/
Cimm/ihi aad llrntr ■•/ tjurit,
ParllanenI of I'arfji. -an. 'XX,. 'im. »M.
Parliamentaiy Kaforin in Eat(iand,
TIO-Tlfl.
Partlaenentar7 KminriuilMIHr In
France, '.tCl; In ftvrinany. VH; ta
SwlmriatH). KEi; in Aiutrla-llnn-
R»ry, a«; In AnMrtn, fM!: In Wan-
Kttj, Gil; In Ho-^Ix., 'I.'SN; tn Nnr-
way, AM; In KriKl:.i.rl, hiMwry <.r,
iffri.ttTT; at pmm>i '*!, ««-, ouil*r
Uia varlirtu mudrrii lytitm* tit W"''-
enimenl, II.'.)-1IA:>,
l^tronaga if 'ittlm In Vrnm*. W), W.
mt: iffiA-it,. r-tKnrh, imM.vl'rn-
nant in, Wl. 'VM ; foncltnn* iil Ihirlr
Ketate*. 2H4.
VAufitimitUn War. IIi>t, <i\vtifimtun
at, in 4;rM(li |>»l1t1n. i;it.
PertelH, trnliunu* aiKl mtuittutbma)
of, luAlbatx.W.
682
INDEX.
Perioeci, the Spartan, different from
Athenian Metoeci, 98.
Permanent Council^ the, in England,
663; its composition, 664; its pow-
ers, 666.
Persia, wars between Athens and,
their effects upon the Athenian con-
stitution, 89.
Petition, imperative, in the Swiss can-
tons, 519.
PhcBnicians, influence of, upon the
Greeks, 113.
Phratryt a union of 'houses,' 54; a
unit of worship and of military or-
ganization, 55.
Pisistratus, supremacy of, and rela-
tions to the Solonian constitution,
80.
Plebeians, the Roman, who were they ?
152 ; secession of, 153 ; granted Trib-
unes, 154; admitted to share in the
legislative function, 155; admitted
to the magistracies, 156 ; discontent
of, with the uncodified law, 198.
Polemarchus, the archon, 69 ; a typical
officer, 110.
Police, the, in England, 747; powers
of English county councils, 777.
Post-office, the English, 695 ; the Ameri-
can, 1117.
Posts and telegraphs, administration
of. in German Empire, 432; in the
U. 6'., 913, 914.
Prmtorf office of, created, 156; the,
urbaniis as judge, 200 ; as interpreter
of law, 201, 202 ; edict of, 202 ; the,
peregrinuSt 200; functions of, 203;
originates Jt/« gentium, 2W; provin-
cial governors as praetors, 207.
Prefect, the French, :538, 339; control
over local authorities, 346, 347, 350,
351 ; and the Prefectural Council.
354.
Presidency, the patriarchal Greek, 48,
50, 51 ; creation of, 189.
President, the, of France. 319-321;
relations of, to the body of ministers,
326.
President, the, of the U.S., 1097 ; consti-
f»* inno.1 plan of his election, 1098 i act-
ual plan, 1099; qualificatioDS, 1100;
salary, 1101; duties and powers,
1102; his appointing power, 1109-
1105; succession to office of, 1106;
relation of, to Congress, 1107, 1108 ;
his message, 1108.
President, the ' Superior ' of the Prus-
sian Province, 473, 475.
Pr^voty office of, in mediaeval French
towns, 277 ; under Louis IX., 296-7.
Priesthood of heads of family and state
in primitive society, 00, 58-60.
Primogeniture, its connections with
religion in primitive society, 60.
Privy Council, the English, its deri-
vation from the Permanent Coun-
cil, 672; its assumption of judicial
powers, 673 ; administrative depart-
ments of the, 699 ; the judicial com-
mittee of, 736.
Property, given repreaentatton by So-
lon, 73; personal, made basis of
franchise in Athens after Persian
wars. 89; guardianship of, by the
state in Sparta, 99 ; given represen-
tation in comitia centvriata by Ser-
vius, 146, 147 ; relation of the state
to, 1247 et seq.
Proprietary colonial governments, 851.
Provinces, administration of Roman,
under the Republic, 158; under the
Empire, 173. 174, 178, 181-183; medi-
eval self-go vernmeDt of the French,
see Pays d'Mstats ; the French, mili-
tary, not civil, districts, 300; give
place to modern Departments, 308;
the Prussian, administration of, 473-
478; government of the Austrian,
609, 610.
