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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&lt«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 th e 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 unperai ive 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 cor rection 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 Constit ution 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 itpi f ii Bf ui tt t «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 am mg eme nti . 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 
IMtiy I Sc CT t Ui y of State for the Hose D>gp ifLt , a Priacxpol 
Hmnimtj of Scote for FoRi^B AMma% a Pknapol Sccretarr of Stale 
for titt Colonca, a Vi'muf ml Stcie iaij 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 CifftH wa^ — 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 m ctm mrj 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 pc tacn t 
munber of peen bold p eer a gc i 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. 



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 ch