Provinzialrath, the Prussian, 476-478.
Prussia, the rival of Austria, 382; de-
velopment of, from the Mark Bran-
denburg, 383-393; origin of Prussia
proper, 390; becomes a kingdom.
392 ; history of local government in,
440-447,454-466.
Qitmstor, office of, created in Rome.
156.
INDEX.
688
Race, variety of, in Austria-Hnngaiy,
588.
Railways, administratioo of, in Ger-
many, 431; effects of, in U. S. in
aiding the national idea, 878.
Referendum, the, in the Swiss cantons,
521 ; Its history, 522 ; the Swiss fed-
eral, 557 ; practices of the Swiss, in
U. 8., 896, 897.
Reform, period of constitntional, in
Germany. 396.
Reic?isgerichU the German, 436, 494.
Reichsrath, the Austrian, 607, 608.
Reichstag, the Hungarian, 612.
Reichitag, the German, its character
and competence, 413; its composi-
tion, 414, 415 ; sessions of, 417 ; or-
ganization of, 418; election of offi-
cers in, 420.
Religion, its connection with kinship
in primitive society, 28, 29; connec-
tions with precedent, 30 ; the priest-
hood of ancient family and com-
munal heads, 58; private gods and
the representative character of the
priesthood, 59 ; its connections with
primogeniture, 60 ; of the city, 61 ;
and tribal organization {temp, Clis-
thenes), 84; community of, among
the Greeks, 123, 124; politics sepa-
rated from. 193 ; as a source of Law,
1186.
Representation, introduction of the
principle of, into politics, 1130; its
operation, 1131, 1132.
Representative, power of a, 1133.
Representatives, in American state
legislatures, their terms, 932, and
qualifications, 931 ; apportionment
of, in Federal House of Representa-
tives, 1066.
Representatives, House of, Prussian,
466-470; Austrian, 607; Hungarian,
612.
Representatives, House of, U. S., 1065
et 8eq. ; apportionment of represen-
tatives. 1066 ; elections to, lOcfr, 1069,
1070; its organization, 1071-1076;
must originate bills raising revenue,
1081.
Republic, establishment of the Roman,
148; effects of conquests upon the
Roman, 151 ; its breakdown, 157-160 ;
provincial administration under, 158 ;
causes of failure of, 159, 161-164;
economic decay, 162; the third
French, proclaimed, 310.
Responsibility, ministerial, see Parlia-
mentary Responsibility.
Revenue, sources of, in German Em-
pire, 435; the common, in Austria-
Hungary, 599.
Revision, the Court of, French admin-
istrative, 354.
Revolution, the French, governmental
effects of, 305-^07.
Rhode Island, charter of, 860.
Rights, private, Roman conception of,
1238 et seq, ; the state and political,
1264.
Riksdag, the nnreformed Swedish,
representation and separate action
of the four orders in, 619; the pres-
ent, 640. 641.
Roman Law, see Law, Roman,
Romans, the, and the English com-
pared, 1126-1128; contrasted, 1129.
1130.
Rome, government of, see Topical
Analysis; tenure of property in,
1252.
Rotation in office, 970.
Rousseau, J. J., The Social Contract,
18.
Russia, Slavonic village-communities
in, 7; power of the Czar of, 1204,
1210.
Salian emperors, the, in Holy Roman
Empire, 367.
Sanitary Districts, Rural, in England,
789; Urban, in England, 802-804.
Sanitation, a function of the state,
1261.
Savigny. on the stages of legal devel-
opment, 1199.
Saxon emperors of the Holy Roman
Empire, 365, 366.
Schdffengerichte, the Prussian, 497.
School Districts. English, 810.
684
INDEX.
Schools, administration of, in U. S..
1039-1041.
Schulze, the, 442, 443. 455, 4B6.
Scotland, the administration of. 704.
Secession, early tolerance for threats
of, from the Union, 875.
Secretary of State, the, in an American
state, 962-968, 991.
Self-government, local, in France, in
Middle Ages, 273-264.
Semitic Races, their comparative in-
significance in this study, 3.
Senate, the Athenian probouleutic, of
Four Hundred instituted by Solon,
76; of the Areopagus, 77.
Senate, the French, composition, etc.,
of, 314; influence of President and,
321 ; as a court of justice, 355.
Senate, the Roman, constitution of,
under the kings, and change effected
by Servins, 146; its character and
composition under the Republic, 149,
150 ; censors revise roll of. 156 ; centre
of oligarchic power, 163, 104; reform
of, by Augustus, 166; certain prov-
inces left to, under Augustus, 167;
relations of Augustus to, 167; posi-
tion and powers of, under the Em-
pire, 167, 169-171, 179, 214; provin-
cials gain admission to, 173 ; powers
of, all-inclusive, 1240.
Senate, the, of the U. S., its character
and composition, 1055-1059 ; its pre-
siding officers, 1060, 1064 ; its organ-
ization, 1061, 1062; its dealings with
the Executive, 1063; its part in ap-
pointments to office, 1102-1104.
Senators, American state, their terms,
932 ; and qualifications, 934.
Servius, reforms of, 146.
Session, limitation of length of, in
American states, 924. 926.
Sheriff, the English, 751-763, 768; of
colonial Massachusetts, 840 ; of colo-
nial Virginia, 844 ; in the American
states, his election and relation to
the courts, 962 ; contrasted with U. S.
marshal. 963.
Slavery in the way of nationality in
the U. S., 879.
Slaves, the Athenian, 94 ; the Spartan,
97.
Slavonia, 584.
Slavonic village-communities in Rus-
sia, Dalmatia, and Croatia, 7.
Socialism and the modem industrial
organization, 1271.
Society an organism, government an
organ, 1160, 1269, 1273, 1279; new
chancter of political, 1181 ; objects
of, 1273.
Solon, position of, in Athenian tradi-
tion, 19 ; political changes preceding
his appearance in Athenian politics,
67-69; made archon eponymos at a
crisis, 70; his economic reforms, 72;
his political reforms, 73-79; relations
of Pisistratus to reforms of. 80 ; new
principles introduced by. in Athenian
constitution, 79.
Sonderbund, the, 509.
Sovereignty, the feudal conception of,
243; state, in Switzerland, 512; na-
ture of, 1209 et 8cq. ; the analytical
account of, 1227, 1228.
Sparta, see Topical Analysis; prop-
erty system in, 99, 1248-1250.
Spartans, their conquest of the valley
of the Eurotas. 96 ; relations to the
subjected population of Laconia, 96;
relations to the state and to each
other, 99; and the state discipline,
107.
Speaker, the, of the American House
of Representatives, his powers. 1071 ;
his election, 1072; his name. 1073.
State, the, its origin in kinship and
the family, 4; development out of
the patriarchal family, 12; primi-
tive, disconnected with a particular
territory, 14 ; modern, identified with
land, 16; contract theory as to ori-
gin of. 18; traditions of an original
law-giver as creator of, 19; theory
of the divine origin of. 20; criticism
of theories as to origin of. 21 -2^^;
emergence of. from the family stage,
63; guardianship of property by, in
Sparta, 99; Roman allegiance to,
227.
INDEX.
685
State, Department of (U. S.)f HH*
States, the, of the Union, constituent
members, not admin Istrative divis-
ions, 884; their ctiaracter, organs,
and functions, see Topical Anuhfsi*.
States-General, the French, origina-
tion of, 288; character and powers
of, 289.
8tatu$, the law of, in primitive society,
17, 21, 32.
Stein, Barou vom, reforms of, 452, 457,
471. 473, 4{X), 500.
Sumhing^ the Norwegian, 646. 647.
Straiegoi (generals), ten, created in
Athens by Clisthenes, 86 ; their rela-
tkms to the archon polemarchos and
to each other in the field, 86 ; typical
oflioers, 110.
SnlErage, see Franchise.
Sulla, 164.
Sumptuary Laws, 1263.
Superintendent of Education, the, in
an American state, 992.
Sweden, see Topical Analysis, Sweden-
Norway.
Switzerland, emergence of, from Ger-
many, 373; see Topical Analysis,
Sysaitia, the Spartan, 107, 110.
Tables, the XII., prepared, 198; ex-
panded by interpretation, 199; ap-
plied by the Praetor, 201.
Taxation, variety of laws touching, in
U. S., 906; local and state, in U. S.,
1042, 1043.
Telegraphs, see Posts and Telegraphs.
Territorial sovereignty, development,
of, in Germany, 359->'%2.
Territories, the, of the U. S., 1052;
courts of the, 1093, 1094.
Territory, the federal, in U. 8., 1047
et seq.
Teutonic Customs, Ancient, their evi-
dence as to social organization, 7;
institutions in Sweden and Norway,
616; origin of the English constitu-
tion, 651-654: Law spoke national
character, 1208.
Teutons, and Roman legal institutions,
219; contact of, with Rome, 221;
primitive institutions of the. 222-
228 ; communal government among,
222 ; free, unfree, and noble among
the, 223; inter-communal govern-
ment, 2:M; military leadership, the
comitatus, 225 ; principle of personal
allegiance among the, 225, 227, 228,
2:^ ; cwitoms of, affected by Roman
law, 22<)-2:{l: institutions of, in
Sweden and Norway, 616; the, in
England, 652-651.
Theatre, largess to enable the com-
mons to attend the, in Athens, 90,
increased, 92.
Thebes, brief supremacy of, 132.
Thesmothetas, the, their judicial func-
tions, 09.
Town-meeting, American, 999, 1003,
et seq,^ passim.
Towns, Roman law in the, of the Mid-
dle Ages, 217; of Middle Ages per-
petuate and transmit Roman princi-
ples, 232; feudalism and the, 244;
guilds in the mediseval, 245 ; leagues
of the Hanse and Rhenish. 24f> ; lib-
erties of, in mediaeval France, 276;
non-Roman mediaeval French, 277,
278; mediaeval, and the Crusades,
279; privileges of, in medisval
France, 280; and forms of govern-
ment, 281; decay of independence
of, in France, 282; subjection of,
to the king in France, 287; of Bran-
denburg, 441-444; the Xew Eng-
land, their separate foundation at
first, 837, their union, 838, their
forms of government, 839.
Township, the American, Its historical
origin, 999; absorbed into larger
units of government, 1001; partial
decay of, 1002; its organization in
New England, 1003-1005; of the
Northwest. 1006-1008; it^ origin there,
1009; its spread in U. S., 1010, 1011 ;
its organization outside of New Eng-
land, 1012-1017 ; of the Middle Atlan-
tic States, 1019, 1022 : of New York,
1020; of Pennsylvania, 1021: in the
South, 1023; in Virginia, 1023.
Trade, the state in relation to, 12S6.
I
TreMUrer, the, of Iin AineriMUi t
9M. '.191.
TreosUTy Depart meut, Ilia Englith,
Omi-ffiW; of tlie t'. .v., 1112.
'Tribe,' Ui», Vi; & uuluu ul phrairiei,
M ; a imic ol woraliiii, 05,
Tribvg, iievr Atheninn, created by Clis-
tlieDBS, S2; relleioD nnil the trlbitl
organ izfttloii, M.
Tribuues of Ous people, 164, IK) ; inflt-
tary, 1B6.
Triumvirates, second and third, lUfi.
Trojan war, algnificancy of, 36, 116, 125.
Tumniau Races, tlieir comparative in-
■ignillcance So this study, 3.
Union, prpliminary stops tnirardB the
American, mvi; the Con federal Ion,
865-86T; ii<«d fur a better, »»:
character uF the presenl. M2-SS4 ;
early sent! Ill en Is Iowa rda. 874 : early
tolerance lor threau of iteceBBlon
(rora.HTB; compk'led by Civil War,
880.
'Union,' the English Poor-law, T8T,
T8». VM-TVU.
Un)t«d States, eovernment of the, see
Tapieal Analyiiit,
Dntrersitles, cretiied bv siuily of the
Boouil law in the Midrile Ajtes, 2BM,
tan slittes. 9T8, 961 ; of the President
If Ibe V. 8., lOTT.
Vice CliHDuelloi, Uio Ootmau liuperiii!
Veto, t
^ popuhw, in Swiss i-
43(i.
Vice Presideiit of tiie U. S., 1060, IWr;,
10!».
Viiiagts, government of American
Virginia, coioiiial, governnienl of, Sit
045.
Voyt, Uie, M3.
War, DeparUnent ol (U. S.), 1114.
War, Uie Clrii, in V. 8., compleus tl
Union, ma.
War and Domains Chambers. 4
*r.g., 4)41 ; fusion of tli« admlnlstn
tion of War and o[ Domains in P
sla, 400: Commissariats,
War, the Thirty Venrs", 379; llw
dcrbuiid. SOe.
WilvnaKemol, Ilio Ene'ish. Its «
<isa; its powers, 0S7i merged
tbe Qreat ConiieJI of the Mi
kinpi, m.
Works, public, and the i
Wiirttemberg, relatiom
German states. nSH. %IT, 399,
independent of. in adminisli
of pimlsaiid teicgraplis, 432; in
tary administralton, 4.11.
1209.
Zolli'erein, the, 3D6.
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